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 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY 

 
 J
 
 BY THE SAME AUTHOR. 
 
 CROWN AND NISI PBIUS CASES, 
 
 IN ALL THE COUKTS, 
 
 For the Ten Years from 1S56 to 18(56 : With Notes to the more important 
 Cases, elucidating the Law, and collecting the Authorities on the subjects 
 to which they relate. In Four Volumes. Edited, ami chiefly reported by 
 \\ . F. FINLASON, Esq., of the Middle Temple, Barrister-at-Law. 
 
 "A valuable addition to our reports."- Jurist, July 3rd., 1858. 
 London : Stevens & Sons, 26, Bell Yard ; Sweet ; and Maxwell. 
 
 A TREATISE UPON MARTIAL LAW : 
 
 As allowed by the Law of England in time of Rebellion : With Illustrations 
 Drawn from the Official Documents in the Jamaica Case; and Comments, 
 Constitutional and Legal, chiefly with reference to civil and criminal 
 responsibility for acts done in execution of Martial Law. By W. F. 
 FINLASON, Esq., of the Middle Temple, Barrister-at-Law. 
 
 London: Stevens & Sons, Bell Yard. 
 
 OPINIONS OF THE PRESS. 
 
 "The publication of Me. Finlason's treatise— simultaneously with the Report of the 
 Royal Commissioners— is extremely opportune. Singular though it may seem, the 
 subject of martial law has never, until now, been treated of by any of our legal writers. 
 And as a natural consequence, the ignorance manifested when it became important to 
 determine its nature, and the rules by which it is governed, was almost universal. * * * 
 It is not too much to say, that much of this misconception would have been avoided 
 if such a treatise on mar iwhad l 'en extant as that which was before us. Those 
 who are acquainted with Mb. Fini.a »n's writings are well aware of the exhaustive 
 
 pr SB to which he submits very subject which he handles, and will not be surprised 
 
 to learn that he has broached no opinions which he is not in a position to support 
 by a host of authorities. As a useful commentary, Mu. Finlason's book merits a place 
 in the librarj of i very • ducated man. For the legal profession it supplies a want which 
 ng been felt." — Morning Post, July 30th, 1800. 
 
 "Me. Finlason adds to his text a full commentary— constitutional and legal— bristling 
 with innumerable authorities." — Daily News, September 30th, 1800. 
 
 NOTICES OF THE PRESENT WORK. 
 
 "The author has swept every corner in his research for authorities in any way bear- 
 ing on his theme; and in this work will be found all that can be known on the subject 
 of martial law." — Law Journal, September Gth, 1807. 
 
 "It is well that anj doubts which hang around :n rtial law should be the subject of 
 te enquiry. * * The author maintains that martial law, on occasions of 
 
 mergency, is part of our constitutional system. * * let the agitation of the 
 
 question proves tii nee. ssitj for determining the character oi martial law, the authority 
 
 which it confers, and the restraints and regulations by which its exercise ought to be 
 
 con Iders that the instructions lately sent to the Governors of 
 
 from iii Colonial Office are sufficient to answer this purpose." — Morning Post, 
 
 16th, 1807. 
 "There is no saying how things may grow: and no system of civilized jurisprudence 
 would be complete if it did not recognize such a power as Mr. Finlason clearly estab- 
 
 the British Crown. We heartily recommend his hook to every lawyer; and, 
 indeed, to every student of constitutional history."— Morning Herald, September 19th, 1867.
 
 -*» 
 
 
 Ei 
 
 COMMENTARIES J ST/ 
 
 MARTIAL LAW, 
 
 WITH BPECIAL REFERENCE TO ITS 
 
 REGULATION AND RESTRAINT ; 
 
 gat ^nirotmctton, containing (Comments 
 
 uros THE 
 
 CHARGE OF THE LORD CI IEF JUSTICE 
 
 J£AICj 
 
 OF TUB MIDDLE TEMPLE, BARRISTER- AT-LAW J AUTHOR OF THE "TREATI8E 
 UPON MARTIAL LAW," AS ILLUSTRATED IN JAMAICA. 
 
 LONDON : 
 
 STEVENS AND SONS, 26, BELL YARD, 
 
 LINCOLN'S INN. 
 
 Xofn booksellers nirtr ^publishers. 
 
 1867.
 
 T 

 
 ERRATA. 
 
 Page 8, line 15, for " legal," read " illegal." 
 
 Page '.), line 4, for "as," read "on." 
 
 Page 11, Hue 8, dele "when." 
 
 Page 25, line 11, for the full stop, insert a comma before " this." 
 
 Page 27, line 14, dele "it," and lower down for "or any," • 
 " ordinary.'' 
 
 Page 29, line 10, dele "if." 
 
 Ije 33, line 2, for "of things," read "state of things,'' and I 
 dst," read " ex: - ; 
 
 for "spoken," read " shaken." 
 Page 66 (in notis), line 24, for " persons," read " prisoners." 
 Page 116, line 1, for " without," read " with." 
 Page 127, line 13, in note, Lefore "men," insert " armed." 
 
 Page 142, at commencement of line 1, insert "with," and add to 
 authorities cited in the note Wharton's Law Lexicon : " Martial 
 Law ;" " The Law imposed by the Military Power.'' 
 
 Page 155, in note (near foot of page), for " upheld/' read -'replied" 
 
 Page lf-7. line 7, after "extended," read "and if it has been ho 
 adopted, then martial law can only be lawful." 
 
 Page 204 (in notis), for " offences," read "officers." 
 
 Page 205 (in notis), line 4, for " in resisting," read " unresisting." 
 
 Page 215 (in head line), for "places," read " place." 
 
 Page 221 (in notis-), line 4, for " afloat," read " abroad." 
 
 Page 239, line 9, dele " and." 
 
 Page 259 (in notis), for "recording," read " regarding." 
 
 ■ 267, line 10, for " measures of law," read " war." 
 
 Page 269, line 6, for "loci," read "fori." 
 
 Page 283, line 7, for " emergencies," read " emergency." 
 
 •.• I lie author desires to disclaim any intention to write disrespectfully of the Lord 
 Chief Justice. At page 37, line 3, after " despotic," insert "no doubt the Lord Chief 
 Justice meant no authority in the sense of direct judicial decision." one ol the 
 learned Judges, however, has referred the author to the case of Luthers v. Borden, 
 7 Howard's Supreme Court Reports (N.S ). which declared the constitutional legality 
 of martial law, in time of rebellion, et vide post, pages 112, 115 
 
 author deems it only candid to acknowledge that in Bome isolated passages of 
 bis former work — construed without reference to others — there might be an apparent 
 Inaccuracy, which might provoke some condemnation. The Lord Chief Justice, how- 
 ever, did not confine his strictures to those passages, hut denounced his fundamental 
 and 1 12), which the authoi deemed it his duty to 
 maintain, and in doing so, to re-state the law on (lie subject — re-state it with :.. 
 care, correctness, and completeness.
 
 Tmr&ifi 
 
 CONSIDERATIONS 
 
 MARTIAL LAW. 
 
 INTRODUCTION. 
 
 From times coeval with the very origin of our liberties, 
 there has come down to us the doctrine, that in time of 
 rebellion the Crown might, for the restoration of peace, 
 declare war, and exercise its severities, against rebels. This 
 right or prerogative of the Crown was admitted, even by 
 the authors of the great charters, at the very time they 
 were affirmed and upheld, and it was indirectly, but dis- 
 tinctly recognised by the high court of Parliament in a 
 judicial decision (a), which declared its exercise illegal in 
 time of peace. It was exercised on every occasion of 
 insurrection which occurred in our annals, without either 
 any statute to authorise it, or any act of indemnity to 
 legalize it, except that in one instance, on account of 
 dreadful excesses, an indemnity was deemed necessary : an 
 exception which only serves to prove the rule. The 
 exercise of this right is described, under the name of 
 martial law, by all historians, and by one so accurate as 
 Lord Bacon, who was a lawyer as well as an historian ; and 
 
 (a) The case of Thomas of Lancaster, in which Parliament declared the 
 execution illegal, because it was in time of peace (in tempore pacis) ; and 
 both Coke and Hale cite this as a case of martial law. The Lord Chief 
 Justice in citing the case, omits the material words, " in tempore pacta," 
 which Coke and Hale point out as the ground of the decision. 
 
 B
 
 2 INTRODUCTION. 
 
 there are passages which show that he was aware that its 
 exercise, except for the suppression of rebellion, was un- 
 doubtedly illegal. In his time, indeed, this was lost sight 
 of, and it had become applied, by commission, for the 
 punishment and extirpation of all ordinary offences, in 
 ordinary times. This was declared by the Petition of Right 
 to be illegal (a), but neither the authors of the petition, who 
 continued to exercise it, nor the commentators upon it, 
 such as Lord Hale, ever dreamt that its exercise, for its 
 proper purpose, was abolished. And from that time to 
 the present, in most familiar text books (b), there is an 
 unbroken tradition of legal doctrine, that martial law, in 
 which the Crown is absolute, is allowed by the law of 
 England in time of rebellion. It is true that, as at com- 
 mon law, an army would be illegal, except in time of war, 
 
 (a) The petition recited that certain commissions had issued with power 
 to proceed according to the justice of martial law, against such soldiers or 
 other dissolute persons, as should commit any robbery, felony, mutiny, or 
 other misdemeanour ; and by such summary course and order as is agree- 
 able to martial law, and is used by armies in time of war, to proceed to 
 their trial and execution according to martial law; and enacted that here- 
 after no commissions of the like nature may issue forth to any persons 
 whatever to be executed as aforesaid, lest by colour 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. 
 
 (b) " Martial Law. — The law of war, that depends upon the just but 
 arbitrary power and pleasure of the king, or his lieutenant ; for though the 
 king doth not make any laws but by common consent in Parliament, yet, 
 in time of war, by reason of the necessity of it, to guard against dangers 
 that often arise, he useth absolute power, so that his word is a law" (Smith de 
 liepub. Aug., lib. 2, c. 4). This is cited in Blount's Law Dictionary, ed. 
 1670; in Cornell's Dictionary, cd. 1727 ; and in Jacobs, and in Tomline, ed. 
 1835. It is also adopted in substance into American works (ride liurrell's 
 Lav) Dictionary, New York ed., 18. r >l, in which there is the following, under 
 the head of "Martial Law.— A. system of rules for the government of an army 
 or adopted in times of actual war. An arbitrary kind of law or rule, some- 
 times established in a place or district occupied or controlled by an armed 
 force, by which the civil authority and the ordinary administration of the 
 law are cither wholly suspended or subjected to military power."
 
 INTRODUCTION. 4 
 
 and therefore there were no soldiers but in time of war, 
 so under the name of martial law, which means literally the 
 law of war (a), originally were included, not only that, but 
 also the rules established for the government of the army 
 as a military body, and which would more properly be 
 called military law, but extended to all the offences of sol- 
 diers ; and that led to an apparent ambiguity, for military 
 law, of course, in its nature, is only applicable to soldier. 
 But when a standing army was established, and this 
 regular military law was enacted by statute, the other, 
 
 (a) It is so defined in old books, from its evident etymology, whereas 
 military law is, it is equally evident, in an etymological sense, the law of 
 an army. When there were no soldiers but in time of war, the first of 
 course embraced the second ; and as this was so in Lord Hale's time, he 
 uses the term martial law in that double sense, and, in a passage cited by 
 the Lord Chief Justice, says it is no law, but something indulged, and 
 indulged ouly to extend to the members of the army, or to those of the 
 opposite army, and not to others, even though it were a time of war ; and 
 that its exercise was not allowed in time of peace, which he says was in 
 substance declared by the Petition of Right. But as regarded soldiers, it. 
 applied to all their offences. Then (as explained in the case of Grant v. 
 Gould, 2 Henry Blackstone's Rep.), when our army was allowed in time of 
 peace, martial law, in the sense of regular military law, ceased, except as 
 embodied and enacted in the Mutiny Act, and was allowed only as regarded 
 military offences, and not as regarded ordinary offences (ibid). Therefore 
 martial law became in time of peace, and for ordinary offences, exploded, 
 as any part of our constitution, and remained only as the law of war. 
 And accordingly that case is cited in MacArthur on Court Martial, as 
 showing the distinction between martial law and military law. We find 
 that, when the great commentator wrote, all ambiguity had been removed ; 
 and thus he wrote of martial law : " Martial law is built on no settled prin- 
 ciples, but is entirely arbitrary in its decisions, and is not indeed law, but 
 something indulged rather than allowed as law : a temporary excrescence 
 bred out of the distemper of the State, and not any part of the permanent 
 and perpetual laws of the kingdom, and therefore it ought not to be per- 
 mitted in time of peace." And therefore, he goes on to say, the execution 
 of Thomas of Lancaster was declared illegal, because it was in time of peace, 
 and it was laid down, that if a lieutenant hang any man in time of peace 
 by martial law, it is murder,'' which is cited from Coke, in whose time 
 soldiers were raised for actual war (1 Blackstone's Commentaries, ed. 
 1800, p. 413). The Lord Chief Justice thinks these passages only refer to 
 soldiers; but this is not the ground given by Parliament, by Coke, by 
 Hale, or by Blackstonc. This passage is commented upon in Tythr, 
 
 B 2
 
 + INTRODUCTION. 
 
 which is martial law proper, was understood as, in its 
 proper sense, the law of war alone, and as absolute 
 military rule ; and at the time our great commentator 
 wrote, was thus explained and elucidated as undoubted 
 law ; and from that time to the present has been so laid 
 down, in all books of civil or military law. After the era 
 of the Revolution, it is true that the exercise of this prero- 
 gative, at all events, in its fulness, never arose in this coun- 
 try, by reason, as Hallam observes, of our standing army ; but 
 in Ireland, where the common law is the same, and where the 
 necessity for martial law has unhappily arisen almost within 
 living memory, it was exercised, without any statute to 
 authorise it (a) ; and although, by reason of horrible excesses, 
 bills of indemnity were required, and in several instances, 
 as those of Wolfe Tone, Mr. Wright, and Mr. Grogan, its 
 exercise after the rebellion was over, or in districts where 
 it had never been, and where, in fact, martial law did not 
 exist, was undoubtedly illegal : yet even, when after the 
 Union the Imperial Parliament thought fit permanently to 
 regulate the subject, it not only did not negative the pre- 
 rogative of the Crown to declare martial law, but dis- 
 tinctly declared it, and carried it further, providing for its 
 exercise not only in cases of actual, but apprehended 
 rebellion ; and in districts where peace was not so destroyed 
 but that the common law could have its course. And so 
 even in our own time, no later than in the last reign, 
 
 on Military Law, as if it referred to military law ; as though the great com- 
 mentator were not aware that it had been for the greater part of a century 
 e itablished by statute ! Tin;* distinction between martial law and military 
 law, when the ab ,ve explanation is given, is easy and obvious ; but without 
 attention to the history of the subject, there is an apparent ambiguity in 
 the earlier works, which is likely to mislead, and as it misled Tytler, so it 
 has misled the Lord Chief Justice, who evidently followed Tytler, a writer 
 rather historical than legal ; instead of the works of Hough, MacArthur, 
 a nl Simmons, which have been in use in the army to the present 
 time as text books, and which mark the distinction in the clearest and 
 strongest manner. 
 
 (a) In 179'J, before any statute authorizing it, martial law was proclaimed 
 by the Lord-Lieutenant of Ireland, the proclamation stating that His
 
 INTRODUCTION. 5 
 
 Parliament passed an Act relating to Ireland, in which 
 the prerogative was not only declared, but enacted, and 
 elaborate provisions were laid down for the regulation of 
 its exercise in times of apprehended rebellion, and more 
 especially for the trial of rebels by court-martial, whether 
 civilians or soldiers. 
 
 Majesty's general officer had orders to punish, according to martial law, by 
 death OT otherwise, all persons acting or in any manner assisting in the 
 rebellion. Under this proclamation great excesses were committed, not 
 only in the district in which the rebellion existed, but in other districts. 
 The rebellion was in Wexford, but Mr. Wright was flogged, without any 
 military authority, in Tipperary ; Wolf Tone was tried in Dublin, where 
 there was no martial law, and the courts were sitting ; and with refer- 
 ence to the case of Mr. Grogan, who was tried by court-manial in 
 Wexford, in 1798, it is enough to say that if it was after the rebellion 
 was thoroughly quelled, it was therefore illegal ; and, though th Lord 
 Chief Justice does not state the facts, it would rather appear that this 
 was the case, and that, therefore, the execution was illegal ; and further, 
 it was a case of treason, which might, be constructive in conspiring to rebel; 
 and it is to be observed that the opinion of Mr. Hargreave, cited by 
 the Lord Chief Justice, treats of it as an execution for treason, and 
 his opinion against it is evidently grounded on the assumption that the 
 rebellion was over ; for he says that " he saw the right to arrest those in 
 rebellion, and to have them imprisoned for trial according to the law of 
 treason; but he could not see that trying rebels, according to martial law, 
 was, when Mr. Grogan was put to death, part of the law of England," and 
 then he refers to the Petition of Right and Lord Dale's comment upon it 
 already alluded to, to the effect that martial law is illegal in time of peace, 
 that is, when rebellion was over ; or when it was merely apprehended ; for 
 which reason a statute passed to authorise it in such cases. And in Wolfe 
 Tone's case, the question was put upon the same principle, and Mr. Curran, 
 the prisoner's counsel, admitted that if the rebellion were raging, martial 
 law would have been legal. And be it observed that these were both cases 
 of civilians. These, therefore, were cases of illegality ; and there were 
 also horrible excesses, which required bills of indemnity. But the 
 Imperial Act, the Irish Rebellion Act (18o3), applied, whether or not 
 the courts should be open, and applied to apprehended rebellion, and 
 declared, " That nothing 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 suppress treason or rebellion." And 
 the 3 & 4 Wm. III. c. 4, declares and enacts that, nothing shall take away, 
 abridge, or diminish the acknowledged prerogative of Her Majesty, tor the 
 public safety, to resort to the exercise of martial law against opeu enemies 
 and traitors.
 
 b INTRODUCTION. 
 
 So in India (a), if not in any of the colonies, regula- 
 tions, or acts of legislature, were passed, providing for the 
 exercise of this important power. In 1846, an Act of the 
 Legislature of Jamaica, passed for the purpose, received the 
 sanction of the Crown under the government of Lord 
 Russell (b), and distinctly authorised the Governor in 
 Council to declare and exercise martial law for the sup- 
 pression of rebellion, without any definition or limitation of 
 the term, without any restriction of its exercise> and leaving 
 it to be applied and exercised according to the sense in 
 which it was understood by Parliament in the other Acts, 
 and in which it was explained by all text books of military 
 law in the hands of the British army, as the application of 
 absolute military law to the whole population. 
 
 Nor was this the doctrine of military writers alone (c), 
 nor even of lawyers in this country. It was equally laid 
 down by the greatest constitutional writers, not only in this 
 country, but America : and while the illustrious Hallam 
 declared (d) that martial law was the suspension of civil juris- 
 
 (o) In 180 1, by Regulation X., the Government of India declared that it 
 may be expedient, in certain cases, that the Governor-General should declare 
 and establish martial law ; and then it made provision for the regulation 
 of its service. This was put in operation, and in 1817 was subjected to the 
 comment and exposition of that sound lawyer, the late Serjeant Spankie, 
 the Advocate-General of Bengal; and it is printed with his exposition in 
 II'iikjIls Military Law, ed. 1835. So in MacArthur on Court Martial, and 
 Simmons an Court Martial — all books of received authority in the British 
 army — martial law is described as absolute military power, applying to 
 the whole of the inhabitants of the district. 
 
 (b) The 9 Vict. c. 35, which recited that it might be necessary to declare 
 martial law, and then provided that it should not be declared except with 
 the assent of the council. There was thus a restriction upon the power of 
 declaring it, but no regulations for its exercise. 
 
 (c) " 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 to be exercised in time of rebellion " {MacArthur 
 on Court Martial, 1-10). So in Simmons on Court Martial, 1-14. 
 
 (</) " There may, indeed, be times of pressing danger when the conser- 
 vation of all demands the sacrifice of the legal rights of a few; thore may 
 be circumstances that not only justify, but compel the temporary abandon-
 
 INTRODUCTION. 7 
 
 diction, just as the Great Duke declared it to be the will of 
 the commander, the great Chancellor Kent declared it as 
 the absolute rule of a military chief. 
 
 In this position the subject was left, both by Parliament 
 and the Government, in our colonial and foreign depend- 
 encies. There were, for the most part, no definite instruc- 
 tions to colonial Governors or military commanders, beyond 
 those contained in the books on military law. And 
 accordingly, when in 181-1), a rebellion broke out in Ceylon, 
 martial law was declared and exercised with some severity 
 over the whole population of the disturbed districts, for a 
 period of ten weeks. 
 
 On that occasion, under the government of Lord Russell, 
 it was declared by the Government (a), that the Govemur 
 
 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" (Hallams Const. Hist., vol. L). " Martial law is quite a dis- 
 tinct thing (i.e., from ordinary military law). It is founded on paramount 
 necessity, and proclaimed by a military chief" (Kent's Commentaries, vol. i., 
 10th ed., p. 377). 
 
 (a) On that occasion, the duty of a Colonial Governor in such a situation 
 was thus described by an eminent statesman (Lord llussell), then at the 
 head of the Government. " Be it observed that the news of that insurrec- 
 tion came suddenly upon the Governor. lie immediately sent for an 
 officer, to whose discretion and whose experience he might well trust. He 
 acted according to that opinion, lie immediately saw the general com- 
 manding the forces. He took means by which troops should be at once 
 sent to the points at which the insurrection had broken out. lie took 
 other means by which the rebels might be promptly met, and the rebellion 
 promptly suppressed; and, in order to do that more effectually, with the 
 concurrence of the general and the Queen's Advocate, he })roelaimed martial 
 Liu- in that district of the colony which teas disturbed. The effect was imme- 
 diate and most salutary, because, in a few days the armed i - esistance had 
 .-. ased. But I must admit that it is a most serious resolution to come to, 
 the establishment of martial law in any district, or in any part of a colony, 
 on account of those circumstances which are inherent and inseparable from 
 martial law. But the Governor had to consider, that if, on the one hand, 
 martial law cannot be continued without the risk of punishments which 
 may reach not the most guilty, but those who have appeared in arms, and 
 are guilty according to the law of high treason and rebellion; on the other 
 baud, the consequence of refusing to continue martial law or to put it in 
 force may bo this, that rebellion may gain a head ; that insurrection, which
 
 8 INTRODUCTION. 
 
 had done his duty in thus declaring and carrying out mar- 
 tial law. When Lord Cottenham and Lord Campbell were in 
 Parliament, and the Attorney-General was Sir John Jervis, 
 and the Judge Advocate-General was Sir David Dundas, 
 an inquiry took place before a Committee of the House of 
 Commons — an inquiry conducted by the most eminent men 
 in Parliament at that time (a), and the Judge Advocate- 
 General, and other persons of authority, were examined, 
 and broadly and distinctly laid down the doctrine of martial 
 law as it had thus been carried out, in terms so strong as 
 to include everything which the military authorities 
 might deem necessary for the entire suppression of rebel- 
 lion, and the restoration of peace and order ; and, indeed, 
 Sir David Dundas boldly declared that no act done under 
 such authority would be legal, unless such an act as could 
 not possibly be lawful, as wanton cruelty to non-com- 
 batants. 
 
 at first is weak and may be easily crushed, may become formidable ; that 
 the whole order of the colony may be destroyed; that the allegiance which 
 is due to the Crown may be withheld ; that property to an indefinite extent 
 may be spoiled and ruined ; but, above all, that humanity, for the sake of 
 which martial law was withheld, that humanity itself may be lost sight of, 
 and many more lives may be lost in the struggle that may ensue than would 
 have been lost if martial law had for a few weeks been continued (Lord 
 Russell, House of Commons, May 29, 1851). 
 
 (a) The committee took a great deal of evidence, comprising that of the 
 Advocate-General of the colony, Sir J. E. Tennant, Colonial Secretary, and 
 Sir David Dundas, Judge Advocate-General ; and they all laid down the 
 above doctrines. " The Governor may declare martial law upon a necessity, 
 of which he is to judge "(Ev. of Selby, the Advocate-General, Q. 1361). 
 " The Governor gave 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. 334G). To the same effect was the evidence of Sir D. Dundas, 
 the Judge Advocate-General. After stating that martial law was far more 
 extensive and arbitrary even than ordinary military law, and is not bound 
 by written laws and formal rules, he said, " I can conceive of cases in which 
 Bomcthing might be done which no necessity could possibly justify, as the 
 torture of a child " (Report of Committee of Inquiry, 1850, Q. 5448). 
 " Martial law is a ' Lex non Scripta,' it arises on a paramount necessity to 
 be judged of by the Executive. Martial law comprises all persons. All 
 Are under it in the country or district in which it is proclaimed, whether
 
 o- • 
 
 INTRODUCTION. ' £ 9, ^/ 
 
 On that occasion, also, debates took place upon the 
 subject in both Houses of Parliament, and in the course of 
 those debates these doctrines were declared and laid down 
 as the authority of the greatest lawyers, and the highest 
 civil and military authorities in the country (a). And 
 although the attention of the Government and of Parlia- 
 ment was thus called to the question, no measures were 
 taken by Government or Parliament to lay down any 
 definitions, restrictions, or limitations as to the great power 
 thus asserted and declared, or to provide any regulations 
 for its exercise ; indeed, it was declared impossible to limit 
 or define it ; but it was left, as before, simply as being, 
 
 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 conducted, or 
 power exercised under martial law ; but, as a rule, I should say that 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." It over- 
 rides all other law. " It is entirely arbitrary ; it is far more extensive 
 even than ordinary military law" (Vide Ev. of Sir D. Dundas, Judge 
 Advocate-General, before the Ceylon Committee, 1849-50). 
 
 (a) The Duke of Wellington said, in the House of Lords, on the 1st 
 April, 1851, in reference to the Ceylon rebellion of 1849, "That martial 
 law was neither more or less than the will of the General who commands 
 the army ; in fact, martial law is 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, for it is 
 exactly in accordance with what I myself wrote to my noble Lord Tor- 
 rington, at the period of those transactions in Ceylon. I am sure I was 
 not wrong in law, for I had the advice of Lord Cotteuham, Lord Camp- 
 bell, 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 sake of public safety, in circumstances of great emergency, 
 getting aside all law, and acting under the military power.'''' Sir J. W. Hogg 
 Chairman of the East India Company, said in the House of Commons, on 
 the 29th of May, 1851, when an hon. member was inclined to carp at the 
 statement of the Judge Advocate-General (Sir D. Dundas), that martial 
 law was a denial of all law : " But the Judge-Advocate was quite correct ; 
 it was a denial of all la*v, and could not be the subject of regulation; when 
 martial law was proclaimed, the commanding officer must use his discre- 
 tion" (Pari. Deb. 1S51, Ceylon).
 
 10 INTRODUCTION. 
 
 according to the common consent of all authorities, the 
 establishment of absolute and discretionary military power. 
 Nor was this all. Ten years later, so recently as 
 1859 (a), the same doctrines were distinctly and broadly 
 laid down by Mr. Headlam, the Judge Advocate-General 
 of the time, in an official letter, which was published, and 
 which no one ventured to challenge, and in which the 
 nature of martial law, as absolute military authority, over- 
 ruling all ordinary law, whether military or municipal, was 
 clearly and unequivocally maintained, with the entire 
 
 («) Letters of the Judge 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, 
 and is recognised by the legislature under the term ' custom of war.' The 
 former, namely, martial law, which is the subject of the present inquiry, is 
 so arbitrary and uncertain in its nature, that the term ' law ' cannot be pro- 
 perly applied to it." "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, martial law means no law at all, therefore, the general who 
 declares martial law, and commands that it should be carried into execu- 
 tion, 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 military 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 Defences, p. 90). It will be observed how entirely this distin- 
 guished person agrees with the illustrious Hal lam, and with Chancellor 
 Kent, the two great constitutional authorities of our age. It may also be 
 observed that the very words in which all these eminent authorities embody 
 their view — " no law at all " — are borrowed from the illustrious Hale, that
 
 INTRODUCTION. 1 1 
 
 approbation of the Government, of Parliament, and the 
 whole country. And upon this footing the subject was 
 left as before, except in Ireland and India, without any 
 other definition, without any restriction or limitation, and 
 without any regulation for the future exercise of this tre- 
 mendous power, admitted to be vested in any Colonial 
 Governor. 
 
 Accordingly, when on the occasion of the recent rebel- 
 lion in Jamaica, the Governor under a local Act not defin- 
 ing martial law (a), but simply imposing certain conditions 
 or restrictions upon the power of declaring it, which the 
 statute itself implies was already in the Governor, he, under 
 the advice of the Attorney-General, and with the assent of 
 the Council, declared it in a form of proclamation, drawn 
 in accordance with these traditions and doctrines on the 
 subject, and purporting to place the whole district under 
 military rule, and to empower the troops to use the mea- 
 sures of war against those found in rebellion. And he, in 
 conjunction with the Commander-in-Chief, upon that prin- 
 
 is, as applied to unwritten and irregular military law, 'as distinguished 
 from regular or written military law. Throughout his charge the Lord 
 Chief Justice has confounded these two different things. 
 
 (a) 9 & 10 Vict. c. 35, s. 96, " Whereas the appearance of public danger by 
 invasion or otherwise may sometimes make the imposition of martial law 
 necessary ; yet as from experience of the mischief and calamities attending 
 it, it must ever be considered as amongst the greatest of evils, be it enacted 
 that it shall not in future be declared or imposed but by the opinion and 
 advice of a Council of War consisting as aforesaid." And the Governor 
 bliall be authorised (with such advice), in the event of disturbance or emer- 
 gency, to declare any district under martial law (s. 97). The phrase 
 martial law, here used in a statute, which does not define it, must therefore 
 be understood in the sense in which it was understood and received before 
 the statute ; and the advisers of the Governor so understood it, and inter- 
 preted it in that sense. If they were wrong, whose fault is it? Surely 
 the fault of Government and Parliament, whose highest authorities had, for 
 a long course of years, so taught them. But it is conceived they were 
 right, and that martial law means this or nothing. The Lord Chief 
 Justice seems to admit that if there ever was a case for martial law in 
 that sense, this was that case, and that, under the statute, it applied to all 
 in rebellion.
 
 12 INTRODUCTION. 
 
 ciple, appointed an officer to command the district, who 
 accordingly assumed the entire and exclusive government 
 of it. 
 
 On that occasion, when the Governor, under the Local 
 Act, with the assent of the Council, declared martial 
 law, there were no regulations for its exercise (a). No 
 instructions have been issued either to Colonial Governors 
 or to military commanders by the Crown ; and, indeed, 
 both Parliament and the Crown had acquiesced in what 
 was laid down in the Ceylon case, that no definite instruc- 
 tions could be issued. At all events none were issued, 
 and on the breaking out of the rebellion the Governor was 
 left to his own discretion ; and he, having declared martial 
 law, left its execution to the military commander. 
 
 The Governor evinced from the first every desire to 
 control and regulate the execution of martial law, to 
 shorten the period of its operation, to substitute as soon as 
 possible a policy of prevention for one of punishment, to 
 limit the infliction of capital punishment to the most 
 serious cases, such as murder or arson (b), to limit the 
 infliction even of corporal punishment as much as possible, 
 
 (a) Mr. Card well, in one of his considerate despatches, candidly ad- 
 mitted that no instructions were issued to Colonial Governors on the 
 subject. " I think it is due to Mr. Eyre that I should accompany my 
 observations by the statement that, in the instructions to Colonial Gover- 
 nors, no reference is made to the possible occurrence of such an emergency 
 as that in which he was placed. How far it may be possible to frame 
 general instructions which might assist the Governor in the case of future 
 disturbances arising in any colony, is a subject which will receive careful 
 consideration at the hands of Her Majesty's Government." 
 
 (6) Thus, about ten days after the operation of martial law began, he 
 wrote to the Commander-in-chief : — "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 
 thould be resorted to more than can be helped. It is my intention to proclaim 
 a general amnesty in the county of Surry to all except those who have bcenpar- 
 ticipators in the murder, 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 authori-
 
 IXTRObrCTION. 13 
 
 and to provide for the best possible evidence in all the 
 cases tried, and to send for trial only serious cases. And, 
 further (a), he did not consider it proper to try persons under 
 martial law for offences committed 'prior to martial law. 
 
 Upon the breaking out of the rebellion, the Governor 
 took exactly the course -which had been declared, by 
 Government and Parliament, in the case of Ceylun, to be 
 the right course, except that he continued martial law only 
 for four weeks instead of ten ; and would not have con- 
 tinued it in operation so long, had it not been that his 
 orders and directions as to the disposition of the troops 
 were in opposition to the instructions to Colonial Gover- 
 nors (b) disapproved of, and opposed by the Commander- 
 in-Chief of the colony. As the necessity for the continu- 
 ance of martial law so entirely depends on the sufficiency 
 
 tics as submitting themselves to the Queen's authority " (Desp. Oct. 26). 
 And a little afterwards to the Commander-in-chief: — "I would beg to sug- 
 gest that the Colonel should be requested to furnish all the evidence he can, 
 cither written or oral, against each and all of the prisoners sent in under 
 his authority ; and if no evidence of serious crime was obtainable, they, 
 would, as a matter of course, be released. If any of the prisoners sent in 
 were taken in arms or with stolen property in their possession, the parties 
 who captured them should appear before the Courts to give evidence agains 
 them. It is only the captors who can declare the grounds upon which the cap- 
 tures xccre made'" (Desp. Oct. 30, 1865). No particular instructions, how- 
 ever, were issued by the Commander-in-chief, and the Governor's intentions 
 were not carried out. 
 
 (a) Thus, the Governor, writing to acknowledge the receipt of a despatch 
 from the General expressing his intention not to bring to trial by court- 
 martial certain prisoners on the grounds that the charges against them are 
 
 or acts prior to the rebellion, said, " I assume that in coming to this 
 decision, he has satisfied himself in each case that there is no evidence 
 directly connecting the prisoners with the immediate outbreak, and in this 
 view of the case I consider lie has exercised a wi-i and just discrimination in 
 eouiing to the determination he has done." 
 
 (b) According to these instructions, as stated in a letter of Lord de 
 Grey, War Office, December 1, referring to a former 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 suppres- 
 sion 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 commander of the
 
 1-1 INTRODUCTION. 
 
 ciency or insufficiency of military force to preserve order, 
 the disposition of military force is of the essence of the 
 question ; martial law is in fact only a compensation for 
 the disparity of military force ; and so soon as the military 
 force is large enough to produce by its presence peace, 
 confidence, and order, the necessity for martial law is at 
 an end. This question, therefore, as to the disposition of 
 the forces, had an important bearing on the continuance of 
 martial law. 
 
 The Commander-in-Chief gave no definite instructions to 
 
 forces ; while it is the duty of the officer in command of the troops to ohey 
 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." 
 Nevertheless, when ten days after the declaration of martial law, the 
 Governor began to think of its discontinuance, and desired, with that view, 
 to distribute the military, reinforcements having arrived, throughout the 
 island, to " prevent rebellion breaking out, and render life and property 
 safe, and give a feeling of confidence to the inhabitants," his directions 
 were disapproved of by the General, and thus all his plans were defeated 
 (Desp. of Mr. Eyre, Oct. 26). The Commander-in-chief was desirous of 
 concentrating the troops and declaring martial law over the whole or 
 greater part of the colony, and at the time when the Governor was thinking 
 of discountenancing it, the Commander-in-chief was pressing him to 
 extend it (Desp. of Mr. Eyre, Nov. 3, 1865). The Governor, on the 
 contrary, was for contracting and discontinuing the operation of martial 
 law, and in order to enable him to do so he was for distributing the troops. 
 " My own views are strongly adverse to the establishment of martial law 
 in places in which, though excitement exists, and seditious language has 
 been openly used, no actual outbreak has occurred (ibid). The policy by 
 which I have been guided is desiring to occupy temporarily a number of 
 ports which we had reason to fear might become the theatre of outrage 
 (Nov. 1). If this policy is continued for a little time, the country will be 
 restored to its usual quietude (ibid). But this policy was disapproved of, 
 and opposed by the Commander-in-Chief, and hence, about ten days before 
 the discontinuance of martial law, the Governor wrote thus to the Secretary 
 of State : " It certainly may happen, and I trust will, that no evil may 
 result from the omission in this instance to act upon the Governor's 
 instructions ; but it is quite clear that the Executive can make no satis- 
 factory or useful arrangements for the safety of the colony as a whole, if an 
 officer at a distance is to be authorized by the General commanding cither 
 to carry out the Governor's views or not as he may think expedient, and 
 without the Governor having any opportunity of knowing for a consider- 
 able period of time whether the arrangements he has directed have been
 
 INTRODUCTION. 15 
 
 the military commander entrusted with the command of the 
 district (a), but left all to his discretion ; he in his turn 
 issued, in the first instance, no definite instructions to his 
 officers, who were therefore left to their own discretion ; and 
 although he afterwards, indeed, issued some excellent orders, 
 which laid down good principles, and afford useful materials 
 for future regulations, there were some unhappy excesses. 
 
 On that occasion, an opinion of two eminent lawyers 
 was obtained and published (a) ; the effect of which was, that 
 
 acted upon or not"(Dcsp. of Mr. Eyre, Nov. 4). No one will question 
 that the policy of prevention was the best. 
 
 (a) He had no particular instructions from the Commander-in-chief, and 
 he in the first instance issued none to the officers, who therefore were 
 left at first entirely to their own discretion, although afterwards he issued 
 some admirable orders, quoted, with approval, by the Commissioners. 
 At the first, however, the officers were left without any definite instruc- 
 tions, and could only be guided by their own discretion and the usages 
 of the service. This was evidently the view taken by the distinguished 
 officer, the 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 ? " (Ev. 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 this it is conceived is the true view, and 
 is to be found laid down in Simmons on Court- Martial. But it appeared 
 to the Commissioners that it was most unfortunate that the officers were 
 left so entirely without definite instructions, and so much to their own 
 discretion ; and their views were thus embodied and affirmed in the 
 despatch of the Secretary of State on the subject : — " It appears to them 
 (the Government) 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, instructions ought to have linn i.-sued to the officers to whom 
 the actual conduct of the operations was entrusted, which would have 
 rendered such an abuse of power impossible. They agree entirely in the 
 words which you have used, that ' much which is now lamented might have 
 been avoided if clear and precise instructions had been given for the regu- 
 lation of the conduct of those engaged in the suppression, 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 
 instructions, and to leave everything to their judgment.' " 
 
 (a) " Martial law is the assumption, by the officers of the Crown, of the
 
 1 6 INTRODUCTION. 
 
 although all measures that were necessary for the suppres- 
 sion of rebellion were justifiable, yet that the officers and 
 men engaged were responsible before a civil or criminal 
 tribunal for any acts which to such tribunals might appear 
 in excess of what was necessary, even although these acts 
 were committed, honestly, in the execution of orders, 
 honestly given, by the proper authorities, and under the 
 honest belief of their necessity ; and it was even distinctly 
 laid down that for any acts of homicide, under such circum- 
 stances, the parties were liable to be indicted for murder in 
 this country, and could legally be convicted. 
 
 It appeared to the Author that this was so unreasonably 
 
 absolute power exercised by military force, for tbe 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 excessive 
 or cruel means, and are liable, civilly or criminally, for such excesses. 
 They are not justified in inflicting punishments after resistance is sup- 
 pressed, aud 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, nor courts at all, and are mere 
 committees formed for the purpose of carrying into execution that discre- 
 tionary power assumed by the Government."— (Opinion of Mr. E. James 
 and Mr. Fitzjames Stephens). The effect of the opinion, it will be ob- 
 served, was that there was no legal authority in the execution of martial 
 law; that it was a question in each case of necessity; and moreover, 
 that of this necessity the jury were to judge ; and a jury in this 
 country, at an immense distance from the scene, and under insuper- 
 able difficulties in judging on the subject, with no adequate means, 
 even of obtaining evidence upon it, still less of forming a judgment upon 
 it. The effect, therefore, of this opinion was, that if in any one case 
 a jury in this country could be got to think the execution unneces- 
 sary, the persons concerned in it would be guilty of murder ; although 
 at the moment it appeared to be necessary, and although every one in the 
 colony honestly so believed, and although they acted in obedience to 
 orders from military superiors. It came therefore to this, that the law 
 said to officers, " Do all that is in your opinion necessary to put down 
 the rebellion ; execute any number of persons you believe necessary for 
 the purpose ; but mind, if in a single instance you make a mistake, and 
 direct an execution which an English jury twelve months afterwards 
 may be brought to think unnecessary, you will be deemed guilty of 
 murder."
 
 
 INTRODUCTION. 17 
 
 unjust, not to say absurd (a), that it could not possibly 
 be law ; he could not reconcile it with justice or common 
 sense, nor with the doctrines of martial law, which had 
 been laid down by the highest legal and constitutional 
 authorities ; nor with the current of authority upon the sub- 
 ject, or the language of Parliament itself. And it appeared 
 to him, that the application of such a view of the law, to the 
 case of these officers, would be, for special reasons (b), pecu- 
 
 («) The attempt, to apply the doctrine would have involved the most 
 hopeleea and monstrous injustice. Necessity, in such a sense, must of 
 course mean necessity with reference to the general condition of the colony 
 or of the district, and must be determined by the central and supreme 
 authority, upon the general result of facts at all points in it ; and it might 
 be that an execution might be unnecessary with reference to the state of 
 circumstances at the particular spot where it took place, which nevertheless 
 would be necessary with reference to the general condition of the district ; 
 or, on the other hand, the execution might appear to be necessary at the 
 particular place, but with reference to the general condition of the colony 
 might be unnecessary. Anil if the test of criminal liability was to be 
 necessity, there would be such an utter uncertainty 'as to what might be 
 afterwards deemed a case of necessity, that the officers and men would be 
 afraid in any given ease to act, ami thus would be placed in the most dis- 
 agreeable dilemma between mutiny and criminal liability. No doubt, 
 orders will not justify an act manifestly illegal, as, to shoot or hang a man 
 in a state of peace, without conflict, or resistance, or trial ; but, as the case 
 appeared, the act could not be manifestly illegal, for it is admitted that it 
 might be legal, that is, if it was necessary. But then it might turn out, or 
 after the event it might be thought to have been, unnecessary ; and then 
 the hypothesis is, that however honest the act, and however necessary it 
 might have appeared, it would be murder. Surely there never could be 
 a greater or more cruel injustice. 
 
 (b) The special considerations above alluded to are these: — At com- 
 mon law the men could only be tried in the colony for any act com- 
 mitted there, and there they would be able to get evidence. The Colonial 
 Governors Act, which allowed of trial in this country for misdemeanour, 
 carefully made provision for the obtaining of evidence by means of commis- 
 sion. The Criminal Consolidation Act, which was passed without refer- 
 ence to such exceptional cases, merely enacted that in all cases of alleged 
 murder of subjects here or abroad, the trial may be lure ; but no provision 
 is made for obtaining of evidence. And further, trial must be either at 
 the assizes or the Central Criminal Court ; or removed by r< rtiorari into the 
 Court of Queen's Bench ; and in the former case there could be no special 
 jury, and in the latter case no review of the law in a court of criminal appeal, 
 
 C 
 
 3
 
 1 8 INTRODUCTION. 
 
 liarly unjust ; and that their trial on any such charges would 
 practically amount to a denial of justice, and be a deliberate 
 sacrifice of men who had, it might be with more or less of 
 error and excess, done their best on a great emergency, and 
 at all events had saved a colony. 
 
 The Author, therefore, wrote a book in which he en- 
 deavoured to show that such was not the law (a), and 
 that the doctrine of martial law laid down by such high 
 legal, military, and constitutional authority, was in accord- 
 ance with the law of England. That is to say, that 
 although the declaration of martial law could only be 
 justified by necessity, and, as it was an act of State, 
 or of Government, must be approved of by the Crown, 
 subject to control of Parliament ; yet that when declared 
 
 the Act for reservation of Crown Cases not applying to the Queen's Bench. 
 Thus, therefore, when the case came into the Queen's Bench, the opinion of 
 three judges out of five would rule the law without appeal, and the unfortu- 
 nate men, without any power of obtaining the evidence necessary for their 
 defence, might he convicted of murder, upon a view of the law, contrary to 
 the opinion of almost all the judges of England. 
 
 (a) The Author ventures to say, that he wrote that work entirely from a 
 sense of justice, and a sincere desire to be of service to the cause of truth 
 and justice ; and, on the other hand, without any knowledge of or commu- 
 nication from or with any of the parties engaged in those unhappy transac- 
 tions ; or, on the other hand, without any idea of approval of all the acts 
 committed. Throughout the book he tried to confine himself to the ques- 
 tion of legality, and declined to enter into that of moral propriety. The 
 question he discussed was legal liability, and that alone. That is to say, 
 whether, these acts having been done, those who did them could be con- 
 victed as murderers; not whether they were rightly done. Unto the 
 question of alleged excesses, in so far as they turned on questions of dis- 
 puted fact, of course he did not enter; he took the admitted facts, 
 and considered whether upon these statements there was legal culpa- 
 bility. He had no occasion to enter into any question of wanton 
 cruelty, for of course no English lawyer could hesitate to lay it down, as he 
 did again and again, that wanton cruelty must be illegal. Whether in fact 
 there had been such cruelties did not belong to his subject to inquire; enough, 
 that the officers denied directing them, and thus admitted their illegality. 
 Dealing with admitted facts, as to a number of executions, the question was 
 as to their bare legality, or rather as to their criminality ; and this question, 
 and this alone, the Author discussed, declining very distinctly to enter into 
 tlnir moral propriety, that being a question turning entirely on fact.
 
 INTRODUCTION. I!' 
 
 by supreme authority, it hod legal existence ; and thai the 
 lawfulness of individual acts in 1 li<- execution of it, depended 
 
 on the principle of authority ; and that, therefore, all acts 
 done within the declared district, under military orders, 
 were legal, at all events, if done honestly ; and that, in 
 particular, as regarded trials by court-martial, it was enough 
 if they were governed, not by the formal rules of common 
 law trials, but by the substantial principles <>f natural 
 justice. 
 
 The Author wrote his book in the interval between the 
 conclusion of the inquiry by the Royal Commissioners and 
 the publication of their Report ; and, therefore, his was a 
 concurrent and independent inquiry into the subject. And 
 when their Report appeared, a few days before the publica- 
 tion of his book, he was gratified to find that it contained 
 nothing at variance with the view of the case which he 
 had thus ventured to put forth, and very much, directly or 
 indirectly, appeared to confirm it. Indeed, the very ap- 
 pointment of the Commission, and the whole tenor of the 
 Report, appeared to imply that for acts done in carrying 
 out orders honestly given under martial law, there could be 
 no legal liability (a). 
 
 (a) Thus, with respect to the primary question, as to the proclamation of 
 martial law, the Commissioners said, the council of war had pood reason 
 for the advice which they gave, and thai the Governor was well justified in 
 acting upon that advice, though they disapproved of the continuance <>t 
 martial law in its full force to the extreme limit of its statutory operati 
 and to the i xcessive nature of the punishment inflicted. And with refeis 
 (.■nee especially to the trials by courts-martial, the Commissioners said: — 
 "The numher of executions by order of courts martial appeared to us so 
 large that it became very impoi tant tr as we were aide, the 
 
 principles upon which the members constituting the courts acted, and the 
 sort of evidence upon which their decisions were pronounced. It would be 
 unreasonable to expect that in tie' circnmStances under which these courts 
 were assembled, there should lie the same ] erfeel regularity and adherence 
 to technical rules which we are accustomed to witness in our ordinary tri- 
 bunals; hut there are certain great principles which ought under no cir- 
 cumstances to he violated, and there is an amount of evidence which i 
 tribunal should require before it pronounces a judgmenl which shall affect 
 the life, libertv, or person of any human being. In the greal majority of 
 
 c2
 
 20 INTRODUCTION. 
 
 And not only so, but the practical conclusion at which 
 he had arrived was confirmed by two successive Govern- 
 ments, under the advice of their law officers (a). These 
 Governments distinctly declared, publicly, and in the face 
 of Parliament and the country, that all acts done in the 
 declared district by military orders, under martial law, were 
 legal, and did not require a bill of indemnity. And this 
 conclusion was ratified by the almost unanimous assent of 
 both Houses of Parliament, the Ministers of the Crown, in 
 one House declaring the acts legal, and in the other House 
 describing the prosecution as preposterous. 
 
 cases the evidence seems to have been unobjectionable in character, and 
 quite sufficient to just ii'y the finding of the court. It is right also to state 
 that the account given by the more trustworthy witnesses as to the manner 
 and deportment of the members of the courts was decidedly favourable. 
 But we think it right also to call attention to cases in which either the 
 finding or the sentence was not justified by any evidence appearing on the 
 face of the proceedings. And then they pointed out that in a few cases 
 the evidence appeared to them insufficient to justify the findings, a conclu- 
 sion which, as every lawyer knows, implies no doubt as to their legality; for 
 at every assizes juries find prisoners guilty of felony against the distinct 
 opinion and direction of the judge that the evidence is insufficient ; and 
 yet, even in such cases, the judge is bound to, and does pass sentence, for 
 the very reason that as they are judges of the facts, the convictions are 
 legal. 
 
 (a) Mr. Cardwell, the Secretary for the Colonies, in his despatch, de- 
 claring the deliberate opinions of his Government upon the whole case, 
 adopted the conclusions of the Commissioners, and as the result, he wrote as 
 follows:—" Her Majesty's Government are 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 in the land. As regards all acts clone by or under 
 military authority, her Majesty's Government are advised that the proclama- 
 tion 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 for any acts done beyond the proclaimed district the authority 
 of the Act of 1844 and of the proclamation is inapplicable. Civilians
 
 INTRODUCTION. 2 1 
 
 The country, therefore, were not surprised when, after a 
 bench of magistrates had declined to commit the Governor 
 upon a charge of murder, even in a case in which he v,.s 
 alleged to have been personally implicated, by sanctioning 
 the execution, the Lord Chief Justice of England, upon 
 an indictment against the military officer in the same case, 
 at the close of an elaborate charge, in which he avowed 
 himself in doubt upon the subject, in effect directed the 
 grand jury, in accordance with the authorities (a), that if 
 they thought the accused had acted honestly, and under an 
 
 who may have acted bond 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." The law officers of the Crown at that time were Sir Koun- 
 dell Palmer and Sir E. R. Collier. The succeeding Government were 
 advised by Sir H. Cairns, Sir J. Holt, and Sir W. Eovill; and they being 
 questioned in the House of Commons, declared, after due deliberation, 
 that all the acts done under military orders, or by courts-martial, were 
 legal. And the Secretary of State for the Colonies, in the House of Lords, 
 declared that a criminal prosecution under such circumstances would be 
 preposterous. 
 
 («) It is certain, said Lord Chief Justice He Grey, that no man ought to 
 suffer criminally for an error in judgment {Miller v, Scares, 2 Sir William 
 Blackstone's reports, 1144). So the case of Wall v. Macnamara, cited, 1 
 Term. rep. 536, an action against the Lieutenant-Governor of Senegambia 
 for imprisoning him for disobedience of orders, Lord Mansfield said: — "In 
 trying the legality of acts done by military officers in the exercise of their 
 duty, particularly beyond seas, where cases may occur without ike 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. The principal inquiry 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." This 
 seems the meaning of Lord Chief Baron Macdonald in Governor Wall's 
 case:— "When a 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 
 not in a position for getting assistance and advia ; and if in those circum- 
 stances he should be somewhat thrown off the balance of his understanding, 
 and does not exceed greatly the line of his duty, allowance for such circum- 
 stances ought to be given him."
 
 22 INTRODUCTION. 
 
 honest and reasonable belief of authority, they should dis- 
 miss the case. This is stated to be the effect of his direc- 
 tion, for, although in some passages of his charge he 
 appeared to leave to them the question of the legality of 
 martial law («), yet that would be entirely a question of 
 pure law; and it would be so contrary to principle and 
 precedent to leave to the jury matter of law, that it is to 
 be presumed he intended, coupling it, as he did, with the 
 candid avowal that his mind was left in doubt, to indicate 
 to them that they ought to give the accused the benefit of 
 that doubt, and determine the case, substantially, on the 
 issue of honesty. 
 
 The legal and military professions were prepared to 
 receive, with deference, any exposition of the law which 
 might be laid down by so exalted an authority as the Lord 
 Chief Justice of England. And the length of time which 
 has elapsed since the unhappy events occurred which came 
 in question, and the ample elucidation the law had re- 
 ceived (b), in publications and forensic discussions, and the 
 
 (a) The Lord Chief Justice appears to have told the jury there were two 
 questions : one as to the legality of martial law as applied to civilians, the 
 other as to the honesty of its application in the particular case, and in 
 terms left the question thus : Was it legal? and if so, was it honest ? It is 
 conceived that the first would be a question of pure law, not for the jury ; 
 and that the other question should have been, not if it was legal, was it 
 honest, but if it was not legal, was it honest ; and under a sufficient colour 
 and belief of legal authority to take away that character of felonious and 
 malicious homicide, which is essential to constitute the crime of murder. 
 And as to leave pure law to the jury would be unprecedented, and the Lord 
 Chief Justice avowed he was in doubt ; surely he must have intended to leave 
 to them substantially the question of honest belief in, and colour of, authority. 
 
 (i) The Author's book had been published many months; the matter 
 had been argued with exhaustive ability on the other view of the subject, 
 by his learned friend Mr. Fit/James Stephen, whose able arguments con- 
 cerning all the authorities had been published ; and other gentlemen of 
 ability had written largely on the subject, so that all the materials for 
 judicial decision had been for months before the mind of the Lord Chief 
 Justice ; during the whole of which time he must have known that, in ail 
 probability, the matter must come before him, and he had all that time 
 ample opportunity for discussion with his learned brethren ; so that there
 
 INTRODUCTION. 23 
 
 opportunity thus afforded for research and for reflection, 
 naturally induced the expectation of some clear and 
 decided declaration of the law upon the subject. The 
 professions, however, were doomed to be disappointed ; for, 
 though the charge dealt so largely in denunciation of 
 doctrines laid down, or supposed to be laid down, that 
 it was popularly taken as decisive, it really was utterly 
 indeterminate and indecisive ; it laid nothing down clearly 
 and positively on the subject : it appeared even to leave 
 the matter of law to the jury ; it avowed a state of entire 
 doubt ; and, indeed, assigned this as a reason why bills for 
 murder should be found, in order to put the matter in a 
 train for solemn determination (a). 
 
 The Lord Chief Justice laid down, indeed, one proposi- 
 tion of law (b), at which the Author was startled, and which 
 
 never was an occasion when the world were more entitled to expect a clear 
 and decisive declaration of the law. Yet, though there was much denun- 
 ciation of law laid down by others, there was no positive declaration of 
 law laid down by the Lord Chief Justice. And it must be observed that 
 the mere denunciation of propositions laid down by others, involves really 
 no declaration of the law at all ; it merely goes to the terms and expres- 
 sions of particular propositions. It leaves what the law really is, just 
 where it was before. It simply amounts to this, that a particular writer is 
 more or less inaccurate, a matter of entire unimportance. 
 
 (a) This, it is conceived, for reasons already mentioned, was an entire 
 error. The law could not have been laid down definitively and decisively, 
 nor with the least satisfaction to the public. 
 
 (b) The Lord Chief Justice says, that " we must bear in mind that we are 
 not dealing with eases in which it is admitted that man cannot be put to 
 death or punished, without some form of trial. We are not dealing with 
 the case of rebels killed on the field of battle, or put to death afterwards, 
 without any trial at all. A rebel inarms stands in the position of a public 
 enemy ; and you may kill him in battle, or refuse him quarter, as you may 
 a foreign enemy (Charge, p. 25)." The Author was not aware that it was 
 according to the usages of war to refuse quarter to an honourable enemy ; 
 but be that as it may, he ventures to declare that, beyond all doubt it would 
 be contrary to common law to slay a rebel who surrendered himself 
 prisoner. All authorities of our common law lay it down that, if a rebel 
 or traitor can be taken, he must be taken, and is entitled to legal trial. It is 
 only when a felon cannot be taken, or resists apprehension, or is in actual 
 conflict, that he can be lawfully killed. And even under martial law the
 
 24- INTRODUCTION. 
 
 he ventures to declare is not law. In this and other 
 passages, the Lord Chief Justice seems to have been 
 willing to admit everything but the name of martial law, 
 and to allow of it under the name of common law. It 
 is very necessary, however, to distinguish what may and 
 may not be done at common law, or worse evils may follow 
 than any which could result from the declaration of martial 
 law, under responsible authority, and a paramount necessity. 
 The Lord Chief Justice seems to have lost sight of these 
 distinctions, and in his anxiety to avoid the name of martial 
 law, to be ready to sanction things, in the name of common 
 law, which both martial law and common law alike would 
 condemn. Over and over again the Lord Chief Justice, in 
 effect, concedes all that martial law involves, and some- 
 thing more ; and though he will not admit it in name and 
 in terms, yet, on the other hand, he nowhere ventures dis- 
 tinctly to deny it. 
 
 For it is most remarkable, that after such long time for 
 consideration, and with such ample materials for judgment, 
 the Lord Chief Justice, with views evidently most adverse 
 to martial law, could not venture, anywhere throughout his 
 elaborate charge, distinctly, and in clear terms, to declare 
 it to be illegal. That is to say, he nowhere lays it down, 
 in clear and distinct terms, nor indeed in any terms, that 
 for the suppression of a rebellion of civilians, martial law 
 may not be applied to civilians. He might well hesitate to 
 lay that down, as it would come to this, that it may not be 
 applied for the suppression of rebellion ; for, of course, in 
 a rebellion of civilians, as there are no rebels but civilians, 
 if martial law cannot be applicable to them, it is not 
 
 Author ventures to say that it would be contrary to those usages of war 
 which should regulate it, to slay prisoners in cold blood, except under the 
 pressure of some imminent present necessity, without some trial ; for it is 
 well known that, in cases of rebellion, many are less guilty than others— 
 they have been compelled to join ; or have done no actual mischief; and 
 humanity and policy alike dictate some degree of discrimination, even in 
 the terrible severities of martial law. And this requires inquiry.
 
 INTRODUCTION. 25 
 
 available at all. Nay, it may be added, that not only does 
 tli.- Lord Chief Justice nowhere venture to deny this, but 
 he virtually admits it; for he admits that when a statute 
 simply enacts, that martial law may be declared, without 
 more, it does mean the application of martini law to 
 civilians (although he thinks it is regular military law, 
 which, as will be shown, is impossible), and as, when a 
 statute uses a phrase already used and known, without 
 defining it, or altering its meaning, it can only be inter- 
 preted in the sense in which it was previously used and 
 understood. This admission by the Lord Chief Justice 
 virtually amounts to an admission that martial law had 
 been so understood (a), as clearly, and beyond all doubt, it 
 had, according to the numerous authorities already cited. 
 
 The language of the Lord Chief Justice, in some pas- 
 sages of his charge, appears to imply that an arbitrary 
 power is supposed of suspending at pleasure the constitu- 
 tion of a country or a colony. No one has ever, that the 
 Author is aware, imagined such a power. All the authori- 
 ties upon the subject suppose, and he has throughout 
 assumed, that the constitution, or the ordinary course of 
 law, is de facto suspended by the rebellion, or the state of 
 war. If it is not so, then martial law would not be lawful ; 
 if it is so suspended, then it is practically useless to discuss 
 whether it is lawful, for it is dictated by a paramount 
 necessity, rising above all law. But, in the view of the 
 Author, the authorities establish that in such case martial 
 law is r< cognized by the common law itself, and the Lord 
 Chief Justice nowhere ventures distinctly to declare that it 
 
 (a) It had perhaps occurred to the mind of the Lord Chief Justice that 
 this was an admission which virtually concludes the controversy, and 
 accordingly in his printed charge he tries to avoid it, by suggesting a douht 
 whether his original idea was correct, that "martial law" in the statute 
 meant martial law in this sense; and he eagerly adopts a suggestion that 
 it meant putting the militia under martial law! Hut they are already 
 under ii, when called out and employed : and moreover, it is a queer way of 
 putting down a rebellion to declare martial law, not against the rebels, but 
 against the loyal soldiers of the Crown.
 
 26 INTRODUCTION. 
 
 is not. But as it is admitted on all hands that there is 
 and must be a power to do all that is necessary for the 
 safety and protection of a country or colony, and it follows 
 therefore that, if the course of ordinary law is de facto sus- 
 pended, so that it cannot have its course, the measures of 
 war must be resorted to as against all who are in opposition 
 to it ; and this, in effect, is martial law (a). 
 
 The Lord Chief Justice does indeed lay it down broadly 
 and clearly (b), that there can be no exercise of martial law 
 
 («) The Author was careful in his book to lay down, that it is not from 
 the declaration of martial law, but from the rise of the rebellion, a rebel- 
 lion so formidable as to stop the course of law, that the operation of martial 
 law began ; that it operated only as declaring a state of things already 
 existing, the suspension of ordinary law. And when it is said, as it is by 
 the highest authorities, martial law is the suspension of ordinary law, -what 
 is meant is, that it implies the fact of such suspension. 
 
 (b) " If it be true that you can apply martial law for the purpose of sup- 
 pressing rebellion, it is equally certain that you cannot bring men to trial 
 for treason under martial law after a rebellion has been suppressed. It is well 
 established, according to the admission of everybody, even of those who go 
 the farthest in upholding martial law, that the only justification of it is 
 founded on the assumption of an absolute necessity, a necessity paramount 
 to all law ; and which, lest the commonwealth should perish, authorises this 
 arbitrary and despotic proceeding ; but it never has been said that martial 
 law could be resorted to when all the acts of rebellion had passed away, and 
 order and tranquillity had been restored, for the mere purpose of trying and 
 punishing persons when there was no longer any sufficient cause for with- 
 drawing from the ordinary tribunals and ordinary law " (Charge, p. 29). 
 No doubt; but here it will be observed that the Lord Chief Justice plainly 
 implies (1) that there may be a paramount necessity which will justify 
 martial law ; (2) that where there is such a necessity, it is paramount to all 
 law— it is arbitrary and despotic — which is all that was ever contended. 
 Elsewhere, the Lord Chief Justice says, " Would the Crown in case of 
 rebellion have power to govern the army independently of the Mu- 
 tiny Act ? For instance, to declare offences capital which are not made 
 bo by the Act ? Would the Crown have power to place the subject under 
 martial law ? These are [/rave questions. Their solution is only to be found 
 in a recurrence to first principles'" (Charge, p. 69). The Lord Chief Justice 
 does not go further. He had, indeed, already solved these questions, by 
 reference to the " first principles * of necessity. The Author has endeavoured 
 in the ensuing pages simply to carry out that solution of the tjuestion by a 
 recurrence to first principles and judicial decisions.
 
 INTRODUCTION. 27 
 
 ■•ill er a rebellion is over, or merelj for the purpose of trial 
 and punishmenl of the rebels, bu1 that was, as he himself 
 , never doubted, ami there is a marked contrast be- 
 tween the clear and positive terms in which he lays down 
 that, and the entire absence of any such distinct denial of 
 the lawfulness of martial law for the suppression of rebel- 
 lion ; added to which the terms in which he speaks of the 
 latter, almosl imply an admission, to say the least, not only 
 of the possibility of its legality, but of its positive legality, 
 when under an existing necessity, paramount to all law. 
 
 And it is, the Author thinks, deeply to be regretted that 
 the Lord Chief Justice, though he nowhere ventures to 
 declare martial law for the suppression of rebellion to be 
 illegal, yet it should have produced the impression that 
 it was so ; although, after such ample opportunities for con- 
 sideration and research, he has not discovered a single 
 atom of authority in support of the proposition, which 
 he does not, therefore, anywhere venture to lay down, that 
 martial law, for the suppression of rebellion, is not lawful. 
 Instead of that, the Lord Chief Justice has travelled into 
 a variety of irrelevant topics, and accumulated instances in 
 which martial law was resorted to, not for the suppression 
 of rebellion ; cases where there was no rebellion, and where 
 rebellion was over, and in which, therefore, of course, it was 
 illegal. But he cites no authority against martial law for 
 the suppression of rebellion. And he nowhere meets and 
 faces the case of a rebellion, such as defies all or any means 
 of suppression ; and he nowhere lays it down, either in 
 clear and explicit terms, that in such a case martial law is 
 not lawful, or that it is. He has simply denounced a 
 writer who maintained that it was so. If the Lord Chief 
 Justice had laid down clearly that it was not so, and had 
 contented himself with so doing, the Author — although his 
 own view of the law would have remained the same — 
 would have deferred to such authority. But as the Lord 
 Chief Justice, while, on the one hand not venturing to lay 
 that down, nor, indeed, to commit himself to any definite
 
 28 INTRODUCTION. 
 
 proposition at all, has denounced the Author in no measured 
 terms ; and has almost challenged him, from the judgment 
 seat, to come forward and vindicate his views ; he does not 
 feel that there would be any presumption in his attempting 
 to do so ; and, indeed, it would almost appear that he 
 owes it to the Lord Chief Justice and to himself to do so. 
 
 The Lord Chief Justice seems to have supposed, and, 
 indeed, suggested to the jury that they should find a bill 
 for murder on the ground that the legality of martial law 
 might be tested and determined (a). But this view 
 
 (a) The Lord Chief Justice, in the course of his charge, said, " Therefore, 
 if you should be of opinion that this is a case in which the want of jurisdic- 
 tion is either established, or is so far left a matter of question as that you 
 think those who have exercised it ought to justify what they have done 
 before a jury of their countrymen in an English court of justice, where 
 every question will be carefully sifted, and the law carefully ascertained and 
 determined upon the most mature judicial deliberation, then, I say, how- 
 ever sorry we may be that gentlemen who have intended to do their duty, 
 and who believed themselves to have been acting under a valid authority, 
 should be made amenable at the bar of a criminal court for the crime of 
 murder ; yet, if they have taken upon themselves to put a fellow-subject to 
 death without lawful authority, they must be content to stand by the con- 
 sequences of what they have done. If, in the exercise of an assumed power 
 they have, in putting this man to death, done that which the law will not 
 justify them in doing, they must be amenable to the laws of their country." 
 The Author ventures to protest against this doctrine, as utterly irre- 
 concileable with legal principle or with the weight of authority. Mur- 
 der is not mere illegal killing, or the indictment would aver that A. 
 wilfully and unlawfully killed B. ; whereas that, as every lawyer knows, 
 would be bad even after verdict. Murder is the killing another, " felo- 
 niously, wilfully, and with malice aforethought ; " and though malice 
 does not certainly mean merely personal ill-will, it clearly means some 
 bad motive or feeling ; and feloniously means at the least wickedly 
 which indeed, in old indictments, is alleged by way of explanation or inter- 
 pretation of the other epithet. Now in almost all cases where one kills 
 another unlawfully and wilfully, it is done wickedly and with bad motive ; 
 and therefore the impression naturally might arise that wilful and illegal 
 killing must be murder as a matter of law, where in nine cases out of ten 
 it would be in fact. And the Author avows that he at first entertained this 
 idea, and that one or two passages in his book countenanced it. But a 
 closer consideration of the subject and examination of the authorities, baa 
 satisfied him that it is fallacious. The older text writers put numerous
 
 INTRODUCTION. 29 
 
 involved the assumption that, on an indictment for mur- 
 der, the simple question would be legality or illegality. 
 But this, the Author ventures to think, was a great fallacy, 
 and he does not think that, upon consideration, it will be 
 found that a wilful and illegal homicide is necessarily 
 murder. He ventures rather to think the law is, that a 
 homicide wilfully illegal, that is, knowingly or culpably 
 illegal, is murder, not that the mere illegality of the act 
 makes it murder; the question, he conceives, would be 
 whether, if there was such a colour of authority, i.e., such 
 
 instances of illegal killing fir <>f murder, but they are all cases of 
 
 wUful illegality ; i. e., cases in which their legality was known. So it i~ of 
 the case put by Coke as to martial law; as, that it is murder to hang a man 
 by martial law in time of peace. For a man must know that this is illegal ; 
 it is clearly so. Otherwise, if there were rebellion, and the man acted 
 under orders, and it was not time of peace, even although the judges on 
 strict consideration should hold that it was not time of war, so as to justify 
 martial law. That case is never put as one of murder. Nor the case of a 
 judge of assize sitting by some mistake without a commission. The 
 maxim ignorantia legis non excusat docs not apply where the question 
 is as to felonious malice, not of justification or excuse. There can be no 
 felonious malice where there is an apparent legal authority. Thus, in 
 Foster's Crown Law, after saving there must be malice either express or im- 
 plied, he says, " I believe most, if not all, the cases in which our books are 
 ranged under the head of implied malice, will, if carefully adverted to, be 
 found to turn upon this single point, that the fact hath been attended 
 with such circumstances as carry with them the plain indication of a 
 heart regardless of social duty, and fatally bent upon mischief (p. 257). 
 Speaking of the responsibility of the judge who pronounces, and of the 
 officer who executes a sentence, a great writer says:—" If the person who pro- 
 nounced the sent ace had no colour of authority at all, it is undoubtedly 
 murder in him and in the person who knowingly executed such a sentence. 
 But if there be but slight colour, and the judge acted bond fide, and under a 
 belief, though mistaken, that he had competent jurisdiction, he could not, 
 I think, be guilty of murder (Fast's Pleas of the Crown, 95). It is true 
 thai LI Is laid down in Russell on Crimes, that if any one person wilfully 
 and illegally puts another person to death, that act is, prima facie, murder, 
 unless it can be reduced either to manslaughter or excusable homicide, the 
 proof of which lies upon the party who caused the death. But to reconcile 
 this with the older authorities and with legal principles it is necessary, 
 and only necessary, so to read it, as to apply the wilfulness, not merely to the 
 act, but to the illegality.
 
 30 INTRODUCTION. 
 
 appearance of it, a man reasonably might believe he had 
 authority, and whether he acted honestly in the belief of 
 such authority. Otherwise, it is obvious the law would be 
 in opposition to moral feeling, and sound sense and reason, 
 and he has more than once heard a great judge lay it 
 down that, in matters of criminal law, if a certain view is 
 unreasonable, it can hardly be law. Upon this view, as 
 the parties had acted under the authority of an Act of 
 Parliament, and under orders from the highest civil and 
 military authorities, it follows that they could not, indepen- 
 dently of any bill of indemnity, be criminally liable, unless 
 they acted with bad motives ; and, therefore, the prosecution 
 could not possibly, whatever the verdict, have determined 
 anything as to the legality of martial law. 
 
 These considerations are strong to show that the question 
 of legality can practically never be settled by judicial deter- 
 mination, seeing that, if men in authority have acted 
 honestly in a great public emergency, no jury will be 
 likely to find against them in any proceeding, civil or 
 criminal, added to which, there is certain to be (as there is 
 in the Jamaica case), a bill of indemnity. 
 
 There is, indeed, one expression of opinion on the part 
 of the Lord Chief Justice, in which the Author ventures to 
 say he thinks most persons will entirely concur (a), viz., 
 
 (a) " There are those who, though satisfied of the illegality of martial law, 
 hold nevertheless that a Governor or other officer invested with executive 
 authority from the Crown, is bound in case of necessity to put martial law 
 in force, and trust to Parliament for a statutory indemnity. To my mind, 
 the exercise of martial law cannot be put upon a worse footing. No man 
 ought to be placed in the position of being called upon knowingly to 
 violate the law. The only legitimate purpose of an Indemnity Act is to 
 protect a man when placed in trying circumstances, and called upon to 
 exercise a doubtful and ill-defined power, has gone, as is very likely to 
 happen in such a case, in ignorance or haste, but not intentionally, beyond 
 the limits of the law. If the legality of martial law be doubtful, and it is 
 deemed desirable that there should be power to resort to it in great 
 emergencies, let that power be recognised or established by Parliament. 
 But in that case, let us hope that the exercise of martial law will be placed 
 under due limitation, and its administration fenced round by the safe-
 
 INTRODUCTION. 31 
 
 thai the Governors of colonies or dependencies ought not to 
 be left to act upon their own responsibility, trusting to bills 
 of indemnity ; but that the power of declaring martial law, 
 for the suppression of rebellion, ought, if doubted, to be 
 declared and defined, and its exercise regulated and 
 restrained, if necessary, by Acts of Parliament, or of 
 the Colonial Legislatures ; or by instructions from the 
 Crown. 
 
 And although on a recent occasion, with reference to 
 cases of local Acts, which, without any limitation or 
 restraint upon the exercise of martial law, might appear 
 to encourage Governors in declaring it without ade- 
 quate necessity, the Colonial Secretary issued des- 
 patches (a), in which he condemned such local acts ; 
 
 guards which were wisely provided by the Irish Act of 1833 (Charge, p. 75). 
 And elsewhere the Lord Chief Justice says, " In case of need, a wise 
 Government would probably have recourse to Parliamentary authority for 
 the purpose ; the more so, as then snch restrictions and conditions can be 
 placed oil the exercise of this anomalous jurisdiction as may arise in the 
 observance of those things which are essential to justice" (Charge, p. 531). 
 The Author may be permitted to observe that the above ideas as to the true 
 scope of a bill of indemnity are precisely those which he ventured to ex- 
 press in the preface to his work. 
 
 (a) The following circular despatch by Lord Carnarvon to Colonial 
 Governors, dated Jan. 30, 1867, on the subject of martial law, has been 
 presented to both Houses of Parliament by command of Her Majesty: — 
 •• Sir,— Although I do not know that there exists in the colony under your 
 government any law authorising the proclamation of martial law by the 
 Governor, I think it advisable to communicate to you, for your information, 
 and if necessary for your guidance, an extract of a despatch addressed by 
 me to the Governor of Antigua, in which I Lave stated the view.- of Her 
 Majesty's Government on this subject: 'An enactment which purports 
 to invest the Executive Government with a permanent power of sus- 
 pending the ordinary law of the colony, of removing the known sale- 
 guards of life and property, and of legalising in advance such measures as 
 may be deemed conducive to the establishment of order, by the military 
 officer charged with the suppression of disturbances, is, 1 need hardly say. 
 entirely at variance with the spirit of English law. [f its existence can in 
 any case be justified, it can only he because there exists snob a state of 
 established insecurity as render- it ucco-ary for the safety and confidence 
 of the well-disposed that, in times of national emergency, the Government
 
 H2 INTRODUCTION. 
 
 and which contained some expressions apparently giving 
 a countenance to the view thus repudiated by the Lord 
 Chief Justice; it is probable that, upon reflection, those 
 expressions would be corrected by his sounder opinion ; and 
 perhaps no more was intended than that the Governor 
 should act upon his responsibility, and that if a bill of in- 
 demnity should be necessary, as it might, even assuming 
 the legality of martial law, for any unintentional error, 
 there should not be a wholesale indemnity beforehand. On 
 that construction the views of the Colonial Secretary and 
 the Lord Chief Justice would substantially concur. 
 
 So far as it is possible to extract any definite pro- 
 positions on the subject from the charge, the proposi- 
 tions it presents are these : That martial law means 
 merely the common law right of resistance to actual in- 
 surrection — i. e. nothing ; or the application to civilians of 
 regular military law, which is impossible, seeing that 
 this military law exists only by statutes, which are 
 expressly limited to soldiers of the crown. In either 
 
 should possess this extraordinary facility for the suppression of armed 
 rebellion. But whatever apprehensions or disturbances which may exist 
 in any of Her Majesty's colonies, it is certain that no such chronic insecu- 
 rity prevails in any of them, and in no colony, therefore, should the 
 power given by the present law to the Governor of Antigua be suffered to 
 continue. I think it, therefore, necessary to repeat the instructions given 
 by my predecessor, and to request that you will cause to be submitted 
 to the legislature an Act repealing so much of the law as authorises 
 the proclamation of martial law. I have only to add, that in giving 
 these instructions, Her Majesty's Government must not be supposed to 
 convey an absolute prohibition of all recourse to martial law under the 
 stress of great measures, and in anticipation of an Act of Indemnity. The 
 justification, however, of such a step, must rest on the pressure of the 
 moment, and the Governor cannot by any instructions be relieved from the 
 obligation of deciding for himself, under that pressure, whether the re- 
 sponsibility of proclaiming martial law is or is not greater than that of 
 refraining from doing so.' The last passage appears to contain the 
 pith and true meaning of the despatch. The Act of Indemnity 
 alluded to may be merely an Act such as is almost always [required 
 for casual unintentional illegalities, such as the Lord Chief Justice 
 alludes to.
 
 INTRODUCTION. 
 
 view the declaration of martial law becomes an absurdity, 
 for it is a declaration of things which already exist, and 
 one which cannot possibly be applicable (a). And in either 
 view the recommendation of the grand jury, that martial 
 law should be more clearly denned, would become nugatory 
 and unmeaning, for in such view there is no such thing as 
 martial law. To be anything, it must be absolute 
 
 For this very reason, more than half a century ago, the 
 East India Company had wisely framed regulations, defining, 
 regulating and restraining the exercise of the undoubted but 
 terrible power of martial law (b) ; more than thirty years ago, 
 as already mentioned, Parliament did this for Ireland. 
 More than a quarter of a century ago, the suggestion was 
 thrown out, in a military work of high authority, that the 
 exercise of martial law in time of rebellion, in our foreign 
 dependencies, should be regulated and restrained ; but it 
 was not done, and military commanders were left to 
 act on their own discretion ; and then the Governor and 
 officers, who, left without regulations or directions, did their 
 best to save a colony in a terrible emergency, were to be 
 arraigned as murderers, because it was said that they had 
 not exercised due control (c). It was, therefore, most wise 
 and just that the grand jury, if they believed there was 
 such a power as martial law, should desire that it be more 
 clearly defined. 
 
 (a) It has been always held, that regular military law only applies to the 
 soldiers of the Crown (vide Bradley v. Arthwr, i B. & C. 292), and it would 
 indeed be a new doctrine that the terms of statutes, expressly limited to a 
 particular class of persons, could by proclamation be applied to others. 
 This is a legal impossibility; nothing but a statute can extend a statute, 
 and there must be a positive explicit enactment that the former statute 
 shall apply to other classes of persons. Proclamation of martial law in 
 time of rebellion, whether by statute or otherwise, may have some effect or 
 no effect, but it cannot possibly have that effect. If it has any effect, it 
 must be that which all writers describe it to have, viz., the establishment 
 of something wholly abnormal and arbitrary. 
 
 (b) Vide ante, p. 6 ; et vide Hough's Military Law, in which will be 
 found the Regulation on the subject already alluded to. 
 
 (c) The very fact that Parliament considered it necessary in this Act to 
 
 D
 
 34 INTRODUCTION. 
 
 The Lord Chief Justice declared his concurrence in that 
 recommendation, and does not appear to recognize in it 
 any inconsistency with his own views. But if the view 
 which the Lord Chief Justice appears to adopt is correct, 
 that martial law (a) is the application of regular military 
 law, then of course it does not require to be more clearly 
 defined, for it is already as strictly defined as it possibly 
 can be. But if it be, as all authorities declare it to be, 
 absolute military authority, then, indeed, there is great 
 need for definition and regulation, and in all that the Lord 
 Chief Justice says on that head, no one more heartily 
 concurs than the Author ; and he would willingly contribute 
 any assistance, in the way of suggestion, to carry out the 
 recommendation. 
 
 provide regulations for courts-martial in time of rebellion, appears plainly 
 to imply the belief of Parliament, that under martial law there might be 
 such courts-martial on civilians, and also that unless statutes so provided, 
 these courts-martial would not be subject to strict regular military law ; or 
 otherwise these regulations would have been unnecessary. It may be 
 observed here, that the Lord Chief Justice is under an error in supposing 
 that in the Ceylon case the courts-martial were regularly constituted under 
 the Articles of War ; on the contrary, the chief ground of complaint was 
 that they were not, and it was on that occasion the Duke of Wellington 
 said martial law was arbitrary. In order to repel that objection, the Lord 
 Chief Justice tries to distinguish Ceylon as a Crown colony, though 
 elsewhere he appears to be under the impression that British subjects carry 
 the common law with them ; and if so, the distinction of a Crown colony, 
 which only has regard to the form of government, can make no difference. 
 If, however,, all the high authorities referred to are right, martial law is 
 recognised even by the common law of England, so that this distinction, 
 even if it exists, is not now at all material. The same observation applies 
 to the elaborate argument of the Lord Chief Justice, directed to show that 
 the common law previously in Jamaica, and it is still more irrelevant, 
 because there is a statute in that colony expressly authorising martial law. 
 (a) The Lord Chief Justice had not observed the legal impossibility of 
 extending regular military law, which by statute applies only to 
 soldiers, for which reason all authorities carefully distinguish regular 
 military law from "martial law" (rule MacArthur, Simmons, and 
 Chancellor Kent, cited ante). But a little reflection would have shown 
 him that the application of this regular military law, in time of rebellion, 
 is practically as impossible as it is legally so; for in distant colonies and
 
 INTRODUCTION. 35 
 
 JJuf, then, this necessarily involves and implies that there 
 & such a thing as martial law, as distinct from common 
 law, and from all ordinary law, municipal, or military. 
 For ordinary law is regular and well-defined already, and 
 needs no clearer definition ; and if such a thing as martial 
 law does not exist distinct therefrom, it cannot be defined. 
 But if, as the highest authorities, legal, military, and con- 
 stitutional, have always laid it down, it is the suspension of 
 civil jurisdiction (a), as declared by the Royal Commission, 
 
 dependencies, where the necessity for martial law is most likely to arise, it 
 would be impossible to cany out the requisitions of regular military law, 
 on account of the deficiency of officers of the proper rank to form courts- 
 martial according to the rules. This, however, is no reason why this 
 regular military law should not, as far as it is applicable, be made the basis 
 of regulations on the subject ; and it is remarkable that a quarter of a cen- 
 tury ago this suggestion was thrown out in a military work (Mough't 
 Military Law) : in which it is suggested that courts-martial, in time of 
 rebellion, should be constituted as under the Irish Rebellion Act "There 
 may be various ads, such as circulating papers, exciting disaffection, &c., 
 which should be defined, and the punishment laid down. They might be 
 tried by military courts, but general courts-martial, say with seven or five 
 officers, or even three, if more could not be assembled without incon- 
 venience. It may be inconvenient to hand them over to the civil power ; 
 the courts may be framed as under the Irish Suppression Act of 1S33 " 
 (Hough's Military Law, 350). 
 
 (a) It is remarkable that the Royal Commissioners in the Jamaica case, 
 incidentally and indirectly, but not the less distinctly, defined martial law, 
 and defined it in the words of the meat constitutional historian, Ilallam, 
 as "the suspension of civil jurisdiction," and as virtually arbitrary ; for, 
 after describing the evils which prevailed during the existence of martial 
 law, they said, " We fear that this to a certain extent must ever be the case 
 when the ordinary laws, framed for the suppression of wrongdoing and 
 the protection of the well doer, are for a time suspended. The circum- 
 stances which are supposed to render necessary their suspension are almost 
 sure to be such as to excite both fear and pas-ion, and some injustice." 
 And they went on to declare, " that by the continuance of martial law in 
 its full force, to the extreme limit of it- Btatutory operation, the people 
 were deprived for a longer period than necessary, of the great constitutional 
 privileges by which the security of life and liberty is provided:" which 
 plainly implies that it had that effect. And be it observed, that the 
 Jamaica Act did not define martial law, but simply allowed and •'. 
 it, so that whatever it was at common law, it was under the statute. The 
 Commissioners, therefore, evidently took the view the Author bad ventured 
 
 d2
 
 36 INTRODUCTION. 
 
 and by two successive Governments, then, indeed, it may 
 be well that it should, as far as possible, be defined, regu- 
 lated, and restrained. 
 
 Nevertheless, the Lord Chief Justice, probably not 
 having observed that the proposition had already been 
 virtually adopted by the Royal Commissioners, and by the 
 Government which appointed them, pronounced the 
 strongest reprobation upon the Author's fundamental pro- 
 position as to martial law, which was simply an expansion 
 of the doctrine laid down by all the greatest constitutional 
 authorities who had ever written or spoken on the subject : 
 — " Martial lav; is the suspension of all law but the will of 
 the military commanders entrusted with its execution, to be 
 exercised according to their judgment, and the usages of 
 the service, with no fixed or settled rules, and not bound by 
 the rules of ordinary military law " (a). The Lord Chief 
 
 to put forth, that it is the suspension of all ordinary law. And this view 
 was virtually adopted by the Government, for the Secretary of State wrote 
 thus upon the above passage : " They agree entirely in the words which 
 you have used, 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 suppression, 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 porfectly novel service without instructions, 
 and to leave everything to their judgment." All this plainly implies that 
 everything was left to their judgment. 
 
 (a) The Author had simply embodied in his text the doctrines laid 
 down by the Judge-Advocate-General, Sir David Dundas (vide ante), and 
 which he quoted, with others, in a note. The Lord Chief Justice, in his 
 charge, cites the whole as the Author's, and the Author's alone; and not 
 only does not mention that he had cited, and simply embodied, such 
 authorities, but clearly by his language implies the contrary : that these 
 doctrines were quite novel, and the coinage of the Author's brain. The 
 works of Hal lam and of Chancellor Kent were published many years ago, 
 and the former defines martial law as the suspension of civil jurisdiction, 
 and the other as absolute law, " proclaimed by a military chief," carefully 
 contrasting it with ordinary military law. The Lord Chief Justice, no 
 doubt through some mistake of a copyist, left out the word "ordinary" in 
 the above proposition of the Author's, which of course entirely alters the 
 ■ it stood and as it stands above, it is, he conceives, undoubted
 
 INTRODUCTION. 3 1 
 
 Justice declared, that he " could find no authority for any 
 such doctrines," and pronounced them to be " detestable, 
 mischievous, and despotic.' 1 Yet, in this same passage, he 
 cited, as part of the Author's text, quotations from the 
 opinions of Judge- Advocates-General ; and a little later, 
 in the course of the same charge, he quotes, as the Author 
 had done, the opinions of Ilallam, Lord Campbell, and Lord 
 Cottenham, to the like effect, and he might have quoted 
 that of the illustrious Chancellor Kent 
 
 So the Lord Chief Justice, not aware apparently of the 
 weight of judicial authority («) upon which the Author had 
 written, condemned certain propositions of his, following 
 
 law, and is simply a reproduction of the opinion of Hallam, and of Kent, 
 and of Lord Campbell, and Lord Cottenham. The Lord Chief Justice can 
 only say that "he thinks Mr. Hallam is in error;" but the weight of 
 authority is so overwhelming that he must not be surprised if people adopt 
 another hypothesis. 
 
 («) Thus, even as to regular courts-martial, Lord Loughborough says in 
 Grant v. Gould, 2 II. Blackstone's rep. 68, that courts-martial are not 
 bound by all the rules of evidence as courts of law are ; adding, " It would 
 be extremely absurd to expect the same precision in a charge before a 
 court-martial as in a conviction before a magistrate." And they are 
 not bound by all the rules of law, which prevail in the common law 
 courts (Rex v. Suddis, 1 East rep. 327). " The natural leaning of the 
 courts of common law,'' it was said, "was in favour of prisoners, and 
 judges gave way too easily to formal objections on the part of prisoners " 
 (ibid). So as to amount of proof, the common law requires that it should 
 be conclusive ; and thus, for instance, Lord George Gordon escaped, although 
 the case was clear (Rex v. Lord George Gordon, 2 Doug. 592). But in 
 several cases in our courts it has been laid down that there need be no 
 formal trial, but only such an honest examination of the case as the circum- 
 stances will admit of (Wright v. Fitzgerald, 29 State Trials, 760; Wall's 
 Case, 28 State Trials, 591). It was in the spirit of these authorities the 
 Author wrote. The Lord Chief Justice, without noticing these authorities, 
 censured him for so writing in accordance with them, and seems to have 
 supposed that the Author meant that substantial proof should be dispensed 
 with. Nothing was further from his intention. He was speaking in the 
 spirit of the authorities he cited, and of the dispensation of strict and 
 formal rules of proof. Any apparent departure from that principle must be 
 ascribed to misconception of his meaning or to incorrectness of expression. 
 He distinctly wrote that there ought to be " the most careful inquiry that 
 can be made under the circumstances."
 
 38 INTRODUCTION. 
 
 logically from the foregoing one, and resolving themselves 
 into this, that as martial law implies the suspension of 
 ordinary law, it is not fettered by strict formal technical 
 rules, but only by the principles of substantial j ustice. And 
 here again he does not appear to have been aware that 
 this had, in effect, been laid down by the Royal Commis- 
 sioners in their Report ; that it Avould be unreasonable to 
 expect in courts-martial, under martial law, a strict ad- 
 herence to formal rules, but that there ought to be a regard 
 to the eternal principles of substantial justice. 
 
 The Lord Chief Justice does not anywhere venture dis- 
 tinctly to say that courts-martial under martial law are 
 regulated by the strict rules of evidence and procedure at 
 common law, although he thinks they should pursue the 
 procedure of regular military law ; and, for a legal reason 
 already mentioned, that appears to be impossible. But if 
 they are bound by the rules of ordinary law, whether civil 
 or military, what necessity is there that their procedure 
 should be more clearly defined or regulated ? for, as the 
 Lord Chief Justice says, nothing can be more rigidly regular 
 than ordinary military law, for which purpose it is utterly 
 unsuited to time of rebellion and war. 
 
 The Lord Chief Justice appears to have been under the 
 impression that some passages in the Author's work 
 implied that men might be executed under martial law, 
 without due inquiry, or sufficient evidence (a). The 
 
 (a) This impression may partly have been derived not so much from what 
 the Author wrote, as from what he did not write ; and the absence of any 
 expressions of reprobation as to any of the cases of execution under 
 martial law. But the Lord Chief Justice forgot that he had had the oppor- 
 tunity, which the Author had not had, of reading the evidence taken 
 before the Royal Commissioners ; whereas the Author had only read the 
 official Reports, and the Report was not published until his book was almost in 
 print. Indeed, at that time, the Author was in the same position as the Gover- 
 nor, and can make the same excuse, viz. , that the reports of the trial did not 
 come to him, they went to the military authorities ; and he might fairly pre- 
 sume, in the absence of evidence, that they were fairly and properly conducted, 
 as it appears by the Report they were in most cases. Moreover, although
 
 INTRODUCTION. 39 
 
 Author dues not think that this would be a just construc- 
 tion, even of any isolated sentences torn from the context; 
 but of this he is sure, that it would not be the construction 
 to be drawn from a fair and candid consideration of the 
 entire passages in which they occur; ;it ail events, 
 coupling them with other passages, in which he speaks 
 clearly and strongly of the necessity for a grave and care- 
 ful inquiry in every case of capita] or corporal punishment 
 But the truth is, that the Lord Chief Justice entirely mis- 
 took the scope and object of the Author's observations 
 upon this matter, which was not what should be done, but 
 what had been done, and not its propriety, nor even its 
 legality, but its legality with reference to criminal lia- 
 WJbty. And he very distinctly laid it down that, in 
 matters of this nature, more especially when human 
 
 the Author might easily have gained a little cheap credit by professions of 
 humanity at other people's expense, he did not think it generous at that 
 moment to say anything which might tend to increase the weight of 
 obloquy under which the Governor and officers were then labouring. But 
 as his ideas upon the subject have been so misapprehended, as were those of 
 the Governor, an account of matters as to which neither of them knew 
 anything until the enquiry by Commission, he feels it his duty to declare 
 that there are cases in which men were executed apparently without 
 evidence to connect them with the rebellion — or, indeed, of any crimi- 
 nal offence whatever j cases which (unless there were circumstances not on 
 the notes), no man can contemplate without pain ; and though he rejoices 
 to think with the Commissioners that these cases were not only few, but 
 were the exceptions, yet such cases ought not to occur under a humane 
 and careful execution of martial law ; and their occurrence shows a grave 
 want of care, nut only upon the part of the particular officers who 
 the court-martial, but, what is tar more important, upon the part of the 
 Commander-in-Chief, whose duty it was, as the Author conceives, and as the 
 Commissioners seem to have thought, to revise and reconsider their findings. 
 And it is only justice to the Governor to say, that not only in fact did he 
 know nothing of these cases, but that, according to th torney- 
 
 General and the military Commander, he had no right or power to inter- 
 fere ; for which reason the reports did not go to him. For the future, this 
 is to be altered ; by the official opinions of the Secretary oi State, and both 
 the Governor and the Commander v. ill be held res] onsible, upon which, it 
 follows that the reports must go to the Governor as well as the Com- 
 mander. But it was not so considered at the tunc.
 
 40 INTKODUCTION. 
 
 life is concerned, no degree of care is too great, and that 
 the greatest possible degree of care ought to be exercised ; 
 although he also laid it down that, while there might be a 
 degree of recklessness, which would amount to murder, it 
 was not every degree of want of care which would involve 
 criminal liability. And this view is entirely adopted by 
 the Lord Chief Justice, who left to the jury whether, not- 
 withstanding his own opinion as to the insufficiency of the 
 evidence, the parties implicated acted in an honest belief of 
 its sufficiency. So that on this point there is no difference 
 whatever, the Author is happy to say, between his law and 
 that of the Lord Chief Justice. 
 
 In dealing with the matter in the light of criminal lia- 
 bility, the Author had to refute the ridiculous notion which 
 prevailed, that the insufficiency of evidence (where there 
 was any evidence in itself, would make the execution 
 illegal), and not only so, but an act of wilful murder (a) — a 
 
 (a) It is only fair to the Commander-in-Chief and the military Com- 
 mander, to say that they more than once laid this down: — Thus, the Com- 
 mander-in-Chief writing to one officer said, " One of two courses seems to 
 me under martial law, to be the rule for your conduct; if on careful 
 investigation the captured persons are innocent — always giving them the 
 benefit of a doubt — then release them ; but if guilty and taken red-handed, 
 summary justice and execution of the sentence" (Ev. p. 1122). So the 
 Commander of the district : — " All ringleaders to be secured, men found in 
 arms to be summarily executed " (p. 6857). But the misfortune was that 
 these salutary instructions were only issued to some one or two of the 
 officers, and that above all they were not explained, or enforced, as they 
 could only be, by an actual revision and review of the findings and sentences 
 in all the cases, which, according to the spirit and analogy of military 
 law, ought to have taken place before they were allowed to be executed. 
 Had the General or the Commander-in-Chief read the evidence in some of 
 these cases, they could not, it is clear, have allowed the sentences to be 
 carried out. As to the General, the excuse may be made that he was 
 harassed by active service, and constantly moving about ; and the Governor 
 was overwhelmed with the anxieties and alarms of the whole Island ; but 
 the Commander-in-Chief, before the Commissioners, disclaimed all responsi- 
 bility for the executions going on under his own command ; for the General 
 in command was under his command, and constantly reporting to him 
 (Ev. of Gen. O'Connor). And he distinctly asserted the right and power of 
 control over courts-martial, when he chose to exercise it, even against the
 
 INTRODUCTION. 4 1 
 
 most monstrous notion, which, of course, receives no coun- 
 tenance whatever from the charge of the Lord Chiet 
 Justice, who indeed said, as the Author had said, that 
 there might be a degree of insufficiency, an utter absence 
 of evidence, which might, with other circumstances, be 
 evidence of that recklessness which, beyond all doubt, 
 would be legal malice, and amount to murder. But to 
 argue that an execution on insufficient evidence was not 
 necessarily murder, nor even necessarily illegal, was widely 
 different, indeed, from suggesting that executions might 
 properly take place without sufficient evidence. In every- 
 thing said on that head, the Author presumes to say he 
 entirely concurs with the Lord Chief Justice (who does, 
 indeed, only echo the language held in many places in 
 his book) ; and he ventures to add, that he would be 
 willing to lay it down broadly, that the haste and 
 excitement under which executions under martial law must 
 necessarily take place, renders it more important that the 
 offences charged should be o'pen and overt acts, and that 
 the evidence should be clear and conclusive, and that, 
 under martial law, cognizance ought only to be taken of 
 such cases, and not of cases of doubtful or constructive 
 guilt. And such, indeed, seems to have been the intention 
 of the Governor and the Commanders, only, through a 
 want of due supervision, the principle was not carried out. 
 What the Author had to deal with in his former work, 
 was the law of the matter, and such law as appeared to 
 arise upon a general knowledge of admitted facts, as, for 
 instance, the powers conferred by martial law, the consti- 
 tution and jurisdiction of courts- martial, and their legal 
 liability, and the like, and he especially combated the 
 
 Governor (Ev. p. 882). At all events, the Author desires to say that at the 
 time he wrote his hook, he was in the same position as the Governor when 
 he wrote his despatehes, that he knew none of these cases, and had only a 
 general knowledge of the matter, sufficient for the purposes of legal dis- 
 cussion; upon which lie presumed the military Commanders would see that 
 the trials were reasonably just, and fair, and proper.
 
 42 INTRODUCTION. 
 
 notion which, apparently, had got firm possession, not only 
 of the popular mind, but even of many eminent persons, 
 that the removal of a man into the declared district, for 
 trial for au offence alleged to have been committed there, 
 was necessarily illegal, a notion utterly opposed to one of 
 the most elementary principles of criminal jurisprudence, 
 that the locality of trial is to be regulated and governed 
 by the locality of the offence. Upon these matters, strange 
 as it may appear after the denunciations of the Lord Chief 
 Justice, there is absolutely no difference whatever between 
 his law, so far as he has declared it, and that which the 
 Author ventured to lay down ; at all events, no contradic- 
 tion, except upon one point, upon which the Lord Chief 
 Justice, it will be obvious, is wrong, viz., the notion that 
 martial law means regular military law. For while, on the 
 one hand, the Lord Chief Justice does not anywhere ven- 
 ture to declare that martial law, in time of rebellion, is not 
 legal, and in many passages implies that it is, or may be 
 so ; on the other hand, he entirely adopts the principal pro- 
 positions laid down by the Author, as to its jurisdiction, or 
 its execution ; as, that it may, in point of time, extend to 
 acts of incitement to the rebellion, although the party 
 might have committed no overt act since the declaration of 
 martial law ; and that, as regards locality, it is the locality 
 of the act, not of the person, which governs jurisdiction ; 
 and that even illegality of arrest or of custody does not 
 affect legality of trial, if it takes place where, if anywhere, 
 the act was in law committed ; and that, as already men- 
 tioned, insufficiency of evidence does not necessarily amount 
 to illegality or criminality (<x). The adoption by the Lord 
 
 (a) If it did, what would become of jurors who find persons guilty of 
 felony, as they often do at the assizes, against the express opinion of the 
 judge, that there is not sufficient evidence to justify a conviction] The 
 Author has himself known this occur several times, and the judge has 
 nevertheless felt himself bound to record the verdict and pronounce sen- 
 tence upon it, although he disapproved of it. Why ? Because it was un- 
 doubtedly legal, seeing that theory arc judges of the fact, and there was
 
 INTRODUCTION. 1-3 
 
 Chief Justice of the principal proposition laid down by the 
 Author, and the absence of any explicit contradiction of 
 any of them, has enabled the Author to endure, with much 
 equanimity and resignation, the burden of his disapproba- 
 tion upon matters as to which he was simply misunder- 
 stood. 
 
 But upon the only point on which there appears to be 
 any direct inconsistency between the law of the Lord Chief 
 Justice and of the Author ; and on which the Lord Chief 
 Justice has laid down the proposition that martial law 
 means the application of regular military law, the Author 
 has to point out not only that it is absolutely and legally 
 impossible (statutes expressly limiting it to soldiers enlisted 
 in the service of the Crown), but that the contrary pro- 
 position, viz., that laid down by Lord Brougham and 
 adopted by Simmons on Court- 31 art led (a), that rebels in 
 arms are liable to be treated as soldiers, and therefore 
 liable to such martial law as applies to soldiers in mutiny, 
 is clearly established, not only upon legal principle, but by 
 the very nature of the case ; for no one can deny that they 
 are in point of fact soldiers, though soldiers in arms 
 against the Crown ; and, that being so, having made them- 
 selves soldiers, it is difficult to see what they have to com- 
 plain of, if they are treated as such. And not only so, but 
 assuming that the proposition of the Lord Chief Justice is 
 as right as the Author conceives it to be wrong, the Lord 
 Chief Justice has so strangely mistaken what is the military 
 
 jurisdiction. I fence the Author put the question as to legality upon that 
 foundation, and so docs the Lord Chief Justice; and it may be added, that 
 although the Royal Commissioners point out direct instances in which there 
 was not sufficient evidence to warrant the finding (as to which most 
 persons probably will agree with them), they do not say a word to imply 
 that the senUiu'cs o)i that, account were illegal. 
 
 («) Simmons on Cuuvts-Martial, Si,"i. This proposition is M clear as any- 
 thing can be in legal principle. In Potter on Crown Late, and all our 
 writers on Crown Law, it is laid down that armed rebellion is war against the 
 Crown ; and this law was laid down by the venerable Lord Chief Ju-tiee 
 Tindal in Frost"-
 
 44 INTRODUCTION. 
 
 law upon the subject, that it is upon every point exactly 
 the opposite of what he supposes it to be. And it sug- 
 gests the strongest reason for a candid and charitable con- 
 sideration of the conduct of a Governor or military officer, 
 under the pressure and excitement of a terrible emergency, 
 to find that the Lord Chief Justice of England, after a 
 year and a half for reflection and research, in laying down 
 the law upon a charge of murder, should fall into such entire 
 error, and give a direction to the jury, as to finding a bill, 
 upon the theory of a want of jurisdiction, founded on 
 notions of military law entirely erroneous (a). 
 
 If, however, martial law has that meaning, which, ac- 
 cording to all the authorities it hitherto has had, then, no 
 doubt it is, except in Ireland and India, left wholly without 
 
 (a) The Lord Chief Justice supposes that in our foreign dominions a 
 general court-martial to inflict a sentence of death must be composed of the 
 regular number of officers ; but the Articles of War make express provision 
 for the case, and allow of the court being constituted of only three officers, 
 as was done in Jamaica. Again, he tells the jury that at all events it is 
 clear the whole thing was wrong, because it was a mixed court composed of 
 naval and military officers. But again, the Articles of War expressly pro- 
 vide for the mixture of officers of the marine and land services. Again, 
 the Lord Chief Justice conceives that the oath on courts-martial, being 
 always the same, must refer to the Articles ; whereas, it expressly provides 
 for cases not coming within the terms of the Articles (as must be the case 
 with civilians) by the alternative words, " according to their conscience, or 
 the custom of war." And the Lord Chief Justice, who thinks the trial of 
 civilians for civil offences before military tribunals must be wrong, does not 
 seem to be aware that there is an Article which provides that in any of our 
 foreign dominions, where there is "no civil judicature in force," soldiers 
 may be tried for civil crimes before courts-martial ; and in Simmons on 
 Courts-Martial, this enactment is construed as applying to the case of a 
 rebellion, because when there is thus a suspension of the civil judicature, 
 it cannot be said to be "in force," and because rebels in arms are 
 soldiers, not the less so because they are also traitors. The terms of the 
 enactment no doubt apply only to enlisted soldiers, but its spirit and prin- 
 ciple are only carried out by the declaration of martial law and its applica- 
 tion to civilians in rebellion. For soldiers are not the less citizens and 
 free subjects, and can only be deprived of their rights as such on the 
 ground of necessity. Again, the Lord Chief Justice implies that courts- 
 martial even under martial law are bound by the rules of evidence under 
 our own courts, whereas the contrary has been solemnly decided in our
 
 INTRODUCTION. 45 
 
 regulation or restraint (a), except, perhaps, that, in some 
 colonies, as in Jamaica, conditions are imposed on the 
 power declaring it ; and no doubt it would be well that, 
 whether by Imperial Act, or by instructions from the 
 Crown, it should be limited, regulated, and defined ; and 
 the Author concurs in that view, for the very reason, that he 
 believes that, at common law, it is absolute. His former 
 work was written to describe martial law as he believed it 
 to be. In this, he ventures to suggest how martial law 
 may be limited, regulated, and restrained, with reference 
 to the power of declaring it, the acts or offences of which 
 it ought to take cognizance, the procedure which ought to 
 be pursued, or the penalties which ought to be inflicted. 
 Whether, however, this be done by means of legislation 
 
 own courts, even if regular courts-martial, in one of the very cases he cited 
 {Grant v. Gould, 2 Hen. Blackst. 96). And he will have it that drumhead 
 courts-martial in the field are illegal, whereas the contrary is laid down 
 in all books of military law, and has been laid down in a court of law 
 (Governor Wall's case, 28 State Trials). 
 
 (a) The Articles of War, which form the only definition of offences 
 cognizable by military law, and the Queen's Regulations, ate the only 
 instructions issued to the British Army in general ; but as to the Regula- 
 tions, they relate only to suppression of disturbances or riots, and the 
 Articles of War are in their terms entirely military. They include a 
 number which are no offences at all by the common law, and render others, 
 which at common law are mere misdemeanours, capital. Thus, for instance, 
 the offence of sending intelligence to an enemj', that is, to a rebel, is by 
 military law capital. They arc ouly capable of being applied to the case of 
 civilians in rebellion, by a sort of rough analogy, according to which, for 
 instance, 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, concealing 
 traitorous or mutinous designs, or not endeavouring to suppress them, or 
 coming to the knowledge of any intended mutiny or rebellion without 
 giving notice thereof, &c. (vide Mae Arthur on Court Martial, vol. i.). It is 
 obvious that in all this, then, there is room for great uncertainty. The 
 Author did his best to draw out from first principles, and rude analogies, 
 and some authorities, what martial law really was, and if he was inaccurate, 
 the fault surely does not lie with him, nor with the military service, but 
 with Parliaments and Governments, which have allowed the military service 
 to remain under the impression that martial law meant absolute military 
 authority. If it is not so, why is it not defined .'
 
 46 INTRODUCTION. 
 
 or instructions from the Crown, they must proceed upon 
 some intelligible basis, and must depend upon the view- 
 taken of martial law. If there is no such power in the 
 Crown to declare martial law — as all authorities have 
 asserted there is — then any measure must be legislative, 
 and must create such a power before it can be limited or 
 defined ; but if there be such a power, then the Crown can 
 limit and regulate it. Again, if it does not include, or may 
 not include, in cases of great public peril, the power of using 
 deterrent measures, by speedy trial and execution of those 
 who are detected in aiding the rebellion, as all writers on 
 the subject have supposed, then such power, before it is 
 regulated, must be conferred ; but if it does include such 
 power, it may easily be regulated and restrained by in- 
 structions from the Crown ; and it is here, indeed, that the 
 scope for regulation chiefly, if not entirely, arises. For as 
 to operations in the field, it is obvious that, in their 
 nature, they hardly admit of regulation, beyond the regula- 
 tions already in existence ; and, on the other hand, they 
 hardly require regulation ; for, of course, those who meet 
 the Queen's forces in the field must take the consequences. 
 It is, at all events, only as to the mode of dealing with 
 prisoners that the necessity for regulation mainly, if not 
 entirely, arises. And it is here that the difficulty and 
 embarrassment arising from want of regulations were most 
 felt. 
 
 It is most necessary, with a view to any future regu- 
 lation of the subject, to have regard to what really are, 
 according to the highest authorities, the powers of martial 
 law. In considering, however, what martial law may be, as 
 regards civilians, it is obvious that it is necessary first to 
 settle what it is as to soldiers ; for martial law, in rebellion, 
 if it affects civilians, must be by the application to them of 
 that martial law, whatever it may be, which is understood 
 as applicable to soldiers. Upon the determination of this 
 question must depend the question of procedure, the con- 
 stitution of courts-martial, and the like. The Lord Chief
 
 INTRODUCTION. 47 
 
 Justice, under the notion — opposed to all the authori- 
 ng (a) — that martini law, as to soldiers, means regular 
 military law, strongly suggests, though he docs not venture 
 distinctly to lay down, the conclusion thai it is so. 
 
 But if martial law as to soldiers is different from ordi- 
 nary or regular military law, then its proclamation or 
 publication, as against the population in general, must 
 mean the same thing. And it must extend to all who are 
 in rebellion, or it is nugatory. But if civilians are subject 
 in such a case to courts-martial, then, as the Articles of Win- 
 do not apply to them (b), the rules of regular courts-martial 
 cannot possibly be applicable to them, and their trials are 
 left to the custom of war and natural justice. 
 
 The question, therefore, as to what martial law really is, 
 
 (a) " 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 prero- 
 gative called martial law, which is only exercised in the emergency of 
 invasion and insurrection or rebellion" {MacArtkur on Court-Martial, 1). 
 Thus, Simmons slates, that courts-martial are regulated by the Mutiny 
 Aet, and the Articles of War, and general orders, and that their practice is 
 moreover regulated on points wfu r< that law is silent, chiefly by the customs 
 of war, i.<\. the usages of the British Army (Simmons on Court-Martial, 
 p. 87). So it is laid down in that work, p. t»7, that, " The proclamation of 
 martial law renders every man liable to be treated an a soldier," that is, 
 amenable to courts-martial under the orders of military authority (Sim- 
 , 14, 97). 
 (6) The Lord Chief Justice himself quotes the 152nd sec. of the Articles 
 of War, " That no officer can sit on a court-martial without taking an oath 
 to administer justice according to the Articles of War and the Mutiny Act; 
 and if any doubt shall ai a bj the Articles of War, then 
 
 according to his conscience and the best of his understanding, and the 
 custom of war in the like casefi :" which the Lord Chief Justice, in the 
 teeth of its terms, interprets to mean according to the Articles and the Act, 
 whereas it supposes a case where by reason of Some doubt they are not 
 applicable, which must be so in the case of civilians, for the terms of the 
 Articles and Act only apply to soldiers: and BO Simmons explains it. that 
 in cases where the Articles are silent, the officers mr aed by the 
 
 "custom of war." Now, this must be so in the case of civilians, a- to 
 whom there is not a word in the Articles or the Mutiny Act. If, there- 
 fore, civilians, in other words rebels, are to be liable to martial law iu 
 rebellion, and if not, then it is utterly useless, then of necessity it follows
 
 48 INTRODUCTION. 
 
 or authorises, appears to resolve itself into this : whether it 
 can be applied to rebels for the suppression of a rebellion 
 which cannot otherwise be suppressed ? For it is admitted 
 on all hands, that the declaration of martial law can only 
 be justified by paramount necessity ; and in a rebellion of 
 civilians, unless it can be applied to civilians, it cannot be 
 applied at all. The question, therefore, appears practically 
 to answer itself, for, in the only case to which it applies — a 
 case of paramount necessity, that necessity admits of no 
 argument, and overrides all law. And if it is necessary to 
 apply martial law to civilians in rebellion, and regular 
 military law is not legally applicable, because it is by 
 statute limited to soldiers, and is not actually applicable, 
 because the circumstances of the case will not admit of its 
 application (for which reason war dispenses with it, even 
 as to soldiers), what remains, but that they are temporarily 
 subject to absolute military law ? Soldiers are not the less 
 citizens, and entitled to the rights of citizens than others ; 
 and of those rights they cannot be deprived, except upon 
 the ground of a paramount necessity, with reference to 
 the safety of the community. The same necessity which 
 alone can justify their being put under military law 
 at all, may well enough be deemed to dispense with its 
 formal rules, which, indeed, are never, in war, applied to 
 them, and are not legally or actually applicable. Whether 
 the application of martial law is legal, is a question which 
 underlies any consideration of rules to regulate or restrain 
 it, and must depend on first principles, and on the nature 
 of the powers of common law and military law, which the 
 
 that they, the rules of regular military law, cannot possibly be applicable 
 to them, and that they are to be dealt with, as martial law now stands, by 
 the "custom of war." This is so, it is admitted as to soldiers, in time of 
 war ; and there is no great reason why the loyal soldiers of the Crown 
 should be under a more rigid rule than rebels in arms against the sove- 
 reign. But then, on the other hand, this raises an intelligible ground for 
 regulation. The Lord Chief Justice is, the Author thinks, mistaken in 
 supposing that in the Ceylon case the courts were instituted as regular 
 courts-martial. The great objection was that they were not.
 
 
 INTRODUCTION. 49 
 
 Author proceeds, therefore, to examine, and in the exami- 
 nation of which it may be found that the necessary regula- 
 tions and restraints suggest themselves as naturally arising 
 upon a consideration of the subject. 
 
 The Author cannot forbear from observing here, with 
 reference to the aversion -apparently existing in the mind 
 of the Lord Chief Justice to the idea of absolute military 
 command during martial law, that it is protective of the 
 subject, rather than to his prejudice; and that its ad- 
 vantage and importance may be illustrated by the very 
 case which has so recently occurred. For whatever may 
 have been the instances of excess, unhappily to be lamented, 
 no one can doubt that, but for the orders issued by the 
 military Commander, and but for the forces engaged being 
 under military command, these excesses would have been 
 immeasurably greater. Those that did occur were, for the 
 most part (so far as the Author is aware), if not entirely, 
 against order, and certainly without orders ; and in most 
 instances under the influence of civilians ; and at all 
 events, had the orders which were given not been given, 
 and had there been no military authority and responsi- 
 bility, there would havo been excesses infinitely more 
 lamentable, and a wild anarchy of unbridled cruelty. So 
 with reference to the horrible excesses perpetrated in the 
 suppression of the Irish rebellion, to which the Lord Chief 
 Justice so eloquently alludes ; the cause of them, as Lord 
 Cornwallis himself states, was, not that they were under 
 military authority, but that they were not The very com- 
 plaint made was, that the army was left without military 
 discipline ; and the remedy, it is manifest, would have been 
 by rigidly enforcing it, and holding the General in command 
 responsible for it. Power and responsibility go together, 
 and it is surely for the protection .if the subject that the 
 execution of martial law. if ever it should be unhappily 
 necessary, shall be placed in the hands of military authority, 
 and subject to the restraints of military- discipline This, 
 indeed, seems to be the opinion of the Lord Chief Justice, 
 
 E
 
 50 INTRODUCTION. 
 
 for he strenuously insists that martial law, when valid, is to 
 be deemed regular military law, in which, for the reason 
 already given, it is conceived that he is in error ; but which 
 indicates the due appreciation of the importance of the 
 restraints imposed by military discipline and military 
 law. 
 
 So on the cognate subject of trials by court-martial 
 under martial law, in the view of the authorities, and of 
 the Author, they are to be regarded rather as protective 
 of the subject, than to his prejudice. They interpose 
 some breathing time, so to speak, amid the wild excitement 
 of the moment, some check upon unbridled massacre, some 
 opportunity for reflection and selection, and for the exercise 
 of clemency and humanity, and they tend thus, if rightly 
 regulated, to the diminution, and not to the augmentation 
 of the sacrifice of human life. It is in that spirit they have 
 been spoken of by the courts on all occasions on which they 
 have had to allude to them, not merely as a means of 
 punishment, but as a restraint or limitation on massacre (a). 
 It was in that spirit the Author intended to speak of them ; 
 and he has been surprised to find it supposed that he 
 meant anything else. The Lord Chief Justice says that 
 quarter may be refused to rebels ; that is, that a rebel who 
 throws down his arms and offered to surrender himself 
 prisoner, may be slain in cold blood. The Author protests 
 against this as contrary to law, and, at all events, it is so 
 contrary to humanity, that he is quite sure (applying to the 
 Lord Chief Justice a larger measure of candour than the 
 Lord Chief Justice has afforded to him), that the Lord Chief 
 Justice, though he imagines it may lawfully be done, does 
 not mean that it ought to be done. But to prevent its 
 
 (a) Thus the late Mr. Serjeant Spankie, in hie admirable comments on the 
 Indian Regulation, already alluded to, says, that trial by court-martial is 
 calculated to prevent military severity in the field, becoming- absolute 
 massacre (Hough's Military Law, 344). So the court in Wright v. Fitzgerald, 
 Tri., and in Governor Wall's Case, 28, ibid, laid it down that there 
 ought always to be an inquiry, even in the case of open mutiny.
 
 INTEODUCTION. 6 1 
 
 being done, there must be the power of trial of prist 
 taken in rebellion ; and the Author ventures to lay it Aowo 
 as clear law, that a rebel who surrenders is entitled to trial, 
 and cannot lawfully be put to death without trial, and as 
 fair and a careful trial, as the circumstances will admit of. 
 For it may be that, even though found in arms, he may 
 have good cause to show why he should not be executed ; 
 lie may have been forced by terror to join the rebels ; he 
 may have committed no act of homicide ; he may have 
 performed acts of humanity, entitling him to mercy — all 
 this actually happened on a recent occasion, and several were 
 rightly saved, for such or similar reasons. And it is to be 
 observed that sentences of courts-martial should always 
 come before a superior officer, the General in command ; 
 and thus always afford opportunities for this exercise of 
 clemency, as well as for a review of the evidence. It is 
 not because these precautions may on some occasion have 
 been neglected, or have failed, that therefore they are 
 valueless or pernicious. On the contrary, it may rather be 
 said, that if things were so bad with courts-martial, what 
 would this have been ivithout ? It is obvious that there 
 would have been indiscriminate massacre. 
 
 There are some who appear to apprehend, from the 
 occurrences on a recent occasion of the exercise of martial 
 law in Jamaica, that there is danger of the recurrence of 
 excesses on any future occasion of the declaration of martial 
 law, and that, therefore, it is necessary to take measures to 
 prevent such a danger. But the Author confesses that he 
 draws a different inference from recent events ; and finds in 
 these events themselves the strongest grounds for allaying 
 these apprehensions. It should be borne in mind, that the 
 rebellion arose suddenly, and took every one by surprise, 
 that there was great excitement and alarm, and no in- 
 structions — nothing to guide, direct, or to warn. Now, 
 however, these unhappy occurrences themselves have served 
 as a sad and impressive warning ; and have, moreover, 
 elicited from the Secretary of the Colonics, and from the 
 
 e2
 
 52 INTRODUCTION. 
 
 Royal Commissioners (a), so much valuable instruction and 
 monition, that should such occasion ever arise again, as it 
 
 («) Thus, Mr. Cardwcll, in his final dispatch upon the subject, lays down 
 in clear terms the governing principles. " Future good government is not 
 the object of martial law. Example and punishment are not its objects, 
 its severities can only be justified when, and so far as, they are absolutely 
 necessary for the immediate re-establishment of the public safety." Next, 
 in accordance with the Report of the Royal Commissioners, he laid down 
 the great rule, that though the " measures of severity, when dictated by 
 necessity and justice, are in reality measures of mercy," yet, on the 
 other hand, " that the course of punishment should be arrested as 
 soon as possible, and should be confined, meanwhile, to ascertained 
 offenders, and to cases of aggravated guilt. And that no time should be 
 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." Further he laid it down 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 heep 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 law, it was 
 the duty of the Governor to inform himself of the character of the pro- 
 ceedings taken, and to put an end to all proceedings which were not abso- 
 lutely 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." Mr. Cardwcll, indeed, added with characteristic candour, 
 " I think it is due to Mr. Eyre that I should accompany this observation 
 by the statement that, in the instructions to Colonial Governors, no reference 
 is made to the possible occurrence of such an emergency as that in which 
 he was placed. How far it may be possible to frame general instructions 
 which might assist the Governor in the case of future disturbances arising 
 in any colony, is a, subject which will receive careful consideration at the 
 hands of Her Majesty's Government. You have justly observed how much 
 easier 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." But it may safely be said that his 
 own admirable despatches have gone far to supersede the necessity for any 
 such instructions, and that in future Governors having all the advantages 
 of these ample materials for guidance, and of the wisdom which, as 
 Mr. Cardwcll truly says, " comes after the event," must be dull indeed if
 
 INTRODUCTION. 53 
 
 is to bo hoped it will not, there are ample materials for the 
 guidance of Governors of colonies on any future occasion. 
 
 In these despatches, the principle was laid down that the 
 Governor will be held primarily responsible for the decla- 
 ration of martial law, and will be bound to keep himself 
 fully informed of the manner in which it is executed. It 
 is the duty of the general in command of the forces 
 
 they do not profit by it. Next, lie laid it down that if martial law was 
 allowed to continue, instructions ought to have been issued to the officers to 
 whom the actual conduct of the operations was entrusted. And, further-, 
 he indicated distinctly in a previous despatch the nature of the instructions 
 which ought to have been issued by the military Commander, inquiring 
 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 from 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." He also indicated clearly in the same despatches the nature 
 of the information which a Governor in such a case will be expected to 
 acquire, and to be able to afford as to the execution of martial law. " 1 . The 
 number of persons tried, and of those sentenced by courts-martial, spe- 
 cifying 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 appended 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 each ease whether the offence was committed before 
 or during martial law, whether the arrest or capture was made during 
 martial law, and in a 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 committed during and under 
 martial law, it should be stated by whose authority 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 punished, 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. 3. The number of persons,
 
 54 INTRODUCTION. 
 
 engaged in the suppression of rebellion, to give directions 
 to the officer as to the mode in which they are to act (a). 
 And many of the directions which were given were so ex- 
 cellent, that though they unhappily came a little too late 
 on the particular occasion, owing to the sudden nature of 
 the emergency, they contain in them the elements of all 
 that can be required in the way of regulation or restraint 
 in the execution of martial law. Taking these orders, 
 
 so far as can be ascertained, who were shot in the field or in the hush, 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." 
 
 (a) It is only just to this officer to state that many of the orders issued 
 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 precautions against excesses or outrages by the soldiers, and 
 some of these really are worth recording and preserving as useful cautions 
 for the future. Order of General Nelson, 25th October :— " The officers 
 commanding will respectively forbid any man to enter the house of any- 
 one, 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." On the other hand, the brigadier- 
 general, having received a complaint against the provost-marshal, 
 near the termination of martial law, wrote the following : " Memo, 
 for the provost-marshal. The provost-martial appeared to consider hia 
 powers more extensive than they are. He is simply entrusted with 
 authority to inflict summary punishment on any individual whom he may 
 detect in the commission of offences against order and discipline, and this 
 i» 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 circumstances, 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 referred 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." This letter was inserted by the Commissioners in 
 their report. 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 control over the men of your detachment, and not to permit any 
 man to quit his quarters for the purpose of foraging, &c. You are not
 
 INTRODUCTK >N. 
 
 along with the despatches of the Secretary of State, there 
 really is little left to desire for the purpose of future 
 guidance. And one object of this publication is to collect 
 and embody these valuable materials for guidance and 
 judgment on the subject, so that the advantage thus 
 capable of being derived from the experience so unhappily 
 acquired, may not be entirely lost. After all that has 
 occurred, there is little reason to fear any serious error will 
 in future be committed on the side of excess. 
 
 In justice to the Governor and the military Commander 
 in the Jamaica case, it should be stated, that it was the 
 opinion, on the one hand, of the military authorities, and, 
 on the other hand, of the legal advisers of the Governor (a), 
 
 sent to your post for the purpose of punishing the negro, but to maintain 
 order, ami to afford protection to the inhabitants generally. 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 criminals, 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 ['leased strictly to conform to the instructions herein, and any deviation 
 therefrom will be a source of discomfort to yourself. — (Signed) A. A. 
 Nelson, Brigadier-General Commanding Field Force." 
 
 (a) Thus the Attorney-General of the colony, in his evidence before the 
 Royal Commission, said, the Governor makes the requisition for troops, 
 and the general carries it out in detail. "I am of opinion that the 
 Governor was the supreme authority during martial law — my opinion is 
 1 hat as soon as the Governor gave orders to the General to go to the pro- 
 claimed districts, the Governor was relieved of the personal responsibility 
 and that he handed over the districts in question to the military, 1 
 regard the General in the field as being the supreme military authority." 
 That is subject, of course, to the Commander-in-chief of the colony. 
 Though the Commander-in-chief, General O'Connor, spoke of it as a ques- 
 tion on which lawyers were divided, his own conduct showed that he did 
 not deem it doubtful, lor he and the General in command within the
 
 56 INTRODUCTION. 
 
 that the direction of all measures taken in the execution 
 of martial law, rested with the military Commander, subject 
 to the Commander-in-chief of the island; and that the 
 latter issued no definite instructions or directions, while, as 
 to the military Commander in the district, who might 
 naturally enough await such instructions, although at first, 
 partly perhaps from this cause, and partly from the excite- 
 ment which prevailed, he did not issue specific instructions, 
 he did afterwards issue some very excellent instructions : 
 some of which are quoted with approval by the Royal 
 Commissioners, and which are collected in these pages. 
 And as there is no reason to doubt, that, but for the 
 suddenness of the emergency, more definite instructions 
 
 district, declined to try prisoners by court-martial, whom the Governor 
 desired to be so tried, but whom they considered not to be within their 
 jurisdiction, who reported on all occasions to the Commander-in-chief. 
 But the Commander-in-chief admitted that he had given no particular 
 instructions to the General in command. The Governor, who always 
 acknowledged the evils of martial law, was sensible of these difficulties. 
 In a despatch to the Secretary of State, he said : "It is probable that some 
 occurrences may have taken place 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 responsibility was by circumstances 
 forced upon, subordinate authorities. Such cases can only be sincerely 
 deplored. It would have been impossible, under the excitement and 
 urgency of the circumstances attending the outbreak, to have guarded 
 against them." This language implies that if possible they ought to have 
 been, and that but for these circumstances they would have been, guarded 
 against ; and thus it follows that on any future occasion they would be 
 guarded against, by the light of the construction thus unhappily derived. 
 In another despatch the Governor said, " No complaints were made to me 
 of 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 on 
 inquiry. He would naturally rely on the officer in command, being ad- 
 vised by the Attorney-General that he was responsible. Mr. Cardwell, in his 
 final despatch, states that "It appears that Mr. Eyre was only very gene- 
 rally informed of the measures actually taken, and that the details were 
 repm-ted to the Commander-in-chief, and only partially came under his own 
 notice in a general manner." And the Commander-in-chief, on those 
 reports, found no fault, and gave no directions tor the future. However, 
 the Secretary of State has laid it down that it is the duty of the Governor
 
 INTRODUCTION. 67 
 
 would have been issued ; so on any future occasion that 
 might unhappily arise, as there would be the benefit of the 
 warning conveyed in these unhappy events, so there would 
 be the advantage of all the useful instructions issued — it 
 may be too tardily — on that occasion. 
 
 The Lord Chief Justice adverts to the statutory declara- 
 tion of the " undoubted prerogative of the Crown for 
 the public safety, to exercise martial law against rebels," 
 and he deals with them in a manner scarcely satisfactory. 
 He says, that there is a difference between a declaratory 
 enactment and a recital or reservation, as no doubt there 
 is, apparently not observing that these are declaratory 
 enactments. He says, that if a statement of fact or of law 
 be recited, as the foundation of legislation immediately 
 following, it is not conclusive, as no doubt it is not; but 
 tlnu he fails to see that these are not such cases, but 
 they are, in terms, formal declaratory enactments folloiving 
 legislation. Finally, he cites cases to show that on mere 
 matters of property and private right, necessarily more or 
 less matter of fact, as to which Parliament may be misled, 
 or mere ordinary law between subject and subject, a reser- 
 vation or saving clause is not conclusive. Why, no, cer- 
 tainly not ; but does the Lord Chief Justice of England see 
 no difference between such cases, and cases in which Par- 
 liament, as the great source and guardian of constitutional 
 law, solemnly affirms and asserts the 'prerogative of the 
 Grown for the public safety, and declares and enacts 
 that this prerogative shall not ever by its own legislation 
 be deemed in any degree to be limited or restrained ! 
 
 to make himself acquainted with all the measures taken ; and he wisely 
 said, the chief anxiety of the Government is for the future. Any anxiety 
 on that score may reasonably be allayed by the recollection of the care and 
 attention with winch no doubt his despatches on the subject will be 
 regarded by Colonial Governors, and for which purpose the principal pas- 
 sages in them are carefully embodied in this work. 
 
 (a) The 13 Ceo. III. c. 117, declared and enacted that nothing shall be 
 construed to abridge or diminish the acknowledged pr e ro gat ive of the Crown 
 for the public safety to resort to the exercise of martial law against open
 
 58 INTRODUCTION. 
 
 The Lord Chief Justice admits, indeed, that so emphatic 
 an expression of the opinion of Parliament is certainly 
 entitled to great and respectful consideration : " but that it 
 cannot prevail against truth and fact, if a thorough inves- 
 tigation of the subject should lead us to an opposite con- 
 clusion, and satisfy us that Parliament has formed an 
 unsound opinion upon it." But then, after a year and 
 half for " thorough investigation/' the Lord Chief Justice 
 goes on to avow, not that the result has been to " lead his 
 mind to an opposite conclusion," but, on the contrary, " that 
 it has left his mind in doubt : " that is to say, he cannot 
 venture to say that Parliament and all the eminent con- 
 stitutional and legal authorities were not right after all ; 
 and then he proceeds, in this state of doubt, to leave to the 
 jury (a) the matter of pure law, on which he had not been 
 able to make up his own mind, and to leave them to over- 
 rule the law as declared by the Imperial Parliament and 
 laid down by the greatest lawyer of the age, and which he 
 himself wisely would not venture to overrule. 
 
 It might, indeed, be considered that Parliament, the Great 
 Council of the realm, was the highest possible authority 
 on a subject of constitutional law, and that what it 
 
 enemies or rebels. And the 3 & 4 Wm, IV. c. 40, s. 40, declares and enacts 
 that nothing in the Act shall be construed to take away, 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. 
 
 (a) If you are of opinion, upon the whole, that the jurisdiction to exercise 
 martial law is not satisfactorily made out, &c. (p. 155). If then, upon a 
 review of the authorities, and of the enactments of the statutes, and the 
 recognition of /he power of the Crown in the Acts of Parliament, you think 
 the case ought not to be submitted to a jury, &c. {ibid). It may be that 
 all I have said upon the subject of the law will leave you, as I own candidly 
 it still leaves me, in some degree of doubt {ibid). This avowal breathed the 
 spirit of candour of the Lord Chief Justice; but it may, perhaps, with all 
 respect, be suggested, that if indeed his mind was in doubt, it would have 
 been wiser to take the law as thus declared by Parliament, and by all the 
 great lawyers and statesmen from the time of the Revolution to our own 
 day, and not, on the one hand, use language calculated to unsettle only to 
 disturb, and on the other hand, allow himself an unusual license of denun- 
 ciation against a legal writer who followed these authorities.
 
 INTRODUCTION. 59 
 
 solemnly declared and enacted ought to be deemed con- 
 clusive on the subject. And that, above all, what it thus 
 solemnly declared and enacted of the royal prerogative, for 
 the safety of the realm, might safely be trusted as decisive. 
 At all events, it is impossible to imagine any higher or 
 loftier authority, or any better or higher evidence of what 
 is the law on such a subject than these solemn declarations 
 of Parliament, with the assent of all the great statesmen 
 and lawyers who at different times have sat in it. And 
 when it is added that these solemn and energetic lesisla- 
 live declarations were but in affirmance of the doctrines 
 laid down by legal and constitutional writers, and in legal 
 text books of the highest authority, it does seem almost a 
 reductk) ad absurdum to suppose that all this accumulative 
 authority is arrayed on the side of error. And it is not 
 wonderful that the Lord Chief Justice of England should 
 shrink from placing himself in direct opposition to it, and 
 should not venture to say that it is error, or that martial law 
 in time of rebellion is not allowable by the common law (a). 
 Nor can there be any doubt, at all events, as to what 
 Parliament understood by martial law, in suppression 
 
 (a) The nearest approach to any such declaration is a statement in ex- 
 tremely guarded terms, that " since the Petition of Rights, martial law has 
 not been exercised in England by virtue of prerogative," which last qualifi- 
 cation is, no doubt, introduced to cover the undoubted use under the 
 Cotfuno&wealth. But this is rather an historical than a legal proposition, 
 and even with that qualification it is inaccurate, for on the occasion of the 
 Lord George Gordon riots, the Crown declared the tumults rebellious, 
 and directed the military to act without the civil authority, and (hey did 
 act — not, as at common law, merely in resistance or prevention, but slaying 
 the people wherever they found them assembled, which was war, and un- 
 lawful at common law. And though Lord Mansfield tried to persuade the 
 House of Commons that this was not martial law, they kneAv better, and 
 adjourned; and Mr. Flallain justly derides the notion as sophistical. But 
 setting aside this (to whieh, it is remarkable, the Lord Chief Justice does 
 not allude), the Lord Chief Justice forgot that the common law in Ireland 
 is the same as in England, and cannot deny that martial law has been 
 declared there almost within living memory at common law, and that the 
 Imperial Parliament not only never declared it illegal, but solemnly declared 
 the contrary.
 
 60 INTRODUCTION. 
 
 of rebellion, for having given power to exercise it in cases 
 when it could not legally be declared at common law — and 
 it was only for that purpose a statute was necessary — it went 
 on to enact salutory regulations as to its exercise against 
 all persons taken in rebellion, whether or not they were 
 civilians ; and, indeed, as already observed, in a rebellion of 
 civilians it would, indeed, be idle if it were not to apply to 
 the only class in rebellion. These positive enactments, at 
 all events, are legislative declarations of the real meaning of 
 martial law in rebellion, in any other sense than which it 
 is absolutely idle and absurd. 
 
 The Author ventures to hope that he shall not be deemed 
 presumptuous if he adheres to the doctrine thus asserted by 
 all the overwhelming weight of legislative and constitu- 
 tional authority, to which the Lord Chief Justice of 
 England, after such ample opportunity for consideration, 
 does not venture to oppose any decisive contradiction, and 
 against which all his researches have not enabled him to 
 produce an atom of authority. The Author, therefore, 
 ventures to re-state his conclusions, and the grounds for 
 those conclusions, and at the same time to suggest those 
 regulations and restraints upon the exercise of martial law 
 which the true conception of the principles of paramount 
 necessity on which alone it is allowable appears naturally 
 and reasonably to suggest. But, subject to these qualifica- 
 tions and restrictions, he ventures to reassert his funda- 
 mental conclusions, as not only not spoken but strengthened 
 and confirmed by the elaborate disquisition of the Lord 
 Chief Justice ; that is to say, he presumes, in the language 
 of Parliament, to assert " the undoubted prerogative of the 
 Crown to declare martial law for the suppression of rebel- 
 lion ; " and, in the language of our great constitutional his- 
 torian, he asserts it to be " the suspension of civil 
 jurisdiction." 
 
 Since writing the preceding pages a debate has taken 
 place in the House of Commons upon the subject, the 
 tenor and result of which has been substantially to confirm
 
 INTRODUCTION. 01 
 
 the views which the Author has ventured thus to put forth ; 
 namely, that the charge of the Lord Chief Justice, which 
 was supposed to have been so decisive against recourse to 
 martial law for the suppression of rebellion, is not only not 
 decisive of it, but rather implies its legality (a), and at all 
 events leaves the question just where it was before, and 
 that the doctrines maintained, on the highest authorities 
 on the subject, are, to say the least, at this moment 
 not contradicted by any judicial or legislative authority, 
 and are, moreover, to be regarded as substantially esta- 
 blished, so far as and so long as the exercise of martial law 
 may be required and excused by a real necessity. And 
 though the opponents of martial law professed to regard 
 the charge as conclusive against the legality of martial law, 
 they showed their own distrust of it by attempting to sup- 
 port it by historical misstatements of the most remarkable 
 kind (b), and a resolution which would have falsified or 
 altered the law of England on the subject, and which, 
 therefore, the House of Commons declined to entertain. 
 
 (a) It is important to observe that the resolution was moved by an Irish 
 member (Mr. O'Reilly), animated, as the Secretary of State observed, by a 
 natural aversion tu martial law, owing to the horrors and atrocities perpe- 
 trated in Ireland, and to which he thus adverted: " Within a very recent 
 period the exercise of martial law had been attempted in one of our 
 colonies. In Ireland it was called into operation in 1798, under what cir- 
 enmatances was stated in the Cornwallis correspondence. He did not like 
 to enlarge on so painful a subject, or to revive reminiscences of evil times 
 over which he should prefer to draw a veil; but the question had been 
 raised in regard to Ireland, and in regard to the colonies, and it demanded 
 an answer." That answer in effect was, that such atrocities were not martial 
 law, but military license ; that martial law was only exercised by and limited 
 h\ necessity ; and that if it was so limited, there could be no such atrocities, 
 and that on the same principle of necessity rested its Legality. 
 
 {/>) The honourable member who moved the resolution stated that it was 
 laid down in the Petition of Rights drawn up in lt!27, and again in the Bill 
 of Rights in 16SS, "that none shall he forejudged of life and limb save by 
 the judgment of their peers and the law of the land." But the Petition of 
 Eights defines martial law as that which is used in armies in time of war, 
 and docs not say a word as to its illegality in time of war or rebellion ; hut, 
 on the contrary, clearly implies its legality so far as regards rebellion and
 
 62 INTRODUCTION. 
 
 Ou that occasion the views of the opponents of martial 
 law were marked, as they always are, by that hopeless con- 
 fusion and inconsistency which is the infallible indicative of 
 error ; and while repudiating martial law, they did so 
 evidently under the notion that it was something which it 
 is not, and that it applied after a rebellion was over. And 
 they did not hesitate to follow the Lord Chief Justice in 
 laying down something infinitely tvorse, and which would 
 come to indiscriminating massacre ; altogether failing to 
 perceive that the great object of martial law is to pre- 
 vent this. While loudly avowing that any measures might 
 
 rebels, and the Bill of Rights contains no proposition except that standing 
 armies are illegal in time of peace, and the successive Mutiny Acts since 
 that time state the proposition here cited as applying to time of peace. 
 The only answer attempted to this, that this applies to soldiers, is inconclu- 
 sive, for soldiers are as much free citizens as others, and can no more than 
 others be deprived of their rights as such, except on the ground of neces- 
 sity. The resolution moved was, "That whereas, by the law of this king- 
 dom, no man may be forejudged of life or limb, but by the lawful judgment 
 of his peers, or by the law of the land; and no commission for proceeding 
 by martial law may issue forth to any person or persons whatever by colour 
 of which any of Her Majesty's subjects may be destroyed or put to death 
 contraiy to the laws and franchise of this land, and the pretended power 
 of suspending of laws, or the execution of laws by regal authority without 
 consent of Parliament, is illegal ; this House would regard as utterly void 
 and illegal any commission or proclamation purporting or pretending to 
 proclaim martial law in any part of this kingdom." But the Secretary of 
 State declared that this resolution embodied doctrines which had never 
 been affirmed either by statute or judicial decision. And the House declined 
 to pass it. It is to be observed that one important point was settled in 
 this debate as to the charge of the Lord Chief Justice, viz., that it was of no 
 judicial authority. Of course, every lawyer was aware of this already, as it 
 was a mere charge to the grand jury preparatory to a trial; and, moreover, 
 every word in it ou the subject was obitt r, for he told the jury, contrary to 
 the Report of the Commissioners, that at the time in question the rebellion 
 was over. Of course, martial law, if that were so, must be illegal. But 
 though at first it seemed to be supposed that the charge was of some 
 authority, this was quite disproved by the Home Secretary (vide post), 
 and Mr. Mill, the most determined opponent of martial law, frankly 
 admitted that " the House knew that this charge to the grand jury was not 
 law, and very good reasons had been stated fairly enough by the Home 
 Secretary why it should not be law."
 
 INTRODUCTION 63 
 
 be taken which were necessary, they failed to perceive that, 
 ..n fche one hand, this Lefl the question all open, and that, 
 
 00 the other hand, if there be any "law" in the world 
 which more requires regulation and restraint in its exer- 
 cise than another, it is the " law of necessity," which, with- 
 out regulation and restraint, must degenerate into anarchy 
 and unbridled license; and that as measures of necessity 
 must be upheld by military force, it can only be restrained 
 by military discipline ; and that, in short, martial law, or 
 the law of war, is but the law of necessity exercised by 
 military power, under military authority, and subject, rightly, 
 to the most rigid restraints of military discipline. Indeed, it 
 appeared to be implied that these measures ought to be 
 taken under military authority and military law; and if so, 
 that, as already shown, is all that is wanted in martial 
 law (a). 
 
 (a) Mr. Forstcr, who had been Under Secretary for the Colonies, avowed 
 that "he had never believed that martial law, as it was understood in this 
 country, in Ireland, or the colonies, was necessary for the purposes of 
 government in those places; adding, "In that opinion he should no doubt 
 l„ In ,i minority, hut having paid close attention to all that had happened 
 in Jamaica, and having looked over all similar cases in recent history, lie 
 had seen no case in which the proclamation of martial law was a necessary 
 evil." Which, it will have been seen, was contrary to the deliberate 
 judgment of all the great statesmen of his time, including the leader of hia 
 own Government, so that the view of this honourable member may fairly be 
 regarded aa extreme. Yet "he admitted that to the restoration of peace and 
 the preservation of authority, everything else imtst gm way, and that what- 
 
 ■ u ly nee< ssary for thai purpose must 
 I,, sanctioned; but he had seen no ease where what was embodied in the 
 BOtion of martial law, the power ofpunishmenl after the Mippression of the 
 outbreak," was essential. Hut this was either confounding mere outbreak or 
 Outrage with rebellion, or it was mistaking martial law, which i.- limited to 
 rebellion; only rebellion may last some time alter aetual outbreak and 
 active resistance. "The Chief Justice bad pointed out that within twenty- 
 four hours after the issue of the proclamal ion, peace and order were restored 
 in Jamaica* and nobody could doubi that peace would have been equally 
 
 restored by the action of the troops, whether martial law had been pro- 
 claimed or not." Then, if SO, martial law was unlawful; but that was a 
 question of fact, on which the Btatement of the Lord Chief .lust ice was utterly 
 Contrary to the Report of the Commissioners, who gave ten days as the
 
 64) INTRODUCTION. 
 
 It is most remarkable that on that occasion an honourable 
 gentleman, who had been Under-Secretary for the Colonies, 
 although most adverse to martial law, acknowledged that 
 " the doctrine of all our most eminent laivyers, at all 
 stages of our history, had been that, if martial law were 
 proclaimed, it meant military law, and the giving to 
 military officers, with regard to civilians, those powers 
 winch they possessed with regard to their own services." 
 This, it need not be said, is all that has ever been con- 
 tended, and it is what the Author wrote his book to 
 
 duratiou of the rebellion. "Nothing could be stronger than the statement 
 of the. Lord Chief Justice as to the power of suppression reposed in the 
 Government : 'a rebel in arms stands in the position of a public enemy, 
 and therefore you may kill him in battle, or you may refuse him quarter, 
 dealing with him in this respect as with a public enemy.' This showed 
 that as long as actual rebellion was in existence martial law was not needed 
 for the suppression of any disturbance. As to the allegation that the pro- 
 clamation of martial law was necessary for the punishment of those who 
 had taken part in the rebellion, such an argument showed that no real 
 necessity existed for martial law at all." But if that be allowable, then it 
 is still more necessary for the sake of humanity ; and this, as already shown, 
 is the basis upon which that sound lawyer, Mr. Serjeant Spankie, put the 
 question, as a preventive of indiscriminate massacre. As the writer has 
 already observed, he repudiates the notion that such a course as the slaughter 
 of rebels who surrender themselves as prisoners is allowable; on the con- 
 trary, he declares it is as contrary to law as it is to humanity. And it is a 
 remarkable illustration of the power of prejudice that a gentleman whose 
 sense and humanity are so undoubted should adopt such a monstrous pro- 
 position rather than adopt martial law. Why, the very object of courts, 
 martial under martial law is to restrain the indiscriminate massacre thus 
 supposed to be allowed, and to afford some opportunity for enquiry and the 
 exercise of humanity. And it has been laid down, again and again, in our 
 courts, that no man can be put to death in cold blood, even in a mutiny, 
 without some grave and careful enquiry, even although it be only by drum- 
 head court-martial, which is rough justice, certainly, but surely better than 
 none at all ; so it was laid down by the court, in Wall's case, and so in 
 Wright v. Fitzgerald, and it is in fact natural justice. Indeed, the honour- 
 able member went on to say, " There were two theories as regarded martial 
 law. One appeared to have been held by the principal lawyers in all stages 
 of our history, from Chief Justice Hale to the present Chief Justice. This 
 was, that if by any unfortunate circumstance martial law was proclaimed in 
 any part of Her Majesty's dominions, It meant military law, and the giving 
 to military and naval officers similar powers with regard to civilians to
 
 /> * s 
 
 INTRODUCTION. 65 , ^ 
 
 * I c .; 
 
 establish. For, although the honourable gentleman added 
 that the result would be that courts-martial should be con- 
 stituted as for the trial of a soldier; and seemed to assume, 
 as the Lord Chief Justice had assumed, that this meant a 
 regular court-martial, as under ordinary military law, he 
 evidently was no more aware than the Lord Chief Justice 
 had been, that military law allows of courts otherwise 
 constituted, in our foreign dominions or dependencies ; and 
 that our courts of law, even in criminal cases, have recog- 
 nised («), in cases of mutiny or rebellion, even the rough 
 and summary justice of "drum-head courts martial." 
 
 those which they possessed with regard to members of their own services. 
 The result would be a court-martial constituted under the same regulations 
 as a court-martial for the trial of a naval or military officer." So that this, 
 after all — which is martial law in effect — is admitted to be the law laid 
 down by the most eminent lawyers in all stages of our history. For the 
 hon. gentleman appeared, like the Lord Chief Justice, not to be aware that 
 even the military law makes special provision for trial of offences arising in 
 our foreign dominions with a less number of officers (only three), and com- 
 posed of both services, exactly as was done in Jamaica. " That was one 
 theory spoken of by the Lord Chief Justice ; the other was that martial 
 law applied to civilians is not military law, but the arbitrary will of the 
 Executive. This latter theory the Chief Justice regarded as a heresy of 
 recent growth, and it was no doubt the theory on which the Jamaica 
 authorities acted, and also the theory on which the authorities in Ceylon 
 and other places had acted before. This theory had high authority to back 
 it ; it was in accordance with the dictum of the Duke of Wellington, that 
 martial law was the will of the General, and, in fact, meant no law at all." 
 But that meant, as the Author expounded it, not ordinary military law ; and 
 the Lord Chief Justice, as already mentioned, in quoting his proposition, 
 omitted that word, on which the whole question turned. In conclusion, 
 the honourable gentleman said, most truly, "Surely, after all the centuries 
 in which we had been labouring to protect subjects of the Queen from any 
 exercise of arbitrary power, argument ought not to be needed for the 
 purpose of combating the opinion that it was necessary to suspend the 
 common law, not for the restoration of peace and order, but merely for the 
 purposes of punishment." Nobody will dispute this; all that has been 
 contended for is punishment during rebellion. 
 
 (a) The Lord Chief Baron, in Wall's case, distinctly recognised them as 
 allowable on a sudden mutiny. So in Wright v. Fitzgerald, 27 Bta. Trials, 
 the court spoke of any grave and honest inquiry, however irregular and 
 informal, as sufficient, in actual rebellion. Of course this was limited to 
 
 F
 
 GG INTRODUCTION. 
 
 In the course of the debate, the eminent person who, 
 in 1859, had, in his official capacity as Judge Advocate- 
 General, declared the law on the subject, in accordance 
 with all the authorities, adhered to and affirmed that 
 
 such cases, and if all that the lion, gentleman meant was so to limit it, the 
 limitation is undoubtedly correct. But it is evident that the admission 
 of this virtually involves all that has ever been maintained as "martial 
 law," and that profound thinker, Mr. Mill, at once perceived and exposed 
 the inconsistency. For whereas Mr. Forster would allow of no trials 
 merely for the purpose of punishment after the rebellion was over, Mr. 
 Mill would not allow of punishment at all. For he appealed to the charge 
 of the Lord Chief Justice as " an authority in support of views which some 
 had taken from the very beginning of these proceedings. That for non- 
 military persons there was no such thing as martial law, and that it had 
 no existence except for military persons." The entire and hopeless in- 
 consistency between this view and that of the late Under-Secretary, 
 will be observed ; but it may be added that there is an equal inconsistency 
 with the charge, by which Mr. Mill must have been greatly misled, seeing 
 that its tendency was this, that martial law did mean the application to 
 civilians of military law ; only regular military law. So hopeless is the 
 confusion and the inconsistency in which the opponents of martial law 
 are inevitably involved. But even this great thinker further said, " (hat 
 while there was properly no such thing as martial law, there was no doubt 
 a law of necessity, which required that certain acts should be done for the 
 suppression of rebellion, but not for the punishment of the persons con- 
 cerned in it." So that no deterrent measures can be taken to suppress a 
 rebellion, and it is to be presumed that Mr. Mill differs from the Lord 
 Chief Justice and Mr. Forster, and does not think that persons or rebels 
 who surrender may be slaughtered. He added: "He and others con- 
 tended that the law of necessity would justify the Executive in doing such 
 things as were necessary to put down rebellion if no martial law existed, 
 and that to get rid "of their responsibility the Executive must show that 
 the necessity existed, not to the satisfaction of courts-martial, but of the 
 regular tribunals of the country" — which comes, as already shown, to the 
 extreme view : " Do all that is necessary : shed blood to any extent you 
 honestly think necessary ; but mind, if you spill a single drop of blood, as 
 we may think unnecessarily, you shall be hanged for murder ! " How 
 strange that so clear a thinker should not see the rcductio ad abmrdum / 
 It is to be observed, however, that Mr. Cardwcll, who had been Secretary 
 for the Colonics when the Jamaica case occurred, expressed his adhesion 
 to this view, in entire opposition to the view of the Lord Chief Justice, for 
 he said, " There is, in certain painful and melancholy cases also another 
 law, which might be called the law of necessity, and which nobody acted 
 i pt under a very great responsibility, and the liability to render a
 
 INTRODUCTION. 67 
 
 exposition of the law (a). He declared that the common law- 
 allowed of all measures which were necessary for the sup- 
 pression of rebellion; and that, whether they were called 
 measures of necessity or martial law, it was, in >iihstance, 
 
 future account to the ordinary tribunals of the country." He added, '' Hut 
 those persons who. called upon by no act of their own, l»ut for the pro- 
 tection of the public safety, tooi a great responsibility of that kind upon 
 themselves, were placed in a position of extreme difficulty, and it often 
 happened that, in order to protect them in a way which Parliament 
 wards deemed just, a Mill of Indemnity was proposed, discussed, and 
 passed on their behalf. That, however, was an act not of prerogative, bin 
 of Parliament, and until Parliament passed such a Bill of Indemnity in 
 their favour, such persons acted, and ought to act, subject to a liability to 
 account to the ordinary tribunals of their country. Believing that to be 
 the law, and to be a wholesome state of the law, lie did not think any 
 alteration of it was necessary. But if the law did require to be altered, 
 then he should agree that a bill should be brought in for the purpose, 
 when the matter could be considered with the gravity with which a bill 
 was always treated in thai House. The law of necessity to which he had 
 referred was, in his opinion, Btrictly limited in time, and operative only 
 for repression, and not in the slightest degree for punishment ; and in the 
 memorable words of Sir .lames Macintosh, to continue to act upon that 
 ity, after the necessity itself had expired, was an enormous crime." 
 That is, it is to be presumed, wilfully so to continue it. But this view, of 
 actiug on necessity, against law, and trusting to a Bill of Indemnity, is 
 contrary to the view of the Lord Chief Justice, and the true view is that 
 necessity gives authority, and the honest exercise of authority gives 
 immunity (vide Bishop's Orvmvnal Lav, cited post). 
 
 in) .Mr. Headlam, the Judge Advocate-General, in 1S59 (vide ante p. 10V 
 The right lion, gentleman said, ' ; He thought that the law of this country 
 was tet only amply sufficient to justify the Crown in taking sufficient 
 measures for the defence of the realm, but that the Minister of the Crown 
 would be liable to the gravest censure would be li;< 
 
 menl — if he neglected to take sufficient precautions lor the defence of the 
 country. In the present ease a rebellion had taken place, and it v. as 
 alleged that the power of the Governor had been over-exerted. He was, 
 however, of the same opinion in the pi - also, that it v. 
 
 desirable to alter the existing law, and that it was better to leave it in the 
 same state in which it had al , the duty of the Government being 
 
 to take care, in the words ot the old Latin maxim, ' Ne quid detrcnieuti 
 respublica capiat.' The objections to the motion of the hon. member were, 
 in his opinion, insuperable, Having laid down the law, the hen. member 
 
 asked the House to affirm that ' this Hou ! would regard as utterly void 
 and illegal any commission or proclamation purporting or pretending to 
 
 proclaim martial law in any part of this kine- loir ' I u her such a 
 
 v 2
 
 68 INTRODUCTION. 
 
 the same ; and a mere dispute about terms, a controversy 
 about a name. And he, as all the more prominent and 
 eminent persons who spoke in the debate, utterly declined 
 to pass a resolution which declared the exercise of martial 
 law to be illegal. And while, on the one hand, he was 
 ready to consider any legislative measure for its regulation, 
 he did not appear to think such a measure practically 
 necessary. 
 
 On that occasion, the Secretary of State for the Home 
 Department (a), a Minister admitted to be a man of 
 
 niation would be legal or it would not. If it were legal, what power had 
 that House to make it illegal ? If it were illegal, what advantage would 
 there be in the resolution 1 The House in passing such a resolution would 
 be doing something beyond its functions, and to which no court of law 
 would pay the least attention. If the proposition in question embodied 
 the true law of the land, that House would only be throwing doubt upon 
 it by bolstering it up by a weak resolution on the part of one of the Houses 
 of Parliament. If the lion, member proposed to alter the law, let him 
 come forward and propose a bill, which he, for one, should be glad to 
 consider with the greatest care. Whether they called it martial law or 
 the law of necessity, it was precisely the same thing. If the Executive 
 authority superseded the ordinary law of the country when a sufficient case 
 of necessity arose, they were all agreed that it should be supported in that, 
 and also that it should be covered by an Act of Indemnity afterwards. At 
 the same time he was not prepared to say that they ought to fetter and 
 control any such authority by declarations of that description. There were 
 two distinct dangers before them. If they made precise declarations of 
 that description they might fetter and control public men, and render 
 them so timid in case of emergency that they would fail in their duty. 
 On the other hand, they might pass enactments which would tempt weak 
 men to exercise powers which ought not to be exercised unless absolutely 
 necessary. Those were two dangers of a very different description, against 
 both of which the House should guard ; and the best way of doing that 
 was by leaving the law as it was, and by making it perfectly clear to 
 persons in authority that they must act in case of emergency and take 
 responsibility upon their own shoulders, looking to an Act of Indemnity to 
 exonerate them if they had acted honestly and in good faith. It was, 
 perhaps, too much to expect men to act with perfect wisdom in every case, 
 but if they acted in strict good faith and for the best they could not be 
 fairly refused an indemnity afterwards. Whether such proceedings were 
 justified by martial law or upon the plea of necessity, appeared to him a 
 matter more of words than of substance." 
 
 (a) Mr. Gathornc Hardy, who is reported to have spoken to the fol-
 
 INTRODUCTION. 6D 
 
 remarkable ability, and a lawyer l>y profession, and who Bpoke 
 with all the responsibility mid authority which belong! t«> 
 his high office, and with the assent of the great majority of 
 the House, declared that " the resolution embodied doctrines 
 which were not laid down by any judicial decisions nor 
 by any statute ; " and pointed out, that the opinions thrown 
 out by the Lord Chief Justice were only thrown out with a 
 view to further inquiry : that they were not definitely or 
 decisively laid down ; that they were of no judicial 
 authority, being merely in a charge to a grand jury, with- 
 
 lowing effect:— While deploring the fact that necessity sometimes com- 
 pelled the proclamation of martial law, he noticed that the honourable 
 member had admitted the occasional occurrence of such a severity, nor did 
 the Lord Chief Justice ignore the necessity which might arise of setting 
 aside the law of the land and securing with great vigour the military law 
 such as is enforced by a General in an enemy's country. The Lord Chief 
 Justice, indeed, admitted that though an insurrection were suppressed, it 
 might be necessary to continue the enforcement of martial law, in order to 
 strike terror into the minds of the people for their better order in the 
 future. Everyone was agreed that in cases of insurrection and danger to 
 the lives of peaceful citizens, it was the duty of those exercising the supremo 
 power to put aside the ordinary laws, and to proclaim military law until 
 the insurrection was suppressed ; and it did not need the existence of 
 armed resistance to constitute insurrection. He knew of none who said 
 that the Jamaica authorities who had been referred to were wrong in 
 using in the first instance the most forcible means to put down the rising. 
 And he thought that if an Executive were to act by military power, it 
 would proceed in accordance with the ordinary law of the case, and military 
 farce would involve military law. If military force were adopted, it was 
 surely fairer to announce to those against whom it was proposed to act that 
 the ordinary course of law would be superseded ? The Bret part of the 
 hen. member's resolution was composed entirely of truisms, and with respect. 
 to the latter part, lie thought it extremely unadvisable that it should he 
 placed upon the books of the House of Commons. It, was evident that the 
 Lord Chief Justice himself had, lie would not say vacillated, but goue 
 from one side to another, admitting that the necessity had arisen for acting 
 with peculiar rigour, or, in other words, with military law, and yet at the 
 same time doubting whether the insurrection had not been suppressed 
 at a sufficiently early date— a matter about which the authorities in Jamaica 
 held a different opinion— to render the continuance of that military law un- 
 necessary, lie appeared, moreover, to have admitted that if the insurrec- 
 tion had been in existence, as it really was in the opinion of those in the 
 colony, the employment of military law would have been necessary. In
 
 70 INTRODUCTION. 
 
 out any argument ; that they were, moreover, obiter, 
 because thrown out upon the assumption (opposed to 
 the Report of the Royal Commissioners) that the rebellion 
 was over ; and that they were at variance with the delibe- 
 rate opinions of official men, and with the highest authori- 
 ties upon the subject. 
 
 The practical conclusion, drawn by the ablest and most 
 eminent men on this occasion, was substantially that at 
 which the Author had arrived, in the foregoing pages, 
 before the debate took place ; and which, therefore, he may 
 
 page 127 of his charge, the Chief Justice said that he felt deeply sensible of 
 the exceeding difficulty of his task, as he was without the advantage of 
 having had the matter discussed by members of the bar. Now, if any one 
 circumstance tended to add weight to the judicial decisions given in this 
 country, it was the discussions by which they were preceded. Would it, 
 then, be right that the House of Commons, in consequence, not of a judicial 
 decision, but simply of a charge to a grand jury, qualified however able and 
 learned, by those acknowledgments, should rush hastily to the conclusions 
 embodied in the resolution moved by the honourable member. The learned 
 Chief Justice has evidently been shocked by his view of what had taken 
 place in Jamaica with reference to the particular case under the decision of 
 the grand jury, and he placed before the grand jury not only the facts of 
 the case, but also his opinion, with a view to its submission to the petit 
 jury. Had the case been submitted to the petit jury, the law which the 
 learned Chief Justice had laid down, would have been subject to the 
 revision of the judges trying the case, of the criminal court of appeal, and 
 finally a writ of error might have been brought before the highest 
 tribunal in the kingdom." That is, supposing the case had remained in the 
 Central Criminal Court, to which the Act for Reservation of Crown Cases 
 applied. But if removed to the Queen's Bench, as it must have been to 
 obtain a special jury, there could have been no review of the law beyond 
 that court (vide ante). "The charge should, therefore, be taken with 
 those qualifications, and surely, upon a direction to a grand jury made with 
 a view to getting certain points afterwards decided by the law of the land, 
 the House of Commons would not consent to place upon their books a 
 resolution which would unjustly hamper those who might hereafter be 
 placed in the position of executive officers, and whose duty it might be 
 boldly to employ the powers at their disposal, in order to put an end to 
 what might otherwise prove of serious danger to the State. The right 
 honourable gentleman the Judge-Advocate of the late Government (Mr. 
 Headlam) had, he knew, given great consideration to cases of this kind, 
 .iid the opinion not only of the right honourable gentleman but also of a 
 righi horn friend of hi mej Judge- Advocate, whose absence
 
 INTIKMH <TI<).\. i I 
 
 venture DOW t" state with more confidence: as what 
 uii'-lil to be looked at now is rather the future than the 
 past "i ; viz., thai as to the future, if any occasion should 
 unhappily arise, in any dependency or colony, to have 
 >uisi' to measures for the suppression of rebellion, 
 then, while, on the one hand, all measures which may 
 he honestly deemed necessary will be justified ; on the 
 other hand, those measures, though necessarily taken by 
 military force under military orders, should not only be 
 subject to the restraints of military discipline and the 
 
 from the House he sincerely regretted (Sir D. Dundas), was contrary to 
 thai held by the learned Chief Justice. The learned Chief Justice, rc- 
 ferring to these right honourable gentlemen, said it was not their peculiar 
 business to enter upon questions of this nature. But, with all due deference, 
 the attention of the learned Chief Justice himself did not appear to have 
 been previously employed in this direction. As it was, it could not be 
 asserted that the doctrine embodied in the resolution moved by the honourable 
 
 her was laid down by judicial decisions, or by the common or statute law 
 of the land. It would, therefore, he thought, be unwise in the House of 
 Commons to commit itself to a pledge upon a matter so important, lie 
 trusted that neither in Ireland nor in the United Kingdom, nor in any of 
 the colonies, would the occasion ever again occur for the employment of 
 (hose powers which were necessary to the Executive in times of great 
 
 rgency. At the same time he implored the House of Commons not to 
 plat ' the way of those who ivere acting in distant spheres, 
 
 to whom, with great responsibilities, was committed the duty/ upholding 
 the authority if the Crown and the rights of this country." In these views 
 Mr. Cardwell, who followed, substantially concurred. 
 
 («) Thus, Mr. Mill said, "He agreed that it would be well to consider 
 this question with reference to the future rather than the past." This was 
 what had been said by Mr. Cardwell, in his final dispatch in the Jamaica 
 
 ; and he, on this occasion, observed that the pith of the question lay 
 in the regulation and restraint of the exercise of martial law : " The chief 
 and most fertile source of abuse, when the deplorable emergencies to which 
 the motion pointed to occurred, was the fact that usually the inferior agents 
 over whom the higher authorities were called upon in circumstances of 
 extreme difficulty to exercise control, were guilty of excesses which their 
 superiors would, if they could, have been glad to restrain. The adoption of 
 a vague abstract resolution like the present one, however, instead of 
 strengthening tlu bonds of discipline, and increasing tl« control of tlu sup 
 authority over its subordinates, might rather have a contrary effect." 
 (Debate, 2nd July, 1867). In this final observation is the key to the true 
 view of martial law, w hich is the exercise of the great social law of self-defence,
 
 72 INTRODUCTION. 
 
 analogies of military law so far as applicable, but should 
 be controlled by the supreme civil authority. And the 
 Author, now having thus been confirmed upon such high 
 authority, he has ventured to put forth in these pages con- 
 siderations which tend to embody the practical result of 
 these discussions, for the purpose of future guidance. 
 
 by means of military measures and military force under and subject to 
 the restraints of military discipline. While, on the other hand, the duty 
 of seeing that these restraints are enforced is deemed to rest upon the civil 
 Government, inasmuch as the use of such means and measures can only be 
 justified by necessity for the purposes of civil government, and therefore 
 must be subordinate to it. In the view of the Author, the true limits and 
 restraints of martial law are to be found only in the considerations which 
 are drawn from its true principles, and that precisely those considerations 
 which demonstrate its legality or immunity, on the ground of necessity, 
 determine its limits, and suggest its regulations and restraints. To these 
 considerations, therefore, he endeavours, in the following pages, to direct 
 attention, desiring, on the one hand, to correct any inaccuracies in his 
 former work, and on the other, to bring it as far as possible into accordance 
 with admitted principles.
 
 .A. 
 
 CONSIDERATIONS 
 
 MARTIAL LAW. 
 
 There is no prerogative of the Crown so ancient, so im- 
 portant, and so undoubted, as that of preserving the peace 
 of the realm (a). It is one of those things which prove 
 
 (a) It is thus emphatically laid down in one of our ancient statutes : " En 
 primes voit lc roy, et commande que la peace de Saint Eglise et de la terre 
 soit bien garde et maintaine en touts points: et que common droiture soit 
 fait a touts auxibien as poures come as riches, sans regard de nulluy (Stat. 
 West. 1 ), which Lord Coke devoutly translates into Latin, and then com- 
 ments on it thus: — " This is an ancient maxim of the common luw, and Fleta 
 recites this fundamental law in few words, ' Quod pax ecclesire et teme 
 inviolabitur observetur ita quod communis justicia singulis paritcr exhibi- 
 atur.' And Britton saith, ' Peace ne poet my bien estre sans ley,' therefore 
 tbe law, as a mean that peace may be kept and maintained, provideth 
 that common right (i. e. justice) selonque ley et custome d'Angleterre soit 
 fait a toute, &c. But this ancient law had great need to be rehearsed and 
 commended to be put in execution, for that by reason of the often insurrec- 
 tions and intestine wars, the peace of the land was for a long time miserably 
 disturbed ; and the mischief was, that during these intestiue wars law and 
 justice lay asleep : for silent leges inter arma" (2 Inst. 161; Lord Coke's 
 Institutes, v. 2, 161). From the very earliest origin of our liberties, it has 
 been recognised that the discharge of this great duty justifies the Crown in 
 levying war upon rebels, and thus, the very year after Magna Charta was 
 solemnly confirmed by Henry III. (a.d. 1225), when a turbulent knight 
 seized his judges and imprisoned them in his castle, the king at once Levied 
 troops and made war upon him, and having captured his castle hanged the 
 whole garrison (vide Matthew of Westminster). This was contrary to the 
 terms of the Great Charter (nullus liber homo destruatur, ncc super cum 
 ibimus, ncc super eum mittimus, nisi per legale judicium, Sec); the obvious
 
 74< MARTIAL LAW: ITS EARLY ORIGIN: 
 
 themselves, which rest on first principles, and arise out of a 
 manifest and unavoidable necessity. It lies at the very 
 origin of society, and is the main object for which Govern- 
 ment exists, and the law was established. It rests upon 
 two grounds, the primary necessity for preserving order, 
 and the duty which is thus imposed upon the Crown to 
 maintain it. The duty in truth arises out of the necessity, 
 and the right arises out of the duty, for the prerogative of 
 the Crown, rightly understood, simply means the right of the 
 Crown to do its duty. All its duties and all its rights 
 arise out of necessity for the public weal, and this lies at 
 the basis of them all. It is a duty which can only be 
 undertaken by supreme authority, for otherwise the very 
 efforts to effect the object would only lead to anarchy. It 
 is, therefore, the first and most sacred duty of the Crown, 
 and was its earliest and most important prerogative, for it 
 involves, as a necessary consequence, the prerogative of 
 levying war, or using armed force, if necessary, for the pur- 
 pose. And that prerogative has been exercised at every 
 
 meaning of the words, ' nee super cum ibimus' being, we will not come upon 
 him with an armed force, nor otherwise than by due course of law. And it 
 was beyond all doubt contrary to common law, for Lord Coke and Lord 
 Chief Justice Rolle laid it down, and it is undoubted law, that if a rebel be 
 taken, he must at common law be tried. Nevertheless, neither at the 
 time, nor ever since, was the act declared illegal ; and it is perhaps the 
 earliest instance of martial law recorded in our history. Martial law, be it 
 observed, as pointed out in old books, is etymologically the law of war ; 
 and so its sense in history. All through our history, as long as it was 
 necessary, this right was exercised in rebellion ; in the earliest times, against 
 turbulent and truculent barons ; in the middle ages, against numerous in- 
 surrections of the serfs or villeins ; but always without any doubt as to its 
 legality. And though it has long ceased to have any practical importance 
 in this country (whether or not it is legally abolished, as to which vide 
 r i,d), it must be remembered, that the circumstances in which this country 
 was in early ages, arc similar to those in which our countrymen are placed 
 in many distant dependencies, surrounded by hostile races, all equally 
 subjects of the British Crown, and equally undor its protection, so that on 
 the one hand the prerogatives of the Crown, so far as necessary for their 
 protection, are equally valuable ; and, on the other hand, legal principles 
 can no more be violated there than here.
 
 AND FUNDAMENTAL PRINCIPLES. 7"> 
 
 period of history, and has been throughout recognized, and 
 indeed asserted by Parliament. 
 
 As this essentia] and fundamental object must from its 
 nature be as paramount to all others, it was always recog- 
 nised (a), from the times when liberty was first dawning, to 
 those when it became most firmly established, that the 
 necessity for maintaining it worked an implied exception 
 to all the safeguards which law established for the pro- 
 011 of liberty. For it was obvious that neither law nor 
 liberty could be enjoyed without peace and security, and, 
 
 Phe great article of Magna Charta (c. 29), which is regarded as the 
 basis i. four liberties, ran thus, in its grand emphatic simplicity of language : 
 " Nullus liber homo capiatur vcl imprisonetur, aut utlagatur, ant exuletur; 
 aut aliquo modo destruatur; nee super cum ibimus, nee super cum mitc- 
 mus, nisi per legale judicium parium suorum, vel per legem terra;. Nulli 
 vendemus nulli negabimus, aut dofferemus .jus tieium, vel rectum." This, 
 however, obviously implied that justice could have its course; and Lord 
 Coke, in commenting upon it, after stating its effect and substance thus, 
 " that no man shall be in any sort destroyed or condemned but by the judg- 
 ment of his equals or the law of the land," proceeds to say that " there are cases 
 in which a man may be seized without regular course of law. "Against those 
 that attempt to subvert the king's laws, there licth a writ to the sheriff in 
 the nature of a commission, ad capiendam impugnatores Regis, &c., and 
 this is lex terras and the reason is, merito beneficium leges amittit, qui 
 legem ipsam subverterc intendit." This, however, still implies that he can 
 be arrested, and that the law can then have its course ; and on the principles 
 here laid down, if the law could not have its course, by reason of rebellion, 
 then those in rebellion could not claim the benefit of it. And he cites 
 the ease of Thomas of Lancaster thus:— "Thomas of Lancaster was ad- 
 judged to die as a traitor, and put to death in 14 Edw. II., and his 
 brother ami heir was restored, for two errors in the proceedings. " Quod 
 non fait araniatus el an responsionem positus tempore pads, co quod curia; 
 Regis faerunt apertse in quibus lex fiebat unicuique prout fieri consucvit. 
 2. Quod contra eartam de libertatibus, tempore pacis, absque araniamento 
 sen responBione sen legali judicio," he was put to death. Which plainly 
 implies that it was the summary execution of the man in time of peace, 
 when the law could have had its course, which was the ground of the 
 reversal of the judgment, and so it is evidently put by Lord Coke (2 Inst. 
 4ft). And elsewhere, commenting on the same case, he .-ays. " Thomas of 
 icaster being taken in open insurrection was by judgment of martial laxo 
 put to death, and this was adjudged to be unlawful, co quod, &c., reciting 
 the grounds of error as before. And then he there says, "If a lieutenant 
 or other that hath commission of martial law, in time o/ peace, hang or
 
 76 MARTIAL LAW : BY ANCIENT USAGE : 
 
 therefore, when the Great Charter laid the foundation of 
 our liberties, it was well understood that the strongest 
 stipulations that justice shall have its regular course, only 
 applied when justice could have its regular course, and 
 that when it could not, those who thus prevented it could 
 not claim the benefit of it. 
 
 In cases of rebellion, when it had proved formidable and 
 widespread, it was always usual, in times when the military 
 force was feeble, to execute summary justice upon the 
 insurgents, for a short period after the suppression of actual 
 insurrection, in order to extinguish the seeds of rebellion, 
 and by the influence of terror to prevent its recurrence (a). 
 
 otherwise execute any man by colour of martial law, this is murder ; for it 
 is contrary to Magna Charta (3 Inst. 52). So Lord Hale, laying down 
 that martial law is not permitted in time of peace, says, " And accordingly, 
 was that famous case of Edmond Earl of Kent, who being taken at Pom- 
 fret, 15 Edw. II., the king had proceeded to give sentence of death against 
 him, as in a kind of military court by a summary proceeding, which judg- 
 ment was afterwards reversed in Parliament. And the reason of that reversal 
 being to the purpose in hand, it is inserted as entered on the record— quod 
 'tempus in quo morte adjudicatur fuit, fuit tempus pacis, &c.' And 
 accordingly that judgment was reversed ; 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."" So Blackstonc, in his commen- 
 taries, cited the case as showing that martial law, in the arbitrary sense, is 
 not permitted in time of peace (1 Commentaries, ed. 1800, p. 413). Cock- 
 burn, C. J., in his charge in Nelson's case, citing the case, omits the words 
 on which the judgment ''turned, in tempore pacis, and does not mention 
 that all the commentators upon it put it as a case of martial law, and 
 merely says that he is not satisfied that it was so, and that it seems to have 
 been an irregular execution. But an irregular execution of a civilian in 
 rebellion, by officers of the Crown, is the very definition of martial law ; 
 and it is to to be observed that the distinction as to soldiers was not known 
 in that early age, and that it never occurred to any one that the ground of 
 the decision was that the man executed was not a soldier. Beyond all 
 doubt he was a civilian. The Lord Chief Justice, in his charge, says this 
 was meant of soldiers ; forgetting that in those times there were no 
 soldiers in time of peace, in the sense of a separate class ; that military service 
 was always out of the country, and homicide abroad was not murder by the 
 common law (1 Inst. 102). 
 
 (a) Thus, in the reign of Rich. II., in the Wat Tyler rebellion, many of 
 the rebels were executed without due process or form of law (Hume's Hist.
 
 FOR THE SUPPRESSION OF REBELLION. 77 
 
 And although when this power was exercised with excess 
 there may have been a necessity for an indemnity, at all 
 events to protect parties who had acted in good faith from 
 being harassed and vexed by criminal prosecutions, no 
 instance will be found in our history, either of a prosecution 
 or an indemnity, for acts done, under the authority of the 
 Crown, in the execution of martial law, for the suppression 
 of rebellion. 
 
 From this fundamental principle it follows that as the 
 object is paramount to all others, it is the peculiar prero- 
 gative of the Crown to levy war within the realm. As, on 
 the other hand, it may be necessary for the Crown to levy 
 
 Eh'j., vol. 3, 10). This is the proper definition of martial law, that is, 
 executions under the authority of the Crown without due course of law. 
 Hume lit.-, the 5 Rich. II, c 5, which has been supposed to be a Bill of 
 Indemnity, the only instance of the kind to be found in our history ; but 
 the indemnity was not merely for executions without due course of law, 
 but for unbridled excesses, exercised under the direct orders of the Chief 
 Justice, wh" was the executor of martial law on the occasion, and who 
 examined no witnesses, but condemned nun wholesale, without inquiry; 
 Insomuch that contemporary writers state, that whoever was accused before 
 him, whether guilty or innocent, was sure to be condemned (Barrmgton on 
 the Statutes, 262 ; Linganl, iv. 182 ; Rapin. iv. 25). Therefore a charter 
 of pardon was granted, and this is the only instance of the kind to be 
 found in our history, although martial law was executed after every 
 rebellion or insurrection, as, for example, after the Jack Cade insurrection 
 in the reign of Henry VI., some of the leaders were executed immediately 
 afterwards, without any legal process (Linyard, vol. iv., 50). But some 
 months afterwards, when further justice was executed, it appears, from a 
 passage in the Pcuton Letters, that it was by what we should now call a 
 special commission, for there is a letter (xxxvi.) from the Earl of Oxford 
 to the Sheriff of Norfolk, dated in the winter of the year, in which he states 
 that during the session of Parliament he was sitting at Norwich on a com- 
 mission of oyer and terminer, with Yelvcrton, one of the king's judges, 
 and that the king, by the advice of his great council, in consequence of the 
 indisposition and insurrection of the Commons during the last summer, 
 had sent the commission. It is to be observed that the insurrection 
 extended into several counties, although it seems to have broken out in 
 Kent, and its chief outrages were in London and at Leicester; and it is 
 probable that those of the insurgents executed summarily were those taken 
 speedily or immediately afterwards, and upon or near the scene of actual 
 insurrection, so that their cases were clear; whereafi the cases dealt with at
 
 78 MARTIAL LAW : THE LAW OF WAR : 
 
 war against rebellious subjects, in order to preserve the 
 peace, so, on the other hand, for subjects to levy war at all 
 even for a lawful object, is an offence, but to levy war 
 against the Crown is the highest of all offences, because it 
 strikes at the root of that peace which is the basis of all 
 law and liberty, and an insurrection or rebellion for the 
 destruction of the powers of Government, or the institutions 
 of the realm, may amount to such levying of war against 
 the Crown, which will justify a levying of war by the 
 Crown to put down the rebellion (a). 
 
 So well established is this, that the greatest authorities of 
 our common law (6) are very full and explicit in defining 
 
 some distance, and after some lapse of time, and which therefore would 
 require greater care, were dealt with by trial, under special commission, in 
 the ordinary way. This illustrates the distinction between the proper 
 scope of martial law, in the suppression of rebellion and ordinary civil 
 jurisdiction, which, when it can be exercised, and it will be sufficient for 
 the object, ought to be resorted to. 
 
 (a) It was high treason by the common law to levy war against the 
 Crown, for no subject can levy war within the realm without authority 
 from the king, for to him alone it bclongeth. Le Roy de droit doit savcret 
 defender son realm vers enemies, &c. (3 Inst. 9). " If any levy war to expel 
 strangers, to deliver men out of prisons, to remove counsellors, or against 
 any statute, or to any other end, pretending reformation without warrant — 
 this is leving war against the Crown, for they take upon them royal 
 authority, which is against the sovereign. There is a diversity between 
 levying of war and committing of a great riot or an unlawful assembly. 
 For example, if three or four or more do rise to burn or put down an 
 enclosure in a particular place, this is a riot ; but if they had risen of pur- 
 pose to alter laws, or to yo from town to town generally, and to cast down 
 enclosures, this is levying of war, though there be no great number of 
 conspirators, because the pretence is public and general, and not private 
 in particular. And so it was resolved in the case of Bradshaw and others 
 in Oxfordshire, whose case was that they conspired to assemble themselves, 
 with as many as they could procure, and then to go from gentleman's house 
 to gentleman's house and cut down enclosures ; and this was held an inten- 
 tion to levy war against the Queen (ibid 10). And so under the statute of 
 treasons, an actual rebellion or insurrection is a levying of war ; and if any, 
 with strength and weapons invai Lve and defensive, do hold a castle or fort 
 against the king and his forces, this is a levying of war against the king 
 (ibid). Lord Hale lays the law down to the same effect. 
 
 (&) Thus Lord Hale says, " What snail lie said a levying of war is in
 
 IN TIME OF REBELLION, OR WAR AGAINST Till. CROWN. 79 
 
 and describing what may and may not be deemed to 
 amount to a levying of wax against the Crown by subjects 
 in rebellion, when formidable, either by reasoo of arms or 
 of numbers. And although their definitions arc rather 
 more rigid than would be approved of by constitutional 
 lawyers in our own days, yet, on the other hand, no con- 
 stitutional writer has ever doubted that in spirit and in suit- 
 stance the doctrine was sound. 
 
 And though, no doubt, a mere riot is not a levying of 
 war against the Crown, and there must be something which 
 amounts to a rebellion, that is to say, a gathering together 
 of men, with force and arms, with intent, by means of force 
 
 truth a question of fact, and requires many circumstances to give it thai 
 denomination, whi h may be difficult to enumerate or define, and commonly 
 it is formed by the words more guerrino arrati, arrayed after the manner or 
 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 comm: irsj if they march cum vezillis 
 
 cxplieatis (with banners displayed), or with drums or trumpets, or the 
 like; whether the greatness of their number, or their continuance together 
 daring those nets may not amount to an army after the manner of war. may 
 be considerable." Lord Hale cites from Anderson's reports the following 
 verj illustrative ease. " Divers apprentices of London were committed to 
 prison for riot and for seditious proclamations as to the price of victuals, 
 &c., for which divers 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 movements and to assemble 
 themselves, and accordingly divers assembled themselves and had a 
 trumpet. &o», 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 anything thai tlu her justice ought or 
 
 may do in government as Queen, that shall be declared a levying of 
 against her, and it is not material that they intended no ill to the p 
 of the Queen, if intendeds The result 
 
 of course, that it the rebellion had bi i .1 formidable enough to require it, 
 martial law might have been declared. Thus, also, in another case cited 
 by Hale, of tin weavers in and about London, who. assembled in Beveral 
 
 places within the metropolitan counties, to the number of several hundreds,
 
 80 MARTIAL LAW : THE LAW OF WAR. 
 
 and arms, to carry out some unlawful object of a general 
 nature, and tending to subvert the peace and order of 
 society at large, such a rebellion or gathering with for- 
 midable force, either of numbers or of arms, whether or 
 not with such weapons as are military, if with such over- 
 whelming numbers as supply the defect, has always been 
 deemed to amount to a levying of war against the Crown ; 
 and it has also been always laid down that it may amount 
 to a war, justifying the levying of war by the Crown to put 
 it down ; i.e., if it constitutes a state of war, putting a stop to 
 the ordinary course of justice, and depriving the subject of 
 its protection ; and cannot otherwise be subdued. And hence, 
 of course, it would follow, and is in effect laid down, that 
 martial law, which is simply the law of war, is applicable 
 to those thus engaged in war against the Crown (a). 
 
 and stormed several houses, and burnt engine looms, defying the magis- 
 trates 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 whose direction and 
 orders, as well to the civil magistrates as the King's Guard, they were 
 at last quieted. And Hale says, '• In respect of the manner of their 
 assembling, though they had no weapons or usages of war, yet their multi- 
 tude supplied that defect, being able to do by their multitude what a lesser 
 number of armed men might scarce be able to do by their arms" (Pleas of 
 the Crown). 
 
 (a) Lord Hale says, " What shall be said a 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, which makes a levying of war ; for then every riot would be a 
 treason. But it must be such an assembly as carries with it the appear- 
 ance of war, as if they are armed with military weapons, or 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 (Pleas of Crown, 151). Then after this, after laying down 
 general principles, he proceeds to cite illustrations, observing that par- 
 ticular instances will best illustrate the subject. This he mentions as an 
 instance of constructive levying of war, a rising for the purpose of pulling 
 down enclosures generally. "If divers persons levy or form a multitude
 
 LAWFUL IN TIME OF REBELLION. 81 
 
 Our greatest lawyers and historians record the exercise 
 of martial law, i.e., the execution of summary justice, when 
 
 of men to pull down a particular enclosure, this is not levying of war, lmt 
 a great riot ; but if they levy war to pull down all enclosures, or to expel 
 Btrangers, 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 them* 
 selves the reformation, which subjects, bj gathering power, ought not to 
 ■ 'al, 1:37): so of a design to break prisons or deliver persons out of 
 prison 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 
 i- therefore disposed to be very strict in his views of what would be a 
 levying of war to make that crime; bnt he says distinctly that an actual 
 rebellion or insurrection is a levying of war (ibid, 14S). "Wherever the 
 intention of an unlawful assembly is to redress public grievances, as to pull 
 downu/l 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 
 1 rown, B. 1 eh. 65, s. 6; ch. 17, s. 2). " In many cases those who, 
 in a violent manner withstand the lawful authority of the Crown, or 
 endeavour to reform his government, arc 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, arc said to levy war against the 
 sovereign, although they have no direct design against him, because 
 they would both invade his prerogative 1>\ 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 <t magistrate for i.o<-utin<j his office, or 
 to remove all enclosures, kc. But where a number of men rise to 
 remove a grievance to their private interest, as to pull down a par- 
 ticular enclosure, they are only rioters, this state of things may or 
 may not amount to a state of war (ibid). And thus Lord Coke, in the 
 firs! Institute, treating of descents, Bays, "If a man be seised of lands in 
 fee, by occupation, in time of wane, and thereof dieth seised in the time of 
 warre, and the tenements descend to his heire, such descent shall not oust 
 any man of his entry," and he founds on it this note. " First, il is 
 sarie to be knowne what shall be said time of peace, tempus pacis, aud 
 what shall be said tempus belli sive guerrse, time of wane. Tempus pacis 
 est quando cancellaria et alia curies regis sunt apertss, quibus lex lie-hat 
 cuicunque prout fieri consuevit. And so it was adjudged in the case of 
 Roger Mortimer and of Thomas, carle of Lancaster.'' Then he goes on to 
 say, " And therefore when the courts of justice be open, and the judges and 
 ministers of the same may by laic protect men from wrong and violence, and 
 distribute ju it ir. to all, it is said to be time of peace. So when by invasion, 
 insurrection, rebellions or such like, the peaceable course of justice u diet 
 
 G
 
 82 MARTIAL LAW, THE LAW OF WAR, 
 
 really necessary for the suppression of a rebellion, with- 
 out protest or remark (a) ; and they record it as something 
 perfectly well recognised, and understood and assented to, 
 and as not requiring definition or description, otherwise 
 than as the execution of such summary justice ; although 
 these historians protest against it when exercised in time 
 of peace, to the prejudice of civil jurisdiction, and in usur- 
 pation upon the common law. 
 
 a in! stopped, so as the courts of justice be as it were shut up, et silent leges 
 inter anna, then it is said to be time of warre. And the triall hereof is by 
 the records and judges of the court of justice, for by them it will appeare 
 whether justice had her equall course of proceedings at that time or no, 
 and this shall not be tried by jury." And then Lord Hale, in treating of 
 martial law, which is the law of war, and which he says, "in truth and 
 reality, is not a law, but something indulged rather than allowed as a law," 
 says that it 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). 
 Whence it appears plainly to follow that when war is levied against the 
 Crown, martial law is applicable to those who are engaged in rebellion. 
 
 (a) Thus, Lord Bacon, who was both a lawyer and historian, records what 
 Henry VII. did after a rebellion : " Therefore, awakened by so fresh and 
 unexpected dangers, he entered into due consideration, as well how to weed 
 out the partakers of the former rebellion, as to kill the seeds of them in 
 time to come; and withal to take away all shelters and harbour for discon- 
 tented persons, where they might hatch and foster rebellion, which after- 
 wards might gather strength and motion. And first he did yet again make 
 a progress from Lincoln to the Northern parts, though it were indeed 
 rather an itinerary circuit of justice than progress. For all along, as he 
 went, with much severity and strict inquisition, partly by martial law, and 
 partly by commission, were punished, the adherents and aiders of the late 
 rebels ; not all by deaths (for the field had drawn much blood), but by fines 
 and ransoms which spared life and raised treasure " {Bacon's Life of 
 Henry VII. 23). Here it is to be observed, that Bacon speaks of martial 
 law as opposed to the course of common law, and also as different from 
 trial by commission ; and also as applying to all rebels, whether soldiers 
 or not. And that it plainly was not meant in the sense of ordinary 
 military law, which applies only to the king's soldiers, but in the sense of 
 summary justice on civilians. The Lord Chief Justice says this was ob-
 
 LAWFUL IN TIME OF REBELLION. 8$ 
 
 It is to be observed, however, that in mere eases erf 
 
 isolated acts of treason (a), or even of actual insurrection, 
 when over, or even of more formidable rebellion, when 
 thoroughly extinguished, it lias never been deemed lawful 
 to execute summary justice by martial law, upon the per- 
 sons implicated ; for that would be an encroachment on 
 civil jurisdiction, and an interference, without just excuse, 
 with the course of common law, which ought always to be 
 allowed to have its free course when it can have it. And a 
 broad distinction was always drawn between the exercise 
 
 Bly illegal, which is not suggested by Lord Bacon, but if it was so, 
 it was because the rebellion was over. It is to be observed that Lord Bacon 
 uses the term martial law in a certain sense ; and further, it must be 
 observed, that Lord Bacon does not mention it as anything nccessarily 
 illegal ; but, on the contrary, by bis silence, rather implies his idea of its 
 legality; and, at all events, mentions it as something quite well under- 
 stood. Whether it was illegal, would depend upon whether it was really 
 necessary to suppress the rebellion, which might be still smouldering, though 
 subdued. So Hume mentions martial law again and again, as applied to 
 civilians taken in rebellion. Thus, in the reign of Henry VII., "Norfolk 
 spread the royal banner, and wherever he thought proper executed martial 
 law, in the punishment of offenders " (vol. iv. 154). So under Edward VI., 
 " Arundel and the other leaders were sent to London, tried, and executed ; 
 many of the inferior sort were put to death by martial law '* (vol. iv 294). 
 Now the point to be observed is, that these and all other writers mention 
 martial law aa a thing well known and understood in the sense of summary 
 justice, in time of rebellion, on those implicated, in the rebellion and as 
 applied to civilians, and as opposed to trial by due course of law ; and. 
 further, that it never occurs to them to suppose it was illegal, when reallj 
 necessary for suppression of a rebellion. 
 
 (a) The distinction here pointed out is well illustrated by the difference 
 in the language of our historians and lawyers, when Bpeaking of martial 
 law proper ; /.<., the execution of summary justice in time of rebi llion, and 
 it~ illegal exm-ise in time of peace, as one of the institutions of the realm. 
 Not a word will be found in Lord Coke or Lord Hale against tin' execution 
 of this summary justice in time of rebellion, though they zealously 
 denounce any instance of arbitrary authority they meet with in our history ; 
 witness Coke's denunciation of the commissions of Bmpson and Dudley, 
 under lien. VIII.. or of the arbitrary commission to the Counl of Rivers, 
 Constable of England, under Kdw. IV.; which will be found in Rymer, 
 vol. xi. p. 581, ami is a kind of permanent commission of martial law, 
 or summary justice in all cases oi treason or rebellion. Hume gives an 
 illustration of this arbitrary jurisdiction: "John, Marl of Oxford, and hi> 
 
 g2
 
 8i MARTIAL LAW, THE LAW OF WAR, 
 
 of such summary justice on occasions of sudden emergency 
 and in seasons of imminent public peril ; and its exercise 
 in time of peace, when the common law would have its 
 course. The former was allowed as an indulgence, on 
 account of the necessity, the latter was always denounced 
 as an usurpation. 
 
 So strongly rooted and well established in the constitu- 
 tion is the prerogative of the Crown, to levy war, if neces- 
 sary, for the preservation of the peace, or the protection of 
 the realm, either from domestic insurrection or foreign 
 invasion, that, from the most ancient times, it was recog- 
 nised to be part of its prerogative to keep in readi- 
 ness a militia (a), or domestic military force, to be called 
 
 son were detected in corresponding with Margaret, were tried by martial 
 law before the Constable ; were condemned and executed. Sir W. Tyrrell 
 and others were convicted in the same arbitrary court and were executed " 
 (vol. iii. p. 200). Upon which his comment is, "This introduction of 
 martial law into civil government, was a high strain of prerogative " {ibid}. 
 And in his note, h, he puts the illegality, as Coke had put it, upon its being 
 in time of peace. " The office of constable was perpetual ; its jurisdiction 
 was not limited in time of war," and then he goes on to say quite truly, 
 " Its authority was in direct contradiction to Magna Charta, and it is 
 evident that no regular liberty could subsist with it. Accordingly the 
 office was suppressed by Henry VIII. ; the practice, however, of exercising 
 martial law still subsisted, and was not abolished till the Petition of Right." 
 That is, the practise of exercising it as here described, in time of peace and 
 for the purposes of civil government. The historian has not a word to say, 
 here or elsewhere, against the execution of martial law in time of rebellion, 
 although he records it over and over again. When it appears to have been 
 exercised in time of peace, his indignation is aroused, and he protests 
 against it. This shows that he perfectly understood what he meant by 
 martial law, and meant it in the sense in which it is here understood j and 
 that he was not at all indifferent to its exercise. 
 
 (a) "We are not to imagine, says the great commentator, that the king- 
 dom was left without defence, in case of domestic insurrection, or the pros- 
 pect of foreign invasion. It was usual for our princes to issue from time 
 to time commissions of array, and send into every county officers in whom 
 they could confide, to muster or set in military order the inhabitants of 
 every district. But it was provided that no man should be compelled to 
 go out of his shire, but in cases of urgent necessity " (Blackstone's Com- 
 mentaries, vol. i. c. 8, of the Royal Forces'). This implied, of course, that 
 in case of necessity, the king's officers could lead them out of one county
 
 LAWFUL IN TIME OF REBELLION. B5 
 
 out when necessary, for the very purpose of levying 
 war for either of those ohjects. And the command 
 of this, which may be called the common law army 
 of the realm, as distinguished from a regular soldiery or 
 standing army, which is by statute, was vested in the 
 Crown by prerogative, and has been recognised by Parlia- 
 ment as so vested, for the express purpose, as numerous 
 statutes attest, of enabling the Crown to exercise its pre- 
 rogative of levying war, if necessary, to preserve the peace. 
 As, upon these principles, it would be lawful by the com- 
 mon law, upon the occurrence of rebellion, to declare war, 
 or in other words, martial law, if necessary for its suppres- 
 sion ; and as, also, it would be lawful, and indeed 
 unavoidable, for the Crown to delegate to lieutenants, 
 by virtue of its prerogative, the power to exercise the 
 rights of war, and execute the laws of war for that purpose ; 
 
 into another, either in case of rebellion or invasion ; and in case of rebel- 
 lion, to attack the rebels. " About the reign of Henry VIII., the commen- 
 tator continues, lieutenants of counties began to be introduced, as standing 
 representatives of the Crown to keep the counties in military* order ; and 
 Camden speaks of them as extraordinary magistrates, constituted only in 
 times of difficulty and danger. The introduction of these commissions of 
 lieutenancy, which contained in substance the same powers as the old com- 
 missions of array, caused the latter to fall into disuse." He goes on to 
 state that this prerogative was disputed at the time of the rebellion, and it 
 became a question how far the power of the militia did belong to the 
 Crown. The statute 13 Ch. II., s. 6, affirmed, however, that the supreme 
 command of all the militia of the realm was the undoubted right of the 
 Crown; and so it has ever since remained, and has been established 
 by numerous statutes. The 26 Geo. III., c. 107, provided that militia 
 might be embodied; and s. 95, enacted, "That in all cases of 
 rebellion or insurrection it shall be lawful for His .Majesty (the occasion 
 being first communicated to Parliament, if the Parliament shall then be 
 sitting, or declared in council and notified by proclamation if no Parlia- 
 ment then be sitting) to order and direct the lieutenants of the militia to 
 draw out and embody the militia within their respective counties, and in 
 such manner as shall be best adapted to the circumstances of the danger, 
 to put the said forces under the command of such general officers as His 
 Majesty shall approve of, to direct the said forces to be led by their respec- 
 tive officers into any parts of the kingdom for the suppression of any 
 rebellion or insurrection within the realm." It & added that the militia, 
 when called out. shall l»c under the Mutiny Act.
 
 86 COMMISSIONS OF MARTIAL LAW, 
 
 so it would not, perhaps, be necessarily unlawful for the 
 Crown, in its commissions of lieutenancy (a), whether in 
 this country or in any colony or dependency, providing for 
 the exercise of this right, when, by reason of such rebellion, 
 the occasion for it should arise. And accordingly such 
 commissions were issued, and have never been declared 
 illegal or unconstitutional. 
 
 It never was legal, however, to exercise martial law, or 
 the law of war, against the subject in time of peace, or 
 
 (a) And accordingly, before the age of standing armies, it was usual for 
 the Crown to issue commissions of lieutenancy containing clauses which 
 empowered, in case of rebellion, the exercise of martial law. Here, for 
 instance, is an example taken from Rymer's Foedera, com. vii., pt. iii., p. 32, 
 and issued in 1617, ten years before the Petition of Eight. It was thus: — 
 " We give full power and authority unto you (the Lord President of the 
 Council in Wales) to levy men of armes of all kindes and degrees meet 
 and apte for the warres, and them to lead and conduct as well against all 
 and singuler our enemies as also against all and singuler rebells, traytors, and 
 other offendors and theirc adherents against us, our Crowne and dignitie, 
 within the saide principalifcie and dominions . . . and with the saide 
 enemies, traytors, and rebells from tyme to tyme to fight, and them to 
 invade, resist, suppresse, subdue, slea, kill, and put to execution of death 
 by all waies and means from tyme to tyme by your discretion .... 
 and further to doe, execute, and use, against the said enemies, traytors, 
 and rebells, and such other like offendors and their adherentes, afore- 
 mentioned from tyme to tyme, as necessitie shall require, by your dis- 
 cretion, the lawe called the martiall lawe, according to the law martiall ; 
 and of such offendors apprehended or being brought in subjection, to save 
 whom you shall thinck good to be saved, and to slea, destroie, and put to 
 execution of death such and as many of them as you shall thinck meete by 
 your good discretion to be put to death." Now, as already observed, this 
 was issued ten years before the Petition of Right, and the terms of that 
 Act are carefully framed so as not to apply to such commissions as this, 
 which it will be noticed is strictly limited to rebellion, and the offence of 
 rebellion ; whereas the commissions referred to in that Act, as will be seen, 
 embrace larceny and all ordinary offences. And this was a usual and 
 common commission. The counsel for the prosecution in the Jamaica 
 case admitted that " in Rymer would be found proclamations of martial 
 law in which things were authorised exactly such as were done in Jamaica." 
 And it may be added that the terms of the proclamation in Jamaica were 
 in substance the same as the above — a strong proof of the truth and 
 reliability of the legal doctrines and military traditions on which it was 
 based. Cockburn, C. J., in his charge in Nelson's case, has nothing to
 
 WHEN NOT LAWFUL. 87 
 
 against ordinary offenders, for ordinary offences («) ; and 
 although at certain periods of our history it was found 
 convenient to issue commissions of martial law, for the 
 punishment of such -offenders, and the repression of such 
 mere riots or disturbances as could be repressed by the 
 ordinary means and powers of law, there never was any 
 doubt that such commissions were wholly illegal. And the 
 distinction between such commissions and the exercise of 
 martial law, for the suppression of rebellion, was always 
 well understood in our history. 
 
 observe upon the above, except that it did not appear to have been executed ; 
 the reason of which is very obvious, viz., that it was not required, 
 because there was no rebellion. But the point is. that it was a usual and 
 common commission, that it is inserted in Rymer as a precedent or form, 
 that it was evidently regarded as usual and legal, and that when the 
 Petition of Right came to be drawn it was carefully so drawn as not to 
 apply to such commissions as these, issued for suppression of rebellion. 
 Of course, similar commissions would not necessarily be unlawful in 
 colonies or dependencies. But see further as to this delicate question. 
 
 (a) The distinction between the proper use and scope of martial law in 
 the suppression of rebellion, and its abuse for purposes of mere punishment 
 or a suppression of ordinary disturbances, was well understood and recog- 
 nised, even in the age when it was most disregarded. Thus Hume says, 
 "Whenever there was any insurrection or public disorder, the Crown 
 employed martial law, and it was during that time exercised not only over 
 the soldiers, but over the whole people. Any one might be punished as 
 an aider or abettor of a rebellion;" and as an example he quotes Lord 
 Bacon as saying, " that the case of the Earl of Essex and his fellow-con- 
 spirators would have borne the severity of martial law. But the kings of 
 Mn- land did not always limit the exercise of this law to times of civil war 
 and disorder. Thus, in 1552, when there was no rebellion or insurrection, 
 Edward VI. granted a commission of martial law. Queen Elizabeth was 
 not sparing in the use of this power, and in the case of an isolated outrage- 
 by an individual, the Queen was so incensed that she ordered him to be 
 punished instantly by martial law ; but upon the remonstrances of some 
 prudent counsellor, who told her that this law was usually confined to 
 turbulent times, she delivered him over to the common law (vol. v., 
 appendix iii.). This commission was granted to Sir Thomas Wilford, 
 granting him authority, upon signification from justices of the peace, of 
 idle vagabonds or riotous persons worthy to be speedily executed by 
 martial law, to execute them (ibid, 45C). It is obvious that these and 
 many similar commissions which might be cited had really no colour of 
 legality ; they were not issued in time of nor in the event of war, but in
 
 88 COMMISSIONS OF MARTIAL LAW, 
 
 Indeed, as martial law, or the law of war, can only be 
 justified by a war, or by the occurrence of a rebellion 
 creating a pressing and paramount necessity, and necessity 
 can only be judged of when it arises— it is questionable 
 whether commissions of martial law, providing for its future 
 exercise, on some uncertain occasion, would be legal, unless 
 the issuing of them could be excused, by such circum- 
 stances of distance and difficulty of communication, as 
 existed in this country in former times, but which are not 
 likely to occur in our own times, except in cases of colonies 
 or distant dependencies of the Crown. But, beyond all 
 doubt, commissions of martial law, for the trial, not only of 
 rebels, but of all ordinary offenders, were always illegal, 
 and were so declared by the Petition of "Right (a). 
 
 time of peace, and to be executed in time of peace, and on ordinary 
 offenders, superseding, without any excuse or pretence of necessity, the 
 ordinary law. Such cases have been cited as instances of martial law, but 
 in truth they were not martial law; they were simply assumptions of 
 despotic authority wholly contrary to law. And the distinction will be 
 observed between these commissions and real commissions or procla- 
 mations of martial law, such as have been already cited. The truth is, 
 that there is something irregular in the very term commission of martial 
 law, for martial law being but the law of war, it is rather by declaration 
 or proclamation, as upon a declaration of war, or on some sudden necessity 
 and emergency, than by commission, which appears to contemplate some- 
 thing permanent, continued, or settled. And if commissions of martial 
 law were legal at all, it could only be as directed to the occurrence of a 
 future rebellion, amounting to a formidable war. As, however, the 
 necessity could only be judged of when it arose, such commissions were of 
 very doubtful legality, even when confined to rebellion. So when the 
 streets of London were much infested with riotous persons, the Queen 
 finding other remedies inefficient, decreed martial law, and gave Sir 
 Thomas Wilford a commission of provost marshal, as above stated {ibid). 
 This commission recited that ".sundry great unlawful assemblies of a 
 number of base people in riotous sort, for the suppression of which it was 
 found necessary (for that the insolency of many desperate offenders is such, 
 that they care not for any ordinary punishment by imprisonment) to have 
 some notable rebellious persons to be speedily suppressed by execution to 
 death, according to the justice of martial law." This was obviously illegal, 
 for it was applying martial law to mere rioting. 
 
 (a) The particular commissions which led to the declaration in the 
 Petition of Right, and which are recited in it, were such as that issued
 
 FOR ORDINARY OFFENCES, NOT LAWFUL. tf9 
 
 The exercise; of the prerogative of the Crown to levy 
 war against subjects can only be justified OH the ground of 
 
 Dec. 162;", to Lord Wimbleton, which einpou.-icd hiin to proceed against 
 soldiers or dissolute persons who should commit any robberies, &c, which by 
 martial law ought to be punished with death, by Buch summary course aa 
 is agreeable to martial law, &c. (Symer, xviii., 254). Another similar 
 commission, dated 1626, will ho found, p. 751 and p. 763. Now, these 
 commissions correspond so exactly with the terms of the recital in the 
 Petition of Bight, thai ii is manifest they were the commissions alluded 
 to •, and it will be seen how entirely they differed from martial law proper, 
 which, to begin with, was not proper by commission but by declaration or 
 proclamation on the sudden breaking out of war or rebellion, as on the 
 occasion of a great public emergency. The Petition of Right recited that 
 by the Great Charter and other laws of the realm, no man ought to be 
 judged to death but by the laws established in the realm, either by the 
 customs of the realm or Acts of Parliament, and, "Whereas no offender, 
 of what kind soever, is exempted from the proceedings to be used, and 
 punishments to be inflicted by the laws and statutes of this your realm, 
 nevertheless of late time divers commissions under your Majesty's great 
 seal have issued forth, by which certain persons have been assigned and 
 appointed commissioners, with power and authority to proceed within the 
 land according to the justice of martial law against such soldiers or 
 mariners, or other dissolute persons joining with them, as should commit 
 any murder, rubbery, felony, mutiny, or other outrage or misdemeanour 
 whatsoever, 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 condemnation of such offenders, and them to cause to be executed and 
 put to death according to the law martial (viii. ), by pretext whereof some 
 of your Majesty's subjects have been by some of the said commissioners 
 put to death, when and where, if by the laws and statutes of the land they 
 had deserved death, by the same laws and statutes also they might, and 
 by no other ought, to have been judged and executed," therefore it is 
 prayed, " that the aforesaid commissions for proceeding by martial law 
 may be revoked and annulled, and that hereafter no commissions of like 
 nature may imte forth," &c. It will be observed that this is carefully 
 restricted to commissions for the trial of all offences by all kinds of 
 offenders, and says not a word as to martial law for suppression of rebellion. 
 In the age in which the Petition Right was passed no one supposed that it 
 rendered martial law illegal for the suppression of rebellion. Upon that 
 subject there is a contemporary authority of infinitely greater relevance 
 and importance as to the lawfulness of martial law, the authority of one 
 who suffered severely for liberty. Allusion is here made to the passage 
 quoted by Mr. Bristow from Prynne. It is from bis Animadversions on, 
 Amendments of, and Additional Explanatory Records to the Fourth Part of 
 Coke's Institutions cf the Lav; of England; published in 1669, p. 60.
 
 90 MARTIAL LAW, THE LAW OF WAR, 
 
 a paramount necessity, for the preservation of the peace or 
 protection of the realm, for the welfare and protection of 
 
 Prynne quotes a pardon granted by Queen Elizabeth (Pat. de Anno 12 E. 
 C. m. 30 intus. De Pardonaeione pro niajore et civibus Dublin.) granted 
 to the mayor and citizens of Dublin, for having, in view of a threatened 
 invasion of Scottish enemies and rebels, destroyed houses and buildings in 
 the suburbs of the city, for facilitating its defence. Upon this Prynne 
 remarks, " Had the mayor and citizens been military officers, com- 
 missioned by the king to garrison and guard the city against the enemies, 
 their cases had been stronger in point of martial law and warlike discipline, 
 -needing no pardon in such a case as this." It is true the case related only 
 to seizure of property, but, as every lawyer knows, the test of legality is the 
 same whether applied to property or person, and the doctrine laid down 
 by Prynne obviously is that martial law justifies whatever is necessary, 
 as against rebels, or for suppression of rebellion. So Hale, not long 
 after the Petition of Eight, described it as making martial law illegal 
 in time of peace (Hist. Com. Law). So far, however, from the Petition of 
 Right being deemed to have abolished martial law, there is an unbroken 
 tradition of legal authority from that time to the present, that it is lawful 
 in rebellion, and is absolute military authority. Thus, just before and 
 just after the Petition of Right, it was thus defined, in a passage cited in 
 every law dictionary from that time to this : " Martial law is the law that 
 depends upon the just and arbitrary power of the king, or his lieutenant, 
 in time of war. For in war, by reason of the great danger arising from 
 small occasions, he useth absolute power " (Smith, Rep. .Any., lib. ii., c. 
 3, cited in Blount's Law Dictionary; and in Cowell, edition 1670: and in 
 Jacobs, and in Tomlin, edition 1835). So, " Martial law is an arbitrary 
 law, originating in emergencies, regulated by the expediency of the 
 moment, and extending to all the inhabitants of a place or country" (Dr. 
 Worcester's Dictionary, title "Martial"). The Author has seen with some 
 surprise loose statements that the Petition of Right abolished martial law. 
 It appears to him that there is an error ; and that this is manifest, either 
 from its terms or its history, or the construction put upon it by its author. 
 It will be observed that there is no distinction or exception as to soldiers ; 
 so that whatever it declared illegal was equally illegal as to soldiers as to 
 other classes of persons. Yet after the Petition, as before, soldiers were 
 executed by martial law for mutiny, and although it was objected to, the 
 objections were overruled, and eminent lawyers advised that, in time of 
 war, in the face of the enemy, it was legal (Rushworth, vol. iii., 1199). And 
 so under the Commonwealth, an ordinance passed, establishing a com- 
 mission to hear and determine matters of military cognisance according to 
 articles of war, and try, convict, and execute all offenders against them 
 {Pari. Hist., vol xiii., p. 270). And among the articles were these :— No 
 soldier or officer shall make any mutinous assembly, or be assisting 
 thereunto, on pain of death. And there was a regulation that men should
 
 ORIGINALLY IN'CLUDED ALL MILITARY LAW. 91 
 
 which alone prerogative exists. Winn war is thus lawfully 
 levied by the Crown for the suppression of rebellion, or 
 resistance of invasion, that same prerogative, grounded <»n 
 the necessity at common law, empowered the Crown to 
 govern the army absolutely, or by a law different from that 
 of the common law (a), and this law of war, as being only 
 
 repair to their regiments under pain of death {Pari. Hist., vol. xiii., p. 
 Many trials In court-martial took place under this ordinance by 
 martial law, ami several persons were sentenced to death, not soldiers 
 merely, but a civilian who was convicted as a spy ( W hillock's At em., 
 p. 110). And after this ordinance had expired, Cromwell put mutinous 
 soldiers to death by a drum-head court-martial (Tyller's Military Hist., 
 p. 94). 
 
 (a) Thus martial law became an ambiguous phrase, as it embraced 
 military law, or rules for the government of the army, as well as the law 
 of war ; and the whole was called martial, because there was no army but in 
 time of war. The military law was administered in the court of the 
 constable-marshal, which was the curia? militaris; and it is called by Lord 
 Coke the marshal court and the fountain of the marshal law, which has 
 been curiously supposed to mean martial law, whereas afterwards he uses 
 that phrase, to describe martial law proper, as the law of war; alluding to 
 the Petition of Right, in which it is defined as the justice of martial law 
 such as is used in armies in time of war, i. e. the criminal justice of the 
 army, as quite distinct from its civil rules [Lord Cuke's Institutes, v. 4, c. 17, 
 p. 123). The court of the marshal had a regular civil jurisdiction over 
 military matters, extending to contracts ; for the military law, so long as 
 it applied, embraced all the offences and affairs of soldiers, military or 
 otherwise. Thus Lord Hale treats of it : " In matters of war the con- 
 stable and marshal had a double power. 1. Ministerial, as they were two 
 great ordinary officers. 2. They had also a judicial power, as a court 
 wherein several matters were determined, as, the rights of prisoners taken 
 in war, the offences ami miscarriages of soldiers, contrary to the laws ami 
 rules of the army. Fur, always preparatory to an actual war, the kings of 
 the realm were used to compose a book of rules and orders for the due 
 discipline and order of their soldiers, together with certain penalties on 
 the offenders, and this was called martial law. Bat, touching the business 
 of martial law, these things are to be observed, viz. : — Firstly, that in truth 
 and reality it is not a law, but something indulged, rather than allowed, as 
 a law. The necessity of government, order, and discipline in an army, is 
 that only which can give those laws a countenance ; ipiod enim nccessitas 
 cogit ct defemlit. .Secondly, this indulged law was only to extend to 
 members of the army, or to those of the opposite army, and never was so 
 much indulged as intended to be executed or exercised upon others. For 
 others who had not listed under the army, had no colour or reason to be
 
 92 MARTIAL LAW, THE LAW OF WAR, 
 
 legal or allowable in war, was called martial law ; which 
 originally included military law, that is, rules for the regu- 
 lar government of the discipline of the army, as a military 
 body while the war subsisted, and which embraced all 
 matters which from their nature could be made subject of 
 rule and regulation, and applied to all offences of soldiers, 
 whether military or ordinary. 
 
 When, however, the army became allowed and estab- 
 lished by statute, in time of peace, as a permanent body, 
 so much of military law as the legislature thought proper 
 to sanction — that is to say, so much of it as related to its 
 discipline — was enacted or allowed under the authority of 
 statute, in the Mutiny Act and Articles of War (a) ; and 
 
 bound by military constitutions applicable only to the army, whereof they 
 were not parts. But they were to be ordered and governed according to 
 the laws to which they were subject, though it were a time of war. Thirdly, 
 that the exercise of martial law, whereby any person should lose his life 
 or member, 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. This is in substance declared by the Petition of Right 
 (3 Car. I.), whereby such commissions and martial law were repealed, and 
 declared to be contrary to law " (p. 42, Ed. 1820). That is, commissions of 
 martial law in time of peace. Now here it is obvious that Lord Hale uses 
 the term martial law in a double sense, as containing the law of war, pro- 
 perly so called, in which sense it is no law, and the military law, which 
 originally was only allowed in time of war, and, of course, only could be 
 applicable to soldiers, for it is, as he describes it, a matter of regulations 
 and constitutions, which are not issued to enemies, and he had distinctly 
 stated already that martial law (proper), i.e., "no law at all," applied to the 
 opposite army — that is, in time of rebellion, the rebel army. 
 
 (a) The Mutiny Act was only rendered necessary with reference to a 
 standing army in time of peace, and it is founded on the Bill of Right 
 (1 Will. III. s. 2, c. 1); reciting that, the keeping or raising a standing 
 army within the kingdom in time of peace without the consent of Parlia- 
 ment is illegal. The Mutiny Act, since 1689, has recited that no man can 
 be forejudged of life or limb, or subjected in time of peace within the realm 
 to any kind of punishment by martial law, or in any other manner than 
 according to the known laws of the realm ; and then it gives power to make 
 articles of war for the government of the army, and provides that no person 
 vsithin the United Kingdom shall, by such articles, be subject to any punish- 
 ment extending to life and limb except for crimes by the Act made 
 punishable. And it proceeded to enact that all the provisions of the Act
 
 DISTINCT FROM ORDINARY MILITARY LAW. 03 
 
 these then formed the only military law in the country, 
 and martial law, in its looser ambiguous sense, became 
 obsolete, and remained only in its real and proper sense as 
 the law of war, in which sense it did not admit of being 
 confined within fixed rules and regulations, and in which 
 sense it remained, as all military law originally was, abso- 
 lute, and subject to the prerogative out of which it arose. 
 
 Military law, therefore, has ever since its establishment, 
 by statutes and articles, been clearly distinguished from 
 martial law in its proper sense, or the law of war ; or in 
 that looser sense in which it was once used (a), as including 
 
 shall apply to persons enlisted or in pay as soldiers, or all persons who shall 
 be serving with any part of the army at home or abroad. But it was long 
 ago settled that as by the Act the power to make articles of war is confined 
 to his own dominions, when his army is out of his dominions, he acts by 
 virtue of his prerogative, and without statute; and further, that flagrante 
 belle, the common law has never interfered with the army (Hariris v. 
 Keppel, 2 Wilson's Reports, 318). That was just before the great commen- 
 tator wrote, and he wrote thus on the subject : " Martial law, which is built 
 upon no settled principles, but is entirely arbitrary in its decisions, is, as 
 Sir Mathew Hale has observed, in truth and reality no law at all, but some- 
 thing indulged rather than allowed as law. The necessity of order and 
 discipline in an army is the only thing which can give it countenance, 
 and therefore it ought not to 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 laud " (vol. 1, 413). This, it is manifest, was meant of martial 
 law— no doubt as to soldiers— but martial law in its original sense of absolute 
 law ; for the great commentator cannot be supposed to have forgotten and he 
 goes on to mention, that regular military law was established by statute in 
 time of peace. Tytler, in his Military Law, actually supposes that Black- 
 stone meant regular military law in the above passage, and makes an 
 amusing attack upon him, in which view he has been followed by Cock- 
 burn, C. J., in his charge. But all approved military writers, ever since the 
 time of Blackatone, have carefully distinguished between military law and 
 martial law. Thus, for instance, in Men-Arthur on Court- Martial. 
 
 (a) This was fully explained in 17 ( . ( -, in a celebrated ca±e (U'rant v. Gould, 
 2 Henry Blackstone'a Reports, G7), in a judgment of Lord Loughborough, 
 which lias bees Bingularly misunderstood, through want of attention to the 
 previous history of the subject. It was a case which arose in time of peace, 
 so that there was no occasion to say a word about martial law in time of 
 war, and anything aaid thereon would have been obiter, or extra-judicial. 
 In argument, the counsel for the applicant had cut. red at length into
 
 94 MARTIAL LAW, THE LAW OF WAR, 
 
 not only martial law but military law, that is all rules for 
 the government of an army ; including, as it then did, all 
 their offences, ordinary or military, in which sense it has of 
 course been exploded, and in the sense of military law it 
 has been superseded. Military law is now well understood 
 to mean regular military law, so far as it is allowed, and 
 enacted by statute ; but it has always been held that 
 in time of war the Crown is not bound by these rules. 
 And martial law has ever since been understood to mean, 
 that law of war which, as to soldiers, is only allowed in 
 
 those abuses of martial law which prevailed in ancient times. This led 
 Lord Loughborough to say, " that martial law, such as it is described by 
 Hale, and such also as it is marked by Mr. Justice Blackstone, does not 
 exist in England at all. Where martial law is established and prevails in 
 any country, it is of a totally different nature from that which is inaccu- 
 rately 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, which was contrary to the constitution, and 
 which has been for a century totally exploded. Where martial law prevails, 
 the authority under which it is exercised claims a jurisdiction over all 
 military persons, in all circumstances. Even their debts are subject to 
 enquiry by a military authority ; every .^ecies of offence committed by any 
 person who appertains to the army is tried, not by a civil judicature, but 
 by the judicature of the regiment or corps to which he belongs. It extends 
 also to a great variety of cases, not relating to the discipline of the army, in 
 those states which subsist by military power. Plots against the Sovereign, 
 intelligence to the enemy, and the like, are all considered as cases within 
 the cognizance of military authority. In this country all the delinquencies 
 of soldiers are not triable by martial law ; but where they are ordinary 
 offences against the civil peace, they are tried by the Common Law Courts. 
 Therefore, it is totally inaccurate to state martial law as having any place 
 within the realm." That is, martial law in that large sense, extending to 
 all offences. For he goes on to say, that by the Mutiny Act, persons who 
 compose the army are, for all offences in their military capacity, subject to 
 trial by their officers. But the object of the trial is limited to breaches of 
 military duty (ibid). This has been strangely misunderstood as alluding 
 to martial law in its proper sense as peculiar to war. But war was not in 
 the mind of the Court, nor martial law in that sense. He was speaking of 
 military law in time of peace, and as applicable to all ordinary offences, as it 
 used to be, in old times, under the name of martial law, simply because, 
 as there were no soldiers but in the time of war, the name martial law, or 
 the law of war, included the whole.
 
 DIFFERENT FROM ORDINARY MILITARY LAW. 95 
 
 time of war, and which, not being restrained by rules and 
 regulations, is absolute. 
 
 It is to be observed that the Petition of Right applied 
 equally to soldiers in common with all other citizens and 
 subjects; and declared illegal, as to soldiers, as well as 
 others, trial by court-martial, for ordinary offences. That 
 this could not and did not apply to trial of soldiers by 
 martial law for offences against military law, at all events 
 in time of war, appears clear from the terms of the 
 Petition, which defines martial law as " used by armies in 
 time of war," and, without a word in reprobation of it, 
 declares illegal trial by martial law, under such commis- 
 sions as had been issued, for trial of all kinds of persons, 
 for all kinds of offences in time of peace ; and beyond all 
 doubt soldiers continued to be tried and executed by 
 martial law, for offences against military law. This could 
 only have been upon the grounds of a paramount necessity, 
 and there is nothing in the Petition of Right against 
 martial law, on the same principle of necessity, in case of 
 rebellion. Soldiers are not less citizens than others, and 
 cannot be deprived of common law rights, except on 
 the ground of necessity, and for the safety of the com- 
 munity. Military law as to soldiers will be found to rest 
 entirely on this principle, and the same principle alone can 
 govern its application to others. 
 
 Since the Revolution, military law, so far as it is capable 
 of being reduced to rule or regulation, has been embodied 
 in statute or statutable enactments. Martial law, in its 
 original -ense, meaning the law of war as applied to 
 soldiers (a), it is evident that any secondary sense of it in 
 
 (a) The Mutiny Act recites that it is requisite that soldiers who -hall 
 mutiny or stir up sedition, or he guilty v( crimes or offences to tiheprejudice 
 of good order taxd military discipline, be hrought to more exemplar; and 
 Bpeedj punishment than the usual forms of law will allow; and then it 
 enacts that the sovereign may make articles of war for the better govern- 
 ment of the army, which shall he judicially taken notice of; and that no 
 person within the United Kingdom or the British Ttlet 'shall by such articles
 
 96 MARTIAL LAW AS TO SOLDIERS. 
 
 regard to civilians in rebellion, must depend upon its 
 original sense as applied to soldiers ; and it is therefore 
 essential to understand what it is with regard to soldiers, 
 in so far as it is embodied in the Mutiny Act or Articles of 
 War ; whether with reference to crimes and offences, or to 
 penalties, or to the constitution of courts and mode of 
 procedure. The purview and principle of that Act, as laid 
 down in the preamble, and annually recited every year 
 since the Revolution, is, that it is necessary in order to retain 
 the army in its duty, that is, to preserve the peace of the 
 realm, and protect the subjects from the mischief which 
 must result from the power of the army if left unrestrained, 
 that soldiers who are guilty of offences to the prejudice of 
 good order and discipline, be brought to more exemplary 
 and speedy punishment than the usual forms of law will 
 allow and with that view various offences are created, and 
 
 be subject to suffer any punishment extending to life or limb, or to be kept 
 in penal servitude, except for crimes which are by the Act expressly made 
 liable to such punishments ; or shall be subject, with reference to 
 any crimes made punishable by the Act, to be punished in any manner 
 which shall not accord with the provisions of the Act (s. 1). And all 
 soldiers serving in any of Her Majesty's dominions abroad, or in places in 
 possession of Her Majesty's subjects, under the command of any officer 
 having any commission immediately from Her Majesty, shall be subject to 
 the A°ct, and the Articles of War (s. 4). Then as to offences, the Act 
 provides that if any person subject to the Act shall begin, excite, cause, or 
 join in any mutiny or sedition in any forces of Her Majesty, or shall not 
 use his utmost endeavours to suppress it, or shall conspire with any other 
 person to cause a mutiny, or, coming to the knowledge of any mutiny, or 
 intended mutiny, shall not, without delay, give notice thereof to his com- 
 manding officer, or shall hold correspondence with, or give advice or intelli- 
 gence to any rebel or enemy of Her Majesty, whether such offence be com- 
 mitted within the realm or in any other of Her Majesty's dominions, or in 
 foreign parts, shall suffer death or such other punishment as by a court- 
 martial shall be awarded. Then the Articles of War enact that any soldier 
 who shall hold correspondence with, or give intelligence to the enemy (51), 
 or who shall impede the provost-martial or any other officer exercising autho- 
 rity or refuse to arrest him when requiring his aid in the execution of his 
 duty, or shall neglect to obey any order, shall, on conviction thereof before a 
 general, or district, or garrison court-martial, suffer such punishment as 
 shall accord with the provisions of the Act, and the usages of the service.
 
 EMBODIED IN THE Ml TINY ACT. 07 
 
 penalties art; inflicted, uiili much greater severity an<l by a 
 much speedier procedure than at common law. And it 
 •will be found thai these articles contain much thai is 
 applicable in respect to soldiers, or others, in cases of war 
 
 or rebellion, so far as these matters can be made the 
 subject of express regulation. 
 
 Under the Mutiny Act, the offences of soldiers against 
 the Articles of War, are tried by courjts-martial ; and in 
 countries beyond seas, courts-martial may take cognisance 
 not only of offence.-, againsl military discipline, in the sense 
 of obedience to orders, or to officers, but also in the larger 
 sense of preservation of good order ; and may therefore 
 take cognisance of offences against the persons or property 
 of any of the inhabitants of the country, and may inflict 
 even capital sentences on soldiers. And while, on the one 
 hand, it is carefully provided that only general courts-mar- 
 tial, composed of a certain number of officers, shall have 
 power to inflict capital sentences, it is also provided, on the 
 other hand, that where it is impracticable to assemble a 
 general court-martial, a court composed of three commis- 
 sioned officers may sit. And, on the same principle, there 
 is a provision for mixture of officers of both services, upon 
 the same court-martial, when such mixture is conve- 
 nient (a). 
 
 {a) It shall be lawful for any officer commanding any detachment 
 Berving in any place beyond seas, where it may be found impracticable to 
 
 emble a general court-martial, upon complaint made bo him of any 
 offence committed against the property or person oi any inhabitant or 
 
 resident in any country in which the troops arc serving, by any p 
 
 Berving with or belonging to Her .Majesty'.-, armies, being under the imme- 
 diate command of such officer, to convene a detachment general court- 
 martial, which shall consist of not less than three commissioned officers, 
 tor the purpose of trying any such person ; and .very such court shall have 
 the same power in regard to sentences, upon offenders, as arc granted by 
 the Act to general courts-martial j provided that no sentence of any such 
 court shall be executed until the General commanding tin- army of which 
 such detachments forms part shall have approved and confirmed the - 
 
 (Mutiny Act. s. 12). Ami every general court martial (which is to consist 
 of not less than thirteen officers) shall have poll I to ml mce t<> death. &c 
 
 Jl
 
 98 MARTIAL LAW, AS TO SOLDIERS, 
 
 And there is an important provision (a), the principle of 
 which may have some bearing upon the present subject ; 
 namely, that any soldier in any place within the Queen's 
 dominions beyond seas, where there is no civil judicature in 
 force, may be tried before a court-martial for treason, or 
 any other civil offences, which, if committed in England, 
 would be triable by a court of ordinary criminal jurisdiction, 
 and shall be liable to capital punishment, if the offence is 
 capital in England ; or otherwise to any sentence the court 
 may award, so that it is not of such a nature contrary to 
 the usages of English law. 
 
 (s. 8). Any court-martial may sentence any soldier to corporal punish- 
 ment, or for insubordination accompanied with personal violence (s. 22). 
 And by the Articles of War, a general court-martial may sentence to death 
 (s. 115), but not without the concurrence of two-thirds of the officers 
 (s. 116); and no court-martial other than a general court-martial, or a 
 detachment general court-martial, having the same powers (id supra) 
 shall have power to pass sentence of death (s. 117). Any court-martial may 
 sentence a soldier to corporal punishment for mutiny or for insubordina- 
 tion accompanied with pergonal violence ; and save as aforesaid, no court- 
 martial shall have power to sentence a soldier to corporal punishment 
 except while in active service in the field, or for mutiny on the line of 
 march, or any breach of the Articles of War ; and no sentence shall exceed 
 fifty lashes. And no sentence of corporal punishment awarded by a regi- 
 mental court-martial shall, except in case of mutiny or insubordination, 
 accompanied with personal violence, be put in execution in time of peace, 
 without the leave of the General (s. 118). No sentence of a general court- 
 martial shall be put in execution until after a report to the Governor or 
 Commander-in-chief; and no sentence of death shall be carried into effect 
 in any of our colonial possessions until it shall have been approved by the 
 civil Governor (s. 23). A detachment general court-martial shall have the 
 same power in regard to sentence upon offenders as a general court-martial, 
 but no sentence of a detachment general court-martial shall be executed 
 until the General in command shall have approved and confirmed (s. 124). 
 Where it is necessary or expedient, a court-martial composed exclusively of 
 officers of the army, or of officers of marines, or of officers of both services, 
 whether the Commander belonged to our land or marine services, may try a 
 person belonging to either of those services ; and when the person to be 
 tried shall belong to the army, the proceedings shall be regulated as if the 
 court were composed only of officers of the army (s. 146). 
 
 ! i in any place within our 
 
 xcept in India, as to v I is a special 
 
 Act;, where there is no civil judicature in force under our authority compe-
 
 EMBODIED IN THE MUTINY ACT. 99 
 
 Now, it will be observed, that the Mutiny Act and 
 Articles of War, which embody as much of the law of war 
 as can be put into fixed regulations and rules, but not the 
 whole of it, do not confine the prerogative of the Crown 
 in the government of the army, as to offences and penalties, 
 except in the United Kingdom or the British Isles (a), and 
 do not confine it in actual war, or in the foreign dominions 
 of the Crown. And further, that, although they apply 
 only to soldiers, yet as soldiers are not the less citizens and 
 subjects, or entitled to rights as such, than any other class 
 
 tent to try such offender, and who shall he accused of treason, or of any 
 other civil offence which, if committed iu England, would he punishable by 
 a court of ordinary criminal jurisdiction, and not hy court-martial, shall be 
 tried by a general court-martial appointed by the officer commanding in 
 chief iu such place, and if found guilty shall be liable, in the case of an 
 offence which, if committed in England, would be capital, to suffer death ; 
 or, in the case of any other offence, to sutler such punishment other than death 
 as hy the sentence shall be awarded ; no such punishment to be of Bach a 
 nature as shall be contrary to the usages of English law ; or to be carried 
 into effect until such officer commanding in chief shall have confirmed it. 
 Now, no doubt this applies only to soldiers, but it is a legislative declara- 
 tion of what is reasonable as to soldiers ; and in the case supposed, what is 
 reasonable as to soldiers is, when the safety of the whole community is at 
 stake, equally reasonable as to others ; it being borne in mind that the 
 principle upon which soldiers are liable to those pains and penalties, and 
 this summary procedure, is not that they are not, as much as others, citizens 
 and subjects, and entitled to the rights of citizens and subjects, but for 
 the sake of the safety and welfare of the community at large ; and the same 
 principle would in a great emergency warrant by analogy the applica- 
 tion of a similar course of proceeding to persons in armed rebellion, and 
 thus, in the position of soldiers, and moreover of mutinous soldiers. No 
 doubt the clause may have been drawn primarily with reference to the case 
 of a foreign dependency, without any regular court of civil judicature; but 
 here again the principle is the same whether there is no such court actually 
 in existence or able to exercise its jurisdiction. And if the whole colony 
 is in disorder and disturbance by reason of rebellion, and the court, even if 
 it exists, is not able to exercise its jurisdiction, it may fairly be said that 
 there "it no civil judicature in force." And such is the Bense put upon it 
 in Summons on Courts-Martial. 
 
 (a) It is only provided by the Mutiny Act that no person within the 
 United Kingdom or the British Isles, shall by the articles be subject to 
 sutler any punishment extending to loss of limb, except for crimes which 
 are by the Act made liable to such punishment, or shall be subject with re- 
 
 H 2
 
 100 MARTIAL LAW, AS TO SOLDIERS, 
 
 of persons, they cannot be deprived of their rights by the 
 prerogative, except by reason of great necessity, with 
 reference to the protection and well-being of the whole 
 community. And upon that principle alone, therefore, 
 these stringent provisions, and that still more stringent pre- 
 rogative, out of which they originally arose, can be 
 vindicated. 
 
 The very existence of Mutiny Acts and Articles of War, 
 grounded as they are upon the Bill of Rights and the 
 Petition of Right, which applied equally to soldiers or any 
 
 ference to any crimes made punishable by the Act, to be punished in any 
 manner which shall not accord with the provisions of the Act (s. 1). And 
 at the end of the Articles of War it is declared, on wide and general terms, 
 that all crimes not capital, and all acts, disorders, and neglects, which 
 soldiers and other persons subject to the Articles may be guilty of, to the 
 prejudice of good order and discipline, though not specified in the Articles, 
 shall be taken cognizance of by courts-martial. It was laid down in the 
 time of Blackstone that by the Mutiny Act and Articles of War, the King's 
 power to make Articles of War is confined to his own dominions ; when 
 his army is out of his dominions he acts by virtue of his prerogative, and 
 without the statute or Articles of War, and flagrante belli, the common 
 law has never interfered with the army, " inter anna silent leges " (Barviise 
 v. Keppel, 2 Wilson's Reports, 318). The latter is laid down as a distinct 
 proposition, that in the face of the enemy, whether at home or abroad, the 
 common law does not interfere with the army, i. c, of course, with its con- 
 duct as an army, towards the enemy ; with the acts of soldiers as soldiers, 
 under orders against the enemy. Thus by a great judge nearer our own time, 
 it was put entirely on that principle, that it was in face of an enemy (Law- 
 rence, J., Warden v. Bailey, 4 Taunton's Reports, 70). It is true that the 
 Mutiny Act and Articles of War would apply to soldiers (Grant v. Gould, 2 
 H. Blackstone, 67 ; Bradley v. Arthur, 4 Barnwalland Cresswell's Reports) ; 
 and it is also true that they are subject to military law and military tri- 
 bunals, but it is also true that a soldier is gifted with all the rights of other 
 citizens {Burdett v. Abbott, 4 Taunt. 449), and can no more be deprived of 
 those rights by prerogative than any other subjects and citizens, except only 
 by virtue of some paramount necessity, for the sake of the safety of the 
 entire community ; and it is accordingly only on that principle that martial 
 law, whether as to soldiers or others, has ever been vindicated. Thus, 
 more than half a century after the above system of military law had been 
 established by statute in#this country, the great commentator wrote thus: — 
 i: Martial law is built upon no settled principles, but is entirely arbitrary 
 in its decision, and is in truth no law, but something indulged rather than 
 allowed as law, a temporary excrescence out of the distemper of the state
 
 JUSTIFIED ONLY BY NECESSITY. 101 
 
 other class of subjects and citizens, involves and implies 
 that they have at common law just the same rights and 
 privileg 8 as any others, and cannot be deprived of them 
 by prerogative, or by virtue of enactment founded upon 
 prerogative, except ujdou the ground of a paramount public 
 necessity, and notwithstanding that, as far as possible, to 
 protect them from arbitrary power, their offences and 
 penalties are bo carefully defined by statute and statutable 
 regulation, it is well recognised that in presence of actual 
 war, these rules do not control the power of the Crown in 
 the exercise of its prerogative in regard to the army ; and 
 that, in presence of an enemy, at all events out of this 
 country, certainly in an enemy's country, the Crown acts 
 by prerogative, in the exercise of an absolute discretionary 
 military authority; and all these rules, on occasions of emer- 
 gency, may be dispensed with, on the ground of necessity, 
 and the most summary procedure allowed, if only there is 
 an honest inquiry, and an apparent necessity (a). 
 
 and not any part of the permanent and perpetual laws of the kingdom. 
 
 The necessity of order and discipline is the only thing which can give it 
 
 countenance ; and, therefore, it ought not to be permitted in time of peace, 
 
 when the King's courts are open for all persons to receive justice according 
 
 to the law of the laud" (Blackstane'e Commentaries, vol. i., edition 1850, p. 
 
 143). 2s'ow, whether or not this was meant of martial law as applied to 
 
 soldiers, it was written with reference to the distinction between time of 
 
 eid war, and the same necessity which renders martial or military law 
 
 ay as to soldiers in time of peace or war, may render it necessary as 
 
 to all classes in time of rebellion ; and if there is Buch necessity, there is no 
 
 Less reason or justice in its application to others than to Boldiers, who are 
 
 liable to it only by reason of necessity for the peace and welfare of the 
 
 community. 
 
 (a) That military authority is absolute in actual war, and in presence of 
 
 the enemy, at all events out of this country, and as regards soldiers, has 1 q 
 
 solemnly established by the House of Lords in a very celebrated case. In 
 ;t case of Sutton v. Johnston, 1 Term Rep. 548, the judgments of 
 Lords Mansfield and Loughborough were to this effect:— that no action 
 lies for the abuse of a military discretionary authority in time of war, and 
 that a court of common law in Buch a case could not assume a jurisdiction, 
 that a Commander had a discretionary power by the'military code to arrest, 
 BUSpend, and put upon trial, any man in his force ; and that a court-man i.i I
 
 102 MARTIAL LAW, AS TO SOLDIERS, 
 
 Thus, it has been over and over again recognised by the 
 ablest law officers of the Crown (a), and by judicial autho- 
 rity, that in a mutiny or rebellion, a Commander may act 
 under martial law, on summary inquiry. Courts of law (6), 
 
 alone could judge of the charge. That if the power was abused, as it might 
 be, to oppression, the military law itself would afford a remedy or punish- 
 ment ; for a Commander who should arrest 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 
 probable 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 turn 
 upon military considerations. " Commanders on a day of battle must act 
 upon delicate suspicion, on open evidence of their own eyes ; they must give 
 desperate commands, and they must require instantaneous obedience. A 
 military tribunal is capable of feeling all the circumstances and under- 
 standing them, but what condition will a Commander be in, if upon the 
 exercise of his authority he is liable to be tried by a common law judicature? 
 Not lcnoiving the law or the rules of evidence, no Commander would dare to 
 act." Now, it is quite true that all this was said of a case occurring out of 
 the King's dominions and in presence of the enemy, but it appears to have 
 turned not on the former fact but on the latter, and portions of the King's 
 dominions might be in possession of an enemy, either in the case of 
 invasion or insurrection. Even in a British dominion abroad the Articles 
 of War do not always confine the military authority as to soldiers {Rex v. 
 Suddis, 1 East's Rep. 317). And it is well established that in cases of sud- 
 den mutiny and emergency there may be the most summary proceeding, by 
 what is called drum-head court-martial (Governor Wall's case, 28 State 
 Trials, 154). 
 
 (a) Even in regular courts-martial it has been again and again decided 
 in our courts, that they are not bound to follow those rules of evidence 
 which are general in our courts of common law. 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 defending 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. 
 
 (b) In the case of Governor Wall, 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 in- 
 fliction 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
 
 JUSTIFIED ONLY BY NECESSITY. 103 
 
 not less than military law, recognise for military pur ons, 
 or persons under martial law, in times of mutiny, or rebel- 
 lion, or war, what are called in military language *' drum- 
 bead courts-martial," in which, when the danger is bq 
 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 authorised to pro- 
 ceed summarily, without any other inquiry than is possible 
 under the circumstances. 
 
 degree, the validity of that excuse, if the foundation for it did exist in 
 point of fact, and if there did exi.st a mutiny which required the strong 
 arm of power to repress, if it was so dangerous in its probable and 
 immediate consequences as to supersede the ordinary power of trial for such 
 9§mea. 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 immi- 
 nent 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." Thus in 
 that case, 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 ease in question the prisoner was not allowed to make any defence, said, 
 '• 1 Buppose drum-head courts-martial mean that when the alarm is Buch, 
 and the danger is BO great, that the regular node 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 directions laid down in the Articles of War.'' So 
 in a later case, it was said, " it was enough if the substance of the matter, 
 or the corpus delicti, 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 gave wa\ too 
 easily to formal objections on the part of the prisoners; but courts- 
 martial abroad were not necessarily bound bj the rules of proceedings
 
 104 MARITAL LAW, AS TO SOLDIERS, 
 
 But all this can only be allowable, as regards soldiers, on 
 the ground of a paramount necessity, because soldiers are 
 as much entitled to the rights of free citizens as any other 
 class of subjects (a), and the others have no greater rights 
 than soldiers. It would be an entire fallacy to suppose 
 that soldiers are peculiarly subject to arbitrary power, or 
 any more so than other classes, except only in so far as it 
 is unavoidable by reason of necessity, with reference to 
 the safety of the community. The same principle must 
 apply to all other classes, and all classes are equally liable 
 
 in our courts here." And the court said, " We are not sitting on 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 inquire into the 
 offence, and with power to inflict such a punishment" {R. v. Suddis, 1 
 East. 317). 
 
 (a) Thus, in the case of Sir Francis Burdett, in 1812, the Chief Justice 
 said, " Since much has been said about soldiers, I will correct a strange 
 mistaken notion that has got abroad, that because men are soldiers they 
 cease to be citizens. A soldier is gifted with all the rights of other citizens " 
 (Chief Justice Mansfield, Burdett v. Abbott, 4 Taunton's Reports, 449). 
 Soldiers could not be deprived of common law rights but by prerogative 
 or statute, based on necessity; and when war arises, they may be deprived, 
 by virtue of that necessity, of those rights, even beyond the extent to 
 which they are deprived by statute ; and on reason and principle other 
 classes may equally be deprived of those rights by the same necessity. 
 That necessity arises when the country is the scene of war which convulses 
 it and destroys it. " When the courts of justice are open to distribute 
 justice to all, it is said to be a time of peace. But when, by invasion, 
 rebellion, &c, the peaceable 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 only give privilege to them that are in the war, 
 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 law 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, c. v.). But now an Act of Parliament is passed yearly, 
 empowering the king to appoint courts-martial, though in times of peace. 
 But for statute, this could not be legal even as to soldiers in time of 
 peace, but in time of war it is so by prerogative, founded on necessity, with
 
 JUSTIFIED ONLY BY NECESSITY. 10j 
 
 to be deprived temporarily of their common law privilege -•. 
 and placed temporarily under arbitrary power, when neces- 
 sary for the peace and safety of the community. The 
 question, therefore, is, when is there such a necessity ? The 
 answer is, that it may arise, as to any class, in a country 
 the scene of war or rebellion. 
 
 It will be seen from the Articles of War that military 
 law, as to soldiers, is extremely severe ; and that, whether 
 reference to the offences it constitutes, or the penal- 
 ties it inflicts, it is widely different from ordinary law, and 
 infinitely more onerous and penal (a). And it has always 
 
 reference to the safety of the community. And the same necessity is the 
 basis of the .Mutiny Act. " Tin: military law, as exercised by the authority 
 of Parliament and the Mutiny Act, with the Articles of War, is not to be 
 confounded with that different branch of the royal prerogative called 
 martial law, which is only t<> be exercised in time of rebellion" (MacArthur 
 on Court-Martial, I). The definition of martial law in CoweWs Law 
 Dictionary, is, " Martial law i.s the law of war, and depends on the just but 
 arbitrary power of the king, or his lieutenant ; for although the king does 
 not make any law, but by the common consent in Parliament, yet in time 
 of war, by reason of the necessity of it to guard against dangers that often 
 arise, he useth absolute power, so that his will is a law." The same neces- 
 sity allows of the temporary suspension of the civil rights of other classes. 
 Thus it is said, "There are extraordinary seasons when the body 
 politic, like the natural, is affected by disease, and when absolute necessity 
 authorises the application of extraordinary remedies. In ordinary times 
 the personal liberty of individuals cannot be abridged at the mere discre- 
 tion of any magistrate, nor without the production of the prisoner in 
 court," and so on ; ''but in times of turbulence and danger these securities 
 of personal liberty must yield to the greater object, the security of the 
 state, and the legislature authorises for a time the suspension of the statute 
 of habeas corpus. So likewise the common and statute law, which in 
 ordinary times is adequate to the coercion of all offences, may be found, in 
 times of extraordinary turbulence and alarm, utterly inadequate to the 
 repression of the most dangerous crimes against the state. The -low and 
 cautious procedure of th<> King's ordinary courts of justice keeps no pace 
 with that daring celerity which attends the operations of rebellion;" "in 
 Mich seasons, therefore, the - in itself that remedy 
 
 which is necessary for its own preservation" {TyUer'a Military Law). 
 
 («<) And this can only be, ami always has been, excused on the 
 ground of necessity, and with a view to the general safety of the 
 community. "The army being established by the authority of the legis-
 
 106 MARTIAL LAW, AS TO SOLDIERS, 
 
 been avowed that, as soldiers are free citizens, this can 
 only be excused on the ground of necessity. But, beyond 
 this, it seems admitted that, in time of war, or mutiny, 
 even in the dominions of the Crown, even this law may 
 be exceeded or departed from, and that, at all events, with- 
 out observing its rules or its formalities, still more sum- 
 mary justice may be justified, on the ground of a necessity, 
 arising out of an extraordinary emergency. This is 
 martial law in the strict sense of the term, as the law 
 only of war ; and it can only be justified as regards 
 soldiers, who are as much citizens and subjects of a 
 free state, as others — on the ground of necessity, which 
 may equally justify it as regards other subjects, who are 
 no more citizens and subjects than soldiers. 
 
 All the arguments and considerations which support the . 
 allowance of such a power, as regards the loyal soldiers of 
 the Crown, who, if they lapse into military disorder, may 
 become dangerous to the state, and destroy the peace of 
 the realm, apply, not only a multi fortiori, but with 
 infinitely greater force, to the case of a rebellion, seeing that 
 a rebel army, or an army of rebels, as they are in fact and 
 
 lature, it is an indispensable requisite of that establishment that there 
 should be order and discipline kept up in it; that the persons who 
 compose the army, for all offences in their military capacity, should be 
 subject to trial by their officers. That has induced the absolute necessity for 
 a Mutiny Act accompanying the army. And it has been said that as there 
 was an 'army established, and even if the army was to be disbanded, there 
 must be a Mutiny Act for the safety of the country." " It is one object of 
 the Act to provide for the army ; but there is a much greater cause for the 
 existence of a Mutiny Act, and that is, the preservation of the peace and 
 safety of the kingdom; for there is nothing so dangerous to the public 
 safety as a numerous and undisciplined army ; and every country which has 
 a standing army is guarded and protected by a Mutiny Act. An undisci- 
 plined soldiery are apt to be too many for the civil power ; all history and 
 all experience give the strongest testimony to this (Lord Loughborough, 
 Grant v. Gould, 2 Henry Blackstone's Rep. 100). But this, it will be ob- 
 served, applies a multi fortiori to a rebel army, or an army of rebels ; who, 
 of course, are infinitely more dangerous to the country than a loyal army, 
 who is not undisciplined ; a rebel army being undisciplined, and also 
 disloyal in a state of standing mutiny.
 
 IN PRINCIPLE APPLICABLE TO REBELS. 107 
 
 in contemplation of law, soldiers — so are soldiers, in actual 
 hostility to the Crown and the loyal subjects of the nation ; 
 and, therefore, are in the position of causing not a possible 
 or future danger, but an immediate or present danger to 
 the State. Being soldiers in fact, they are not the less so 
 because they are not loyal, but disloyal ; and they are all 
 the more dangerous to the State, because, being in rebel- 
 lion, they are in a state of standing mutiny. Legal prin- 
 ciple, therefore, not less than sound policy and absolute 
 necessity, requires that men in armed rebellion, being in a 
 state of de facto war, should be liable to be treated as 
 soldiers, and liable to the same summary measures as 
 soldiers in a state of mutiny. And thus it is that martial 
 law is allowed in England in time of rebellion. 
 
 That armed rebellion is war against the Crown (a), is a 
 
 (a) All of our text writers speak of rebellion as war ; and the whole law 
 of treason is founded upon this doctrine, as it is treason even to conspire to 
 levy war against the Crown, and it seems to follow that those engaged in 
 the rebellion are, in the view of the law, soldiers. It has always been laid 
 down that insurrections of an armed force amount to war against the 
 ( 'rown, whether or not accompanied with military discipline or weapons 
 (/•',«/( r's Crown Law, p. 33). Thus, Mr. Justice Foster, in his Crown Law, 
 lays it down that attacking the king's forces in opposition to his authority is 
 levying war against him (s. 10). Insurrections in order to throw down all 
 enclosures, to alter the established law, or change religion, or open all 
 prisons, all risings in order to effect these innovations of a public and 
 general concern by an armed force, are high treason within the clause of 
 levying war (ibid). The distinction is drawn between the offence of com- 
 passing or conspiring this, which is treason, and the actual levying of 
 war, which is nut "iilji treason, but open traitorous rebellion ; and it is 
 the latter and not the former with which martial law is necessary to ileal. 
 That great lawyer, Sir John Campbell, when Attorney-General, cited these 
 authorities in Frost's case, and stated their effect tersely thus : — " Levying 
 WW against the Crown is where there is an armed force seeking to supersede 
 the law, and to gain some public object (Rcgina v. Frost, 9 Carrington & 
 Payne's rep. 141 1. And that law was affirmed and applied by that venerable 
 and learned judge, the late Lord Chief Justice Tindal (ibid, 101). There 
 must be an insurrection, and force accompanying it, and an object of a 
 public nature (iuid). And Lord Tenterdcu laid it down that the pomp 
 and circumstance of military array, such as usually attend regular warfare, 
 arc by no means necessary to constitute an actual levying of war. In-
 
 10S MARTIAL LAW, AS TO SOLDIERS, 
 
 proposition. which, as it is laid down by the earliest and 
 most ancient, so it is equally laid down by the latest 
 and most recent authorities of the law of England upon 
 the subject, and that war against the Crown involves the 
 correlative right on the part of the Crown to levy war in 
 order to subdue the rebellion, and use military power, so 
 far as is necessary for that purpose, appears to be a propo- 
 sition equally undoubted, and to follow necessarily from the 
 first duty of the Crown to preserve the peace of the realm. 
 That in a country the scene of war, whether in or out 
 of the Queen's dominions (ct), and whether the state of 
 war is caused b}' invasion or by rebellion, the common law 
 
 surrections and risings for the purpose of effecting by force and numbers, 
 however ill-arranged, provided, or organised, any innovation of a public 
 nature, for redress of supposed public grievances, in which the parties had 
 no special or particular interest or concern, have been deemed instances 
 of the actual levying of war. Rebellion at its first commencement is rarely 
 found in military discipline or array, although a little success may soon 
 enable its actors to assume them " (33 State Trials, 684). 
 
 (a) It is upon this principle, that although the joining with rebels in an 
 act of rebellion will make a man a traitor within the clause of levying war; 
 yet, if this is done for fear of death, and while the party is under actual 
 force, if enemies or rebels come with a superior force and exact contribu- 
 tions or live upon the country at free quarter, submission in these cases is 
 not criminal ; for flagrante belli the jus belli taketh place, it is the only law 
 then subsisting (Foster s Criminal Law, 217). And the sending intelligence to 
 a rebel makes a man a traitor. No doubt, so long as it is reasonably possible 
 for the civil power to exert itself, the law protects it by making all resistance 
 which ends in death, murder, and all death inflicted necessary in self- 
 defence, justifiable homicide; and so that great lawyer says: " If a minister 
 of justice be present at a riot, and in order to keep the peace produce his 
 staff or other known ensign of authority, this will be sufficient notification 
 with what intent he interposes, and if after this, resistance is made, and he 
 or any of his assistants killed, it will be murder" (ibid. 311). But it is 
 obvious that when a riot is rebellious, peace officers are powerless, and 
 will not enter into such jeopardy, and then, tie facto, the course of the 
 common law is stopped. The same great author lays down that officers of 
 justice, in the execution of their office, are under the peculiar protection of 
 the law, and every man lending his assistance for the keeping of the peace; 
 and this protection extends to the case of private persons interposing to pre- 
 vent mischief or appprehend felons (ibid. 309.) But all this, it will be observed, 
 implies that the civil power or the loyal subject will run the risk of
 
 IN PRINCIPLE APPLICABLE TO REBELS. Kl!» 
 
 admits itself suspended or superseded, at all events in the 
 face of the enemy, and for so long as is necessary, by mili- 
 tary power; and that, in the case of rebellion, this applies 
 to all engaged in or aiding the rebellion, is a proposition 
 which is not without higb legal and evenjudicial authority, 
 and seems, indeed, to demonstrate its own truth, by the 
 self-evident law of necessity. For, as a matter of fact, the 
 country is under military power, and, if the exercise of 
 that power were to be hampered and fettered by legal 
 liability, civil or criminal, it would be obviously impossible 
 to carry on military operations, or preserve the safety of 
 the army, or the loyal portion of the community. Nor does 
 
 attempting these things, and if they do, the law is their warrant; but if 
 they cannot reasonably attempt it, the rebellion being so violent, not a 
 word is said in any book of criminal law or common law as to power, with 
 deadly weapons, to attack the unlawful and treasonable assembly and slay 
 them ; which is war, and being war, is left to the law of war, and can only 
 be lawful when the Crown has declared war, which suspends the common 
 law. On the above principle, it was long ago laid down that, flagrante 
 belli, the common law has never interfered with the army: inter anna 
 silent leges (Barwist v. Keppi I. •_' Wilson's rep. 318). This could not merely 
 mean as between soldiers, for soldiers are not less citizens than others, and 
 not one whit more liable to have their civil rights suspended than 
 any other class ; nor could those rights he suspended as to any class 
 except by necessity and for the safety of the community, and for the same 
 reason the rights of all classes might be suspended. And then, again, 
 rebels in arms arc soldiers, and soldiers in rebellion. In Grant v. Gould, 2 
 Hen. Blackstone's rep., Lord Loughborough puts the case of spies or intelli- 
 gence to the enemy, as coming under the martial law; and though 
 he truly says martial law, in its larger sense, as including all offences 
 of soldiers, is exploded, he never meant to lay it down that in time 
 of actual war, and in the presence of the enemy, martial law is not lawful; 
 so since soldiers are just as much citizens as civilians, yet it has never been 
 maintained that in presence of the enemy the Articles of War limit the 
 power of the Crown. And in Foster's Grown Law, 219, and McArthur on 
 Oourt'Martial, 59, it is laid down that intelligence to a rebel is criminal 
 ami capital when the rebel is a fellow subject in actual rebellion in the 
 dominions of tin- Crown. And iinles it be contended that in the presence 
 of the enemy a Bpy could not be dealt with under martial law, the proposi- 
 tion in the text can hardly ho disputed : for war is war, whether caused by 
 rebellion or invasion, and is M1 considered by the legislature in various 
 statutes, as. for instance, the .Militia Arts.
 
 110 MARTIAL LAW, IN REBELLION, 
 
 it seem possible that there can be two different or even 
 opposite laws prevailing at the same time in the same 
 place ; whence the legal maxim, " Inter arma silent 
 leges." 
 
 Martial law, indeed, is but the development of the prin- 
 ciples of the common law, in a state of war, which, being 
 abnormal and exceptional, and beyond the range of its 
 powers and procedure, is out of the scope of its rules, 
 though not of its principles ; and, as one of its fundamental 
 principles is, that a rebel in arms against his Sovereign is 
 liable to be treated as a soldier (a) ; so, when, by reason of 
 
 (a) It is upon this principle he may be slain in battle with the loyal 
 soldiers of the Crown ; and all writers lay down, he is a quasi soldier, 
 bearing arms against the Government. The loyal soldiers become so by en- 
 listment under the Crown ; they, a multi fortiori, by enlisting against the 
 Crown. Not, indeed, under the Mutiny Acts, which apply in terms only to 
 those enlisted in the service of the Crown, but by a larger and older law ; 
 prior to Mutiny Acts and standing armies, by the common law, a rebel in 
 arms is quasi a soldier, and liable to the pains and penalties of war, 
 although being also a traitor, he is liable to the still more severe pains and 
 penalties of treason. It would be strange, indeed, if he were in a better 
 position than the loyal soldier of the Crown, who is as much a subject and 
 citizen as the other, with this difference that he is a loyal subject and the 
 other a rebellious one. Some persons seem to think that soldiers are out 
 of the pale of the law, and that it is enough to say that they are soldiers to 
 account for any application of arbitrary power ; but this is a great error. A 
 soldier is as much a free subject and a citizen as any others, and is entitled 
 to all the rights of a free subject and citizen. Yet, in time of war, he may 
 be deprived of those, which both common law and statute have provided 
 for him. This is only on the ground of necessity, and the same necessity 
 may apply the same principle to those who, being rebels in arms, are not 
 more subjects than he is, because they are rebellious subjects, and are not less 
 soldiers than he is because they are rebellious soldiers, whereas he is loyal. 
 Hence, in entire accordance with legal principles, Lord Brougham laid 
 it down, more than half a century ago, that the declaration of martial law 
 renders every man liable to be treated as a soldier ; which no doubt means, 
 that the state of rebellion, which justifies martial law renders every rebel 
 liable to be treated as a soldier, and therefore renders him liable to martial 
 law ; and this is cited and adopted in Simmons on Court-Martial. The 
 declaration of martial law renders all persons answerable to courts-martial, 
 and under the order of military authority, so long as the course of ordinary 
 law does not take place {Simmons on Court- Martial, 14, 19, 98).
 
 ONLY CARRYING OUT THE COMMON LAW. Ill 
 
 the power of numbers, in a posture of war, its own powers 
 and process are suspended, it simply leaves to the military 
 power the carrying out a principle which it recognizes, 
 although, under the circumstances, it cannot enforce. 
 
 Hence the greatest and wisest sages of the common 
 law (a), lay down principles which primarily imply and 
 involve, that in a season of public peril and violent rebel- 
 lion, the strict rules of the common law, which are esta- 
 blished for times of peace, when the authority of the law 
 can be enforced, may be suspended by the state of war, 
 when declared by the Crown to exist, in consequence of 
 
 (a) Thus, the great writer already alluded to, Mr. Justiee Foster, 
 observes, "I am firmly persuaded that in cases such as these (of resistance 
 to peace officers), a general submission to the known badges of authority, 
 exacted irom all persons— strangers to the party supposed to be injured— 
 would greatly conduce to the stability of government, in the fate of which 
 all private rights are involved. On the other hand, an undue countenance 
 given to the spirit of popular opposition, upon the principles of false 
 patriotism, has a fatal tendency to loosen the reins of government, and to 
 throw matters into a general confusion. There is undoubtedly a justice 
 due to the community, founded on the interest which every individual has 
 in the public tranquillity, which, once destroyed, all private rights will hink 
 and be absorbed in the general wreck; and if the common rights oi the 
 subject are supposed to be the object in view, let it be remembered that 
 liberty is never more in danger than when it verges into licentiousness" 
 (Foster's Crown Law, 317). The same great writer cites a statute (11 
 Hen. VII. c. 1), as declaratory of the common law, which declared that the 
 subjects of England are bound by the duty of their allegiance to serve their 
 sovereign in defence of him and his realm agumA Wery r&ellion which may 
 be raised against him, and enacted that no person attending the king in 
 his wars shall, for such service, be convicted of any offence — a clear declara- 
 tion, on the authority of Parliament and of this great lawyer, that the 
 Crown may, to repress rebellion, levy war upon rebels, and that for homi- 
 cides, committed in such suppression, they shall not he amenable to criminal 
 law (ibid, 390), which implies that, but for the state of war thus created l>y 
 the rebellion, and the authority of the Crown for its repression, there might 
 be a criminal liability, as, undoubtedly, according to the strict rules of the 
 common law there would be, when attacks were made by an armed force 
 upon bodies of people. But, at all events, whether it is by the common 
 law, as part of the common law, or only a< allowed by the common law in 
 consequence of the existence of a state of war, is a mere question of terms 
 or of language ; anyhow, the measures of war are declared legal.
 
 112 MARTIAL LAW, IN PRINCIPLE, 
 
 such rebellion. So that the question would be, whether 
 there was a rebellion which did raise such a state of war 
 against the Crown. A question, necessarily, for the Crown. 
 It is a general principle of the law of England that, as 
 the prerogative of the Crown is simply its right to do its 
 duty, and it is admitted to be the duty of the Crown to 
 preserve the peace of the realm and defend its loyal sub- 
 jects against invasion or rebellion, so it is the right or 
 prerogative of the Crown to do all that may be necessary 
 for that purpose, and, therefore, to declare the state of 
 war, and use the means and measures of war, if necessary, 
 for the public safety. It is upon this general principle 
 that it was always admitted to be the prerogative of the 
 Crown, for the sake of public safety, to levy forces for re- 
 pression of rebellion, or repelling of invasion, and, on this 
 same principle of necessity, to exercise, long before statutes 
 allowed it, martial law upon soldiers. Upon the same 
 principle, our greatest lawyers have vindicated the right 
 or prerogative of impressing seamen for the navy (a), a 
 
 (a) Thus, in Foster's Crown Law, the legality of impressment was 
 established in a case in which a man was killed in resistance of it, and it 
 was held manslaughter only, because the warrant had not been duly framed, 
 otherwise the case would have been one of murder; and, on the other hand, 
 if a man were killed who resisted impressment, it would be justifiable 
 homicide. So that, indirectly, the prerogative affected life, and comes 
 very near, indeed, to the case of martial law. " Uncommon pains having 
 been taken to possess people with a notion that pressing for the sea service 
 is a violation of Magna Charta, and a very high invasion of the liberty of 
 the subject, the Recorder (Foster) thought fit to deliver his opinion 
 touching the legality of pressing for the sea service, provided the persons 
 are proper objects of the law, and those employed in the service came with 
 a proper warrant for the purpose. The question touching the legality of 
 pressing mariners for the public service is a point of very great and national 
 importance. On the one hand, a very useful body of men seem to be put 
 under hardships inconsistent with the temper and genius of a free govern- 
 ment; on the other, the necessity of the case seemeth to entitle the public 
 to the service of this body of men, wherever the safety of the whole calleth 
 for it. We are not at present concerned to enquire whether persons may 
 be legally pressed into the land service ; but only whether mariners may 
 not be pressed into the service of the Crown whenever the public safety
 
 ^ 
 
 ARISING OUT OF THE COMMON LAW. 
 
 most odious and oppressive practice, but admitted to b€ 
 justifiable on the ground of necessity for the public safety, 
 and vindicated upon precisely the same principle as martial 
 law lor the suppression of rebellion: viz., the necessity of 
 the case. In both cases, the prerogative is supported by 
 usage, grounded on the common law, and recognized by 
 Btatutes, partly by the absence of prohibition, and partly 
 by direct recognition. The true ground, therefore, on which 
 to base martial law is, that it is allowable when necessary 
 for the suppression of rebellion, and the safety of the State, 
 and that it is legal because it is necessar;/. 
 
 The great lawyers and judges who have vindicated the 
 right or prerogative of impressment of seamen, or the pre- 
 rogative, prior to and irrespective of any statute, of martial 
 law in regard to soldiers — both soldiers and sailors being 
 just as much the subjects and citizens of a free state 
 as other classes, and entitled to all their rights as 
 such — have vindicated these prerogatives upon principles 
 and grounds equally applicable to the supposed prerogative 
 
 requires it: ne quid detriment i respublica capeat. I think they may. 
 The Crown hath a right to command the service of these people whenever 
 the public safety call for if. Tin same right that it hath to require the 
 personal service of every man able to bear arms, in case of a sadden invasion 
 or formidable insurrection (which personal service (it is added in a note), in 
 cases of extreme necessity, is a principal branch of the allegiance every 
 subject oweth to the Crown, see 11 Hen. "VII.). The right, in both cases, is 
 founded on one and the same principle, the necessity of the case, in order to 
 the preservation of the whole. According to my present apprehension (and I 
 have taken Borne pains to inform myself), the right of impressing mariners 
 for the public service is a prerogative inherent in the Crown, and grounded 
 upon comiiion law, ami recognized by many Acts of Parliament. A general 
 immemorial usage, no1 inconsistent with any statute, especially if it be the 
 result of evident necessity, and tendeth to the public softy, is part of the 
 common law. For the rights of the Crown and liberties of the subject 
 stand principally upon the common law, though both have been, in many 
 cases, explained, confirmed, or ascertained by statute" {Foster's Grown Lam, 
 159). Now this is language precisely applicable to the alleged prerogative 
 of declaring war or proclaiming martial law for the suppression of rebellion. 
 
 It is a prerogative inherent in thel'r.nvn, and founded On common law, and 
 recognized l.y Acts Of Parliament. It is the result of the evident necessity, 
 and tendeth to the public safety.
 
 114 MARTIAL LAW, IN PRINCIPLE, 
 
 of exercising martial law in time of rebellion. As the 
 militia may be raised and levied at common law for re- 
 pelling- invasion and repressing rebellion, and as soldiers, 
 when levied, were at common law put under martial law 
 for the sake of the public safety, and lest they should be 
 dangerous to the State, and as, for the same reason, sailors 
 were allowed to be compulsorily impressed, and slam %J 
 they resisted ; so, on the same principle, an army of rebels, 
 which must needs be far more dangerous to the State than 
 any loyal army, may be subjected to the severities of 
 martial law ; which is neither more nor less than the law 
 of war applied to rebellion on the ground of a paramount 
 necessity arising from an imminent danger to the State (a). 
 
 (a) Thus in the case already cited from Foster's Crown Law, that great 
 Judge said, " I do admit that I know of no statute which directly, and in 
 express terms, cinpowereth the Crown to press mariners into the service ; 
 and admitting that the prerogative is grounded on immemorial usage, I 
 know of no necessity for such statute. For let it be remembered that a 
 prerogative grounded upon general immemorial usage not inconsistent with 
 any statute, nor repugnant to the public utility, is as much part of the law 
 of England as statute law, and that the statutes which mention pressing as 
 a practice then subsisting, and not disallowed, are at least an evidence of 
 the usage, if they go no further, and do not amount to a tacit approbation 
 of it. For it is hard to conceive that the legislature should frequently 
 mention a practice utterly illegal, repugnant to the principles of the consti- 
 tution, as subsisting, without some mark of disapprobation" (ibid). This 
 language also is eminently applicable to martial law, for while the Petition of 
 Right mentions with reprobation commissions of martial law for trial of ordi- 
 nary offences, it mentions without reprobation, and with implied approbation, 
 martial law "as is used in armies in time of war;" and subsequent 
 statutes, or the Irish Rebellion Acts, distinctly affirm the prerogative to 
 exercise martial law in time of rebellion. " Against what I have said, it 
 may be objected that the practice of pressing is inconsistent with the 
 liberty of the subject, and a breach of Magna Charta. I readily admit that 
 an impress is a restraint upon natural liberty. But if the restraint, be it to 
 what degree soever appearcth to be necessary to the good and welfare of the 
 whole, and to be warranted by statute law as by immemorial usage, it 
 cannot be complained of otherwise than as a private mischief, which must, 
 under all Governments, be submitted to for the avoiding of public inconve- 
 nience. As to Magna Charta, it is not pretended that the practice of press- 
 ing mariners for the public service is condemned by express words in that 
 statute ; and if it be warranted by common law and statute law, it cannot
 
 BASED UPON NECESSITY. 1 1 •"> 
 
 These prerogatives are rested upon the common ground 
 of necessity for the public Bafety, and of the right of the 
 Crown to take all such means as are necessary for its 
 safety ; and, among others, the means or measures of war. 
 The question, therefore, of the legality of the application 
 of the measures or the laws of war, to any subjects of the 
 realm, resolving itself, at common law, into a question of 
 necessity — the question, in case of a rebellion is, what con- 
 stitutes such a necessity ? This, it is obvious, resolves 
 itself into a question of the sufficiency of the moans and 
 measures of common law ; for if these are sufficient, i.e., 
 legally and actually sufficient, of course there can be 
 no necessity for any other. This question then resolves 
 itself into the twofold enquiry as to legal sufficiency and 
 
 be shown to be illegal by any consequences drawn from Magna Charta; in 
 like manner, as pressing for the laud service could not be deemed illegal 
 nor inconsistent with the principles of our constitution while there were 
 temporary acts to warrant it. Besides which, we know that Magna Charta 
 hath been expressly confirmed by many Acts of Parliament, and yet the 
 practice of pressing mariners has still continued through all ages, and was 
 never mentioned in any of those Acts as illegal, or a violation of the great 
 charter " {Foster's Crim. Laic, 175). This language, again, is extremely appli- 
 cable to martial law, which, as applicable to rebellion, and rebellion alone, 
 has never been condemned in any statute, though exercised in every age, 
 but, on the contrary, has been confirmed by several. So Lord Mansfield 
 said, "The power of pressing is founded upon immemorial usage, allowed 
 for ages. If it be so founded and allowed for ages, it can have no ground to 
 stand upon, nor can it be vindicated or justified by any reason but the sufly 
 of the State. And the practice is deduced from the trite maxim of the 
 constitutional law of England, that private mischief had better be sub- 
 mitted to than that public detriment should arise" {Bex V. Tubbs, Cowper's 
 ltep. CIS). So the great commentator said, "The practice of impressing — 
 the legality of which is now fully established— is only defensible from 
 public necessity, to which all private considerations must give way (Black- 
 stone's Commentaries, vol. I, c. S). So the exercise of martial law as to 
 soldiers (which, as Hale shows, arose out of prerogative in time of war), is 
 justified by the same principle. The army being established by the autho- 
 rity of the legislature, it is indispensable that there should be order and 
 discipline kept in it, and this has induced the absolute necessity for a Mutiny 
 Act, and it lias been said thai even if the army were disbanded, there must 
 be a Mutiny Act for the safety of the country (Grant v. Could, 2 H. IUaekst. 
 Rep. 100). The same principle applies a uiulto fortiori to an army of rebel-. 
 
 i -2
 
 116 MARTIAL LAW GROUNDED ON NECESSITY, 
 
 actual sufficiency — what may be done at common law with- 
 out a sufficient force, and what is a sufficient force to do what 
 may thus legally be done ? The first is a question of law, the 
 other of fact depending on the circumstances. The former 
 also includes and involves two questions, one of mixed law 
 and fact, i. e., that there is a rebellion, which must first be 
 assumed, or no question arises at all. Assuming such a 
 rebellion, then the question of pure law arises, what may 
 be done legally, at common law, or aided by any statute (a), 
 in its suppression ? Upon the former of these questions at 
 common law there may be great doubt and difficulty as to 
 what makes a tumult rebellious, and as to when armed 
 force may be used against it. 
 
 (a) This subject is treated of very fully by Hawkins iu his Picas of the 
 Crown, B. 1, c. 65, of riots, routs, and unlawful assemblies, in which he 
 first defines what is a riot, rout, or unlawful assembly, and then how they 
 may be suppressed and punished by statute, and it is observable how 
 guarded he is. He first defines a riot to be a tumultuous disturbance by 
 persons assembling of their own authority, with an intent to assist each 
 other in some enterprise of a private nature, and afterwards executing it 
 in a violent and turbulent manner to the terror of the people, whether the 
 act intended were lawful or unlawful. He distinguishes tumults for a 
 general and public purpose, as to redress public grievances, or to pull down 
 all enclosures, &c, and says if the people attempt with force to execute 
 such intentions they are guilty of levying war against the Crown, which is 
 rebellion. But that is a question of intention. " Wherever more than three 
 persons use force and violence in the execution of any design wherein the 
 law does not allow the use of force, all who are concerned therein are 
 riotous. But in some cases where the law authorises force, it is not only 
 lawful but commendable to make use of it ; as for a sheriff or constable, or 
 perhaps even a private person, to assemble a competent number of people 
 in order with force to suppress rebels, or rioters, or enemies, and afterwards 
 with such force actually to suppress them '' (Hawkins 1 Pleas of the Crown, B. 
 1, c. 65, s. 2). It is clear that every sheriff, &c, may and ought to do ail- 
 that in them lies towards the suppression of a riot, and may command all 
 other persons whatever to assist them — which of course includes soldiers. 
 Also it hath been holdcn that private persons may arm themselves in 
 order to suppress a riot, from which it seems clearly to follow that they 
 may also make use of arms in the suppressing of it if there be a necessity 
 for so doing. However, it seems to be extremely hazardous for private 
 persons to proceed to thc.-c extremities, and therefore such violent 
 methods seem only proper against such riots as savour of rebellion, for the 
 suppressing whereof no remedies can be too sharp or severe."
 
 ARISING FROM INADEQUACY OF COMMON LAW. 117 
 
 Even assuming an unlawful ami riotous assembly, at 
 common law, there arc great difficulties tit common law on 
 
 botli these points. There is the difficulty arising from the 
 strict rules of the common law, as to homicide caused by the 
 use of an armed force, or deadly weapons. The common lav 
 only justifies homicide so caused, either when it is strictly 
 in self-defence against unlawful violence (ex), or in appre- 
 hension of a felon by lawful authority, and the necessary 
 
 (a) This at common law is construed very strictly, ami usually it must 
 be against present or imminent personal violence. Thus, if a ship's 
 sentinel shoot a man because he persists in approaching the ship when he 
 has been ordered not to do so, it will be murder unless such an act was 
 necessary for the ship's safety (Bex v. Thomas, 1 Boss. C. & M. 51o)- 
 Semble, that where guns are fired by one vessel at another vessel, and those 
 on board her generally, those guns are to be considered as shot at each 
 individual on board her (Bex v. Bailey, EL & It. C. C. 1). On the other 
 hand, strict legal authority is rigidly required at common law, and an 
 illegal authority may be resisted to the death. Thus, if a person be 
 impressed who is not a proper object of impressment, or if the impress- 
 ment be made without any legal warrant, it is lawful for the party to make 
 resistance, and if the death of any of the parties concerned ensue, it is 
 murder (Bex v. Dixon, 1 East, P. C. 313: S. P. Bex v. Bokeby, 1 E 
 P. C. 12). If a gamekeeper attempting lawfully to apprehend a poacher 
 be met with violence, and in opposition to such violence, and in self- 
 defence, strike the poacher, and then is killed by the poacher, it will be 
 murder (Bex v. James Ball, M. 0. C. R. 333). Attempting illegally to 
 arrest a man is sufficient to reduce killing the person making the attempt 
 to manslaughter, though the arrest was not actually made, and though the 
 prisoner had armed himself with a deadly weapon to resist such attempt, if 
 the prisoner was in such a situation that he could not have escaped from 
 the arrest ; and it is not necessary that he should have given warning to 
 the person attempting to arrest him before he struck the blow (Bex v. 
 Thompson, 1 R. & M. C. C. 80). And see Bex v. Gillow, 1 R. & M. 0. C. 
 S5. If a constable take B man without warrant upon a charge which gives 
 him no authority to do so, and the prisoner runs away and is pursued by 
 J. S., who was with the constable all the time, and charged by him to 
 assist, and the man kill J. S. to prevent his retaking him, it will not be 
 murder, but manslaughter only, because, if the original arrest was illegal, 
 the recaption would have been so likewise (Bee v. Qu/rvan, It. .\: M. C. C. 
 R. 132). Where a common Boldier stabbed a Bergeant in the same regi- 
 ment who had arrested him for some alleged misdemeanour: — Held, that 
 as the articles of war were not produced, by which the arrest might have 
 
 been justified, it was only manslaughter, as no authority appeared for 
 arrest (Rex v. WhUhers, 1 East, P. C. 295, 860).
 
 IIS MARTIAL LAW, GROUNDED ON NECESSITY, 
 
 use of force in case of his resistance (a), or in prevention 
 of a felonious and violent outrage, as arson or murder, and 
 then only when necessary for the purpose of prevention, 
 and when the killiug will prevent it (b). It is obvious that 
 these rules render it very hazardous at common law to use 
 armed force against an assembly merely unlawful and not 
 felonious, and even in that case such force can only be used 
 for dispersion, or for apprehension, or for self-defence in 
 such dispersion or apprehension. 
 
 («) Killing an officer will amount to murder, though he had no warrant, 
 and was not present when any felony was committed, but takes the party 
 upon a charge only; and though such charge does not in terms specify all 
 the particulars necessary to constitute the felony {Rex v. Ford, 1 Russ. C. 
 & M. 504; R. & R. C. C. 329). In order to render the killing of an officer 
 of justice, whether he be authorised in right of his office or by warrant, 
 amount to murder upon his interference in an affray, it is necessary that 
 he should have given some notification of his being an officer, and of the 
 intent with which he interfered (Rex v. Gordon, 1 East, P. C. 315, 352). 
 But a small matter will amount to due notification (ibid). Killing 
 an officer who attempts to arrest a man will be murder, though the officer 
 had no warrant, and though the man has done nothing for which he was 
 liable to be arrested, if the officer has a charge against him for felony, and 
 the man knows the individual to be an officer, though the officer do not 
 notify to him that he has such a charge (Rex v. Woolmer, M. C. C. R. 334). 
 And the nine judges (four contra) held that a watchman could legally 
 arrest a prisoner without saying that he had a charge of robbery against 
 him, though the prisoner had, in fact, done nothing to warrant the arrest, 
 and that if death ensued it would be murder (ibid). And it will be no 
 excuse for killing an officer that he was proceeding to handcuff the party 
 who was in his possession upon a charge of felony (ibid). 
 
 (b) Thus, in Sir. F. Burdett's case, the Chief Justice says, " If it is neces- 
 sary, for the purpose of preventing mischief, or for the execution of the 
 law (as in effecting an arrest by the civil authority), it is not only the right 
 but the duty of soldiers to exert themselves in assisting the execution of a 
 legal process, or to prevent any crime from being committed. It is a 
 mistake to suppose that, because men are soldiers, they cease to be citizens ; 
 a soldier is bound to all the duties of other citizens, and gifted with all the 
 rights of other citizens, and he is as much bound to prevent a breach of 
 the peace or felony as any other citizen. In 1780 this mistake extended 
 to an alarming degree ; soldiers with arms in their hands stood by and 
 tcm felonies committed, houses burnt and pulled down before their eyes, by 
 persons whom they might lawfully have hilled if they could not otherwise 
 prevent them " (Burdett v. Abbott, 4 Taunton's Reports, 449).
 
 ARISING! FROM INADEQUACY OF COMMON LAW. 119 
 
 It Avas the experience of these doubts and difficulties 
 which led to the Riot Act (a), which proceeds in an ex- 
 tremely cautious manner, and as much as possible in 
 harmony with the common law. It abstains from directly 
 authorising the use of armed force, even against a riotous 
 and unlawful assembly. The Act, in the first place, makes 
 the persistence in the riot felonious, so as to make all who 
 remain in it felons, which, at common law, would authorise 
 any one — soldier or civilian — in attempting to disperse or 
 apprehend the rioters, and would make it justifiable homi- 
 cide if, in so doing, they necessarily and unavoidably killed 
 any of them ; but having done that, it abstains from 
 directly authorising any attach upon them by an armed 
 force, and merely, in terms declaratory of the common 
 law, authorises all persons, in aid of the civil power, to 
 arrest or apprehend them. 
 
 (a) The 1 Geo. I. c. 5, an Act for preventing tumults and riotous 
 assemblies, and for the speedy and effectual punishing the rioters, reciting 
 that many rebellious riots and tumults had been raised, and that the 
 punishments provided by the laws were not adequate, and then for the 
 prosecuting and suppressing of such riots and tumults, and for the more 
 speedy and effectual punishing the offenders, it enacted, that if any persons, 
 to the number of twelve or more, being unlawfully, riotously, and tumul- 
 tously assembled together in disturbance of the peace, and being required 
 by a justice of the peace, or sheriff, &c, to disperse themselves, shall 
 unlawfully, riotously, and tumultously remain together for au hour alter 
 such command by proclamation, then they shall be adjudged felons without 
 benefit of clergy, and the offenders shall Buffet death as in case of felony. 
 Then, it is further provided that any peace-officer, and such other persons 
 as shall be commanded to be assisting (which of course would include 
 soldiers), are empowered to .seize and apprehend such rioters; and if any 
 of the rioters should happen to be killed, in the dispersing, seizing, or 
 apprehending them, by reason of their resisting the persons dispersi.it,' or 
 apprehending them, then all persons so killing them are indemnified. And 
 it is further enacted that pulling down houses or preventing the proclama- 
 tion shall be deemed to be felony. Now, here it is remarkable that 
 there is no enactment in terms authorising an attack by an armed force 
 upon the mob, though there is an express enactment declaratory of the 
 common law, that, being made felons, they may be apprehended, and then, 
 if in resisting apprehension they are unavoidably killed, the homicide is 
 justifiable at common law. Being, however, a felonious assembly, probably
 
 120 MARTIAL LAW, GROUNDED ON NECESSITY, 
 
 The Riot Act, or any similar statute directed merely to 
 the dispersion of some tumultuous assembly in any parti- 
 cular spot, does not, it is manifest, meet the mischief of 
 large and wandering masses of persons engaged in com- 
 mitting acts of outrage in various places. This mischief, it 
 is manifest, when the masses are too large or too numerous 
 to be dealt with by the civil power, or by the military 
 merely acting in aid of the civil power, in the dispersion 
 of mobs, in their apprehension and arrest for the purpose of 
 trial, or for the prevention of acts of felonious outrage ; 
 can only be effectually met by the Crown declaring the 
 
 the troops might disperse them ; and then again, if death ensued in 
 resisting the dispersion, the homicide would be justifiable at common law. 
 But no attack by an armed force is justified by the statute, and no killing 
 of any man who can be apprehended ; for it is a rigid rule of common law 
 that a man who can be taken must be taken and tried, and it is only his 
 violent resistance which can excuse homicide in the attempt to apprehend 
 him. Although, as Hawkins lays down, this statute being wholly in the 
 affirmative, cannot take away any part of the authority in the suppression 
 of riot, before that time given by the common law ; yet as the notion got 
 rooted in men's minds that it contained all the power there was to justify 
 the use of military force, there was great reluctance in using it, and hence 
 the disasters which arose on the occasion of the riots of 1760 and 1777. 
 Hawkins, however, points out clearly the distinction between a mere riot 
 and a rebellion, and lays down that an unlawful assembling of people for 
 redress of public grievances by force is levying of war against the Crown. 
 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, in a 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. c. 5, whereby 
 all persons tumultously assembling, to the disturbance of the public 
 peace, and not dispersing within one hour after proclamation made by a 
 magistrate, are guilty of felony." The effect of which is, however, that 
 the military, acting in aid of the civil power, may at once attack them- 
 And it will be observed that it only applies to the dispersion of any 
 tumultuous assembly ; and although it so far augmented the legal power 
 of the Executive that with the aid of an adequate armed force it went a 
 long way to enable the Government to dispense with martial law, it still 
 left great doubt and difficulty.
 
 IX CASES OF REBELLIOUS TUMULTS. 121 
 
 tumult rebellious, and dealing with it as such, that u t<> 
 say, by the means and weapons of war. And this, in effect, 
 is martial law (a). 
 
 (a) The Riot Act supposes some fixed assembly to be dispersed, and 
 allows an hour for its dispersion. Besides, therefore, the legal difficulties 
 
 already pointed out as to the use of armed force for the purpose of assault 
 upon the mob, the statute is obviously inapplicable to the mischief of large 
 wandering masses of persons engaged iu committing outrages iu various 
 places, and moving from place to place. Buch a case arose on the occasion 
 of the Lord George Gordon riots, as to which the historian writes thus: 
 " 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 supincness 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 
 Surrey magistrate, who was tried on a capital indictment for such an 
 execution, and those who obeyed his order were prosecuted, was not for- 
 gotten. In this emergency, a Privy Council was convened, insurrection still 
 prevailed: nor was anything decisive or effectual suggested. The Council 
 had met, when the King anxiously demanded if no measure could be 
 recommended] The Attorney-General answered that he knew but of one, 
 that of declaring the tumults rebellious, and authorising 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 accord- 
 ingly " (Adolphus' Hist. Eng. vol. S, p. 250.) This was in effect martial 
 law : and, although Lord Mansfield on that occasion was careful to 
 show that it was not martial law, he showed incidentally that it was so, for 
 the language he used showed that what had been done went far beyond 
 what the common law allowed, that martial law might have been pro- 
 claimed, because there was a levying of war, which amounted to hjgh 
 treason. " But besides this, the insurgents," he said, " were guilty of I'd. my, 
 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 /</•< vent acts of felony, treason, and rebellion. What an individual 
 in i ^ lit do was lawful for any number of persons assembled for a lawful pur- 
 pose. Constables were particularly charged to apprehend person- engaged 
 in breaches of the \»r:ir r , felony, or treason, and, in case of resistance, to 
 attack, wound, and even kill those who continued to resist. A private 
 man, seeing another commit an unlawful act, might apprehend the 
 offender, and by force compel submission not to the assailant but the law;
 
 122 MARTIAL LAW, GROUNDED ON NECESSITY, 
 
 The greatest lawyers (a) have, in our own times, written 
 with the utmost caution and doubt upon the subject of the 
 power and province of the military when acting, at common 
 law and in the exercise of common law rights or duties, in 
 aid of the civil power, for the suppression of insurrection 
 and the restoration of order. And although they have 
 laid it down that all persons, soldiers or civilians, may act 
 and use force, and even, if necessary, deadly weapons for 
 the dispersion of insurrectionary assemblies, or the preven- 
 tion of acts of felonious outrage, they also show that it is 
 
 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' Hist. Ewj. vol. 3, p. 254). 
 The resistance and suppression of actual riot or felonious outrage is not 
 martial law, and does not require it: but it is to be observed that Mr. 
 Hallam treats as sophistical the doctrine Lord Mansfield laid down, that 
 the military may, without martial law, act to any extent necessary in sup- 
 pression 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 occasioned by these doubts, is, 
 indeed, one great object of declaring martial law. And it is manifest 
 that the military on that occasion did not confine themselves to the 
 prevention of actual outrage or the apprehension of offenders ; they attacked 
 bodies of people wherever they met them in the street, and slaughtered 
 them, whether or not they were engaged in outrage, and in places where 
 they could not possibly have been so ; as, for instance, on Blackfriars Bridge, 
 where great numbers were slain. There was no resistance, it was simply 
 attacking the people wherever they were found in masses. It is impossible 
 by any sophistry to bring this within the loosest definitions of the common 
 law? and, therefore, the House of Commons, despite Lord Mansfield's 
 Bophistry, treated it, as it undoubtedly was, as a case of martial law, and 
 adjourned, not thinking it proper to sit while tfie metropolis was under 
 martial law. 
 
 (a) Thus, in 1807, Lord Ellenborough, then Attorney-General, gave an 
 opinion on that clause in the Military Regulations which relates to the 
 suppression of riots. " The military may act, in cases of sudden and great 
 emergency, without the presence of a peace officer. I understand the dis- 
 turbances here meant to be such as amount to the legal description of riots. 
 The case plainly imports a breach of the peace by an assembled multitude. 
 In case of any such sudden riot and disturbance, any subjects, without the
 
 ARISING FROM DIFFICULTIES OF COMMON LAW. 123 
 
 extremely doubtful how far armed force may be used even 
 for those purposes, and more than doubtful whether it can 
 be used for any other. 
 
 The powers of the common law in this respect appear to 
 be limited to the mere dispersion of actual riot, the pre- 
 vention of felonious outrage, or apprehension of persons 
 guilty of such outrage. And the use of armed force 
 merely in aid of the civil power is extremely hazardous, 
 whether with or without the authority of the magistr. 
 for even for him it is necessary to hit the exact line be- 
 
 prcsencc of a peace officer of any description, may arm themselves, and of 
 course may use ordinary means of force to suppress such riot. And what- 
 ever any other class of subjects may do in this particular, the military may 
 do also. By the common law, every description of peace officer may not 
 only do what in him lies towards the suppression of riots, hut may and 
 ought to command all other persons to assist them. However, it is advisahle 
 to procure a justice of the peace to attend, and for the military to act under 
 his orders. But still, in cases of great and sudden emergency, the military, 
 as well as other individuals, may act without their presence." It will be 
 observed how carefully this is limited to " great and sudden emergency," 
 and to the dispersion of a riotous assembly. And it is to be added that it 
 is extremely doubtful, looking at the Riot Act, how far this opinion could 
 safely be acted upon by the case of armed force, unless against a mass of 
 persons engaged in acts of felonious outrage, and for the purpose of pre- 
 vention ; for the terms of the Riot Act clearly imply that at common law, 
 unless a tumult is rebellious and amounts to war, armed force could not, 
 at common law, be used to disperse a mere unlawful assembly. And the 
 opinion, perhaps, merely comes to this, that in some cases the use of armed 
 force may be resorted to ; but in what cases is left uncertain. Moreover, 
 after all it was but an opinion ; and since it was given, great judges have 
 done all they could to elucidate the subject, and have left it still in doubt. 
 Thus, for instance, on the occasion of what is popularly known as the 
 " Manchester Massacre," when the military attacked an unarmed assembly, 
 painful doubts arose as to the legality of the act ; and although Sir F. 
 Burdett was indicted and confined for publishing a statement that it was 
 murder, it was not upon the ground that this was false, but on the ground 
 that if it was true, it was murder ; and that it tended to prevent a fair trial. 
 " If unresisting men were cut down, whether by troops or not, it is murder"' 
 , I'.a.vley, Baron, The King v. Bwrdett, A Bam. & Aid. Rep. S23> Thus, 
 Mr. J. Littledalc, in the Bristol riot case, said, "A party entrusted with 
 the duty of putting down a riot, is bound to hit the exact line, between ex- 
 cess and failure of duty ; the difficulty of his doing so— though it may be 
 some ground for a lenient consideration of his conduct — can be no legal
 
 124< MARTIAL LAW, GROUNDED ON NECESSITY, 
 
 tween excess and failure, so that, according to the judg- 
 ment of the greatest judges, it is in the highest degree 
 dangerous, even in the case of actual riot, to use armed 
 force for its suppression, and from the responsibility involved 
 in the use of it without the authority of the magistrate, or 
 in directing the use of it, there is always great practical 
 difficulty in its application to the protection of the loyal 
 and the restoration of peace (a). 
 
 At common law, therefore, it is obvious, that even as- 
 suming the possession of an adequate military force, there 
 
 defence. And he added, "A military officer may act without the authority 
 of the magistrate, if he chooses to take the responsibility ; but though 
 that is the strict law, there are few military men who will take it upon 
 themselves to act, except on the most pressing occasions ; and where it is 
 likely to be attended with a great destruction of life, a man is generally 
 unwilling to act without a magistrate's authority" (Mr. Justice Littledale, 
 Hex v. Finney, 3 Barn. & Adol. Rep. 914). 
 
 (a) It has been laid down by the common law, every private person may 
 lawfully endeavour, on his own authority, without any command 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 ; and if the occasion demands im- 
 mediate action, it is the duty of every subject to act for himself in sup- 
 pressing riotous and tumultuous assemblages. And he may be assured 
 that whatever is done by him honestly in the execution of that object, will 
 be justitied by the common law. Nor is there any distinction in this 
 respect between soldiers and private individuals. They have equally the 
 rights and duties of citizens, and are equally bound to exercise the same 
 discretion in acting in subordination to the civil magistrate, rather than 
 on their own authority. But where the danger is pressing and immediate, 
 where a felony has actually been committed, or cannot be otherwise pre- 
 vented, and from the circumstances there is no opportunity of obtaining a 
 requisition from the proper authorities, the military subjects of the Crown, 
 like the civil subjects, are bound to do their utmost to prevent the perpe- 
 tration of outrage, to put down riot and tumult; and to preserve the lives 
 and properly of the people (Tindal, L. C. J., in the case of the Bristol riots, 
 cited in Simmons on Court-Martial, 93). It will be observed that the 
 power of the military, without the sanction of the magistrates, is limited 
 to prevention of actual felonious outrage, as arson or murder. Then, as to 
 the power of magistrates to direct the military to act, it is strictly limited. 
 Thus, while on the one hand it is laid down that military will do well
 
 ARISING FROM INADEQUACY OF COMMON LAW. 125 
 
 are great difficulties in the use of it for the purposes of 
 attack; and although there are of course no difficulties in its 
 use for the purposes of defence, and no legal difficulties in 
 the way of its use for purposes of prevention of felony or 
 apprehension of felons, there are, it is obvious, great prac- 
 tical difficulties in its application to the latter objects (a). 
 
 not to act without the authority of magistrates, it is equally laid down 
 that this, at common law, involves no certain immunity. The general 
 rules of law require of magistrates, at the time of a riot, that they should 
 keep tin' 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 subjects are bound to do so, upon 
 Me warning. In point of law, a magistrate would be justified 
 in giving firearms 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., 3 B. & A. I. 946). "The magistrate is bound by law to do all he 
 knows to be in his power that can reasonably be expected from a man of 
 honesty and of ordinary prudence, firmness, and activity, under the cir- 
 cumstances. Here honesty of intention is no defence, if he fails in his 
 duty. Nor will it be a defence that he acted upon the best professional 
 advice that could be obtained, on legal and military points, if his conduct 
 has been faulty in point of law. Or, on the other 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 docs 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 anil doing what is different. There is only one precise line, 
 and how difficult it is to hit it ; yet in law he is bound to hit it" (Bex v. 
 Pinney, 3 B. & Adol. 946). It is not surprising that at common law, 
 therefore, there should be the greatest difficulty, either in getting the 
 military to act without the magistrates, or in getting the magistrates to 
 direct them to act; and, on the occasion on which this was laid down— the 
 occasion of the riots at Bristol — the most disastrous results occurred from 
 the f;ital hesitation caused by this difficulty and doubt as to the recourse 
 to armed force to quell riot, not rebellion. " It has been held that private 
 ts may arm themselves to suppress a riot, and it seems to follow that 
 they may make use of arms if necessary ; however, it may bt very hazardous 
 for private persons to proceed to this extreme, and such violent means seem 
 only proper against Buch riots a- savour of rebellion " (Rusti'l on Crime?, 
 401). And all this applies only to actual riot. 
 
 (a) The former requires that a felony shall be actually about I" bt 
 mitted in the presence of the military, as Lord Chief Justice Man-field put 
 it -houses being burnt before their eyes (Burdett v. Abbott, 4 Taunt.), so 
 that this requires acts of felony, as, of arson or of murder, actually going
 
 126 MARTIAL LAW, ALLOWABLE FROM NECESSITY. 
 
 And it is manifest, that when there is a formidable rebellion, 
 the only effectual measures of repression may involve or 
 require measures of attack on all bodies of people found 
 together in a position of presumed anil apparent hostility, 
 which can hardly be safely ventured upon under the powers 
 of the common law. Hence, when, de facto, there is thus a 
 state of war, of necessity the law and usages of war pre- 
 vail, of which the common law knows nothing and says 
 nothing, according to the well-known legal maxim, " inter 
 arma silent leges." In such a state of war, from the very 
 necessity of the case, the laws of war prevail, because there 
 are no other. 
 
 And if these difficulties arise as to the use of a military- 
 force when it is necessary for the suppression of rebellion ; 
 and when there is, as there always is in this country, an 
 ample force at command, and the loyal and peaceably dis- 
 posed are always in an overwhelming majority, so that a 
 case for martial law, on the scope of necessity, can scarcely 
 be supposed to arise, how much greater must be the diffi- 
 culty where not only are these legal and practical difficul- 
 ties, but where there is not an adequate military force, or 
 
 on, or about to be committed. That is to say, it involves that the military 
 should catch the rioters in the very act, as they might have done at Bristol, 
 or during the Lord George Gordon riots, but did not (by reason of the 
 doubts and hesitation of the magistracy), and so had to attach the rioters 
 not in the act, nor about to commit felonies, but merely being unlawfully 
 assembled, with some probability that some of them might, sooner or later, 
 commit such outrages, which is not enough to warrant an attack upon them 
 with deadly weapons at common law. As to apprehension of persons for 
 felony, there is still greater difficulty, for, of course, particular persons must 
 be arrested for specific offences, to be brought home to each ; and this 
 illustrates the great difficulty of common law, that it deals with war as in- 
 dividuals, and not as in war, in bodies or in masses. And then as to defence : 
 though there is no legal difficulty, there is this practical difficulty, that the 
 rebels may take care not to wait the military, or not to attack them if 
 ^hey do ; and this, it is notorious, has always been the policy of an insurgent 
 force ; and it is obvious that, unless the military can deal with them as 
 enemies, and use all the measures of war to pursue and attack them in 
 bodies, it may be useless to attempt to suppress the rebellion; and this was 
 hardly allowable at common law.
 
 THE GREAT SOCIAL LAW OF SELF-DEFENCE. 127 
 
 where, even if there is, there is, as in the sister island has 
 happened, a much greater disproportion between the forces 
 on the side of loyalty and of rebellion, or, as may often 
 happen abroad, a preponderance of force on the side of 
 rebellion. 
 
 And, therefore, all writers of authority, military, legal, 
 or constitutional (a), have laid it down, that martial law, 
 under such circumstances, is allowable, as the law of social 
 self-defence, superseding under the pressure, and, therefore, 
 under the justification, of an extreme necessity, the ordinary 
 
 (a) The truth is, that when closely looked at, martial law or the law of 
 war, is simply the extension of the law of self-defence ; for the loyal are 
 not to be put to wait to be attacked, and if not, then they must attack those 
 who are in apparent and presumed hostility, otherwise there must be a 
 certain number of loyal soldiers always sacrificed, if they are compelled to 
 wait until they are fired upon, and thus a felony has been committed. This 
 would be mercy to the rebels, and murder for the loyal soldiers of the 
 Crown. The soldiers are to stand to be shot at, in order to have 
 legal proof that the men they meet in a body are felonious rebels, and 
 then they may return their fire. This practical absurdity and inequality 
 illustrates the infirmity of the common law in dealing with the case of 
 rebellion. In war, the difficulty is solved thus, that, in a district covered 
 by the war, all bodies of men, not being under the command of the Crown, 
 arc presumed to be hostile, and it is for them to surrender, not for those 
 they meet to solicit them to do so, and wait to be fired at, and killed. 
 
 ((() " It has ever been deemed constitutional for the sovereign in times of 
 disorder and turbulence, to use the military power of the Crown for the 
 speedy repression of enormities and the restoring of the public peace. It 
 must be allowed that there are seasons, when the ordinary course of justice 
 is, from its slow and regulated pace, utterly inadequate to the coercion of 
 the most dangerous crimes against the State, when every moment is critical, 
 and without some extraordinary remedy, the commonwealth would be lost. 
 The extension of a power beyond the law is, therefore, in such times of 
 danger, justified, on the principle of absolute necessity " (Tytler on Military 
 Law, 52). The same author speaks of recourse to the legislature necessary 
 to authorise trial by martial law, notwithstanding the ordinary courts of 
 justice are open (159), as in the Irish Rebellion Act. " Martial law," wrote 
 Mr. Serjeant Spankic, a learned lawyer, " is in fact the power of social self- 
 defence, superseding, under the pressure, and therefore under the justifica- 
 tion of an extreme necessity, the ordinary forms of justice. Courts-martial 
 under martial law, or rather during the suspension of law, are invested 
 with the power of administering that prompt and speedy justice, in eases 
 presumed to be clearly and indisputably of the highest species of guilt.
 
 128 MARTIAL LAW, ALLOWED BY COMMON LAW. 
 
 forms of justice, and establishing the laws and severities of 
 war. Military authorities, therefore, under martial law, or 
 rather during the suspension of law, are invested with the 
 power of administering prompt and speedy justice, exactly 
 as on the occasion of a mutiny in an army— the object 
 being self-preservation, by means of terror, and the example 
 of speedy justice. 
 
 In such cases, by the great social law of self-defence, and 
 by virtue of that necessity which overrides all law, the 
 Crown, in the exercise of its prerogative, that is, of its 
 right to do its duty, that duty being at all hazards to pre- 
 serve the peace of the realm (ft), resorts to the law of war, 
 
 The object is self-preservation, by terror ; and the example of speedy jus- 
 tice " (Mr. Serjeant Spaukie, Advocate-General of Bengal, cited in Hough's 
 Military Law, 350). So the great text book of military law, which has 
 been cited in the courts, and used in our army for the greater part of a 
 century (McArthur on Court- Martial). " The military law, as exercised by 
 the authority of Parliament, under the Mutiny Act annually passed, with 
 the Articles of War, is not to be confounded with that different branch of 
 the royal prerogative called martial law, which is only to be exercised in 
 time of rebellion" (McArthur on Court- Martial, 1). And so it is 
 laid down in Simmons on Court-Martial, 1-14. Martial law, an arbitrary 
 law originating in emergencies, regulated by the expediency of the 
 moment, and extending to all the inhabitants of a place or country 
 ( Worcester's Dictionary, Martial). " Martial law is quite a distinct thing " 
 (t. e. from ordinary military law, which he had been just describing), "and 
 is founded on paramount necessity, and proclaimed by a military chief" 
 (1 Kent's Commentaries, 10th ed. p. 377). So, in all the law books, all the 
 law dictionaries, for instance, " martial law is the law of war, in which the 
 King, by his lieutenant, is absolute " (ride Tomline's Law Diet.). 
 
 (a) Thus, it was proclaimed and exercised in Ireland (the common law 
 of which is the same as that of England) in the rebellion of 1798, previous 
 to any statutes authonsing it. In May, 1798, the insurrection broke out in 
 the counties of Kildare and Carlow. The peasants had no arms but 
 clumsy pikes and a few guns in bad order, they were of course easily 
 defeated. All the prisoners taken by the soldiers were hanged without any 
 trial and there is reason to believe that many shared their fate who had 
 not at all shared in the rebellion. When the news of these events reached 
 Dublin, the Lord-Lieutenant issued a proclamation: "That his Majesty's 
 general officers had orders to punish according to martial law by death or 
 otherwise, as their judgment should approve, all persons acting or in any 
 manner assisting in the rebellion." It was proposed to subject to the 

 
 ONLY IN TIME OF REBELLION. 
 
 and, there being de facto a state of war, pursues the laws 
 and usages of war, that is, proclaims or declares martial 
 law, which is neither more nor less than declaring that 
 
 the state of war exists. And although it might be doubtful 
 at common law, whether the exercise of martial law would 
 be justifiable except iu districts covered by the rebellion, 
 yet if there were such a degree of danger in the district, by 
 reason of its contiguity to the scene of actual rebellion, and 
 imminent danger of its spreading, that might be enough to 
 excuse an honest exercise of it under supreme authority, or 
 even to justify it legally. 
 
 But the exercise of martial law in a district where not 
 only there is no rebellion, but where the courts of law are 
 actually sitting («-), so that there cannot possibly be any 
 
 operation of this proclamation the Hate prisoners in Dublin, but Lord 
 Castlereagh reprobated the proposal. The cruelties cordmitted by the 
 militia in Wexford provoked an insurrection there, and horri Me excesses 
 were committed. Though the insurrection was confined to Wexford, the 
 reign of terror established under this proclamation was extended over the 
 whole south and east. Thus it was that the sheriff of Tipperary flogged 
 Mr. Wright without any orders or authority : and this led to the case of 
 Wright v. Fitzgerald, 28 State Trials, in which, as the act was obviously 
 illegal, the plaintiff recovered damages. That, it. will be observed, was a 
 civil proceeding which turns on strict tui<iiit;/ (vide ante), yet the judge 
 indicated thai there might have been a defence, even at common law, had 
 there been any reasonable necessity and any fair trial, or any military 
 authority : but there was neither trial, necessity, nor military authority, 
 and the act was one of wanton and ignorant barbarity: such, beyond all 
 doubt, as would have supported a charge of murder, had the man died. 
 (cr) Thus was the ease of Wolfe T<>ii<\ 2? State Trials. 615. He was 
 
 captured on tl oast of Ulster, the rebellion ha\ ing been in Wexford, and 
 
 being over; and he was carried to Dublin, when- there was do rebellion 
 and no martial law. He was tried by court-martial at Dublin barracks, and 
 sentenced to death. An application was made to the court of Queen's 
 Bench, by Mr. Curran, for a habeas corpus, on the -round that, as Mr. 
 Tone had do commission from the King of England, In- was i" 1"' regarded 
 as a civilian, and a court-martial could have do cognizance of any crime 
 imputed to him while the King's courts were sitting. " I d.> do! pretend" 
 (.-aid Mr. Curran) " to say that Mr. Tone W£B not guilty of the charges of 
 which lie was accused: I presume the officers were honourable men; but it 
 is stated in the affidavit, as a solemn bet, that .Mr. Tone had no commis- 
 sion under His Majesty, an 1 therefore no court-martial could have coyni- 
 
 K
 
 130 MARTIAL LAW : CONFINED TO REBELLION. 
 
 reason for a trial by martial law, since, on the one hand, 
 there is no interruption to the course of justice, and, on the 
 other hand, there need be no delay in its course, would, of 
 course, be clearly illegal, according to the principles already 
 laid down, and accordingly such a proceeding lias been 
 declared illegal by one of the courts of this country. 
 
 So, even assuming martial law to be legally established 
 in a district in rebellion, yet as the only proper scope for 
 martial law is the suppression of actual rebellion, it follows 
 that it is only overt acts of rebellion (a), or, at all events, 
 overt acts in causing or aiding or abetting an actual re- 
 
 zance of any crime imputed to him, while the Court of King's Bench sat in 
 the capacity of the great criminal court of the land. In times when war is 
 raging, when man is opposed to man in the field, courts-martial might he 
 endured ; but every law and authority is with me whilst I stand upon this 
 sacred and immutable principle of the Constitution — that martial law and 
 ciril law are incompatible ; and that the former must cease with the existence 
 of the latter." Which plainly implies the converse. 
 
 (a) This is the true ground of Mr. Hargravc's opinion on the case of 
 Mr. Grogan, who, after the suppression of the rebellion in Ireland, in 1798, 
 was tried by court-martial, under martial law, for treason, and was 
 executed. That execution, assuming the legality of martial law during 
 the rebellion, was clearly illegal, upon the double ground that it was after 
 the rebellion, and that it was treason, not rebellion — that is, a merely con* 
 structive treason, in compassing rebellion, not an open and overt act in 
 aiding the rebellion. The case of Mr. Grogan, as appears from Mr. Har- 
 grave's opinion, was one of constructive treason. " The question was, 
 whether, upon the mere ground of prerogative power, authority could be 
 given against persons taken into custody for h igh treason during the heat 
 of rebellion, to try them by martial law for their offence. Looking to that 
 question, he avowed himself under a conviction that martial law to such an 
 extent was not the law of England. He saw, he said, the right to arrest 
 those found in actual rebellion, and have them imprisoned for trial and 
 punishment according to the law of treason ; but he could not see that 
 punishing and trying rebels according to martial law was, ivhen Mr. Grogan 
 was tried and put to death, part of the English law as it was administered 
 in England or Ireland." That is, because the rebellion was over. " He 
 avowed himself under a conviction that martial law to such an extent was 
 not the law of England." Moreover, it appears that Mr. Grogan was tried 
 for high treason, which might be for mere constructive treason, by con- 
 spiring to levy war, without any overt act; and such cases of constructive 
 treason are not fit cases for martial law, which, according to its nature,
 
 ERRORS <>K EXCESSES REQUIRING INDEMNITY. 131 
 
 bollion, which can be proper subjects fur- the execution of 
 martial law; and that, although undoubtedly the crime of 
 treason may be committal by conspiring or compassing to 
 levy war against the Crown, and this crime maybe com- 
 mitted by inciting to rebellion, yet, as that is a crime 
 rather of a constructive character, it is not a fit subject for 
 trial in a summary way before a court-martial under mar- 
 tial law, and still less can such a course be justified after the 
 rebellion is clearly over. 
 
 It would be necessary to have a statutory indemnity for 
 acts either of excess or irregularity, i. e., either for excess of 
 jurisdiction, or for excesses in execution («), for exercise of 
 
 Rhould be restricted to open and overt acts of rebellion (Ifargravc's Juris- 
 consult Exercitations, vol. i., p. 399). Thus also Mr. Serjeant Spankie, in 
 hie valuable exposition of the Indian Regulation on Martial Law and 
 Rebellion (Hough's Military Law, 350), points out that it is only open and 
 overt acts which arc the proper subjects of martial law. 
 
 (a) Thus it, was that bills of indemnity passed in the Irish Parliament 
 after the excesses which took place in the exercise of martial law in that 
 country in 1798 — excesses, be it observed, owing not to the nature of 
 martial law itself, so much as to the fierce passions of the country ami the 
 utter absence of due control over its exercise. The readers of the Lift and 
 Letters- of Lord CornwaUis will not have failed to see that there was an 
 utter absence of the due maintenance of military authority, and thai had 
 the exercise of martial law been placed under the restraints of military 
 discipline, such excesses would not have occurred. The Irish Act of 
 Indemnity recited that, " Whereas a traitorous conspiracy for the subver- 
 sion of the authority of His Majesty and the Parliament, and for the 
 dot ruction of the established constitution and government, hath unfortu- 
 nately existed in this kingdom for a considerable time, and hath broken 
 out in acts of the most daring and open rebellion. And whereas his 
 Excellency Karl Camden, then Lord-Lieutenant, General, and General 
 Governor of Ireland, did on the 3Uth of March, 1798, by and with the 
 advice of the Privy Council of this kingdom, issue his most direct and 
 positive orders to the officers commanding His Majesty's forces, to cmploy 
 them with the utmost vigour and decision for the immediate suppression 
 of the said rebellion, and did by his proclamation of the same date, by and 
 with the advice of the Privy Council, notify the same; ami whereas, not- 
 withstanding the said orders so issued as aforesaid, tin' said rebellion did 
 very considerably extend itself." Then it went on to indemnify in general 
 terms those who had acted in the suppression of the rebellion, which was 
 necessary to protect persons who had acted, however rashly and erroneously, 
 
 k2
 
 132 MARTIAL LAW, IN TIME OF REBELLION, 
 
 martial law before it had been declared, or where it had 
 not been declared, or where it had been declared in dis- 
 tricts where it could not legally be declared, by reason that 
 they were not in actual rebellion, or for the execution of mar- 
 tial law on offences not properly coming within its scope, or 
 without due care or reasonable evidence, or for the infliction 
 of capital punishment carelessly, or of corporal punishment 
 excessively ; in all such cases there would be, if not an 
 absolute necessity, at all events an apparent and probable 
 necessity for a bill of indemnity, and such bills, therefore, 
 have usually been passed ; but it is to be borne in mind that, 
 on the one hand, the proper scope for bills of indemnity is 
 error or casual illegality, and not wilful and wholesale 
 illegality ; and that, on the other hand, no bill of indemnity 
 ever drawn would be a protection against criminal liability 
 for acts of wanton cruelty or malicious homicide. 
 
 And as it would be necessary to have statutory authority 
 for the exercise of martial law in cases in which it could 
 not be legally declared, so, on the other hand, as, when it 
 could be legally proclaimed, it would be absolute military 
 authority, and the regular military law, as contained in the 
 Mutiny Act, would not in terms be applicable (as the Act 
 applies only to soldiers enlisted in the service of the Crown), 
 
 yet honestly, though without due authority ; and, on the other hand, would 
 not cover acts wholly reckless and wicked and malicious. So the Imperial 
 Act 43 Geo. III., c. 117, having provided that the Lord-Lieutenant may 
 issue orders to the officers to take measures for the suppression of the 
 rebellion, enacted that no act which should be done in pursuance of any 
 order so given should be questioned in any court. And then it was pro- 
 vided 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 conformity with any 
 order so issued, was so done, the Lord Lieutenant might declare such act 
 to have been so 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, it is 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 beci^proclaimed, 
 continued.
 
 RESTRAINED AND REGULATED BY STATUTE. 133 
 
 and would only be applicable to civilians taken in rebellion 
 by a rough and rude kind of analogy ; therefore, it would be 
 
 equally necessary to have statutable enactments (7/) dirrcted 
 either to allow of the exercise of martial law in a modified 
 form, in cases where it would not be allowable at com- 
 mon law, or to restrain and regulate its exercise even in 
 cases where it might at common law be declared, and to 
 provide for a permanent exercise of some modified form of 
 martial law, or its exercise for a considerable period, and to 
 make provisions analogous to those of the Mutiny Act and 
 
 (a) Thus, the 3 & 4 Will. IV. a 4, after reciting the existence of a dan- 
 gerous conspiracy against tlie administration of that Act, manifested by 
 open and daring outrages and tumultuous movements of large bodies of 
 persons, who have by thoir numbers and violence created such general 
 alarm and intimidation as materially to impede the due course of public 
 justice, and frustrate the ordinary modes of criminal prosecution ; and that 
 meetings and assemblies, inconsistent with the public peace and safety, and 
 with the exercise of government, had been held for some time past ; and 
 that the laws then in force were found inadequate to the prompt and 
 effectual suppression of the mischief, and that the interposition of Par- 
 liament was necessary for the purpose of checking the further progress of 
 the same" (all which might be without a case for martial law in a country 
 where there is always so ample a military force) ; and then it enacted that 
 the Lord-Lieutenant might, with the advice of the council, as occasion 
 might require, issue his proclamation declaring any county to be in such a 
 state of disturbance and insubordination as to require the application of the 
 provisions of the Act; and such county shall then be deemed a proclaimed 
 district (s. 4). That such proclamation shall wain the inhabitants to 
 abstain from all seditious and unlawful assemblies or associations, and 
 remain within their habitations between sunset and sunrise (s. 5). That 
 all justices and ofliccrs of the forces shall take the most effectual measures, 
 according to law, for suppressing insurrectionary and other disturbances 
 and outrages in any part so proclaimed, and to search for and arrest all 
 persons charged on oath with offences cognizable before the courts-martial 
 (s. 7). That any person liable to be prosecuted for any offence committed 
 within the district against any law prohibiting unlawful risings or assem- 
 blies, or preventing outrage or riot, &c, shall be tried before court-mart in' 
 (s. 11). That such courts shall be constituted by commission from the 
 Lord-Lieutenant (s. 13V That they shall consist of officers in Her 
 Majesty's regular service, not less than live (s. 14). That there shall be a 
 judge-advocate to attend the courts (s. 1(3). That persons charged with 
 any of such offences may be summarily tried by such courts-martial, and the 
 sentences, when confirmed, shall be executed is. 18) ; provided that if the
 
 134 MARTIAL LAW RECOGNIZED BY STATUTE 
 
 Articles of War, as to the offences to be tried by courts- 
 martial, the constitution of the courts-martial, their man- 
 ner of procedure, and the like. And, accordingly, all these 
 objects have been provided for by a statute of the Imperial 
 Parliament as to Ireland. 
 
 But these statutes not only did not suggest that the exer- 
 cise of martial law for the suppression of rebellion was illegal, 
 or that they were necessary to authorize its exercise in time 
 of actual rebellion, but they throughout plainly implied 
 the contrary (a), and not only so, but they distinctly and 
 
 offence be punishable by death, the sentence shall be transportation (s. 21) ; 
 and provided also, that such courts should not try cases of seditious libel, nor 
 cases of combination or conspiracy, unless unaccompanied with actual force 
 (ibid). But such offences, as possession of arms (s. 24), or making of 
 signals, &c. (s. 27), may be tried by courts-martial. 
 
 («) Thus the Imperial Act, 43 Geo. c. 117, recited that a treasonable and 
 rebellious spirit existed in Ireland, and had broken out into acts of open 
 murder and rebellion ; and that persons Avho might be guilty of acts of 
 outrage in prosecution of the rebellion, and who might be taken by Her 
 Majesty's forces to be employed for the suppression of it, might seek to 
 avail themselves of the ordinary course of the common law to evade the 
 punishment of such crimes (which implied that the course of the common 
 law was not, as it is notorious it was not, put a stop to, so that, strictly 
 speaking, martial law would be illegal), whereby it has become necessary for 
 Parliament to interpose. And it enacted that the Lord-Lieutenant might, from 
 time to time, during the continuance of the rebellion, whether the ordinary 
 courts of justice shall or shall not at such times be open, issue orders to all 
 officers commanding Her Majesty's forces, and to all others whom he 
 shall think fit to authorize, to take the most vigorous and effectual 
 measures for suppressing the rebellion, and to punish all persons acting, 
 aiding, or in any manner assisting in the rebellion, according to martial 
 law, by death or otherwise. This evidently implies and assumes that it is 
 according to martial law so to punish persons taken in rebellion. And it 
 provides that this may be done in cases where, by the strict doctrines of the 
 common law, martial law could not legally be proclaimed. Then there is 
 this clause : " Be it declared and enacted, that nothing in this Act shall be 
 construed to take away, abridge, or diminish the acknowledged prerogative 
 of Ifer Majesty for the public safety to resort to the exercise of martial law 
 against open enemies or traitors" which, if language has any meaning, is a 
 declaratory enactment that there is such a prerogative in the land, or a 
 solemn legislative acknowledgment of it, which, as Parliament is the guardian 
 of constitutional liberty, must be of the very highest authority. It is not, 
 a., has been strangely suggested, a mere recital or reservation ; it is a declara-
 
 IX THE UNITED KINGDOM. 185 
 
 solemnly declared the contrary; and even the Imperial 
 Parliament bae again and again, in the most solemn and 
 emphatic trims, declared and enacted that it was the un- 
 doubted prerogative of the Crown to declare and execute 
 martial law for the suppression of rebellion, and for the 
 summary punishment of those taken in open rebellion. 
 And the termsof these declarations contain the best pos- 
 sible exposition, upon the authority of Parliament itself, of 
 the true scope and character of martial law. 
 
 And, altogether independently of any strictly legal force 
 and effect of these statutable declarations, and apart from 
 any question of the bare legality of martial law, it may at 
 all events be safely laid down, that these legislative declara- 
 tions and enactments may be taken as expositions by the 
 legislature of what is reasonable for the public safety under 
 similar circumstances (a). For if such and such enact- 
 
 tory enactment, or solemn legislative declaration and acknowledgment. 
 If it had ran thus, " That it is hereby declared and enacted that the Crown 
 has such a prerogative," it could not have been more explicit; and such is, 
 in effect, what is declared. So there is a similar declaratory enactment in a 
 more recent Act, 3 & 4 "Will. IV. c. 4: " Be it declared and enacted that 
 nothing shall take away, abridge, or diminish the undoubted prerogative 
 of the Crown for the public safety to resort to the exercise of martial law 
 against open enemies and traitors." 
 
 (a) The spirit and substance of the various legislative provisions may 
 thus be summed up and condensed : that wherever a rebellious spirit 
 exists, and has either broken out into acts of open rebellion, or has been 
 manifested by tumultuous movements, which have created such general 
 alarm as materially to impede the due course of justice, and are inconsis- 
 tent with the public peace and safety, and the ordinary means are found 
 inadequate for their suppression, precautionary and protective measures 
 should betaken; that there should be public proclamation that the dis- 
 turbed district is to be deemed subject to that sort of repression which, for 
 the want of any other name, if for no better reason, and because it must 
 necessarily be carried out by military force, is called martial law ; thai all 
 overt acts in furtherance of and of rebellion, such as collecting and conceal- 
 ing arms or ammunition, exciting to secret associations or tumultuous 
 assemblies, and, above all, any open acts of outrage, should be summarily 
 dealt with before military tribunals ; that these tribunals should be ••arc- 
 fully constituted of officers of th'' regular army, so far as they can be ob- 
 tained, and consist at least of three, and if possible of five; that there shall
 
 136 MARTIAL LAW RECOGNIZED BY STATUTE 
 
 ments have been again and again found and declared, by 
 the wisdom of Parliament, right and proper, because neces- 
 sary and expedient for the public safety and the preserva- 
 tion of peace in seasons of public disturbance, even in a 
 country so near and so amply protected by military force ; 
 how much more reasonable may not such measures be 
 deemed to be in periods of disaffection and rebellion, in 
 distant dominions or dependencies far removed from the 
 seat of Imperial Government and the sources of Imperial 
 strength, and left with comparatively trifling military force 
 for their protection. While, on the other hand, those calm 
 and wise provisions of legislative wisdom may well be taken 
 as models, and examples for imitation in those distant 
 dependencies of the British Crown. 
 
 Moreover, there are statutable enactments (a) by the 
 
 be some officer or lawyer to attend such court, if possible, by way of judge- 
 advocate or assessor; that the proceedings of these courts shall be under 
 lawful control, and no sentence be valid unless confirmed by some superior 
 officer; that no capital or corporal sentence be allowed to be inflicted 
 except in certain cases carefully laid down beforehand, and, possibly, it 
 might be safely laid down that there should be no capital sentence except in 
 cases of murder and attempted murder, or unless the party has been 
 actually taken in arms, and not in the latter case if there appears reason to 
 believe that no actual violence has been committed, and that the party has 
 yielded to compulsion or pressure ; and that no corporal punishment be 
 allowed except in certain cases, as arson, bodily outrage, &c. That no 
 cases of mere seditious words be tried by courts-martial unless direct and 
 clear incitemeut to, or accompanied by, or followed by the actual use of 
 force or tumultuous asssemblies ; and that all the offences and penalties be 
 assigned beforehand. 
 
 (a) Thus there are various Acts applicable to Ireland, under which a 
 kind of modified martial law is allowed to be put in force when the state 
 of the country, though not such as to justify martial law, is still such as to 
 require extraordinary repressive measures, and the provisions of the Act 
 plainly imply that in the mind of Parliament such measures are fully justifi- 
 able, even in a state of affairs which will not justify martial law, and, there- 
 fore, a multo fortiori, in a state of affairs which does justify martial law. Thus, 
 a circular was lately issued to the Irish magistrates, in which their atten- 
 tion was directed to the following summary of their powers and duties 
 under t'.e Whitcboy Acts, the provisions of which will be found very 
 valuable in the present circumstances; — "1. All persons armed with lire-
 
 IN THE UNITED KINGDOM. 137 
 
 Imperial Legislature, with a view to the case of an appre- 
 hended rebellion, in one part of the United Kingdom, 
 which are in spirit, and principle equally, and, indeed, 
 ninlto fortiori, applicable to the case of an actual rebel! i 
 and which at all events afford, by way of analogy, v r . 
 guidance and authority as to what may he just, r< 
 or proper under martial law in any other he 
 
 empire, especially with reference to the qv jther 
 
 the military or ordinary law is to be foil o ar( l to 
 
 offences or penalties, or the nature of I .nces which 
 
 arms or any other weapon, or appearing ; juise, or wearing any 
 
 unusual uniform or badge, or assuming lame or denomination not 
 
 usually assumed by ordinary persons in t .awful occupations, who .-hall 
 assemble, or who shall appear alone or ah others, by day or night, arc 
 guilty of a high misdemeanour, subjecting them to penal servitude, im- 
 prisonment and whipping. 2. All persons who assemble and unlawfully 
 compel, or by force or threats attempt to compel, anyone to quit his 
 dwelling or employment, or who shall maliciously assault any dwelling- 
 house, or who shall break into any house or outhouse, or cause any door to 
 be opened by threats, or shall carry off any horse or mule, or any gun or 
 other weapon, money, or other property, or shall by threats cause same to 
 be given up to them, are equally guilty, and liable to the same punishment. 
 3. Any person who shall write, post, publish, or give any notice, letter, or 
 message, exciting, or tending to excite, any riot or unlawful assembly, or 
 combination, or threatening any violence to person or property, or demand- 
 ing arms, ammunition, money, or other property, or requiring any person 
 to quit any employment, is liable to the same punishment. 4. All per- 
 Bons aiding and abetting others in the commission of any of the above 
 offences are equally guilty, and liable to the punishments above-mentioned. 
 5. All persons who by drum, horn, fire, shouting, or any signal, excite 
 or promote, or attempt to excite or promote, such unlawful meetings, are 
 also guilty of a high misdemeanour. 6. Any persona who, by force or 
 threats, unlawfully impose on or tender to any person any oath or solemn 
 engagement, are guilty of a grave misdemeanour, and are liable to whip- 
 pingand imprisonment. 7. All magistrates and constables are empowered 
 and bound to apprehend, disperse, and oppose all persons so engaged, and 
 may call upon and command all persons who are not disabled by age or in- 
 firmity to assist them in so doing ; and are fully indemnified for happening 
 to kill, maim, or hurt any person in discharging Buch duty. 8. Any two 
 magistrates having reasonable cause to suspect any person to be guilty of 
 such unlawful rising, assembling, or appearing as above mentioned, or of 
 having been at any such unlawful assembly, or of intending so to'bc, may 
 and are required to summon before them any such person, and bind him
 
 13S MARTIAL LAW RECOGNIZED BY STATUTE, 
 
 are to be deemed within the cognizance of the military 
 under martial law. For the grand principle must be 
 adhered to, in all its aspects and results, that, as Her 
 Majesty is sovereign of an empire over which the sun never 
 sets, and which includes within its sway subjects of every 
 class and race, her great prerogative is to administer equal 
 justice to them all, without distinction of colour or creed. 
 And as, on the one hand, this principle requires that none 
 of any class or race shall, on account of any such distinc- 
 tion, be exposed to severities to which others are not liable 
 in like cases ; so, on the other hand, severities which the 
 wisdom of the Legislature has deemed salutary in certain 
 cases in the United Kingdom, can scarcely be deemed 
 excessive when applied in similar cases to other portions of 
 the dominions of the Crown. 
 
 The statutes on the subject not only afford legislative re- 
 cognition of the prerogative of the Crown, for the sake of 
 the public safety, to declare martial law, but they likewise 
 afford legislative recognition, indirect it may be, but not 
 
 over in his own recognisance to appear at the next assizes, and to be of 
 good behaviour in the meantime ; and in case of refusal such magistrates 
 have power to commit such person to gaol. 9. Every magistrate has 
 authority to summon any person within his jurisdiction whom he thinks 
 capable of giving material evidence as to any such offence, and examine 
 him or her on oath, and bind such person in recognisance to appear and 
 give evidence, and on refusal to answer or to enter into recognisance, to 
 commit such person to gaol." Now it will be observed, that under these 
 provisions all such acts as are likely to lead to or have a tendency to cause 
 a rebellion — all inchoate acts of rebellion — are severely punishable by 
 penal servitude and flogging. This implies that the Legislature deemed 
 the application of military law reasonable under such circumstances. If 
 so, then, a multo fortiori, in a case of actual rebellion, such as would justify 
 martial law and military authority. The above provisions, it must be 
 borne in mind, apply before an actual rebellion, and, therefore, the jurisdic- 
 tion is left in the civil magistracy. Assuming an actual rebellion justifying 
 the declaration of martial law, then there is military authority, and, at all 
 evi nis, it is admitted that all measures that are necessary are lawful. And 
 the above provisions arc legislative declarations of measures which may be 
 reasonably necessary even in the case of an apprehended rebellion, and, 
 therefore, a multo fortiori, in an actual rebellion.
 
 AS NECESSAUV IX TIME OF REBELLION. \li ( J 
 
 the less distinct, of what martial law really is, and what it 
 involves. For having, on the one hand, affirmed the power 
 of the Crown to declare it during actual rebellion, and given 
 a power to declare it at limes of apprehended rebellion, 
 they proceed to provisions by way of restraint upon or regu- 
 lations of its exercise, with reference to trials of rebels by 
 court-martial, implying that such deterrent measures are a 
 proper part of martial law, and that they would, unless so re- 
 strained and regulated, be under martial law absolute. 
 And the nature of martial law has always, in accordance 
 with the usage of the common law, and with these legisla- 
 tive recognitions, been thus defined, by our highest legal 
 and constitutional authorities, as absolute military autho- 
 rity (a). 
 
 (a) Thus not ouly in Tijtl< r's Military Law and Maccarthur on Court- 
 Martial already quoted, is the nature of martial law thus defined, but it 
 is equally so defined by the great commentator in the edition of his 
 book, edited by a learned lawyer, and published about the period of 
 the passing of these statutes. " .Martial law is built upon no settled prin- 
 ciple, but is entirely arbitrary in its decisions, and is in fact no law, but 
 something rather indulged than allowed as law, a temporary excrescence 
 bred out of the distemper of the state, and not any part of the permanent 
 and perpetual laws of the kingdom. The necessity for order and discipline 
 is the only thing which can give it countenance, and, therefore, it ought 
 not to be permitted in time of peace, when the king's courts are open for 
 all persons to receive justice according to the law of the land'' (Blackst. 
 Comm. vol. i., 419, edit, of 1800, edited by Christian). It is true that In a 
 case decided some years previously the court said, "Martial law, as described 
 by Blaekstone (i. c., as permanent and perpetual, and applying to crimes 
 u'li'irh i„ Umged >>> the civil courts) does not exist in England. Where martial 
 law is establish d and pry vails in any county, it is of a totally different nature 
 from that which is inaccurately called martial law, but which bears no 
 affinity to that which was formerly attempted to be exercised in this king- 
 dom, and was contrary to the constitution ;" but that obviously alludes to 
 the permanent establishment of martial law as attempted in the Commis- 
 sions condemned by the Petition of Eight for the trial of all offences, for, 
 it is added : "Where martial law prevails, the authority under which it 
 i- exercised claims jurisdiction over military persons in all circumstances. 
 Every species of offence is tried not by the civil judicature but court-mar- 
 tial {Grant v. Qould, 2 II. lilaekst. 48). Of course that has been exploded, 
 but it clearly implies that martial law, supposing it to exist, is absolute, 
 and accordingly the passage is cited in M accarthur on Court-Murtiol, as
 
 140 MARTIAL LAW, GROUNDED ON NECESSITY, 
 
 In truth, the nature of martial law sufficiently defines 
 itself, by the very principle upon which rests its legality, 
 namely, its necessity (a). The prerogative of declaring it 
 is simply, as has been seen, the right of the Crown to do its 
 duty, in a great emergency — whether invasion or rebellion 
 — for the protection of the realm, and for the public safety, 
 and it follows that it must involve all that is necessary to 
 meet the emergency and discharge the duty. It also fol- 
 lows from the very nature of an emergency, of which those 
 only can judge who have to meet it, and to deal with it, 
 
 showing the distinction between military law and martial law, properly so 
 called. And the same view of martial law is given by the great constitu- 
 tional historian, in a passage at once asserting its legality and describing its 
 nature. " There may, indeed, be times of pressing danger when the conser- 
 vation of all demands the sacrifice of the legal rights ol a few ; there may be 
 circumstances that not only justify but compel the temporary abandonment 
 of constitutional power. It has been usual for all Governments during an 
 actual rebellion to proclaim martial law, or the suspension of civil jurisdic- 
 tion. And this anomaly is very far from being less indispensable at such 
 unhappy seasons, in countries where the ordinary mode of proceeding is by 
 jury, than where the right of decision resides in the judge. But it is of 
 high importance to watch with extreme jealousy the disposition towards 
 which most Governments are prone, to introduce too soon, to extend tot 
 far, to refrain too long, so perilous a remedy " (1 HaUam's Const. Hist.). 
 
 (a) Thus, the Duke of Wellington said, in the House of Lords (in 
 reference to the Ceylon rebellion of 1849), " That martial law was neither 
 more or less than the will of the General who commands the army ; ia 
 fact, martial law is no law at all." And Earl Grey, on the same occasion, 
 said, " that what the noble Duke had said with reference to what is the 
 true nature of martial law, is exactly in accordance with the advice of 
 Lord Cottenham, Lord Campbell, and the Attorney-General (Sir J. Jervis), 
 who explained, that what is called proclaiming martial law, is no law at all, 
 but merely for the sake of public safety, in circumstances of great emergency, 
 setting aside all law, and acting under the military power." On the occa- 
 sion of the Committee of Enquiry into the measures taken for the sup- 
 pression of the rebellion in Ceylon, Sir D. Dundas was then Judge Advo- 
 cate-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 martial 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 martial law, pro- 
 perly so called, is not written law ; it is unwritten law ; it arises upon 
 necessity to be judged of by the Executive. " Martial law is a ' Lex non
 
 AND THEREFORE, IN ITS NATURE, DISCRETIONARY. 141 
 
 that, subject to future censure by the Crown for any gross 
 error or excess (always assuming an honest intention to 
 meet the emergency and do no more), the authority of the 
 executive or of the officers of the Crown entrusted with the 
 exercise of martial law, must necessarily be absolute, in the 
 sense that it is discretionary. 
 
 Martial law is, in short, the suspension of all law, but the 
 will of the military Commanders trusted with its execution, 
 to be exercised according to their judgment, and the 
 exigencies of the moment, and the usages of the service ; 
 
 Scripta,' it arises on a paramount necessity to be judged of by the Execu- 
 tive. Martial law comprises all persons. All are under it in the county 
 or district in which it is proclaimed, 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 conducted, or power exercised under martial 
 law ; but, as a rule, I should say that it should approximate as near as pos- 
 sible 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 good judgment of those entrusted 
 with the execution {rule Ev. of Sir D. Dundas, Judge Advocate-General, 
 before the Ceylon Committee, 1849-50). Sir J. W. Hogg, Chairman of 
 the East India Company, said in the House of Commons, when an hon. 
 member was inclined to carp at the statement of the Judge Advocate- 
 General (Sir D. Dundas), that martial law was a denial of all law : " But 
 the Judge-Advocatj was quite correct ; it was a deuial of all law, and 
 could not be the subject of regulation ; when martial law was pro- 
 claimed, the commanding officer must use his discretion " (Pari. Deb. 
 1851, Ceylon). So the Judge Advocate-General, in answer to questions 
 put by the ltoyal Commissioners for National Defences: "There is a 
 broad distinction between martial law, called into existence by a proclama- 
 tion of martial law, and the law administered by courts martial for the 
 ordinary government oi the army, which for distinction and accuracy may 
 be called military law. The latter, namely, military la>v, is applicable only 
 to the army, and to Bach 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 
 provisions 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, 
 and is recognised by the legislature under the term, 'custom of war.' The 
 former, namely, martial law, which is the subject of the present inquiry, is 
 so arbitrary ami uncertain in its nature, that the term ' law ' cannot be
 
 142 MARTIAL LAW DISCRETIONARY POWER: 
 
 no fixed and settled rules or laws ; no definite practice, and 
 not bound even by the rules of ordinary military law (a). 
 In the exercise of the powers conferred by martial 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 carrying out the 
 object ; the complete subjugation of the rebellion, the re- 
 moval of the danger, and the restoration of peace and con- 
 fidence. That is, not merely what a jury or any other tri- 
 bunal might deem necessary, for it is a question purely 
 
 properly applied to it." " Martial law, according to the Duke of Wellington, 
 it neither more nor less than the will of the General who commands the 
 army. In fact, martial law means no law at all, therefore, the General who 
 declares martial law, and commands that it should be carried into execu- 
 tion, 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 mar- 
 tial 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 authorised the military authorities to clo 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 Defences, p. 90). 
 
 (a) This passage is cited from the Author's Treatise on Martial Law, and 
 it was quoted in the charge of Cockburn, C. J., in Nelson's case, with 
 the omission, however, of the word " ordinary," and of any reference to 
 the various passages cited by the Author in a note as authorities ; and it 
 was said by Cockburn, C. J., that " he found no authority at all for any 
 such doctrines, which seemed to bim as novel and unfounded as, in his 
 judgment, they were mischievous, and, he had almost said, detestable." 
 The only fitting comment upon this is to refer to the authorities already 
 cited, uponw hich the above propositions were laid down. " Martial law is 
 built upon no settled principles, but is entirely arbitrary in its decisions, 
 and is in truth no law, but something indulged rather than allowed in law " 
 (Blackstone's Commentaries, vol. 1, p. 419, ed. 1800; by Christian). So 
 Hallam: "Martial law is the suspension of civil jurisdiction" (Const. 
 Hist. vol. 1, p. 240). So Blount's Law Dictionary, ed. 1670; Cornell's 
 Law Dictionary, ed. 1727 ; and Tomlines Laiv Dictionary, ed. 1835, 
 all already cited. So the Duke of Wellington : " Martial law is no law at 
 all." So Earl Grey, Lord Cottenham, Lord Campbell, Sir John Jervia 
 (Attorney-General), Sir D. Dundas, and Mr. Headlam (Judge Advocates- 
 General), as already quoted (vide ante, p. 141-2, in notes) ; and all 
 declaring martial law to be a suspension of all ordinary law, and to be
 
 BECAUSE GROUNDED ON NECESSITY. 143 
 
 military, to be decided at the moment, by military autho- 
 rity ; and, therefore, it is anything which military authority 
 may fairly deem necessary. Nor does it appear to* make 
 any difference whether martial law, aa such, and by that 
 name, is or is not allowed by law as part of the prerogative ; 
 as all allow that what is necessary is allowable, and the 
 prerogative power itself is only rested on that ground. 
 
 As already observed, it appears to make no substantial 
 or practical difference whether martial law, as such, and by 
 that name, is or is not allowed to be legal as part of the 
 prerogative, for the prerogative is rested only on necessity, 
 and all admit that what is necessary is allowable, and 
 martial law is only the law of war, or necessity, under mili- 
 tary authority ; and assuming a state of war de facto to 
 exist, and to have been lawfully declared by the Crown or 
 its representative, then it appears to follow necessarily, and 
 there is strong ground for contending that it has already 
 been established upon the highest judicial authority in this 
 country, that it establishes a discretionary military autho- 
 rity (a), and at all events, practically and actually, as a mat- 
 
 absolute military authority, with no settled rules or practice, and, in fact, 
 no law at all. These arc the authorities (which it will be observed are 
 entirely in harmony, and exhibit an unbroken tradition of legal and con- 
 stitutional doctrine from the time of the Revolution to the present period) 
 upon which the Author laid down the above proposition thus denounced 
 by Cockburn, C. J., as " novel " and " detestable." It is unnecessary for 
 the Author to add, that he entirely adheres to it, as undoubted law. 
 
 (a) This certainly was so determined by the case Banoitt v. Keppei, 
 Wilson's Reports, 317, and in the great case of Sutton v. Johnstone, in the 
 House of Lords, 1 Term Reports, 548 ; and although it is quite true that 
 iu these cases the war was out of the Crown's dominions, yet, on the one 
 hand, the proposition is broadly laid down, quite independently of that, 
 that flagrante bello, the common law is silent, and, on the other hand, in 
 a later case the proposition was cited and laid down in a case whu-h anise in 
 this country (Warden v. Bailey, 4 Taunton's Reports, 67). Inthe judgment 
 in the House of Lords, the ground of decision undoubtedly La not that the 
 matter arose out of the dominions of tlir Crown (which would hare been no 
 answer at all in an action be! ween British subjects), hut that it arose during 
 a state of war, and in presence oi the enemy. So again, undoubtedly, in 
 these cases the question arose between military men, but it must be re-
 
 144; MARTIAL LAW: MILITARY POWER. 
 
 ter of necessity it must do so ; and if the war exists and is 
 lawfully declared, it must lawfully be so. If so, then 
 beyond all doubt it has been solemnly decided by the 
 highest judicial tribunal — the House of Lords — that in the 
 exercise of this military discretionary authority, the Com- 
 mander is — as regards common law — absolute, although at 
 the same time he is certainly not arbitrary ; for though not 
 responsible at common law, he is still responsible to the 
 Crown, and subject to the more severe restraints of military 
 subordination and military control, according to the laws 
 and usages of the army. 
 
 membered that it is here assumed, having, it is conceived, been already de- 
 monstrated, that rebels engaged in war against the Crown are soldiers sub- 
 ject to martial law, as the law of war ; a proposition which appears indeed to 
 prove itself, for if it is not so, how can the measures of war be applied to 
 them ? Assuming that then the doctrine of the House of Lords legally ap- 
 plies (and in sound sense it surely ought to be applied, and of all war, 
 that of rebellion is the worst and most dangerous, and its repression is the 
 most important), that doctrine was thus laid down ; that in a case where 
 the articles did not define the duty, " There is no rule of the common or 
 statute law applicable to the case, it is a mere military offence, it is the 
 abuse of a military discretionary power, and the defendant must be tried 
 for it by court-martial. If a man is charged with an offence against the 
 Articles, or, where the Articles are silent, against the usages of the army, his 
 guilt or innocence can only be tried by a conrt-martial. A Commander- 
 in-Chief has a discretionary power by this military code to arrest, suspend, 
 and put any man in the army upon his trial. A Commander who arrests 
 or suspends a man without reasonable or probable cause is guilty of a mili- 
 tary offence, but the same jurisdiction which tries the original charge must 
 try the probable cause, which, in effect, is a new trial. And every reason 
 which requires the original charge to be tried by a military jurisdiction, 
 equally holds to try the probable cause by that jurisdiction. The salvation 
 of the country depends upon the discipline of the army ; without discipline 
 they would be a rabble dangerous only to their friends, and harmless to the 
 enemy. Commanders on a day of battle must act upon delicate suspicions ; 
 upon the evidence of their own eye, they must require instantaneous 
 obedience. A military tribunal is capable of feeling for all these circum- 
 stances. But what condition will a Commander be in, if, upon the exer- 
 cising of his authority, he is liable to be tried by a common law judicature ? 
 Not knowing the law, or the rules of evidence, no Commander will dare to 
 act. Party prejudices mix, and if every trial is to be followed by an action, 
 it is easy to see how endless the confusion, how infinite the mischief" (Sut- 
 ton v. Johnstone, 1 Term Reports, 550). Now all this, of course, does not
 
 yc 
 
 t 
 
 ACCORDING TO MTLTTARY USAGE 14". 
 
 But, at all events, a state of war de facto existing, 
 and being lawfully declared by the authority of the 
 Crown, or the representative of the Crown, it appears neces- 
 sarily to follow, that what are proper means or measures of 
 war— or, in other words, what is meant by martial law, 
 and what it involves, must be matter for military authority, 
 to determine according to the usages of the service and "the 
 custom of war in like cases" (a). For the common law 
 has no rules for war, and knows nothing of its rules, which 
 is the meaning and reason of the legal maxim, " Inter anna, 
 
 apply if rebels engaged in war against the Crown are not liable to be 
 treated as soldiers ; but if they are, then it does apply, and it applies a 
 niulto fortiori in case of rebellion, and if within the dominions of the Crown, 
 for then the danger and the mischief are far greater than when the war is 
 distant. And again, if all this applies even to an action, how much more 
 docs it apply to a criminal proceeding, in which " it is certain that no man 
 can be criminally liable for error of judgment " (Lord Chief Justice de 
 Grey j Millar v. Seares, 2 W. Blackstone's Reports, 1144). If it were 
 otherwise it would come to this, that a man would be called upon to act 
 upon one law, and would then be liable to be tried by another, and by 
 courts which, confessedly know nothing of the law under which he acted, 
 namely, the law of war. 
 
 (n) The proposition here laid down appears to follow necessarily from 
 undoubted legal principle, and to be supported by a great weight of judicial 
 authority. In point of principle nothing is inore clear than that every mat- 
 ter not of law must be matter of fact, and therefore of evidence, and that 
 nothing can be matter of law which is not matter of judicial cognizance. 
 Now at common law the courts know nothing except of the common law 
 and statute j hence it is that they require evidence of foreign law, and BO 
 of military law, except only the Articles of War, which by statute they are 
 to take judicial notice of. Thus it has often been held that they know 
 nothing even of the regulations fur the army, still less of its usages and 
 customs. And so in all the cases it has been held. Thus, in Barwis\ v. 
 Keppel, 2 Wilson's Reports, 317, where the question was as to the right of 
 a commanding officer going beyond and in excess of the sentence of court- 
 martial, it was found and stated as matter of fact that it was in war and in 
 presence of the enemy, and that it " is generally and universally understood 
 
 in the army " that he had such and such authority, and that by "the con- 
 stant custom and practice of the army" he had that power. And the court 
 in their judgment said that, flagrante hello, by the Mutiny Acl the 
 
 king's power to make Articles of War was confined to his own dominions , 
 when his army is out of his dominion-, he acta l>\ virtue of his prerogative, 
 and therefore you cannot argue upon them, for they are both to be laid out 
 
 L
 
 146 MARTIAL LAW, MILITARY RULE, 
 
 silent leges." And in every case where the matter is not 
 one of judicial cognizance, it is necessarily matter of evi- 
 dence — as, for instance, when foreign law comes in question — 
 which is a very near analogy, and which is always dealt 
 with on a trial, as a matter of fact to be proved. And as 
 this appears to follow necessarily and logically from ac- 
 knowledged legal principle, so, on the other hand, it appears 
 to be supported by an overwhelming weight of judicial 
 authority. Nor is it the less involved, virtually, in any 
 theory which denies the legality of martial law on the 
 
 of the case, and, flagrante bcllo, the common law has never interfered -with 
 the army ; inter arma silent leges." This latter is laid down as a distinct 
 proposition, not dependent upon the other, and in a later case was applied 
 to matters arising in this country, where there may be war as well as abroad 
 ( Warden v. Bailey, 4 Taunton's Reports, 69). But it was clearly laid 
 down that where the Articles did not apply it was matter of usage ; and 
 that is the case in rebellion, for the Articles do not apply to civilians. In 
 the case last quoted several cases are cited in which actions had lain for 
 illegal acts in time of peace, that is, for flogging persons not under military 
 law, or with gross and cruel excess (as 1000 lashes), or without the shadow 
 of a pretext (a mere private letter), or without a court-martial and in excess 
 of the usage and custom of the army. But those were mostly cases under 
 regular military law, of which the courts take judicial cognizance, and in 
 the only case which was not so provided for, the court took evidence of the 
 usage of the army. So, in Johnstone v. Sutton, 1 Term Reports, 549, the 
 same principle is laid down. So, in Bradley v. Arthur, 4 Barnwall and 
 Cresswell's Reports, 292, where evidence of military men was taken on a 
 question not solved by the Articles of War, as to the understanding or 
 usage which prevailed in the army, and what the office of a superintendent 
 of a settlement implied, and whether the Commander of the forces in 
 Jamaica had the right to appoint a military Commandant of a settlement, 
 and so forth ; and the court said, " The Mutiny Act and Articles of War 
 contain nothing on the subject; the book of regulations for the government 
 of the army is not a book of which we can take judicial cognizance. We 
 are required to take judicial cognizance of the Articles of War, but we are 
 not required to take judicial notice of any other regulations, and, therefore, 
 they must be brought before us by proof in the same manner as any other 
 fact (p. 305). " If the Mutiny Act and Articles of War are silent, then we 
 are bound to look at the usage upon the subject, because that usage may 
 assist us in forming a judgment" (p. 307). It is nothing to say that 
 there were cases between military men, for the principle is, that where the 
 Articles are silent, usage is the test; and they are silent as to civilians in 
 rebellion, while, on the other hand, it is here assumed (having, it is con-
 
 ACCORDING TO MILITARY USAGE. 1 17 
 
 ground of authority, and based it only on necessity; for, 
 after all, this practically resolves itself into the same ques- 
 tion, since that may reasonably be deemed necessary which 
 is usual in like cases. 
 
 At all events, assuming, what is admitted on all hands, 
 that there is a power in the Crown or the executive, whether 
 under the name of martial law or otherwise, to do all iliat 
 is necessary for the occasion, that amounts in substance to 
 a discretionary authority, for it is an authority to do all 
 that the executive, in their judgment, may deem necessary, 
 and it follows that according to all the analogies of ordinary 
 law they would not be liable at law for its honest exercise, 
 nor except for an abuse of it. For it is a general principle 
 that although even a Minister of State is legally liable (a) 
 
 ceived, been already demonstrated) that they are liable to the laws of war, 
 whatever they arc. What they are, it is conceived, is matter of evidence. 
 It is well established in our courts again, that when what is reasonable de- 
 pends on experience in a particular business or profession, evidence of per- 
 sons of experience therein is admissible, so that on the issue of necessity 
 the question would be in substance the same. " The point to be deter- 
 mined is not whether the defendant arrived at a correct conclusion, but 
 whether the occasion in question be exercised is reasonable judgment. 
 This is a question of fact, the decision of which appears to rest upon this 
 further inquiry, whether other persons exercising the same profession, and 
 being men of experience, would or would not have come to the same con- 
 clusion " (Lord Chief Justice Tindal; Chapman v. Walton, 10 Bingham's 
 Report, 63). Accordingly, in all cases involving military questions— not 
 turning OB the Articles — such evidence has been received. It appears to 
 follow from these premises that the opinion of military men of experience 
 and eminence as to what is martial law, and especially, for example, the 
 opinion of Buch a man as the Duke of Wellington, is, if not decisive of the 
 question, at all events worth that of all the lawyers in the world. 
 
 (a) Thus it was long ago held that a Secretary of State (in time of peace) 
 has no jurisdiction to grant a warrant to break open doors to search for 
 libellous papers; and such a warrant is illegal and void (Entickv. Carring- 
 ton, 2 Wils. 275). And so he was legally liable, that is, because under no 
 circumstances could he (in ordinary times and according to ordinary law) 
 do such an act But it is otherwise where there is a discretionary authority; 
 in such case there is an immunity except for abuse. A justice of the 
 peace is authorised to require sureties of the peace for a limited term, 
 according to his discretion, and need not bind the party over to the next 
 
 L2
 
 143 MARTIAL LAW, DISCRETIONARY POWER, 
 
 for an act in excess of his authority, as where, in ordinary 
 times, he does an act which, according to ordinary law, he 
 could not do at all ; yet, on the other hand, under ordi- 
 nary law the meanest magistrate or officer of justice is pro- 
 tected, if he acts honestly in the exercise of a discretionary 
 authority ; otherwise it is obvious that there would be no 
 safety in actions in the exercise of public functions, and no 
 one would be willing to act on them, the result of 
 which would be fatal to the great object of government, 
 the public safety. And if this immunity attends the 
 humblest officers of justice, how much more would it, in 
 law, be deemed to attend the exercise by the executive of 
 their high functions, from which all others derive their 
 authority. 
 
 The general principle (a) upon which legal immunities 
 
 sessions only (Willes v. Bridget, 2 B. & A. 278). The court, therefore, 
 refused to interfere with the discretion of magistrates in taking security 
 for keeping the peace {Rex v. Tregarthan, 2 Nev. and M. 379), still more 
 to punish him. There are numerous instances in which even under 
 ordinary law magistrates exercise a discretionary power, as in holding to 
 bail and the like ; and it is believed that it may be laid down as a general 
 principle that they are never liable except criminally for an abuse of such 
 an authority. The general principle on which these legal immunities 
 rests appears to apply to every case of a discretionary authority in peace or 
 war, and thus it has been applied in case of war, to captures, and therefore 
 no action will lie against a captor, even although the capture has been 
 declared erroneous and illegal (Le Caux v. Eden, 2 Douglas's Reports, 601). 
 That decision was put upon general principles applicable to captures by 
 land, and it was said that if such actions were allowed no one would make 
 captures, and the inconvenience would be intolerable. The principle, it is 
 manifest, applies a fortiori to the higher authorities, and accordingly these 
 very cases were cited in the Privy Council in the very case of martial law, 
 a case in which it was held that no action lies for an act by military 
 authority under martial law (Efyhinstone v. Bedrechaud, 1 Knapp's Privy 
 Council Cases). 
 
 (a) The general principle of law is to exempt from legal liability all acts 
 of persons in authority within their jurisdiction, or within the scope of 
 their office or duty. Thus, 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 prosecu- 
 tions whatever, except in the Parliament, for anything done by them
 
 ITS HONEST EXERCISE LEGALLY PROTECTED. 1 i9 
 
 rest, viz., tho public interest, which requires that those who 
 are called upon coinpulsorily, by the obligations of public 
 duty, to exercise functions more or less discretionary, 
 and which it is for the interest of the public should be 
 exercised freely, with a sense of perfect freedom and inde- 
 
 openly in court as judges; for the authority of a Government cannot be 
 maintained, mi!'.:* ///< greatest credit be given to those who are so highly 
 ntrusted with the administration of public justice, and it \rould be impossible 
 for them to keep up in the people that .submission to their judgments, 
 without which it is imposeSbh to execute the lawn with vigour and success, if 
 they should be continually exposed to prosecutions of those whose par- 
 tiality to their own classes would induce to think themselves injured" 
 (//itwli/is' Picas of Crown, B. 1, c. 72). 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 of Crown, c. 8, s. 74). If 
 be acts maliciously, indeed, without a chai'ge or information, he is liable 
 (Morgan v. Hughes, 2 T. R., 228). But they can only judge on the facts 
 laid before them, and if those facts give them jurisdiction they arc not 
 liable (Lowthcr v. Lord Radnor, 8 East, 173). Even ordinary justices of 
 the peace are not liable at law unless they act out of their jurisdiction, or 
 maliciously. 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 (Haioldus* Pleas of 
 Crown, B. 1. c. 72 ; Foster's Crown Law, 257). They are not liable if 
 they act 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 
 authority 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 prosecu- 
 tion" (Lord Tcutcrden, C. J., Oarnett v. Ferrand, 026). "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
 
 150 MARTIAL LAW, GROUNDED ON NECESSITY, 
 
 pendence of judgment, without fear of legal liability for 
 honest error, and which is applied by the law of England 
 even in ordinary times, under ordinary law, for the pro- 
 tection of the meanest of its ministers, appears to apply, & 
 multo fortiori, to those who exercise the highest functions 
 of the State, the functions of supreme executive authority, 
 upon which depend the safety of the State and the security 
 of all the rest. And, accordingly, so it has been held. 
 
 These doctrines are so deeply rooted in legal principles, 
 and so strongly based upon the solid ground of necessity, 
 
 and tried by juries, at the suit of individuals who may be dissatisfied with 
 Ms verdict" (ibid). If when a charge is before a magistrate, he does not 
 exceed his jurisdiction, he is not liable to action (Mills v. CoJlett, 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, I 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. No action 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 motive (Linford v. Fitzroy, 13 Q. B. rep. 230). Now it 
 would seem unreasonable that the humblest ministers of justice should 
 have such immunity, and not the minister or governor from whom they 
 derive their authority. It has been solemnly held by the Privy Council, in 
 a case most fully and most learnedly argued, that an act done flagrante 
 bello, or even non dum cessante bello, by a military commander or any 
 officer of Government holding a territory under a state of war, cannot be 
 the subject of prosecution in a municipal tribunal under ordinary law 
 (Elphinstone v. Bedrechaud, 1 Knapp's Privy Counsel Cases, 360). And 
 that case had so near an analogy to that of martial law, that the authorities 
 on that subject were brought before the court on the argument. The case 
 arose in a conquered territory, and it was urged that as the inhabitants 
 had been admitted to British protection they were entitled to the rights of 
 British subjects. And the whole argument turned upon this, that it was a 
 territory under military sway, notwithstanding that there were no actual 
 hostilities going on, and that under such circumstances municipal courts 
 of the country had no jurisdiction. Aud so the Privy Council held. There 
 is a notion among lawyers who arc not constitutional lawyers, that the 
 remedy for every alleged wrong is recourse to a jury ; but this, in cases of 
 acts of Government, would lead to the reductio ad absurdum, that acts 
 approved of by Parliament might be made subjects of punishment by the 
 verdict of a jury. The true constitutional principle, it is conceived, is that 
 acts of Government are the province of Parliament. It is a well-settled 
 principle that a party cannot have a remedy at law for an act of State
 
 INDEPENDENT OF FORMS OF GOVERNMENT. 151 
 
 that they are independent of forms of government or dif- 
 ferences of political constitution, and, at least, wherever 
 the principles of the common law of England prevail, 
 as in the United States of America (a), these doctrines are 
 fully recognised and firmly established. That is to say, 
 that whatever is necessary to maintain the peace and order 
 of society is lawful, and that a state of armed rebellion is 
 a state of war, and justifies recourse to the measures and 
 the laws of war, and that martial law is the law of neces- 
 sity, or the law of Avar resorted to of necessity, and that, 
 
 [Elphkutone v. Bedrechaud, 1 Knapp, 316), that is, for an act which the 
 Minister of the Crown had legal power to do. The remedy (such as it is), 
 is only against the Crown (Buron v. Denman, 2 Exch. rep. 184). That 
 WB8 an action by a foreigner against Captain Denman for seizure of hia 
 vessel under the order of the Governor of a colony, approved of by the 
 Secretary of State, and it was held not to be maintainable because, having 
 been adopted by the Government, it became an act of State {ibid.). 
 There the act was not within the authority of the Governor, but it had 
 been sanctioned afterwards by the Secretary of State, and it was held 
 then to have become an act of State; and it was implied that if it had 
 been within the authority of the Governor it would have been equally 
 so. Thus also in the recent case of Lilly 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. 
 
 (a) In no country are these doctrines as to martial law more fully recog- 
 nised or more fully expounded than in the United States, and that not 
 only by military or legal writers, hut by the highest constitutional autho- 
 rities. Thus the great Chancellor Kent lays down that martial law is 
 quite different from ordinary military law, that it is justified by para- 
 mount necessity, and proclaimed by a military chief (Kento Comm ntaries, 
 vol. i.)- So all the Law Dictionaries. Thus : " Martial law is a system of 
 rules for the government of an army, or allowed in time of actual war ; an 
 arbitrary kind of law or rule sometimes established in a place or district 
 occupied or controlled by an armed force, by which the civil authorities 
 and the ordinary administration of the law are either wholly suspended or 
 subjected to military power" (BurrdFa L<iw Dictionary, vol. ii., 70S ; New 
 York, 1851). "Martial law is simply military authority exercised in 
 accordance with the laws and usages of war" (Instructions to Army of 
 United States, cited in Bishop' i Criminal Law, s. 52). " Military jurisdie-
 
 152 MARTIAL LAW JUSTIFIED BY NECESSITY ; 
 
 therefore, it is absolute power wielded by military authority, 
 regulated by military usage, and subject ouly to military 
 discipline, and governed only by the broad principles of 
 justice, and not the formal rules of law. And while it is 
 admitted that it may be a tyranny, it is justified as a 
 temporary and necessary tyranny. 
 
 tion is of two kinds ; first, that which is confirmed and defined by statute ; 
 second, that which is derived from the common law of war. Military 
 offences under the statute law must be tried in the manner therein 
 directed, but military offences which do not come within the statute must 
 be tried and punished under the common law of war. The first is exer- 
 cised by courts-martial, while cases which do not come within the Articles 
 of War are of the jurisdiction conferred by statute or tried by military 
 commission." "Military law must not be blended, as it sometimes has 
 been, with martial law, which is an entirely different thing. Martial law, 
 as Blackstone truly says, is in fact no law. It is an expedient resorted to 
 in times of public danger similar in its effect to the appointment of a 
 dictator. The general or other authority charged with the defence of a 
 country proclaims martial law. By so doing he places himself above all 
 law. He abrogates or suspends at his pleasure the operation of the laws of 
 the land. He resorts to all measures, however repugnant to ordinary law, 
 which he deems best calculated to secure the safety of the State in the 
 imminent peril to which it is exposed" (Bishop's Criminal Law, s. 45). 
 " Martial law being thus vague and uncertain, and measured only by the 
 danger to be guarded against, it is only suited to those moments of 
 extreme peril when the safety and even existence of a nation depends on 
 the prompt adoption and unhesitating execution of measures of the most 
 energetic character. The constitution of the United States has wisely and 
 indeed necessarily permitted the proclamation of martial law in certain 
 specified cases of public danger, when no other alternative is left to pre- 
 serve the State from foreign invasion or domestic insurrection. But though 
 it is said to be nearly the same as no law, and despotic, yet there is room 
 for doubt whether this is so. It of course may suspend for the time the 
 civil courts, but there seems to be no reason why the new courts should not 
 consider themselves bound to govern themselves in their proceedings, as 
 far as the nature of the case will admit, by established principles of justice. 
 Nothing is plainer in principle than that neither military nor martial law 
 is justified in running riot. The doctrines of right should in no emergency 
 be violated, because no emergency can call for the commission of wrong. 
 Emergencies may demand new methods and prompt movements in execut- 
 ing the right, but never the subversion of right and the execution of 
 wrong" (Ibid). This is in substance what our courts have laid down, that 
 there ought to be the best inquiry the circumstances will admit of — a grave 
 and honest inquiry. This is exactly in effect what the Author laid down
 
 AND LEGAL, BECAUSE IT IS NECESSARY 
 
 The unsound and untenable nutiou (a) which lias 
 recently put forth in this country, even, upon high authority, 
 that, iu casts of emergency, the executive is to be left to 
 a wholesale, wilful, violation of the law, on the ground of 
 necessity, and that assuming martial law to be illegal, it 
 must, nevertheless, be declared and exercised, trusting to a 
 bill of indemnity, has never been recognised, but is wholly 
 repudiated and even reprobated. It is broadly laid down 
 that it is contrary to principle to recognise a right wilfully 
 to violate the law, and that the true principle is, that if it 
 is necessary it is lawful, and that the necessity for martial 
 law involves its legality. That is, not that it is lawful at 
 common law, for the common law knows of no necessity to 
 inflict death except in conflict or in self-defence, but that 
 common law recognises the lawfulness, in a state of war, 
 of a law — the law of war — under which it is lawful. 
 
 Assuming that by the common law of England there is 
 the power in the executive, either by virtue of a preroga- 
 tive founded on necessity, or of the necessity on which the 
 
 in his book, that the courts-martial were bound by the principles and broad 
 rules of justice, not the formal rules of law ; and it is just what the Royal 
 Commissioners laid down on the subject (vide post). 
 
 (a) " Whenever au act is necessary, in its legal sense of the word, it is, 
 because it is necessary, lawful, and the rule of necessity furnishes the rule 
 of law. Plainly, to commend an unlawful thing on the ground that it is 
 necessary, is to confound not only all legal distinctions, but all moral ones 
 also. Woe to our country if such gabble take* the place of legal doctrine " 
 {Bishop's Criminal Law, p. 54). " The truth is, that martial law is the 
 only kind of law which is adapted to those circumstances in which a reason- 
 able military power will ask it to prevail, and no people or portion of 
 people can exist even for a day without some kind of law governing them. 
 If the civil tribunals, in the best of faith, endeavour to stretch their prece- 
 dents, and adapt, their processes to the emergencies which call for martial 
 law, they so change the precedents which must govern afterwards, as to 
 render the jurisprudence of the courts untitled tor times of peace" (ibid). 
 These wise views were recently adopted by the Lord Chief Justice of Eng- 
 land in his charge in the Nelson case (vidi ante, p. 30). And it is to be 
 observed that, as Chancellor Kent shows, all the states of America in sub- 
 stance adopted the common law of England, aud hence American law books 
 are authorities in our courts.
 
 154- MARTIAL LAW IN THE COLONIES, 
 
 prerogative is grounded, to declare a state of war, arising 
 from rebellion, and to take such means and measures as a 
 state of war allow of, then, of course, in any foreign 
 dominions (a), colony or dependency, even assuming the 
 common law to be extended to it, there would be that 
 power in the executive, even without express power con- 
 veying it on the ground of the very same necessity, making 
 it a necessary incident of Government. And, accordingly, 
 as in Ireland, where the common law of England prevails, 
 this power of martial law has been recognised, regulated, 
 and restrained by acts of the Imperial Legislature ; so in 
 India, the greatest of our foreign dominions, even in the 
 Presidencies, where the common law has been more or less 
 
 (a) It is manifest, that if there has been a necessity in this country for 
 martial law in an age when the mass of the population was in a condition 
 of serfdom, and, therefore, in a state of constant disaffection, leading to 
 insurrection, this necessity is still more likely to arise in foreign do- 
 minions, where the mass of the population are not only in that condi- 
 tion, but are often actuated, in a great degree, by the jealousy of different, 
 if not hostile, races. Insurrections under such conditions are always the 
 most dangerous (vide Alison's Hist. Europe, vol. 1, p. 65), and the dispro- 
 portion of military force available for their suppression tends to augment 
 the danger. With regard to the law prevailing as to English subjects, 
 there is a loose notion, arising from a hearsay dictum (2 Peere Williams, 
 75) that British subjects carry with them the common law, at all events, 
 into colonies or places they first plant or settle ; but such cases are so rare, 
 that it is hardly worth while to discuss the question of law, as to which, 
 however, it will be found that this notion is untenable, and that the appli- 
 cation of the common law of England to a colony always requires an Act of 
 Extension (by the Home Government), or adoption (by the local State), 
 and never can possibly exist otherwise, seeing that it is primarily local, and 
 is the law and custom of England. This is the doctrine really laid down in 
 Campbell v. Hall, Cowpcr's Reports (vide post, 157). Accordingly, in 
 India, even in the Presidencies, the common law, so far as it prevails, even 
 as to British-born subjects, does so entirely by charter ( Williams v. Jones, 
 13 East's Reports, 439). And so, k fortiori, as to British subjects, alien in 
 birth, it appears to depend entirely on charter; thus it was that it was 
 taken for granted by the Privy Council that a contract between Hindoos in 
 India was governed by the common law under the charter, if Hindoo law 
 did not affect it (Thachoorscydoss v. Dhondu/l, 6 Moore's Privy Council 
 Cases, 30). And so as to Canada, the laws of England have been, in part, 
 applied there as they were in the United States (Leonard Watson's Case, 6
 
 OR FOREIGN DOMINIONS OF THE CROWN. 155 
 
 applied, this power lias been recognised and restrained ; 
 and in other districts under British dominion, to which the 
 common law has not applied, the exercise of this power in 
 the Crown appears to be universally allowed* 
 
 Such being the result of the review of the common law 
 or statute law of England with reference to the use or 
 exercise of martial law for the suppression of rebellion, it 
 may now be proper to consider its application to the 
 colonies or foreign dominions and dependencies of the 
 British Crown (a), in which, for obvious reasons, the sub- 
 
 Adolphus & Ellis's Reports; Loyan v. Mesurier, 6 Moore's Privy Council 
 Cases, 10<J). In India, even in the settled Presidencies, it has been 
 assumed that martial law was allowable, and it has been regulated by local 
 ordinance. In 1804, by Regulation X., the Government of India declared 
 that it may be expedient, in certain cases, that the Governor- General 
 should declare and establish martial law; and then it made provision for 
 the regulation of its service. This was put in operation, and in 1817 was 
 subjected to the comment and exposition of that sound lawyer, the late 
 Serjeant Spankie, the Advocate-General of Bengal, and it is printed with 
 his exposition in Hough's Military Laiv, ed. 1835. So in Mac Arthur on 
 Court-Martial, and Simmons on Court-Martial, all books of received autho- 
 rity on the British army, martial law is described as absolute military 
 power, applying to the whole of the inhabitants of the district. And apart 
 from any special ordinances, it has been always assumed by the Indian 
 Government that martial law was applicable to conquered or ceded terri- 
 tories, and its authority there has been affirmed by a decision of the Privy 
 Counsel (Elphinstone v. Bcdrcchaud, 1 Knapp's P. C. C.) as not subject to 
 municipal law. 
 
 (a) There is some confusion on the question, owing to some looseness 
 of expression in books, which can only be corrected by looking closely 
 to judicial decisions. There is no doubt that in a conquered colony the 
 Crown declares the law, until Parliament does so ; but that, until the 
 Crown or Parliament declares it, the old laws prevail. As to the other 
 case of a colony settled by our subjects, there are some loose dicta about 
 all the law of England prevailing there, which will be found, on examination, 
 obviously erroneous, and the true principle in such cases is the principle of 
 adoption. Thus, for instance, as to Jamaica, beyond all doubt it was a 
 conquered colony, and bo it was for the Crown to declare the law, and it did 
 so declare it by royal charter. In a case which arose as to a cause of action 
 (on a bond) arising in that colony, an English statute being pleaded— ; 
 before the charter -it was upheld that it was a conquered colony, and that 
 the inhabitants were governed by their own laws, to which it was rejoined that 
 it was governed by the laws of England; and in argument this was held bad,
 
 156 MARTIAL LAW IN THE COLONIES, 
 
 ject is of far more practical importance than it is likely 
 ever to be in this country. And here the first question 
 which arises is the law applicable to the colony or depen- 
 dency, and whether it is different from that of this country, 
 as to which the governing principle appears to be that the 
 laws of a colony or foreign dependencies are either those 
 which have been imposed by the Crown or Legislature 
 of England, or those which it has adopted for itself, the 
 general rule being that, for conquered colonies the Crown 
 declares or imposes the law ; and as to colonies settled by 
 British subjects, they are at liberty to frame their laws, and 
 as a rule usually, more or less, adopt those of England, 
 always with more or less of modification. 
 
 because the Court said the laws of England did not take place, though the 
 colony was conquered, until declared by the Crown; the Court apparently 
 not being aware of the charter of Charles II. They threw out that in case 
 ©fan uninhabited country, newly found out by British subjects, all laws in 
 force in England are in force there ; " so it seemed to be agreed ;" but that, 
 it is obvious, was obiter, and it is as obvious that it was erroneous {Blankard 
 v. Goldy, 2 Salkeld's Reports, 411). In a later case, in which the action was 
 for the price of a negro sold (in Virginia), it was held, in arrest of judgment 
 (in the time of Chief Justice Holt), that so soon as a negro comes into Eng- 
 land he becomes free — one maybe a villein in England, but not a slave— and 
 he added, that the plaintiff should have stated that the sale waa in Virginia, 
 and that by the laws of that country negroes are saleable, for the laws of 
 England do not extend to Virginia : being a conquered country, their 
 law is what the Crown pleases (Smith v. Brown, 2 Salkeld's Reports, 666). 
 There is a passage in Comyn's Digest, tit. " Ley," in which it is stated 
 broadly, "The common law is the inheritance of all the subjects of the 
 realm," and, therefore, in the plantations and elsewhere, where colonies of 
 English are settled, they are to be governed by the laws of England ; and 
 so, if a foreign territory not inhabited be obtained by the Crown of Eng- 
 land, all laws in England bind there," for which the above case is cited. 
 But this is only an illustration of the looseness of digests, for, as has been 
 seen, there never was any such decision in that case, but it was a mere 
 obiter dictum. And in another place in the same Digest, tit. "Naviga- 
 tion" (G. 3), it is said the laws of the plantations are the same by which 
 they were governed before their conquest or accession to England, except 
 where new laws are obtained since their conquest ; and if new laws are 
 given, then ancient customs, if not abolished, may remain, and, therefore, 
 a new statute, made since their conquest, does not bind them, unless they 
 be named, for which is cited a case in the 4th Modern Reports, 225. The
 
 WITn REFERENCE TO TIIE LAWS OF TTIE COLONIES. 1*7 
 
 Tliere is a loose notion (a) which cannot possibly, upon 
 legal principle, be tenable, that there arc colonies to which 
 the common law of England extern Is, whether or not it 
 has been applied to it. This notion is not tenable, because 
 the common law is eminently local and is the custom of the 
 realm. And the true principle appears to be that it must 
 either be adopted or extended, as in this country, where the 
 
 notion that in a settled colony the common law of England necessarily 
 prevails, cannot be tenable, for it id lex loci, it is defined as the "custom of 
 the realm," and it requires some act of adoption or extension. The loose 
 phiase that it is the inheritance of the English subjects will be found 
 really to mean this, that they ham a right to adopt it. For, otherwise, and 
 if they had not, if they pleased, a right to reject it, or modify it, then they 
 would not inherit the rights of British subjects. Hence, it will be found, 
 on examination of the history of the American colonies, that they, in 
 asserting that maxim, proceeded to adopt our law, as much of it as they 
 pleased ; and in Kent's Commentaries will be found mentioned their various 
 acts of adoption. It is manifest that in colonics like Virginia or Jamaica, 
 where slavery prevailed, it is impossible that our common law could have 
 been bodily introduced or could have necessarily applied, and that its 
 application, and the extent of its application, must have depended upon 
 acts of adoption or extension. There was a charter of Charles EL, " And 
 we do further publish and declare that all children of any of our natural- 
 born subjects of England to be borne in Jamaica shall, from their respec- 
 tive births, be reputed to be, and shall be, free denizens of England, and 
 shall have the same privileges, to all intents and purposes, as our free-born 
 subjects of England ; and that all free persons shall have libertic, without 
 interruption, to transport themselves and their families and their goods 
 (except only coyne and bullion) from any of our dominions and territories 
 to the said Island of Jamaica." 
 
 (a) Some strange misconception has recently arisen on this subject, and 
 the question, whether the law of England prevails in a colony, as dis- 
 tinguished from any foreign law, has been confounded with the question, 
 whether the common law of England in its fulness and entirety applies to 
 the colony. Except by force of some statute this is actually impossible, 
 for the very definition of our common law is the custom of the realm 
 (2 Inst. 98). The prior and primary question always is, whether the law 
 of England, whatever that may be applicable to a colony, prevails, or the 
 law of the colony previous to our acquisition of it, supposing it ool ] 
 by us. Hence in Campbell v. Hall, Cowp. 208, it is laid down that the 
 laws of a conquered colony continue in force until altered by the conqueror, 
 but that the Crown may alter its law and constitution; but that in a colony 
 acquired by title, the laws cannot be changed without the consent of Par-
 
 158 MARTIAL LAW IN THE COLONIES, 
 
 common law could not have its course. The fundamental 
 principle on the subject of the laws of our foreign colonies 
 and dependencies being, that if conquered or ceded, they 
 retain their own laws until altered, and if originally settled 
 by subjects of this country, they either receive such laws as 
 this country may impose, or make their own. In neither 
 case can the common law of England apply to the colony 
 except by force of some express law either local or Im- 
 perial. If the common law of England has been applied 
 to a colony, as it is the custom of the realm of England, 
 
 ] iamcnt. Of course the colony or dependency might receive the laws of 
 England either by the Crown or Parliament, and thus Ireland received the 
 common law. In other instances, as American colonies, the law was 
 adopted, and not by the extension of the common law. In Jamaica — clearly 
 a conquered colony — " the Crown, Lord Mansfield says, first appointed a 
 Governor and council only, and afterwards granted a commission to the 
 Governor to call an assembly." The constitution of every province imme- 
 diately under the King has arisen in the same manner, not from grants but 
 from commissions to call assemblies, and, therefore, that as at this time 
 there were only English settlers on the island, it was at its first settlement 
 a planted colony, from which, on the authority of Sir C. Yorke, he drew 
 the conclusion that the Crown could not change the laws without the assent 
 of the island assembly or Parliament." But that, it is obvious, left the 
 question quite open, what were the laws of the colony, and he says not a 
 word as to what they were, and does not suggest that they were the common 
 laws and customs of England. On the contrary, it is clear that they could 
 not be, but would be the laws imposed by the island legislature and the 
 Acts of the British Parliament, and both these from the first recognised 
 slavery, which has always been utterly hostile to English law, and, as a neces- 
 sary consequence, recognised as a regular part of its system of government, 
 the recourse to martial law on any appearance of public danger (stat. 33 
 Ch. II.), which, again, it has been seen, is utterly contrary to English law ; 
 and, in fact, where the institution of slavery exists, it must of necessity 
 taint all the laws. But, in truth, what Lord Mansfield said, in the case 
 cited as to Jamaica, which was entirely obiter, has been misunderstood, and 
 clearly comprises what is here stated. He takes it as an admitted fact of 
 history, that Jamaica was a conquered colony, but points out that after- 
 wards, as a new settlement, it came to have a constitution, which gave the 
 power of altering or settling the laws of the colony, so that the question 
 practically is, what are its laws, according to the laws of the colony, and 
 the usual rule applies that the later law prevails, and he lays it down as a 
 general rule, " The law and legislative government of every dominion 
 equally affects all persons and all properties within it, and the rule of deci-
 
 WITH REFERENCE TO THE LAWS OF THE COLONIES. 159 
 
 it can only be by force of some statute, either of the 
 colony or the Imperial Parliament, and in either case it is 
 certain to be largely modified by local laws. So that the 
 question practically is in each case, what is the law of the 
 colony as a matter of fact 
 
 The power of legislation in a colony upon this or any 
 other subject depends upon the prior question, whether it 
 is what is calif J a Crown colony or a conquered colony, 
 originally governed by the Governor or King in council, 
 or a constitutional colony to which, by charter or Act 
 of Parliament, has been granted a legislative assembly, 
 with power of legislation. In the case of a colony, how- 
 ever, originally a Crown colony, a constitution may be sub- 
 
 sion for all questions which arise there." And he goes on to show that 
 when colonics have legislative assemblies they settle or alter the laws. 
 And so on dicta to the like effect, as that of Lord Ellenborough, in R. v. 
 Bampton, 10 Exch. Reports, 288, as to St. Domingo, for that was a case as to 
 the validity of a marriage between British subjects there, and Lord Ellen- 
 borough says, " Considering it as marriage in a place where the law of 
 England prevailed, we may suppose that the law of England, ecclesiastical 
 and civil, was recognised by the subjects of England in a place occupied by 
 the King's troops, who would impliedly carry that law with them," i. e., 
 the law as to the celebration of marriage between British subjects, so that 
 a marriage celebrated there, according to the rules of this country, would be 
 observed and recognised. The writer has lately with some surprise seen 
 this cited as sustaining the stupendous proposition, that wherever English 
 troops go they cany the whole common law of England with them ; whereas 
 what was meant was, that they might adopt the law of England, and if 
 they did it was valid. A passage from Clark's Colonial Law, p. 7, is cited 
 to show thai in a colony acquired by occupancy the law of England then 
 is immediately in force, which is evidently founded on the obiter dictum 
 above cited, and is contrary to another proposition in the same work, that 
 English statutes passed prior to the acquisition of the colony do not 
 apply to it until afterwards applied by some act of legislation. In Kent's 
 Comment av let, vol. i., p. 523, it is stated, that the common law, so far as 
 applicable, was recognised and adopted by the constitutions of several States, 
 and that, it is conceived, is the true principle; and though he add-, it was 
 imported by our ancestors mfar at "/>/>li<-<r/>!c, and sanctioned by charters 
 and colonial statutes, the qualifying words themselves imply an exercise of 
 a power of selection and adaptation, and show that the real basis for the 
 application of the common law of England in any other country is some 
 act of extension or adoption.
 
 160 MARTIAL LAW IN THE COLONIES, 
 
 sequent ly granted. But in any case the question is, what 
 in fact have been the laws declared, or adopted, or ex- 
 tended ? In the case of a Crown colony, which will have 
 been a conquered or ceded colony, the question will be, 
 what laws the Crown has declared or established by ordi- 
 nance in council. In the case of a constitutional colony, 
 the question will be, what laws have been adopted or 
 framed by the Colonial Legislature. In the case of a colony 
 originally a Crown colony, and then having a constitution, 
 the question will be, first, what laws the Crown declared, 
 and then what laws the colony adopted (a). 
 
 Our foreign dominions or dependencies, excluding that 
 which has now become the Empire of India, but which 
 
 (a) Thus, in the case already cited, Campbell v. Hall, Cowper's Reports, 
 209-12, Lord Mansfield thus laid down the law generally : "No question 
 but that the king has a right of legislative authority over a conquered 
 country. In Jamaica, the king at first appointed a Governor and council 
 only, and afterwards he granted a commission to the Governor to call an 
 assembly. The constitution of every province immediately under the king 
 has arisen in the same manner, not from grants but from commissions to 
 call assemblies. In the year 1722, the Assembly being refractor}', it was 
 referred to Sir Ch. Yorke and Sir Clement Wearge to know what could be 
 done, and they reported, "that if Jamaica was still to be considered as a 
 conquered island, the king had a right to levy taxes upon the inhabitants ; 
 but if it was to be considered in the same light as the other colonics, no 
 tax could be imposed upon the inhabitants but by an assembly of the 
 island or by an Act of Parliament." On which Lord Mansfield observes, 
 " They considered the distinction in law as clear, and an undisputable con- 
 sequence of the island being in the one state or the other. Whether it 
 remained a conquest or was made a colony, they did not examine." He 
 then states his reasons for the latter opinion, and the real reason given 
 appears to be, that the king had granted a commission to summon an 
 assembly ; for though he says something about Jamaica having become 
 vacant and being resettled, he states that the Crown granted a commission 
 to call an assembly, and that the constitution of every colony has arisen in 
 the same manner, and he goes on to say, it arose as to Grenada, where the 
 Crown granted a commission to convene an assembly, so that the legisla- 
 tion over the island might be exercised by an assembly with the consent 
 of the Governor and council, instead of being vested in the Governor and 
 council. And this, he says, irrevocably took from the Crown (subject of 
 course to the legislation of the colony or Parliament) the power of legisla- 
 tion in council (ibid).
 
 r 
 
 HOW FAR DEPENDENT UPON THE COMMON LAW. I C 1 
 
 rather resembled a Crown colony on a large scale, Bfemg 
 thus divided into constitutional colonies (a), in which the 
 legislative power is in some sort of legislative assembly, 
 
 and Crown colonies, in which it is in the Crown or Governor 
 in Council, this does not appear in itself to make any dif- 
 ference in the executive powers and functions of Govern 
 which would appear to be dependent (except when affected 
 by Imperial Legislature), upon the powers and preroga- 
 tives of the Crown at common law, and, subject to any 
 local or Imperial legislation, — the present question of martial 
 
 (a) Our colonics, or, more correctly speaking, our dependencies, may be 
 geucrally divided, as regards their political institutions, into three cla 
 1. Dependencies possessing representative institutions under grant from the 
 Crown, usually by commission, sometimes by order in council or charter. 
 To this class belong Jamaica, and all the older British West India colonies, 
 all the North American colonies (except Canada and Newfoundland), the 
 Cape of Good Hope, and Malta. •_'. Dependencies of which the constitu- 
 tion has been established by Act of Parliament. An Act of Parliament 
 has been requisite in some eases to give representative institutions where 
 former Acts or other obstacles stood in the way ; in other cases, to establish 
 Crown or nominated council where thought expedient. To the first division 
 belong Canada, Newfoundland, the Australian colonies generally, and New 
 Zealand; to the latter, Western Australia, the settlements on the West 
 Coast of Africa, St. Helena, Hong Kong, tiie Falkland Islands, and the 
 countries of the East India Company. 3. Dependencies (originally ob- 
 tained by conquest) for which the Crown retains the power of legislation, 
 and which are properly called " Crown Colonies." They are now these, 
 Gibraltar, Heligoland, Labrador, Ceylon, Mauritius, Natal, British Kaff'raria, 
 Trinidad, St. Lucia, and perhaps British Guiana. Laws passed in those 
 dependencies in which representative governments exist were called 
 "Acts;" the laws passed in those in which it does not exist are called 
 "Ordinances." Ordinances are simply confirmed or disallowed by the 
 Crown, the pleasure of the Crown being signified by the Secretary of 
 State. In every British dependency the personal authority of the 
 Sovereign is represented and executed by the Governor, who i< temporarily 
 appointed by Boyal Commission, lie has the prerogative of summoning 
 and dissolving Legislative assemblies, of veto on all their bills, of reprieving 
 and pardoning under certain restrictions, of suspending for misconduct all 
 officers, civil, naval, and military, in his colony. He is V ire Admiral 
 within the limits of his government. lie is also Captain-General and 
 Commander-in-Chief in all colonies, except those in which the command 
 of Her Majesty's forces may be specialy committed to a military officer of 
 the rank of Colonel (AYrr's Black&lone, vol. i., p. 92). The Governors of 
 
 M
 
 162 MARTIAL LAW IN THE COLONIES, 
 
 law, or measures for the suppression of rebellion, appears 
 to resolve itself into the question already discussed as to 
 the common law powers and prerogatives of the Crown for 
 the suppression of rebellion. 
 
 The present question is, it is manifest, one which so en- 
 tirely depends upon necessity, which overrides all positive 
 laws, and, on the other hand, limits all general powers, that 
 practically it would not probably be much affected either 
 by the question, whether or not the common law applied 
 to the colony (a), or by the question, whether or not there 
 
 all the colonics except two are aided in the discharge of their duties by an 
 executive council " (ibid). The question, therefore, of the power of the 
 Governor, as the Governor appears to possess all the prerogatives and 
 powers of the Crown so far as necessary to carry on the government and 
 perform the duties of government, the first of which is the maintenance of 
 peace and order, appears to turn upon the powers and prerogatives of the 
 Crown at common law. For so far as they are necessary to government, 
 they do not appear to have been abridged, and the Governor of a colony 
 could have no other or greater powers, while at the same time he must 
 possess all those which are necessary to government. 
 
 (a) Some importance appears to have been attached to this in consider- 
 ing the present question ; and, of course, assuming that the common law 
 does apply, and that it forbids martial law in any emergency however 
 terrible, and even in the last convulsions of a State, it is important; but 
 then such a contention as that appears not only opposed to all authority, 
 but to be absolute absurdity. And it has been admitted on all hands that 
 the common law authorises all that is necessary. So that the question 
 practically resolves itself, always and everywhere, into one of necessity for 
 the declaration of martial law. As so much has been said about the 
 Petition of Eight, it may be observed here that as to a colony, that must 
 be immaterial except as evidence of what the common law is ; for it is 
 simply declaratory of the common law, and only applies where the common 
 law already applies ; and therefore the prior question is, whether the 
 common law applies ; and if it does, it is quite immaterial to consider 
 whether a law merely declaratory of it applies, except as showing what it 
 is. On the other hand, if the common law does not apply, it is impossible 
 that the Petition of Right can apply, especially as it is in terms confined, 
 as the common law primarily is, to the realm of England. As already 
 seen, the common law cannot apply to a colony without some act of assimi- 
 lation, either by adoption or extension, as the case may be. For it is 
 ntially local: it is the custom of the realm — it is the law of England. 
 Assuming the common law to apply to a colony, then the Petition of 
 Bight is evidence of what it was; but as the common law may be altered
 
 ALWAYS JUSTIFIABLE BY NECESSITY. 169 
 
 was any special law or ordinance on the subject in the par- 
 ticular colony. For, on the one hand, whether or not the 
 common law does, as it is conceived it does, authorise mar- 
 tial law in time of rebellion, it at all events authorises, it 
 is admitted, all that is necessary ; and therefore martial 
 law, if it be necessary, and of course if the common law 
 did not apply, it is not likely that the law prevailing would 
 allow of less ; and, on the other hand, whatever may be the 
 local law in the colony, it could not be considered by the 
 Crown as authorising any measures which were not neces- 
 sary. 
 
 But undoubtedly it has been assumed, both by colonial 
 legislatures (a) and by the British Crown, that there was 
 
 by statutes, the common law, whatever it may be as to martial law, avails 
 nothing against a local statute ; for the great object of statutes is to alter 
 the common law. On the other hand, if there be no local law upon the 
 subject, since martial law is based on necessity, and on the great law of 
 social self-defence, it is equally lawful, whether the common law applies or 
 docs not apply. But, in terms, the Petition applies to the Realm. 
 
 (a) Thus, for instance in Jamaica, not long after the Petition of Right, 
 which declared the common law, and alter the Royal proclamation to the 
 inhabitants of that colon; which applied that law to them : not long after 
 this, an Act passed in Jamaica which plainly implies and assumes that at 
 common law there was a power of declaring martial law in time of actual 
 rebellion, and conferred a further power of declaring it in time of appre- 
 ! rebellion, only then properly limiting and restraining it. That 
 was an Act of the 33rd Charles II., long since repealed, which contained 
 the following provision : — "On every apprehension and appearance of any 
 public danger or invasion, the Commander-in-Chiet do forthwith call a 
 council of war, and with their advice and consent cause and command the 
 Articles of War to be proclaimed at Port Royal and St. Jago de la Vega, 
 from which said publication the martial law is to be in force; and then it 
 shall and may be lawful for the said Commander-in-Chief to command the 
 persons of any of His Majesty's liege people, as also their negro* 8, horses, 
 and cattle, for all such services as maybe for the public defence, and to 
 pull down houses, cut down timber, command ships and boats, and gene- 
 rally to act and do with all full power and authority, all such things as lie 
 and the said council of war shall think necessary and expedient for His 
 Majesty's service and defence of the island." Another section say- ; 
 "Nothing within this Act or any clause therein contained shall be deemed, 
 construed, or understood to give any Captain-General or Commander-in- 
 Chief any power or authority for the sending any person or persons off this 
 
 Iff 2
 
 164 MARTIAL LAW IN THE COLONIES, 
 
 this power of declaring martial law in cases of imminent 
 emergency and evident necessity ; and it has also been 
 assumed that, martial law, or the law of war, being, on 
 the one hand, in its own nature necessarily and essentially 
 absolute, and, on the other hand, only applicable in a state 
 of war or actual rebellion ; it is, therefore, necessary to 
 provide by statute or express regulation, either for its appli- 
 cation in a more or less mitigated form, in the case of 
 apprehended rebellion, or to limit and restrain its exercise 
 in the case of actual rebellion. In this country, as it has 
 
 island against their will, or to do any other act or thing contrary or repug- 
 nant unto the known laws of England or this island." This Act, it will 
 be observed, speaks of the law martial as a law then known and understood, 
 and as implying, in rebellion, the extension to the population at large of the 
 laws and rules of war, usually applicable only to soldiers. And the Act 
 proceeds to extend this to cases of apprehended rebellion, only providing 
 that the statute shall not be deemed to authorise anything contrary to the 
 law of England, which at that very time authorised this martial law in 
 time of actual rebellion, according to the authority of Pry tine's Animad- 
 versions upon Coke's Fourth Institute, in reference to a pardon issued to the 
 mayor and citizens of Dublin on account of certain torts committed by 
 them with the object of preserving the city of Dublin from certain rebels. 
 Prynne says: -"Had the mayor and citizens of Dublin been military 
 officers commissioned by the King to garrison and guard the city against 
 rebels, their case had been stronger in point of law, there needing no 
 pardon in such a case as that." And that this was law in Jamaica was 
 clearly established a century ago. And in Chahner's Opinions, p. 268, we 
 find an opinion of the Attorney and Solicitor-General of England in 1757, 
 in which, when a question was raised as to the effect of the proclamation of 
 martial law in Jamaica in suspending the functions of the council, they 
 said, " We have taken the same into our consideration, and are of opinion 
 that there is no foundation for the notion of the council that the proclaim- 
 ing of martial law suspends the execution of the legislative authority, 
 which may and ought to continue to act as long as the public exigencies 
 require ; nor do we apprehend that by such proclamation of martial law 
 the ordinary course of law and justice is suspended or stopped, any further 
 than is absolutely necessary to answer the then military service of the 
 public and the exigencies of the province" — which of course is quite clear. 
 Then the 9th Vict., c. 35, authorised the Governor, with the advice of a 
 council of war, to proclaim martial law for thirty days. This Act did not 
 define what was meant by "martial law," which therefore must be taken 
 in the sense defined by law, and in the Petition of Right, as " such sum-
 
 HOW FAR REGULATED BY STATUTE. 1 f>5 
 
 not been required for some centuries, such acts have not 
 
 been deemed u< coss.uy, as they have in the sister country, 
 and in some of our foreign colonies or dependencies. 
 
 As regards any of these local acts, orders, or regula- 
 tions («), it is to be observed that while, <>n the one hand, as 
 they give powers which would not be conferred by the com- 
 mon law, to declare martial law, in cases not of actual 
 but apprehended rebellion, they are, like all other legislative 
 Acts, confined in their operation within the restrictions im- 
 posed by statute ; on the other hand, where they give in 
 
 mary justice as is used in armies in time of war." This Act recites (s. 96), 
 " That the appearance of public danger by invasion or otherwise may 
 sometimes make the imposition of martial law necessary; yet, as from 
 experience of the mischief and calamities attending it, it must ever be 
 considered as among the greatest of evils;" and enacts, "That it shall 
 not in future be declared but by the opinion and advice of a council of war. 
 And then (s. 97), that the Governor shall be authorised, with the advice 
 of a council of war, in the event of disturbance or emergency of any kind, 
 to declare any particular district or county under martial law ; just as in 
 the Irish Rebellion Act provision is made for the same end, so as to 
 render martial law legal, although the whole course of law was not utterly 
 stopped all over the country. 
 
 (a) Thus the Indian Regulation Act of 1S11 recited that it was ex- 
 pedient in certain cases that the Governor-General in council should 
 declare and establish martial law, for the safety of the British possessions, 
 by the immediate punishment of persons owing allegiance to the British 
 Government who may be taken in arms in open hostility to the Govern- 
 ment, or in the actual commission of any overt act of rebellion, or the act 
 of openly aiding and abetting the enemies of the Government within its 
 territories, and enacting that the Governor- General shall have power to 
 declare martial law in any district, and of directing, among other things, 
 trial by court-martial of persons in such cases (Hough's Military Law, 
 p. 350). So the Jamaica Act, 9 Vict. c. 35, s. 96, recites that the appearance 
 of public danger, by invasion or otherwise, may sometimes make the im- 
 position of martial law necessary; yet as from experience of the mischief 
 and calamities attending it, it must ever be considered as among the 
 greatest of evils ; ami then enacts that it shall not in future be declared or 
 imposed but by the opinion and advice of a council of war; and that at 
 the end of thirty days it shall ipso facto determine, unless continued by 
 the advice of a council of war; and further, that the Governor shall be 
 authorised, with the advice of a council of war, in the event of disturbance 
 or emergency of any kind, to declare any particular district under martial
 
 1G6 MARTIAL LAW IN THE COLONIES, 
 
 general words the power of declaring martial law, which 
 will probably be done in terms framed in analogy to com- 
 mon law, and laying down the true principle, those general 
 words will not probably enlarge the power as regards 
 British subjects, in Crown colonies or otherwise, beyond 
 the common law power ; that is, beyond the power of 
 declaring martial law in time not only of actual rebellion, 
 but rebellion so formidable as to require the extraordinary 
 power of martial law, and raise a real case of necessity. 
 
 On the same principle on which in this country the 
 Crown could, and does by prerogative, issue commissions 
 of lieutenancy, under which military force can be raised and 
 embodied if necessary, for the suppression of rebellion, the 
 Crown can, and does by prerogative, issue commissions of 
 lieutenancy or vice-royalty to Governors of colonies, or 
 foreign dependencies, which confer the power of govern- 
 ment, and necessarily, as incident thereto, confer the power 
 of issuing such commissions, and calling out such military 
 force as may be necessary for the defence of the colony 
 from invasion, insurrection, or rebellion, and as incidental 
 thereto, of declaring and exercising, if necessary, martial 
 law (a). 
 
 law. Now, this taken together, would not authorise martial law literally in 
 any disturbance, nor authorise its continuance even within the thirty days 
 beyond the necessity. For that would be construing a statute, in the 
 nature of a penal statute, literally, beyond its evident scope and spirit, 
 which would be plainly contrary to legal principle ; and therefore martial 
 law would only be justified by such a case of emergency as would justify it at 
 common law ; and it would be requisite to stop it so soon as the necessity 
 ended. Thus the Royal Commissioners in the Jamaica case went very 
 carefully into the case of necessity, although the terms of the Act, as to the 
 declaration of martial law, had been strictly observed ; and they, and the 
 Secretary of State, arrived at the conclusion that the Governor had power, 
 even within the thirty days, to determine the operation of martial law, or 
 at all events its practical execution. 
 
 («) Thus, in Bradley v. Arthur, 4 Barn wall and Cresswell's Reports, 309, 
 the Court of Queen's Bench held, as matter of law, without calling for the 
 commission to examine its terms, that a Governor of Jamaica could neces- 
 sarily, by virtue of his commission, from its very nature, and without ex- 
 press terms, issue a commission of lieutenancy for the use of military
 
 HOW FAR RECOGNIZED BY STATUTE. Ki7 
 
 Indeed, in the colonies and foreign dominions or depen- 
 dencies of the British Crown, there is special and permanent 
 provision made by the legislature, which, according bo 
 the opinions of a sound commentator, in an approved text- 
 book of military law, virtually authorises the application of 
 martial law, Avhenever a rebellion paralyses the civil power. 
 For there is an enactment that whenever the civil judica- 
 ture is not in force, soldiers shall be amenable to courts- 
 martial for crimes or offences for which they would in this 
 country be triable by ordinary common law ; and as soldiers 
 are citizens, and no more liable to military law than any 
 other class, except on the ground of necessity, there seems 
 no reason in sound sense why, when the civil judicature is 
 suspended by rebellion, such crimes should not be generally 
 
 force. In that case the Governor of Jamaica had issued a commission to 
 an officer to command such of His Majesty's suhjects aa were armed, or 
 might thereafter arm, for the defence of the settlers in the Bay of Honduras, 
 a dependency of Jamaica. And the court said it was perfectly legal as a 
 matter of law, necessarily from the very nature of a commission as Governor. 
 " The Crown exercises its judgment as to the persons who, from time to 
 time, shall have the command in particular places, and the person who 
 under the Crown is entrusted with the care of a whole province, must, from 
 time to time, say who shall exercise military command within any part of 
 that district " {Bradley v. Arthur, 4 B. & C. 309). It was urged that the 
 Crown had no power thus to grant the power to give commissions, but the 
 court said, ' ; That looking at the Articles of War, it appeared to be taken 
 for granted that the Crown had this prerogative; and that not only the 
 Crown itself, but also under certain circumstances the Governor may grant 
 commissions and make appointments ; and in many cases it must be essen- 
 tial and necessary that some person should be so appointed " (ibid). Now 
 here, aa the terms of the Governor's commission do not appear to have been 
 required or referred to, this must have been held as a matter of abstract 
 law, and a necessary incident of the power of government. And so it 
 seems to be in principle, looking to the very object and origin of govern- 
 ment, and the prerogative of the Crown, as already explained. And as 
 upon this principle it is within the power of a Governor to issue commis- 
 sions to raise and embody military force to defend the colony from invasion 
 or rebellion, so, on the same principle it would be within his power to 
 declare martial law if necessary, for the suppression of rebellion, or the 
 defence of the colony, that being one of the prerogatives of the Crown, 
 because necessary for those purposes; i. c, u-fun so necessary.
 
 168 MARTIAL LAW IN THE COLONIES, 
 
 triable and punishable by military tribunals, at all events if 
 connected with the rebellion. And this, which at all 
 events is in accordance with the spirit and principle of the 
 enactments alluded to, appears to be the principle upon 
 which martial law is declared in a colony, and applied to 
 all classes, at all events as to crimes committed in the rebel- 
 lion ; the principle being that men in arms in rebellion are 
 soldiers, or liable by their own act to be treated as such (a). 
 Independently of the formal legality of martial law, and 
 treating the question more generally as one of necessity, 
 
 (a) The 143rd Article of War, entitled " trial of civil offences by court- 
 martial in places within our dominions beyond seas where there is no civil 
 judicature." Any officer or soldier who may be serving in any place within 
 our dominions beyond seas (except India) where there is no civil judicature 
 in force by our appointment, or by our authority competent to try such 
 offenders, and who shall be accused of treason or of any other civil offence, 
 which, if committed in England, would be punishable by a court of ordinary 
 criminal jurisdiction, and not by a court-martial, shall be tried by a general 
 court-martial appointed by the officer commanding-in-chief in such place, 
 and if found guilty shall be liable, in the case of an offence, which, if com- 
 mitted in England, would be capital, to suffer death, or such other punish- 
 ment as shall be awarded ; no such punishment to be carried into effect 
 until confirmed by him. Now, in the first place, as to soldiers, this enact- 
 ment would seem to apply where, although there is some civil judicature 
 established, its jurisdiction is suspended by rebellion. And that is the 
 view taken of it in Simmons on Court-Martial, 98, where he says, " Such a 
 case arises on the proclamation of martial law " (i. e. as he doubtless means, 
 on the state of things which alone allows of it), " for the jurisdiction of the 
 courts of civil judicature being superseded, it is not in force, and con- 
 sequently the jurisdiction of courts-martial arises over civil crimes com- 
 mitted by soldiers." Now this, be it observed, is just as opposed to the 
 ordinary law in the case of a soldier as of a civilian. For the Mutiny Acts 
 only apply to military offences, as mutiny, not rebellion or treason. And 
 if these cases come under the enactment in question by reason of rebellion 
 superseding the civil tribunals, then in the first place that makes it just as 
 applicable in principle to civilians, and on the principle on which the pro- 
 clamation of martial law at common law, cither as to soldiers or civilians, is 
 justifiable, so, as a man in arms against his Sovereign has always in law 
 been deemed guilty of levying war, he is in law liable to be treated as a 
 soldier, for it would be absurd to put the loyal soldier of the Crown in a 
 worse position than a rebel. Hence, upon strict legal principles, Lord 
 Brougham, in the case of Smith, in Dcmerara, laid it down that the procla- 
 mation of martial law renders every man (i. e. every rebel) liable to be
 
 JUSTIFIABLE BY NECESSITY. Wtt 
 
 tliere is abundant ground for laying it down, not only upon 
 legal principle but judicial authority (a), that the Governor 
 of a colony, in a great emergency and in a season of 
 imminent public peril, may safely resort to such measures 
 as may be honestly and reasonably deemed necessary for 
 the public safety ; ami whether, under the name of " mar- 
 tial law," or in the name of necessity, he may take all 
 measures as are necessary for the repelling of invasion or 
 the repression of insurrection ; but then, as practically such 
 measures must be the measures of war, whether measures 
 
 treated as a soldier; a proposition, however, which perhaps would be more 
 accurate if it ran thus: that the taking arms against the Crown renders 
 every man liable to be treated as a soldier, and, therefore, brings him under 
 martial law (and, of course, those who got others to do so or aided them in 
 their rebellion, would come virtually under the same rules); and this is the 
 view taken by Simmons, who, citing that doctrine of Lord Brougham, says 
 it brings the supposed rebels under the above enactment, and renders them 
 liable to be tried by court-martial for rebellion; although at the same time 
 the sentences — by virtue of that article — must be according to English law. 
 And this does not seem in the least to depend upon any distinction 
 between a Crown colony and any other, for a British subject, soldier, or 
 civilian has in any of the Queen's dominions his rights as such, and 
 the above enactment applies to any of the Queen's dominions. 
 
 (a) This was remarkably illustrated in the great case of M ostyn r.Fabrigas, 
 Cowper's Reports, 173, which has been singularly misunderstood. It was 
 an action against the Governor of Minorca ; and he pleaded that the 
 plaintiff was guilty of a riot and endeavouring to raise a mutiny among the 
 inhabitants ; but on the evidence it appeared that the Governor seized the 
 plaintiff without any trial, and caused him to be imprisoned, without any 
 reasonable or probable cause, or any of the matters alleged in the plea, or 
 any act tending thereto ; so that it was a mere act of wanton violence and 
 oppression, and it must be taken that there was no riot and no mutiny, and 
 mi pretence or excuse for what took place. And the language used by 
 Lord Mansfield plainly implies that his judgment turned upon that ; and 
 that if the plea had been proved, it would have been good in law. For the 
 plaintiff's counsel said, " It is contended that the Governor governs as 
 absolute sovereigns do. From whom does he derive this despotism ? Not 
 from the king ; for the king has no such power, and, therefore, cannot 
 delegate it to another. He did not sit either as a military or civil judge ; 
 he heard DO accusation, he entered into no proof, but in direct violation to 
 all laws, and in violation of the first principles of justice; he followed no 
 rule but his own arbitrary will, and went out of his way to prosecute the 
 innocent. If that be so, he is responsible for the injury he has done. He
 
 170 MARTIAL LAW IN THE COLONIES, 
 
 of restraint or repression, they resolve themselves really 
 into martial law, which is neither more nor less than the 
 law of war. 
 
 The legality of martial law, assuming it to have been 
 declared and exercised under an honest, that is a sincere 
 and reasonable belief, of its necessity for the public safety, 
 is established, at all events in a practical sense, and in 
 the ultimate result, by virtue of known principles of law. 
 For the only way in which the parties executing it can be 
 rendered criminally responsible in such a case, even for 
 
 could no more imprison him for a year than he could torture him. And 
 Lord Mansfield said, " If the justification had heen proved, the court might 
 have considered it a sufficient answer ; and if the nature of the case would 
 have allowed of it, might have adjudged that the raising of a mutiny was a 
 good ground for such a summary proceeding." " I can conceive cases in 
 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 inhabitants out of the island, 
 from motives of real and general expediency ; or, suppose 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 case." 
 To lay down that a Governor is accountable only to God and his own con- 
 science, and 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 doctrine that cannot be maintained." The other passages in that cele- 
 brated judgment plainly imply that if rebellion had existed it would have 
 been a defence. That too, be it observed, was an action, in which it is 
 always a question of strict legal justification. It is not so in criminal pro- 
 ceedings. " It is certain no man ought to suffer criminally for an error in 
 judgment" (Lord Chief Justice de Grey, Mellor v. Scares, 2 William, 
 Blackstone's Eeports, 1144), though the party may be liable in an action to 
 make compensation (ibid). The case of SulJierland v. Murray (cited by the 
 Court of Error in Johnstone v. Sutton, 1 T. R. 538), is, it was said, " strong 
 to show that a person representing the king in all functions, civil and mili- 
 tary, 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-Admiral, and had maliciously, and without probable cause, suspended 
 the plaintiff, who recovered large damages." There the act which caused 
 the mischief was the Governor's own act, (2) it was in time of peace, (3) it 
 was without reasonable cause, (4) it was wilful and malicious. Liability, 
 under the circumstance of all these conditions, is far from involving liability
 
 ITS LEGALITY WITH REFERENCE TO NECESSITY. 17 1 
 
 deaths indicted, is by indictment for murder (a), on which 
 the question, even in strict law, will be not the bare legality, 
 or legal authority of martial law, but the colour of 
 authority ; and the honest belief in its existence, or, what 
 
 under conditions totally different, and, indeed, the opposite in every re- 
 spect, and the judgment of the Lords rather goes to negative it. In an 
 action, on a plea of justification, it is, of course, a question of strict legality ; 
 on an indiotment for a felony, it is a question of malice or had motive, 
 which no doubt La sustained by showing wilful or careless illegality ; and in 
 ordinary times this might, in most cases, be presumed or implied from 
 illegality. But in a criminal case it must be shown that there was a bad 
 Intention, and we find that well-known principle of the law r expressly laid 
 down in Foster's Crown Law, in which, after saying there must be malice 
 either express or implied, he says, " I believe most, if not all, the cases 
 which in our books are ranged under the head of implied malice, will, if 
 carefully adverted to, be found to turn upon this single point, that the fact 
 hath been attended with such circumstances as carry in them the plain in- 
 dications of an heart regardless of social duty, and fatally bent upon mis- 
 chief." Therefore, although in ordinary times, illegality which would sup- 
 port an action would probably support an indictment, if there were serious 
 bodily injury or death, it would not necessarily be so in time of rebellion. 
 If there is no rebellion, then illegality is presumed to be wilful, and wilful 
 illegality goes to show bad intent. As in the case of Wall v. Maetumutra, 
 1 Term Reports, 536, and the cases there cited. Governor Wall, the plain- 
 tiff in that case, was afterwards hanged for flogging a soldier to death, but 
 there was no mutiny, and a murderous intent was proved ; and the sentence 
 was not death ; and it was really a murder under colour of a sentence to 
 flogging. So in a case cited by Heath, J. W., 4 Taunt. Reports, 70, where 
 act ion was brought against the officers of the Devon Militia for inflicting 
 1,000 lashes, in consequence 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- 
 mart ial would have been liable to be hanged (ibid. 77). But these were 
 cases of illajal punishment under ordinary law, and merely under colour of 
 military authority. So in Fryc v. Oylc, 4 Mc Arthur on Court- Martial, p. 
 269, the plaint ill' had been guilty of no offence at all (Laurence, J., 4 Taunt. 
 56). So in Warden v. Bailey, 4 Taunt. 60, where no mutinous expressions 
 were heard, and no military offence committed ; and it was in time of 
 peace, and Laurence, J., expressly distinguished a case in time of war and 
 in face of the enemy (ibid). 
 
 (a) On an indictment for murder, the question is not mere legality but 
 felonious malice; and this is not proved by mere illegality, ami at all 
 events is negatived by proof of colour of authority, from which legality 
 might honestly be inferred. There is no case put in the books as one of
 
 172 MARTIAL LAW IN THE COLONIES; 
 
 would come to the same thing, an honest belief in its 
 necessity. And even in civil actions, on principles already 
 explained, there might be a legal justification on the 
 ground of necessity, if not on the ground of the honest 
 belief in it. 
 
 murder on account of the absence of authority, in which it was not to be 
 inferred that the party was aware of the illegality. Thus in Foster's Crown 
 Law, after saying there must be malice either express or implied, he 
 says, "I believe must, if not all, the eases which in our books are ranged 
 under the head of implied malice, will, if carefully adverted to, be found 
 to turn upon this single point, that the fact hath been attended with such 
 circumstances as carry in them the plain indications of an heart regardless 
 of social duty, and fatally bent upon mischief." So in East's Pleas of the 
 Crown, speaking of the responsibility of the judge who pronounces, and of 
 the officer who executes, a sentence, that writer says : — "If the person 
 who pronounced the sentence had no colour of authority at all, it is un- 
 doubtedly murder in him and in the person who knowingly executed such 
 a sentence. But if there be but slight colour, and the judge acted bona 
 fide, and under a belief, though mistaken, that he had competent juris- 
 diction, he could not, I think, be guilty of murder." The same principle 
 has been followed in judicial decisions. This seems the meaning of Lord 
 Chief Baron Macdonald in Governor Wall's case, which has been of late 
 strangely perverted. It was a case (according to the evidence as believed 
 by the jury) of an infliction of flogging (for a supposed mutiny), with such 
 severity as to show that it was intended to cause death, which of course 
 would be murder, for the sentence was not to death, and the intent was to 
 cause death, so that there was guilty illegality and actual murder. Yet 
 even in such a case as that the said Chief Baron laid it down, " When a 
 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 not in a position for getting 
 assistance and advice ; and if in those circumstances he should be some- 
 what thrown off the balance of his understanding, and does not exceed 
 greatly the line of his duty, allowance for such circumstances ought to be 
 "iven 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, 143). 
 It is true it is laid down in Russell on Crimes, that if any person wilfully 
 and illegally puts another person to death, that act is, prima, facie, murder 
 unless it can be reduced cither to manslaughter or excusable homicide, the 
 proof of which lies upon the party who caused the death. But to recon- 
 cile this with the authorities, it must be supposed that the illegality is
 
 LEGAL IMMUNITY IN ITS EXERCISE. L73 
 
 The greatest judge (a) and the greatest statesmen, have 
 equally laid it down, that the conduct of Governors or 
 others in authority in distant colonics or depend D 
 acting, not as private individuals, of their own mere motion, 
 
 wilful. So even in an action, in which the question i.- legality, the 
 existence even of reasonable grounds tor believing a necessity may amount 
 to a justification. This was remarkably illustrated in the case of Wall v. 
 Macnamara, cited 1 Term. rep. 536, an action against the Lieutenant- 
 Governor of Senegamhia, 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, 
 hut was aggravated by many circumstances of cruelty. Lord Mansfield 
 said : " In trying the legality of acts done by military officers in the exer- 
 cise of their duty, particularly 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 The principal inquiry to be made by a 
 court of justice is, Turn the heart stood. And if there appears to be nothing 
 wrong there, great latitude will be allowed for misapprehension or mis- 
 take. 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 justification, the most 
 technically regular, from the punishment which is due to so scandalous an 
 abuse of public trust." Cockburn, 0. J., in his charge in Nelson's case, 
 said :— " Therefore, if you should be of opinion that this case is one in 
 which the want of jurisdiction is either established, or is so far left a matter 
 of question as that you think those who have exercised it ought to justify 
 what they have done before a jury of their countrymen in an English court 
 of justice, where every question will he carefully sifted, and the law care- 
 fully ascertained and determined upon the most mature judicial delibera- 
 tion, then, I say, however sorry we may he that gentlemen who have 
 intended to do their duty, and who believed themselves to have been 
 acting under a valid authority, should he made amenable at the bar of a 
 criminal court tor the crime of murder; yet, if they have taken upon them- 
 selves to put a fellow-subject to death without lawful authority, they must 
 be content to stand by the consequences of what they have done. If, in 
 the exercise of an assumed power, they have, in putting this man to death, 
 done that which the law will not justify them in doing, they musl he 
 amenable to the laws of their country." But this language, it will bo 
 seen, is studiously vagne, and only meant that the bill should be found. 
 
 (b) Thus in Wall's case, Chief Baron Macdonald said : " The case seems 
 to me to be of peculiar importance ; for, on the one hand, as the Attorney- 
 General has most liberally and most sensibly said, when a well-intentioned
 
 174) MARTIAL LAW IN THE COLONIES; 
 
 but in the discharge of great public duties, and the exer- 
 cise of the greatest of all public trusts, the trust of govern- 
 ment, are to be protected, rather than prosecuted, if, acting 
 honestly in the discharge of that duty, not with wilful 
 illegality, but acting in the belief that they are acting 
 according to law, or under a necessity which might fairly 
 be considered to override all ordinary law, they inflict 
 injuries on individuals. 
 
 At common law, Governors of colonies would practically 
 be protected from civil or criminal liability in acts done 
 
 officer is at a great distance from his native country, having charge of a 
 mernher of that country, and it shall so happen that circumstances arise 
 which may alarm and disturb the strongest mind, it were not proper that 
 strictness and rigour in forms and in matters of that sort should be 
 required, where you find a real, true, and genuine intention of acting for 
 the best for the sake of the public. You see they are in a situation distant 
 from assistance and from advice ; in these circumstances, if a man should 
 be so much thrown off the balance of his understanding as not to conduct 
 himself with the same care and attention that anyone in the county of 
 Middlesex would be required to do, and does not exceed greatly the just 
 and proper line of his duty, allowance for such circumstances ought un- 
 questionably to be given to him" (p. 143, 28 St. Tr.). Language which 
 exactly accords with that of Lord Mansfield, even in a case of civil action. 
 The principle is the same in civil or criminal proceedings, except, indeed, 
 that there is this great distinction, that in a civil proceeding, where there 
 must be a strict legal justification, it rests on bare legality ; whereas in a 
 criminal proceeding there must be wilful illegality. The most illustrious 
 statesmen, not less than the greatest lawyers, have laid down this principle. 
 Thus there is a passage from Lord Erskine's speech in the proceedings 
 against Stratton, reported in the State Trials, vol. 21, in which he says, 
 quoting the words of Burke, " I am not ripe to pass sentence upon the 
 gravest public bodies entrusted with magistracies of great weight and 
 authority, and charged with the safety of their fellow-citizens, on the very 
 same title that I am. I really think that for wise minds this is not 
 judicious ; for sober minds, not decent; for minds tinctured with humanity, 
 not mild and merciful. Who can refuse his assent to such admirable, 
 manly sentiments? What indeed can be so repugnant to humanitj T , sound 
 policy, decency or justice, as to punish public men, acting in extremities 
 not provided for by positive institution, without a corrupt motive proved, 
 or even charged upon them. I repeat the words again, that every man's 
 conscience may force him to follow me, without a corru2>t motive proved, 
 or even charged upon them " (p. 1279). Citted by Mr. Hannen.
 
 LEGAL LIABILITY OF GOVERNORS. 175 
 
 honestly, even though erroneously, in the discharge of their 
 duty, and it would appear that this immunity would extend 
 bo acts, such as the declaration of martial law, or the direction 
 of military measures of war, in case of a great public emer- 
 gency, such as rebellion or invasion. The statute fur the 
 trial of Colonial Governors or other officers, in the service of 
 the Crown, in colonies or dependencies beyond seas (a), in 
 entire accordance with the spirit and principle of the com- 
 mon law on the subject, assumes that they can only be 
 criminally liable, either for acts in their official capacity, 
 
 (a) The 11 & 12 Will. III. c. 12, "An Act to punish Governors of planta- 
 tions iu this Kingdom, for crimes committed by them in the plantations,' 1 
 recites that due punishment is not provided for several crimes and offences 
 committed out of the realm, whereof divers Governors or Commanders-in- 
 Chief of plantations and colonies within Her Majesty's dominions beyond 
 seas, have taken advantage, and have not been deterred from oppressing Her 
 Majesty's subjects, within their respective governments and commands, 
 nor from committing several other great crimes and offences, not deeming 
 themselves punishable for the same here, nor accountable for such of their 
 crimes and offences to any person within their respective governments and 
 commands; and enacted, that any Governor or Commander-in-Chief of any 
 plantation or colony, within Her Majesty's dominions beyond the - 
 shall be guilty of oppressing any of Her Majesty's subjects within their 
 respective governments or commands, or shall be guilty of any other crime 
 or offence, contrary to the laws of the realm, or in force within their 
 respective governments or commands; such oppressions, crimes, and 
 offences, shall be enquired if heard and determined in Her Majesty's Court 
 of King's Bench in England, or before such Commissioners and in such 
 county of the realm as shall be assigned by Her Majesty's Commissioners, 
 and that such punishment shall be inflicted for such oifenders as are usually 
 indicted for offences of like nature committed in England." The reason 
 of this statute WHS, as is stated, the legal maxim that the trial of crime is 
 local, and that a crime can only be tried in the country where it is com- 
 mitted {Raphael v. Vcreht, 2 W. Blackstone's rep. 9S3), though it is other- 
 wise of civil rights of action for personal injuries, which may be tried in 
 England, though they arose abroad (Mostyn v. Fabrigas, Gowpert Reports). 
 As Lord Mansfield observed in that case, the statute said nothing aboat 
 actions, for that reason. It is restricted to acts of oppression, thai is wilful 
 oppresslen, such as similar acts in a justice of peace in this country, lor 
 which a criminal information would lie at the suit of the King, as for an 
 offence against justice, and an abuse of a high office; for which no private 
 action will lie, or to crimes committed in acts out of the scope of their
 
 176 MARTIAL LAW IN THE COLONIES, 
 
 which can be called oppressive (i. e., according to the 
 ordinary tenor and meaning of terms, wilfully or cul- 
 pably oppressive) ; or for crimes altogether out of the 
 scope of their office ; which, again, implies conscious crimi- 
 nality. And these statutes, the scope of which is only 
 procedure and place of trial (for which reason they do not 
 apply to actions), only affirm and follow out the common 
 law upon the subject. 
 
 These statutes (a) undoubtedly imply and affirm that 
 
 office, for which indictment would lie in the colony, and hence the statute 
 provides two modes of procedure, adapted to these two classes of offences : 
 the one, the King's Bench, i. e., hy criminal information ; the other, by 
 indictment at the assizes or before any court of oyer and terminer, by 
 general or special commission. But the Act applies only to crimes. 
 
 (a) The 42 Geo. III., c. 85, recites that persons holding and exercising 
 public employment out of Great Britain often escape punishment for 
 offences committed by them, for want of courts having sufficient jurisdic- 
 tion, by reason of their departing from the country where such offences 
 have been committed, and that such persons cannot be tried in Great 
 Britain for such offences as the law now stands (i. e., except under the 
 prior Act which applied only to Governors and military Commanders), and 
 enacted, that if any person who shall hold or exercise any public station or 
 office out of Great Britain shall commit or be guilty of any crime, mis- 
 demeanour, or offence, in the execution, or under colour, or in the exercise 
 of such station or office, every such crime, misdemeanour, or offence, may 
 be prosecuted in the court of King's Bench in England, either upon an 
 information exhibited by the Attorney- General, or upon an indictment 
 found, in which the crime, offence, or misdemeanour may be laid or 
 charged to have been committed in Middlesex, and all such persons shall, on 
 conviction, be liable to such punishment as may, by any laws now in force 
 or Acts that may be passed, be inflicted for any mch crime, misdemeanour, 
 or offence, committed in England, and shall also be liable, at the discretion 
 of the court of King's Bench, to be adjudged to be incapable of serving 
 the Crown in any other office or station, civil or military ; and then the 
 Act goes on to provide for the obtaining of evidence concerning the 
 matters charged, by examination of witnesses abroad, and it also extends 
 to actions against persons in such positions for false imprisonment, the 
 provisions of the statute giving certain statutory protection to magistrates 
 sued for such causes of action. The Act, it will be observed, is in pari 
 materia with the other, and the purview of it is procedure only ; it does not 
 alter the law as to civil or criminal liability, and, as to the latter, it ex- 
 pressly provides that no punishment shall be inflicted save such as might 
 be inflicted for 'any such crime, misdemeanour, or offence committed in
 
 LEGAL LIABILITY OF GOVERNORS. 177 
 
 persons in such positions, may be guilty of "crimes, mis- 
 demeanours, or offences," in the execution or under colour 
 or in the exercise of their station or office ; but then they 
 equally imply and affirm, from the very use of such terms, 
 that there must in such case lie wilful and culpable miscon- 
 duct or oppression ; ;md those terms are utterly inapplicable 
 to acts done honestly, even though erroneously, in the dis- 
 charge of their public duties and functions, least of all to 
 their acts, in the exercise of those functions and discharge 
 of those duties upon some great emergency, for the sake of 
 the public safety. Such acts are as much within the scope 
 of their duty, as the most ordinary acts in the exercise of 
 their authority. 
 
 England against the common law or any subsequent statute. Now, at 
 common law, a justice of the peace or magistrate is liable civilly for any act 
 in ordinary times beyond his jurisdiction, i. e., such an act as according to 
 law lie had no power to do under any circumstances, as in granting general 
 warrants, and the same principle applies to ministers or Governors. But 
 for any act within his jurisdiction, i. e., which he might do under certain 
 circumstances, he is not liable even civilly, though he act erroneously, as in 
 adjudging a weapon to be a gun, or a military weapon, when it is not so 
 (Brittain v. Kinnard, 1 Broderick & Bingham's Reports). It is to be 
 observed, that upon this latter Act it has been held, that it did not apply 
 to an ordinary felony, but only to any crime or offence in the execution or 
 under colour of it (which was evidently read— being all one sentence— as 
 if it were in execution, that is to say, under colour of the office), and there- 
 fore, that it did not apply to a felony in execution or pretended execution 
 of the office (Rex v. Shawe, 5 Maule & Selwyn's Hep. 405). The reason 
 of the thing, said Lord Ellenborough, would lead us a priori to conclude 
 that the jurisdiction as to trial of felonies should be restrained to the local 
 court. The object of the Act was in the same spirit as the Act of 
 A V ill. III., to protect Her Majesty's subjects against the criminal and 
 fraudulent acts committed by persons in public employments abroad in 
 the exercise of their employments, and reach a class of public servants 
 which the stat. of Will. III. did not reach, and to place them in pari 
 delicto with Governors. It has no reference to felonies, in spirit or letter 
 (ibid). From this it would seem to follow that the legislature never con- 
 templated that a Governor could be guilty of felony in the course of the 
 execution of his office, at all events, in its honest exercise. Audit is to 
 observed, that although an indictment lies against a public officer at 
 common law for wilful breach of doty {Rex v. Holland, 5 Term Reports, 
 607), or for acts wrongfully done under colour of their office, or under pre- 
 
 N
 
 178 MARTIAL LAW IN THE COLONIES : 
 
 But, at all events, if the Crown approves what has been 
 done, even although there may have been some excess 
 through error of judgment, for which the Governor and 
 military Commander are held responsible ; then, inde- 
 pendently of the legality of the proclamation of martial 
 law, and of all acts done under it by military orders, there 
 will be, upon the principles that have always been laid 
 down, a bill of indemnity (a), which will be a legal bar to 
 
 tence of acting in exercise of it (i?cr \. Dobbin, 7 East's Rep. 218), and 
 there may be a criminal information against a magistrate for acting cor- 
 ruptly (Rex v. Blanchard, 4 Law Journal (N.S.), Magistrates' cases, 241), 
 yet there must be distinct evidence of the bad motive, and mere irregular 
 or improper conduct, as acting without evidence, will not suffice (ex parte 
 Fentiman, 2 Adolphus & Ellis's Reports, 127). It is only when the Act is 
 void in toto that it subjects him to an action (Groom v. Forester, 5 M. & S. 
 314). 
 
 (a) Thus, in the case of Jamaica, there was a Royal Commission of 
 Enquiry, reciting that it had been alleged that disturbances had broken 
 out in the island, and had been suppressed, and the disturbances and sup- 
 pression had been attended with great loss of life, and that excessive and 
 unlawful severity had been used in the course of such suppression : and 
 then it directed that full and impartial enquiry should be made into the 
 origin, nature, and circumstances of the disturbances, and with respect to 
 the measures adopted in the course of their suppression. And the Com- 
 missioners, having reported that the declaration of martial law was justified, 
 but that it was continued too long, and that the punishments were exces- 
 sive, a bill of indemnity was allowed : " That all personal actions and 
 suits, indictments, informations, attachments, prosecutions, and proceed- 
 ings, 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, directed, or done since 
 the promulgation and publication of the proclamation of martial law afore- 
 said, 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 continuance of such martial law, in order to sup- 
 press 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, acquitted, discharged, and 
 indemnified, as well against the Queen's Most Gracious Majesty, her heirs
 
 RESPONSIBILITY TO Tllll (JRoWN. 179 
 
 all actions or indictments for acts done honestly in the 
 suppression of the rebellion. And thus, practically, the 
 same result is arrived at in another way. But, upon the 
 other hand, this would not preclude the Crown from pro- 
 nouncing any censures upon the conduct of the Governor 
 in proclaiming or declaring martial law, or the conduct of 
 the Governor or military Commander in continuing or 
 directing its execution, or for not properly controlling its 
 execution. 
 
 Whether, therefore, by reason of formal legality or by 
 reason of practical immunity ; whether on the ground of a 
 prerogative grounded on necessity, or of the necessity on 
 which the prerogative is grounded, it would appear to be 
 the duty of a Colonial Governor to take all necessary means 
 and measures to suppress rebellion. Within the last 
 few years an eminent and experienced statesman has, in 
 
 and successors, as against all and every persons or person whomsoever." 
 But, upon the other hand, the Crown, while it affirmed the legality of all 
 acts done under military orders under martial law within the district, and 
 declared the bill of indemnity only necessary as to acts done without 
 orders or beyond the district, censured the Governor for continuing mar- 
 tial law too long, and for not properly controlling its execution. The 
 proclamation there was under a local Act, which allowed it for not longer 
 than a month, and the proclamation declared that " martial law shall pre- 
 vail ; 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." The Commis- 
 sioners and the Crown were of opinion that under this proclamation mar- 
 tial law was rightly maintained for a month, but that its execution ought 
 to have been controlled and restrained, and terminated when the rebellion 
 was Bubdued. It is manifest, therefore, that the question resolves itself 
 practically into one of the approval of the Crown as to the control and 
 continuance of the measures of suppression, and (hat if the Crown approves 
 there will be practical immunity. And although, no doubt, in the view of 
 the Author and of the law advisers of the Crown on the case in question, 
 the declaration of martial law carried with it legal immunity for all acts 
 done under military orders, it is to be borne in mind, that practically there 
 can be no actual immunity, no Becurlty against being vexed and harassed 
 by prosecutions or actions, unless there is a bill of indemnity, which, no 
 doubt, is meant when it is said that a bill of indemnity is nece.— arv 
 
 N 2
 
 180 MARTIAL LAW IN THE COLONIES : 
 
 clear and emphatic terras (a), upheld the doctrine that it is 
 the right and duty of a Colonial Governor, on the occasion 
 of a rebellion of a race or class which threatens to be 
 formidable, to declare martial law, and maintain and exe- 
 cute it, not only until actual insurrection or resistance has 
 ceased, but until the danger is past, and until peace and 
 confidence are restored. And on that occasion the most 
 eminent lawyers, as well as the most experienced states- 
 men, concurred in entire approval of the conduct of the 
 
 (a) Lord llussell, whose name, it need not be added, is a guarantee for 
 the maintenance of constitutional doctrine, and a sufficient answer to the 
 nonsense which has been uttered on the subject, as if it were connected 
 with " despotism." As if there were anything despotic in the exercise of 
 the great right of social self-defence ! In the case of Ceylon, the duty of a 
 Colonial Governor under such circumstances was thus described by the 
 experienced statesman at the head of the Government : " Be it observed 
 that the news of that insurrection came suddenly upon the Governor. He 
 immediately sent for an officer, to whose discretion and whose experience 
 he might well trust. He acted according to that opinion. He immediately 
 saw the General commanding the forces. He took means by which troops 
 should be at once sent to the points at which the insurrection had broken 
 out. He took other means by which the rebels might be promptly met 
 and the rebellion promptly suppressed, and, in order to do that more 
 effectually, with the concurrence of the General and the Queen's Advocate, 
 he proclaimed martial law in that district of the colony which ivas disturbed. 
 The effect was immediate and most salutary ; because in a few days the 
 armed resistance had ceased. But T must admit that it is a most serious 
 resolution to come to, the establishment of martial law in any district or 
 in any part of a colony. But the Governor had to consider that if, on the 
 one hand, martial law cannot be continued without the risk of punishments 
 which may reach not the most guilty, but those who have appeared in 
 arms, and are guilty according to the law of high treason and rebellion; 
 on the other hand, the consequence of refusing to continue martial law, 
 even to put it in force, may be this, that rebellion may gain ahead ; that 
 insurrection, which at first is weak and may be easily crushed, may become 
 formidable ; that the whole order of the colony may be destroyed ; that 
 the allegiance which is due to the Crown may be withheld ; that property 
 to an indefinite extent may be spoiled and ruined ; but, above all, that 
 humanity, for the sake of which martial law was withheld, that humanity 
 itself may be lost sight of, and many more lives may be lost in the 
 struggle that may ensue than would have been lost if martial law had for 
 a few weeks been continued." On that occasion it was objected, that mar-
 
 DUTY OF A GOVERNOR TO RESORT TO IT. 1^1 
 
 Governor in declaring and exercising martial law for fche 
 suppression of the rebellion ; and affirmed, on the one 
 hand, its entire legality, and, on the other hand, its sound 
 policy, with reference even to considerations of humanity. 
 And as the view thus taken was arrived at with regard to 
 such large considerations, and was based upon necessity, 
 upon policy and humanity, it is obvious that it could not 
 have had any reference to the mere circumstance that it 
 was the case of a Crown colony ; which, for reasons already 
 suggested, seems to be quite immaterial ; and which, at all 
 
 tial law had been continued for ten weeks, although the rebel force 
 assembled at one time to attack were defeated, driven back, and dispersed. 
 It was admitted that the Governor was not to blame for the step he had 
 taken. But it was objected that he continued martial law. Lord Russell, 
 however, replied that he acted in concert and with the advice of his Execu- 
 tive Council in this respect, and that there was a preponderance of opinion 
 in the Council in favour of continuing martial law, and that the Major. 
 General commanding the district, above all, was strenuous in advising that 
 the operation ot martial law should be continued. And Lord Russell 
 vindicated this course, and said the Governor was right to take the 
 del i berate advice of his Executive Council, of those who were best ac- 
 quainted with the colony, and with their advice to continue martial law. 
 Lord Russell in Parliament used the following language, which remarkably 
 resembles those of Lord Mansfield already cited ; and Lord Grey, Lord 
 Cottenham, and Lord Campbell, supported the same view (vide ante). " In 
 the last despatch which the Secretary for the Coolnies ( Earl Grey) wrote, he 
 stated that Her Majesty's Government still believed that the Governor was 
 guided by opinions which he had conscientiously formed— supported as 
 he was by those who ought to advise him in the colony — that in proclaim- 
 ing martial law, and in punishing those who suffered, lie was acting, as he 
 believed, in the only way that could maintain the tranquillity of the 
 country, and provide for the welfare of Her Majesty's subjects. That, sir, 
 is our belief. It is our belief that when you send [a Governor to a distant 
 part of the globe— when you find that he is zealously performing his duty — 
 when you find that he is endeavouring' by all the means in his power to 
 preserve the colony in allegiance to Her Majesty, and at the same time is 
 Consulting the peace, the welfare, the prosperity of such colony — we think 
 that confidence ought to be held out to that Governor, that confidence 
 ought to be placed in him, and that we ought not, as a Government, to 
 attempt to throw any censure upon questions upon which we believe, if 
 if there could be any difference of opinion, lie is more likely to judge 
 right from the circumstances before him, and the assistance of his advisers,
 
 182 MARTIAL LAW IN THE COLONIES: 
 
 events, was not alluded to or relied upon by these eminent 
 authorities as in any degree the ground of their decision. 
 
 Upon the principles here laid down, that is to say, 
 either upon the ground of a prerogative in the Crown, 
 arising out of necessity for the public safety ; or, on the 
 ground of that necessity, it would appear to be the right 
 and duty of a Colonial Governor, in an emergency such as 
 to raise a real case of necessity, arising out of a fearful and 
 formidable danger, to declare the state of war, and use 
 and exercise the means and measures of war, which, in 
 reality, by whatever name it may be called, comes in sub- 
 stance to martial law. And as, whether it is put on the 
 ground of prerogative arising from necessity, or on the 
 ground of the necessity itself, it can make no practical 
 difference in this respect, that in neither case can it pro- 
 perly be done, unless in a case of necessity, and in either 
 case it can only be done under the authority of the execu- 
 tive, so it should seem that, on the same principle, it can 
 make no substantial difference whether there is or is not 
 any local act or ordinance allowing of it (a). For, on the 
 
 than we should be able who form our j udgments of them at a distance. I 
 believe we came to a right conclusion on that subject ; and I believe that, 
 looking at colonial government in general, this House ought to come to 
 that conclusion. I believe that if at the first beginning of an insurrection 
 a Governor were to say to himself, ' I must take care how I crush the 
 rebellion ; I must be careful how I punish the offenders ; I may be brought 
 before a Committee of the House of Commons ; I may be censured by the 
 Government under which I serve ; I may undergo the pains and penalties 
 of a resolution of the House of Commons, and, therefore, I must be care- 
 ful not to extend the verge and boundary of strict law.' I believe if you 
 teach such a lesson to your Governors, while you will diminish their 
 energy — while you will diminish the security of Her Majesty's subjects in 
 the colony, you will do nothing for humanity. On the contrary, whenever 
 an insurrection springs up, you will have a long and bloody contest — you 
 will have the lives of Her Majesty's troops sacrificed on the one hand, and 
 you will have the lives and property of innocent colonists destroyed or 
 endangered on the other ; and, for my part, I must say I think it better 
 that one guilty man should suffer, than ten innocent men should suffer 
 death." 
 (a) The above is, no doubt, the ground of the following circular despatch
 
 INDEPENDENT OF ANY LOCAL ORDINANCES. 183 
 
 one hand, if there be, then, whatever he its terms, however 
 loose or large, and whatever its effect as to hare legality, a 
 Governor cannot escape responsibility to the Crown, if he 
 put it in execution without an adequate necessity; and, on 
 the other hand, even if there he no such act, he need not 
 fear his responsibility to the Crown or to Parliament, if he 
 do no more than may fairly, in the exercise of an honest, even 
 if in some degree erroneous judgment, be deemed necessary 
 and expedient for the public safety. If there be a local Act 
 or ordinance, the Governor, even though it confers legality, 
 
 of Lord Carnarvon to the Colonial Governors, dated January 30th, 1867, 
 on the subject of martial law, which was presented to both Houses of 
 Parliament by command of Her Majesty:—" Sir,— Although I do not know 
 that there exists in the colony under your government any law authorizing 
 the proclamation of martial law by the Governor, I think it advisable to 
 communicate to you, for your information, and, if necessary, for your 
 guidance, an extract of a despatch addressed by me to the Governor of 
 Antigua, in which I have stated the views of Her Majesty's Government 
 on this subject. ' An enactment which purports to invest the Executive 
 Government with a permanent power of suspending the ordinary law of the 
 colony, of removing the known safeguards of life and property, and of 
 legalizing in advance such measures as may be deemed conducive to the 
 establishment of order by the military officer charged with the suppression 
 of disturbances, is, 1 need hardly say, entirely at variance with the spirit of 
 English law. If its existence can in any case be justified, it can only be 
 because there exists such a state of established insecurity as renders it 
 necessary for the safety and confidence of the well-disposed that, in times 
 of national emergency, the Government should possess this extraordinary 
 facility for the suppression of armed rebellion. But whatever apprehensions 
 or disturbances may exist in any of Eer .Majesty's colonies, it is certain 
 that no such chronic 'insecurity prevails in any of them, and in no colony 
 therefore, should the power given by the present law to the Governor of 
 Antigua be Buffered to continue. I think it, therefore, necessary to repeat 
 the instructions given by my predecessor, and to request that you will 
 cause to be submitted to the Legislature an Act repealing so much of the 
 law as authorizes the proclamation of martial law. I have only to add, that 
 in giving you these instructions, Her Majesty's Government must not be 
 supposed to convey an absolute prohibition of all recourse to martial law 
 under the stress of great emergencies, and in anticipation ot an A>i of 
 Indemnity. The justification, however, ot such a step must rest on the 
 pressure of the moment, and the Governor cannot by any instructions be 
 relieved from the obligation of deciding for himself, under that pressure, 
 whether the responsibility of proclaiming martial law is or is not greater than
 
 181 MARTIAL LAW IN THE COLONIES: 
 
 will have to justify to the Crown the propriety of his con- 
 duct in carrying it out ; and, on the other hand, if there be 
 no such Act, then, whether or not the law confers legality, 
 either because the common law allows martial law, or 
 because it does not extend to the colony, the Governor, 
 while equally having to justify his conduct to the Crown, 
 will, if he has really acted under an honest and reasonable 
 belief of necessity, be protected by a bill of indemnity. 
 
 It is manifest, therefore, that the question practically 
 resolves itself into one of approval or disapproval by the 
 
 that of refraining from doing so.' " It is conceived, that in the last passage 
 lies the real pith and meaning of the despatch, and that it is directed to 
 the danger supposed to arise from the existence of an enactment absolute 
 and unlimited in its terms. The terms of the Jamaica Act, for instance, 
 were rather general : " That the Governor shall be authorized, with advice of 
 a council of war, in the event of disturbance or emergency of any kind, to 
 declare any district under martial law," and no doubt it was to enactments 
 of this nature the above dispatch alluded. It will be noticed that it dis- 
 tinctly states the duty of the Governor to declare martial law if necessary, 
 and though it speaks of " trusting to a bill of indemnity," it must not be 
 supposed that it assumes the entire illegality of martial law, for then it 
 would be opposed to all the authorities on the subject, including that of 
 Cockburn, C. J., in his charge in the Jamaica case, who denounces the idea 
 of wilful and wholesale illegality, and lays down (as the Author had done in 
 his book) that it is only casual and incidental illegality which is the proper 
 subject of a bill of indemnity, and this, no doubt, is what the despatch 
 alludes to. In a recent debate upon the subject, the late Under Secretary 
 for the Colonies was reported to have said, that, but for such an Act, 
 martial law could not have been declared, and that there would have been 
 no necessity for a Commission of Enquiry into its execution. But this was 
 a double error, for the Lord Chief Justice said in his charge, that if ever 
 there was a case for martial law that was the case, and according to the 
 above despatch, and the opinion of the Commissioners and the Secretary of 
 State, it would have justified its declaration without an Act; and, on the 
 other hand, the existence of the Act did not prevent the Crown from 
 issuing a Commission of Enquiry into the conduct of the Governor, and 
 pronouncing upon its wisdom and propriety. And it is conceived that the 
 existence or non-existence of such an Act makes, in substance, no differ- 
 ence ; for if there be such an Act, the Governor will have to justify his 
 conduct to the Crown, and if there be no such Act, and be such a case as 
 requires measures of war, he need not fear that, on any view of the law, he 
 will have an ample immunity, whether or not by bill of indemnity.
 
 
 4 
 
 TIIE NECESSITY WHICH JUSTIFIES IT. 1 35 
 
 Crown, of the measures taken for the suppression of a 
 rebellion. Assuming that, whether by virtue of the royal 
 prerogative, grounded upon necessity for the public safety, 
 and therefore vested in the Governor of a colony, as neces- 
 sarily incident to the power of government, or by virtue of 
 that necessity on which the prerogative is rested, there 
 is any power, either at common law, or by any local act or 
 ordinance, to declare the state of war, and exercise martial 
 law, or take all the measures of war for the suppression of 
 a rebellion ; the circumstances under which such a measure 
 would be justified have recently been laid down and 
 described upon the very highest authority (a). The cir- 
 
 (a) Tims, in the recent case of Jamaica, which, from its having been the 
 subject of enquiry by a Royal Commission, is valuable ; the rebellion 
 began by an insurrectionary outbreak, an armed attack upon the magistracy 
 and troops, and an absolute massacre. While the volunteers were under 
 arms at the Court house during the sittings of the court, the peasantry in a 
 large body came into the town, first attacked a 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. The magistrate began to read the Riot Act, the mob advanced 
 close to the volunteers, when the volunteers 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 was disorganised. The prisoners in the district prison were 
 liberated. The insurrection then spread in a different direction. 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 one 
 end of the island for some fifty miles, until headed and turned by the land- 
 ing of troops, and it was also at the same time spreading to the north-west, 
 until checked by meeting the troops. 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 was deemed a matter of absolute necessity and self- 
 defence to proclaim martial law in the district where it existed and con- 
 tiguous thereto. The council were unanimous in that view. And it is 
 necessary to bear in mind that there were only 500 men engaged in 
 quelling a rebellion in districts tenanted by a population of some 40,000, 
 and comprising upwards of 600 square miles of country. Nor must it be 
 forgotten that nearly the whole of the population, if not in actual rebellion, 
 were sympathising with the rebels, and taking no steps to arrest its progress 
 or aid the authorities. Under these circumstances, the Royal Commis-
 
 18G MARTIAL LAW IN THE COLONIES: 
 
 cum stances appear to be these : either the actual occur- 
 rence of an outbreak, or, at all events, positive evidence of 
 its imminence, and evidence of a planned resistance to 
 lawful authority, with overt acts in preparation for such 
 resistance ; the existence of circumstances in the popula- 
 tion, showing a certainty that the insurrection, if com- 
 menced, would be likely to spread with rapidity ; a great 
 deficiency of military power, and a great disparity between 
 the forces on the side of loyalty and rebellion ; an evident 
 danger, in short, to the State, and a peril so sudden and 
 so formidable as to amount, in a reasonable sense, to a 
 necessity. 
 
 sioners reported, concerning the measures adopted for suppressing the 
 insurrection: "With the full knowledge of all that has occurred, we are, 
 nevertheless, 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." And 
 they thus stated the ground of their judgment: — " 1. That the disturbances 
 in St. Thomas-in-the-East had their immediate origin in planned resistance 
 to lawful authority. 2. That the causes leading to the determination to 
 offer that resistance were manifold : that the 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. 
 3. That though the original design for the overthrow of constituted autho- 
 rity was confined to a small portion of the parish of St. Thomas-in-the- 
 East, yet that the disorder, in fact, spread with singular rapidity over an 
 extensive tract of country, and that such was the state of excitement prevail- 
 ing in other parts of the island, that had more then 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." The Commis- 
 sioners thus expressed their general opinion upon the question: "We think 
 that the greatest consideration is due to a Governor placed in the circum- 
 stances in which Governor Eyre was placed. The suddenness of the insur- 
 rection, the uncertainty of its possible extent, its avowed character as a 
 contest of colour, the atrocities committed at its first outbreak, the great 
 disparity of numbers between the white and the black populations, the real 
 dangers and the vague alarms by which he was on every side surrounded, 
 the inadequacy of the force at his command to secure the superiority in 
 every district, the exaggerated statements which reached him continually
 
 RESPONSIBILITY TO THE C'llOWN. 187 
 
 Whether the declaration of martial law be, by virtu, of 
 a local act or otherwise, strictly legal or not ; it must be 
 remembered that, as the declaration of martial law l>y 
 the Governor of a colony is an act done by him in the 
 execution of his office as a representative of the Crown, he 
 is of course responsible to the Crown ; and if upon his dis- 
 patches sufficient ground appears for censure, such censure 
 may be pronounced; or, if not, and there are complaints 
 made as to the execution of martial law, and the absence 
 of a proper control over it, it is within the competence of 
 the Crown to issue a commission of inquiry (a) as to the 
 declaration and execution of martial law, and the measures 
 
 from distant parts of the island, the vieinity of Hayti, and the fact that a 
 civil war was at the time going on in that country; all these circumstances 
 tended to impress bis mind with a conviction that the worst consequences 
 were to he apprehended from the slightest appearance of indecision." And 
 the Secretary of State wrote, "In the conclusions at which you have 
 arrived, Her Majesty's Government generally concur, and they think that, 
 looking at the angular rapidity with which disorder spread over an exten- 
 sive tract of country, and to the state of excitement prevailing in other parts 
 of the island, 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." And he added, "As 
 regards the proclamation of martial law under the Islaud 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." And the Lord Chief Justice of England stated that " if 
 ever there was a case for martial law, this was that case " (Charge). 
 
 (a) 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 
 Turlington's case— Mc 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' Martial Law, 148). In cases of this kind, the Com- 
 mander-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 tendei 
 the party (Dallas, C. J., Home v. Lord Bcntinck, 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
 
 188 MARTIAL LAW IN THE COLONIES : 
 
 taken for suppression of the rebellion ; and, on the report 
 of the Commissioners, to take such further course as may 
 appear proper. 
 
 Assuming that there has arisen such a rebellion as may 
 constitute a case for the declaration of martial law, or for 
 recourse to the means and measures of war, in order to its 
 suppression, as that is a course to be taken by the 
 Governor ivpon his responsibility, so he is the supreme 
 authority in the colony, and is regarded as responsible for 
 
 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 to lead to any ulterior measure 
 (ibid). The report is, in its nature, a confidential communication, in con- 
 sequence of a direction by him, for the information of his own conscience in 
 the exercise of his public duty (ibid, 163). It is on this principle that 
 memorials to the Secretary of State are, although defamatory, if not 
 wilfully and maliciously injurious, privileged or protected (Farman v. Ives, 
 5 B. & Ad. 642; Blayg v. Stuart, 10 Q. B. rep. 907; Rex v. Baillie, 21 
 Howell's State Trials, 1). The Secretary of State is the ordinary channel of 
 communication between the Sovereign and the subject, and a memorial to 
 the Secretary of State is virtually a communication to the Sovereign. Her 
 Majesty can direct an enquiry into the conduct of any of her servants and 
 ministers, and a memorial to the Secretary of State may be, in effect, a 
 petition for such enquiry. Her Majesty cannot personally make the 
 enquiry ; and upon a petition to the Queen, she might direct it to be made 
 (Lord Campbell, C. J., Harrison v. Bush, 5 Ellis & Blackburn's Reports). 
 Thus, in the Jamaica case, the following commission was issued: — 
 " 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 inquiry should be made into the origin, nature, and circum- 
 stances of the said disturbance, and with respect to the measures adopted 
 in the course of their suppression ; and whereas it is requisite for the sufii 
 ciency of the said enquiry that it should be conducted by persons not 
 having borne part in the government of our island during the existence of 
 the said disturbances nor in the suppression thereof." And then the Com- 
 mission appointed Commissioners for the purpose of making such enquiry: 
 " And by all lawful ways and means to prosecute the enquiry, and to collect 
 evidence in our said island respecting the origin, nature, and circumstances
 
 UNDER GENERAL CONTROL OF THE GOVERNOR. 189 
 
 general control over its execution or its duration (a) ; 
 although, as the measures to be taken are military, and 
 under military authority, their particular direction and 
 regulation must be for the military Commander, and he is 
 
 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 stK'li disturbances or suppression ; and we do require you to communi- 
 cate to us, through one of the principal Secretaries of Slate, as well the 
 said evidence as any opinions which you may think fit to express thereupon/' 
 Anil the commission, after Bitting for some time in Jamaica, reported 
 upon the nature of the disturbances, and how far they were rebellions, and 
 of a nature to require martial law for their suppression, and also upon the 
 nature of the measures taken under martial law, and on their duration and 
 continuance. And they reported, in effect, that the declaration of martial 
 law was justified, and its maintenance for the entire period (one month) for 
 which it was proclaimed, although they thought that its execution ought to 
 have been stopped earlier than it was. And as the statute only in general 
 terms allowed martial law to be declared, leaving it to the Governor to 
 exercise his discretion as to its duration and continuance, the report is 
 equally applicable in all cases, and is therefore made the foundation of the 
 following pages. 
 
 (a) On a recent occasion, the Secretary of State, in a dispatch already 
 cited (vide ante, p. 12), acknowledged, "that, in the instruction to Colonial 
 Governors, no reference is made to the possible occurrence of such an emer- 
 gency as that in which he was placed." And he added, " How far it may 
 be possible to frame general instructions which might assist the Governor 
 in the ease of future disturbances arising in any colony, is a subject which 
 will receive careful consideration at the hands of Her Majesty's Govern- 
 ment." But in a later despatch, already quoted (ride ante, p. 32), the 
 Secretary of State declared that the Governor must exercise his own dis- 
 cretion without instructions : " The justification of a measure must rest on 
 the pressure of the moment, and the Governor cannot, by any instructions, 
 be relieved from the obligation of decit ling for himself under that pressure, 
 whether the responsibility of declaring martial law is or is not greater than 
 that of retraining" (Despatch of Lord Carnarvon, cited p. 32). The diffi- 
 culty and responsibility of the Governor's position may be exhibited by 
 observing that the necessity for martial law, and the propriety of its execu- 
 tion or continuance depend mainly upon the deficiency or efficiency of the 
 military force, and that again depends greatly on its disposition and distri 
 bution; and as to this, he has not actual control over the troops, but is 
 liable to be embarrassed by differences between himself and the Commander- 
 in-Chief. In the instructions to Colonial Governors, indeed, it is laid 
 down, "That, as the supreme authority in each colony is entrusted to the 
 Governor, it is not for him to determine the general nature of the opera-
 
 190 MARTIAL LAW IN THE COLONIES: 
 
 left to exercise that control without any instructions, and 
 acting entirely upon his own judgment and discretion, as to 
 what may be necessary in the emergency. 
 
 The measures taken being necessarily military, whether 
 
 tions 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 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." Nevertheless, 
 when, ten days after tbe declaration of martial law, the Governor began to 
 think of its discontinuance, and desired, with that view, to distribute the 
 military, reinforcements having arrived, throughout the island, to "prevent 
 rebellion breaking out, and render life and property safe, and give a feeling 
 of confidence to the inhabitants," his directions were disregarded by the 
 General, and thus all his plans were defeated (Desp. of Mr. Eyre, Oct. 26). 
 The Commander-in-Chief was desirous of concentrating the troops and 
 declaring martial law over the whole or greater part of the colony, and at 
 the time when the Governor was thinking of discountenancing it, the 
 Commander-in-Chief was pressing him to extend it (Desp. of Mr. Eyre- 
 Nov. 3, 1865). The Governor, on the contrary, was for contracting and 
 discontinuing the operation of martial law, and in order to enable him to 
 do so he was for distributing the troops. And again, " My views are 
 strongly adverse to the establishment of martial law in places in which, 
 though excitement exists, and seditious language has been openly used, no 
 actual outbreak had occurred (ibid). The policy by which I have been 
 guided is desiring to occupy temporarily a number of parts which we had 
 reason to fear might become the theatre of outrage. If this policy 
 is continued for a little time, the country will be restored to its usual 
 quietude " (ibid). But this policy was disapproved of and opposed by the 
 Commander in-Chief, and hence, about ten days before the discontinuance 
 of martial law, the Governor wrote thus to the Secretary of State : " It 
 certainly may happen, and I trust will, that no evil may result from the 
 omission in this instance to act upon the Governor's instructions ; but it is 
 quite clear that the Executive can make no satisfactory or useful arrange- 
 ments for the safety of the colony as a whole, if an officer at a distance is to 
 be authorised by the General commanding, either to carry out the Governor's 
 views or not as he may think expedient (Desp. of Governor Eyre, Nov. 4). 
 It was in consequence of these disagreements the distribution of the rein- 
 forcements was postponed for two weeks after their arrival. And, there- 
 fore, martial law was kept up for those ten weeks; whereas, otherwise, it 
 might have been dispensed with earlier. The importance of this considera- 
 tion will be appreciated when it is observed that the Secretary of State 
 thought that martial law might have been dispensed with from the time
 
 UNDER DIRECTION OF MILITARY COMMANDER. 191 
 
 in the field, or in the disposal of prisoners (a) by trial by 
 court-martial, the particular direction of the measures must 
 necessarily rest with the military Commanders. The theory 
 of martial law, whether considered as the extension of 
 military rule to the whole population, or as the exercise of 
 the measures of necessity by military force, under military 
 authority, involves the supremacy of military power and 
 authority in the declared district under martial law, and 
 therefore implies that the direct and primary responsibility 
 must necessarily lie in the military Commanders, that is to 
 
 the reinforcements arrived ; whereas, the point was as to their distribution, 
 and martial law stopped the moment they were distributed. And the main 
 reasons given by the Governor for maintaining martial law during th< 
 two weeks, were to preserve peace and good order in the districts where the 
 rebellion had existed, and to overawe the ill-disposed, and thereby prevent 
 any rising amongst the negro population of the districts where disaffection 
 and seditious tendencies were known to exist. And these objects might 
 have been attained by a distribution of the troops, after the arrival of the 
 reinforcements, as the Governor desired. But, in point of fact, the 
 Governor is liable to be thwarted and opposed by the Commander-in-Chief 
 upon this vital point, and, in fact, he was so thwarted and opposed in the 
 Jamaica case {vide ante, p. 190). 
 
 (a) As already seen, the theory of martial law, according to the highest 
 authority, is that it is the will of the Commander, and any theory on the 
 subject must ultimately come to that, for military measures can only be 
 taken by military force and under military authority. Hence, they must 
 necessarily be under military direction, and, as the military authority must 
 be derived from the Commander-in-Chief of the colony, the orders — more 
 or less general — must emanate from him. Hence, in the Jamaica case, the 
 Commander-in-Chief delegated the command of the declared district to a 
 field-officer, subject to himself, and that officer throughout reported to him. 
 To that officer the Commander in-Chief gave only power, having such 
 reliance on his judgment that he did not deem it necessary to give him any 
 directions, and that was, in itself, an exercise of his judgment as military 
 Commander; and if any instructions had been deemed necessary, it was for 
 him to issue them. In point of fact, that he regarded himself as retaining 
 the supreme command was shown by this, that he did, when he deemed it 
 necessary, issue orders and directions. Thus, on one occasion, when the 
 Governor desired to give any general directions, he could only do so by 
 way of suggestion to the Commander-in-Chief, who then gave effect to it. 
 Thus, in the Jamaica case, the Governor, at the outset, gave the general 
 directions that all rebels were to be cut off and captured (vide Ev. of 
 Mr. Eyre). And then the Commander-in-Chief wrote to one of th<>
 
 192 MARTIAL LAW IN THE COLONIES : 
 
 say, in the General in command of the district, subject to 
 his superior, the Commander-in-Chief of the colony. It is, 
 therefore, for them to give forth certain directions to the 
 officers charged with the actual execution of the measures 
 of martial law. 
 
 Subject to the Commander-in-Chief of the colony, it is for 
 the General in actual command in the district, to issue such 
 particular orders as he may deem necessary to carry out the 
 general orders received from the Commander-in-Chief, and 
 to see that those orders are carried out (a). And, although 
 
 officers in command of detachments: "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 decided cour.se with regard to captured rebels. 
 The numbers 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 inventigation, the captured 
 prisoners are innocent— always giving them the benefit of the doubt — then 
 release them; but, if guilty, are taken red-handed, then summary justice 
 and execution." Then there was a despatch written by the Governor to the 
 Commander-in-Chief: "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 overcrowded gaols, to 
 sentence persons to imprisonment, nor would I advise that flogging be 
 resorted to more than can be helped." The Commander-in-Chief then 
 wrote to the General in command : " In furtherance of the opinion expressed 
 by his Excellency, and in consequence of the large number of prisoners 
 now at Up-Park Camp, I am 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 infliction 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." 
 
 (a) Thus, in the Jamaica case, the orders issued by the General in com- 
 mand showed an anxious desire to confine the acts of the military within 
 the strictest limits of military discipline, and to take precautions against 
 excesses or outrages by the soldiers, and some of these really are worth 
 recording, aDd preserving as useful cautions for the future- 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, October 17 : 
 — "Captain Hole's proceedings were temperate, decided, and judicious; 
 all rebels captured, 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*
 
 ORDERS ISSUED TO PREVENT EXCESSES. 193 
 
 in the excitement of an emergency, it may have happi-m-d 
 that the orders first issued to the oliicers were necessarily 
 general, and that more particular directions were only 
 issued, as the necessity appeared to arise fur them, on 
 accouut of any errors committed or apprehended, and on 
 the particular occasion may have been too late to prevent 
 the occurrence of all excesses, yet, when onoe issued and 
 recorded, they became useful as monitions or instructions 
 against similar errors. 
 
 as the Commander-in-Chief expressed it. Order of General Nelson, 25th 
 October : — ''The officers commanding will respectively forbid any man to 
 enter the house of any one, under any pretext whatever, unless accompanied 
 by a commanding officer. Any man found doiug so will be handed over to 
 the Provost Marshal, for summary punishment." On the other hand, the 
 Brigadiei General, having received a complaint against the Provost-Mar- 
 shal, ii.' a I he li< rminatiou ol martial law, wrote the following : — " 6th Nov, 
 M smo. for the Provost-Marshal. The Provost-Marshal appeared to 
 consider his power- more i xtensive than they are. He is simply entrusted 
 with authority to inflict summary punishment 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 
 oil' lire which may call for an immediate example. No one knows better 
 than myself the necessity, under past circumstances, for speedy action by 
 the Provost-Marshal — these now are passed. I, therefore, peremptorily 
 forbid any summary punishment being inflicted within the camp hence- 
 forth ; and all cases of serious nature are to be referred for my decision, 
 or that of my A.D.C., to whom alone I Bhall delegate authority to dispose 
 of such. — A. A. Nelson, Brigadier- General Commanding Field Forces, 
 Moraut Bay, 6th November, 1865." This Letter was inserted by the Com- 
 missioners in their rep irt. Thus, on the 2nd November, in his order to 
 an officer who was to relieve a detachment : — " It will be nee issary for you 
 to exercise Btrict control over the men of your detachment, and not to per- 
 mit any man to quit his quarters for the purpose of foraging, &c. 5fou 
 are not sent to your pest for the purpose of punishing the negro, but to 
 maintain order, and to afford protection to the inhabitant- generally. You 
 are not to inflict summary punishment if any Bupposed rioter be Bent as 
 prisoner to you ; be good enough to inquire into the ca.-e, and, if you con- 
 sider the same as of a serious nature. Bend him to my head-quarters, with 
 the evidence against him. You will doubtless have many prisoners brought 
 before you, aud may 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 criminals, and you must be 
 
 O
 
 194 MARTIAL LAW IN THE COLONIES. 
 
 As it is difficult, on the one hand, to frame regulations 
 or instructions for the prevention of abuses or excesses, the 
 occurrence of which is not foreseen or contemplated, and, 
 on the other hand, difficult to prevent abuses and excesses 
 on the part of forces engaged in a new and difficult service, 
 in the midst of the excitement of a great emergency (a), it is 
 obvious that it is of more importance to notice such orders 
 and directions as have been issued on the occurrence of 
 such abuses or excesses, with a view to prevent that recur- 
 firm, temperate, and judicious in all communications with civilians. You 
 are not, on any account, to march out for the purpose of attaching anyhody. 
 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 phased 
 strictly to conform to the instructions herein, and any deviation therefrom 
 will be a source of discomfort to yourself. — (Signed) A. A. Nelson, Briga- 
 dier-General Commanding Field Force." He had no particular instruc- 
 tions from the Commander-in-Chief, and he in the first instance issued none 
 to the officers, who therefore were left at first entirely to their own discre- 
 tion, although afterwards he issued some admirable orders, quoted with 
 approval by the Commissioners. At the first, however, the officers were 
 left without any definite instructions, and could only be guided by their 
 own discretion and the usages of the service. This was evidently the view 
 taken by the distinguished officer, the President of the Commission, for, in 
 the examination of one of the officers, he put this as the governing ques- 
 tion: " During the time your detachment was out, were they brought under 
 control according to the usages of the service]" (Ev. 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 this, it is con- 
 ceived, is the true view, and is to be found laid down in Simmons on 
 Court-Martial. 
 
 (a) In the Jamaica case, the Governor wrote to the Secretary of State: 
 " 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 occur- 
 rences must take place which are to be regretted, and which are not accom- 
 panied by thai strict formality which ought to be observed when practicable. 
 Some cases of impropriety, and some acts of injustice, must always take 
 place ; but I trust it will be found that these have been as few as could 
 '.ly have been hoped for, and have been nnknow r n to, and unsanc- 
 by, those more immediately in command." And it turned out upon 
 inquiry before Royal Commissioners, that this was so; and that as they 
 were unknown to and unsanctioned by "those more immediately in com-
 
 ORDERS ISSUED TO PREVENT EXCESSI 8. 19") 
 
 rence, and thus to profit by the experience so unhappily 
 acquired. And there can bo no doubt that the more par- 
 ticular are the ord< rs or directions issued upon such an 
 
 occasion, the more usefully will they op rate in regulation 
 and restraint of the execution of martial law, or of the 
 measures of repression, which may be necessary. 
 
 It is manifest that, on such an occasion, the measures 
 taken being under military authority, the Governor, the 
 supreme ruler at a distance, can only be informed of them 
 
 mand,'' so they were a multo fortiori, unknown to and unsanctioned by the 
 Governor himself, who of course could not he everywhere at the same time, 
 who could only have general and more direet information of what was 
 going on (the reports going to the Commander-in-Chief), and who was 
 moreover overwhelmed by the cares of general government, and the 
 anxieties and claims of the whole island. The Royal Commissioners, in 
 the Jamaica ease, held language very similar to that of the Governor: " We 
 fear that this, to a great extent, must ever be the case when the ordinary 
 laws, framed for the suppression of wrongdoing, and the protection of the 
 welldoer, are for a time suspended. The circumstances which are sup- 
 posed to render necessary their suspension, are almost sure to be such as to 
 excite both fear and passion ; and some injustice, and we fear some cruel- 
 ties, 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 suppression, 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 instructions 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." But it appeared to 
 the Commissioners that it was most unfortunate that the officers were left 
 so entirely without definite instructions, and so much to their own discre- 
 tion ; and their views were thus embodied and affirmed in the despatch of 
 the Secretary of State on the subject : — " It appears to them (the Govern- 
 ment), to be evident that, even in the first excitement of the disturbances, 
 and still more at some later period, it' martial law was allowed to continue, 
 instructions ought to have been issued to the offic in to whom the actual 
 conduct of the operations was entrusted, which would have rendered such 
 an abuse of power impossible. They agree entirely in the words which 
 you have used, that ' much which is now lamented might have been avoided 
 
 o 2
 
 196 MARTIAL LAW IN THE COLONIES: 
 
 by means of reports (a), which must follow their actual exe- 
 cution, and be reports of acts already done and measures 
 already taken. And it is obvious, also, that the reports 
 must take some time in reaching the Governor, and that 
 some further time must intervene before he can be in a 
 position to take action thereon ; as the course to be pursued 
 must necessarily depend upon circumstances to be con- 
 sidered with reference to the condition, not only of the 
 
 if clear and precise insi ructions had been given for the regulation of the 
 officers, &c.' " 
 
 (a) The kind of measures taken and of information required on such an 
 occasion, were alike indicated by Mr. Cardwell in one of his despatches to 
 the Governor, in the case of Jamaica. "1. The number of persons tried, 
 and of those sentenced by courts-martial, specifying the charge and sen- 
 U nee, 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 
 appended 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 each 
 case whether the offence was committed before or during martial law, 
 whether the arrest or capture was made during martial law, and in a 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 net committed during and under martial law, it should be stated 
 by whose authority 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 punished, 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. 3. 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. Whctherany 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 atti- 
 tude, 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 in-
 
 CONTINUANCE OF MAKTIAL LAW. l!)7 
 
 district, but the whole colony, and especially on the suffi- 
 ciency or distribution of military force, considerations bear- 
 ing upon the important questions of the continuance of 
 martial law and the Governor's responsibility for it. 
 
 The most important question, however, for the Governor, 
 is one which is entirely for him, in his council, as 
 representative of the Crown, and as the supreme civil 
 authority in the colony ; viz., as to the duration or con- 
 tinuance of martial law (a). And as there is, of course, no 
 
 structions, or otherwise, and without authority, induced to assume that all 
 persona flying or hiding from pursuit, or all persona found with plunder, or 
 all persona leaving their labour on plantations, were to he regarded as 
 rebels and shot when met with. Copies of all written instructions should 
 he furnished " (Despatch, Dec. 1). On that occasion the Secretary of State 
 in his final despatch wrote, "With respect to the other 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 cognisance at the 
 time of those measures; 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 law, 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." 
 
 (o) That war may endure long after actual hostilities, or that military 
 sway may be necessary, and constitute a state of war justifying martial 
 law, although actual hostilities have ceased, has been illustrated and estab- 
 lished in a case decided by the Privy Council. There a territory had been 
 conquered, and a Commissioner (Mr. Elphinstone), appointed by the Crown 
 for its settlement, who appointed a military officer to act under him, with 
 these instructions : " Until the neighbouring districts shall have been 
 settled, endeavour to bring under your authority as much of the country as 
 may be within your power. The first consideration, therefore, is to deprive 
 the enemy of his resources, and in this, as in all other points, everything 
 must be made subservient to the conduct of the war. All arrangements 
 that interfere with that object must be reserved for times of greater tran- 
 quillity." When a village has once submitted, any practices in favour of 
 the enemy must be punished as acts of rebellion by martial law. The 
 Commander-in-Chief will be directed to assemble a court martial for the
 
 li)S MAUTIAL LAW IN THE COLONIES : 
 
 question as to the continuance of merely military measures, 
 that is, military measures in the field, so long as there arc 
 any bodies of men in a posture of hostility or rebellion, this 
 question, again, practically resolves itself into the nature of 
 the measures taken, and especially as to deterrent measures. 
 For, as to the maintenance of martial law merely in 
 terrorem, for some short time after the cessation of actual 
 hostilities or acts of open outrage, there would probably be 
 no question, any more than as to measures purely military. 
 
 trial of such persons as you may think fit to bring before it, and to inflict 
 capital punishment immediately on conviction. The same course must lie 
 adopted with regard to persons who shall conspire against our government, 
 and likewise to all banditti who may assemble in the neighbourhood. 
 I particularly call your attention to the necessity of inflicting prompt and 
 severe punishment on persons of this description. Parties sent to plunder 
 the country, are in all cases to be considered as freebooters, and either 
 refused quarter or put to death after a summary inquiry, when there is no 
 doubt of their guilt {Elphiuzttmc v. Bedrechaud, 1 Knapp's Privy Council 
 Cases, 320). And the lawfulness of all this was indirectly affirmed in that 
 case by the Privy Council, although the particular question only related to 
 the seizure of property, for the ground of decision was that the country 
 was in a state of war, and under military authority. Thus, in the case 
 already cited, it was distinctly stated that no actual hostilities were carried 
 on in the neighbourhood, and the act in question was at a distance from 
 the scene of actual hostilities. " The General (Sir Lionel Smith), stated 
 that he was receiving reports as to the state of the country, and that when- 
 ever he received information that the enemy had means of re-assembling, 
 he despatched troops to preserve the tranquillity of the country, and see 
 that they did not re-assemble. He considered that he secured the tran- 
 quillity of the country, by sending the detachments, and that if he had not 
 sent them, they would have been up again ; they were subdued but not dis- 
 persed. He considered it to be necessary that the force should be very 
 strong, to keep the tranquillity of the country ; he considered it a neces- 
 sary precaution to let everybody see that we had an overwhelming force, on 
 account of there being a disaffected population." The General, as here 
 stated, was Sir Lionel Smith, who afterwards became Governor of Jamaica, 
 and the views he thus expressed, as to the proper course to be pursued in a 
 country in a state of disaffection and disturbance, had a very remarkable 
 resemblance to the policy of a successor of his, in the government of the 
 same island, Mr. Lyre, who urged upon the Commander-in-Chief, with a 
 view to avoid the necessity for continuance of martial law, and restore the 
 country to a state of peace and confidence, which might enable him to 
 dispense with it, the distribution of military force. (Vide post.)
 
 NECESSITY FOB ITS OONTINUANCEi 199 
 
 The question, practically, would be as to ' ! 
 martial law, and especially as to the deterrent n. 
 pursued, and their duration. 
 
 As the execution of martial is only justified by u< 
 and thai oecea it) U measured by danger, and that dan-, i 
 by the disparity or deficiency of military focce, it is mani- 
 fest that the duration or continuance of martial law must 
 mainly depend upon the sufficiency and disposition ol 
 military force (a). .Martial law, indeed, is but the com- 
 
 («/) Thus, in the case of J i daya after the declarati >t 
 
 martial law, the Governor began to think of providing for its discontinu- 
 ance ; tlic reinforcements being aboul to arrive, he desired with that view 
 to distribute them throughout the island, in order thus to prevent rebel- 
 lion breaking out, and render up the property safe and give a feeling of 
 confidence to the inhabitants; his directions were disregarded by the 
 General, and thus all his plans were defeated (Desp. of Mr. Eyre, Oct. 26). 
 The Commander-in-Chief was desirous of concentrating the troops, and 
 declaring martial law over the whole <>r greater part of the colony, and at 
 the time when the Governor was thinking of discontinuing it, the Com- 
 mander-in-Chief was pressing him to extend it (Desp. of Mr. Eyre, Nov. 3, 
 1865). The Governor, on the contrary, was for contracting and discontinu- 
 ing the operation of martial law, and in order to enable him to do so, he 
 was lor distributing the troops; he wrote, "my own views are strongly 
 adverse to the establishment of martial law in places in which, though excite- 
 ment exists and seditious language has been openly used, no actual outbreak 
 has occurred. If this policy is continued for a little time, the country 
 will be restored to its usual quietude" {ibid). But this policy was dis- 
 approved of and opposed by the Commander in-Chief, and hence aboul i u 
 days before the discontinuance of martial law, the Governor wrote thus to 
 the Secretary of State : "It certainly may happen, and I trust will, that 
 no evil may result from the omission in this instance to act upon the 
 Governor's instructions ; but it is quite clear that the executive can make 
 no satisfactory- or useful arrangements for the safety of the colony as a 
 whole, if an officer at a distance is to be authorised by the General eoin- 
 manding cither to carry out the Governor's views or not as he may think 
 expedient, and without the Governor having any opportunity of knowing 
 for a considerable period of time whether the arrangements he has directed 
 have been acted upon or not (Desp. of .Mr. Eyre, Nov. 4). There was 
 every reason to believe that if the Governor had been allowi 1 to have the 
 distribution of the troops as he had desired, the duration of martial law- 
 might have be d. As it "as. it was only continued a week after 
 the reinforcements arrived ; a period which was occupied by the discussions 
 and arrangements for their distribution. As soon as they were distributed,
 
 200 MARTIAL LAW IN THE COLONIES : 
 
 pensation for the weakness of military force, and the 
 necessity for it ceases with the presence of an adequate 
 military force, whence it is that it can hardly be necessary 
 in this country. Hence it is that the question resolves 
 itself practically into the sufficiency of military force to 
 allow of such a distribution of it as to prevent danger and 
 restore peace and confidence. 
 
 It has always been laid down (a), and has recently been 
 recognized on very high authority — that of Royal Commis- 
 
 martial law was terminated. The Royal Commissioners took no notice of tins 
 most important consideration, which it is manifest is vital to the whole 
 question. The Secretary of State did indeed advert to it, and though he 
 concurred in the Report of the Royal Commissioners, that the execution of 
 martial law had been kept up too long, he did not, nor did they, object to 
 its continuance. It was rather to the number of executions under courts- 
 martial that the objection was duected, and it was thought that the Gover- 
 nor should have restrained them. But it was not understood that he had, 
 by distinct orders, restrained them, several days before the Commissioners 
 thought they ought to have restrained them ; he having sent a despatch to 
 the Commander-in-Chief, desiring that the prisoners should be disposed of, 
 releasing all but those guilty of the worst offences ; and if this had been 
 followed out, the executions must have been largely limited, and almost 
 entirely put a stop to. And although it was said he ought to have known 
 what was going on, it was overlooked that the reports did not go to him, 
 and that he might fairly presume his orders were carried out. 
 
 (a) Thus, in the Jamaica case, the Royal Commissioners reported : — 
 " But as under any circumstances, however carefully instructions 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. 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 those 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 determination was arrived at." Then after stating that on the 
 21st October, the rebels were defeated in their stronghold (the rebellion 
 having broken out on the 11th, and that on the 24th the leader was taken): 
 " From this time it must have been clear to all that the rising 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
 
 NECESSITY FOB ITS COXTINIWNCK. 201 
 
 sioners, and that of the Ministers of the Crown, writing with 
 deliberation alter their report— that as one great object 
 and advantage of martial law is in the exercise of deterrent 
 measures, by the summary punishmenl of those engaged in 
 the rebellion, those measures may be resorted to during 
 the rebellion, and for some time longer than the duration 
 of actual insurrection or open resistance, so long as the 
 danger may reasonably be supposed to continue against 
 which these deterrent measures are directed. And that a 
 
 likely to take place, but whether the Government, with the information 
 then in their hands, had reasonable grounds for apprehending they might 
 take 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 con- 
 elusion 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. But there was a course which might have 
 been pursued by which that advantage would have been secured, and yet 
 many of the evils ordinarily attendant upon martial law avoided. On the 
 30th October it was formally stated by the Governor that the wicked rebel- 
 lion lately existing in certain parts of the county of Surrey had been sub- 
 dued, and that the chief instigators thereof and actors therein had been 
 visited with the punishment clue to their heinous offences, ami that he was 
 certified that the inhabitants of the districts lately in rebellion were desir- 
 ous 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 inquiry 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 plainly implied 
 it will be perceived, that for some ten days after the defeat of the rebels in 
 their last stronghold, ami after the capture of the leader, the danger and 
 alarm still continuing, deterrent measures mighl justly have been pursued. 
 There was nothing in the despatch of the Secretary of State, confirming 
 the Report inconsistent with this ; cm the contrary he wrote, " It not from 
 the capture of the leader, at least from the time when the reinforcements 
 arrived, and the amnesty proclaimed, there could have been no necessity 
 for the execution of prisoners, although even then the Government would 
 have incurred a .-erious responsibility, if they had thrown away the advan-
 
 202 MAKTIAL LAW IN THE COLONIES : 
 
 Governor, so long as that danger continues, would be 
 incurring a heavy responsibility if he were to throw away 
 the terror which the name of martial law is calculated to 
 Inspire. 
 
 And although it has undoubtedly been justly laid down 
 upon the same high authority, that the execution of martial 
 law ought not to be continued any longer than is absolutely 
 necessary for the suppression of the rebellion (a) ; and that, 
 
 tage of the terror which the name of martial law inspired." There is 
 nothing in the charge of Cockburn, C. J., inconsistent with this in point 
 of law, and his statement as to the facts, that the rebellion was over in a day 
 or two, is, it will be seen, utterly at variance with the Report of the Com- 
 missioners. 
 
 («) This was the great lesson laid down by the Jamaica case. Thus the 
 Secretary of State wrote upon this question in these terms: — "It remains, 
 at present, to consider the conclusions at which you 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 punish- 
 ments 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 Ilayti, 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. You 
 have justly observed how much easier 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. 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, at least from 
 the time at which the reinforcements had arrived, and the amnesty was 
 proclaimed, " there could have been no necessity for that promptitude in
 
 NECESSITY FOB lis CONTINUANCE. 203 
 
 in particular, it should be borne in mind "that future good 
 government is uot the object of martial law, that example 
 and punishment are not its end, but only its means, and 
 allowable only so far as oect Bsary for its legitimate object ; 
 and that its severities can only be justified when, and so 
 long as they are absolutely necessary for the immediate 
 re-establishment of public safety : " yet, on the other hand, 
 as it is obvious that this a question of degree, and one of 
 delii.-ate and difficult judgment, it is not one in which error 
 can possibly be the subject of any criminal liability, but is 
 a matter on which the Governor must exercise his dis- 
 cretion, subject only to the control and the approval or 
 disapproval of the Crown. And in the consideration of 
 this question, a wise and considerate minister, following the 
 course of the wisest and greatest judges, will make large 
 allowance for the difficulties of the case ; nor will even a 
 case considered fit for some extent of censure or dis- 
 approval be deemed a sufficient reason for questioning the 
 legal immunity, or withdrawing the bill of indemnity prac- 
 tically necessary to give it full effect. 
 
 The question, it will be seen, resolves itself mainly into 
 the control or continuance of those deterrent measures, by 
 
 the execution of the law which almost precluded a calm enquiry into each 
 man's guilt or innocence ;" and that " directions might and ought to hai e 
 been given that courts-martial should discontinue their sittings. The 
 prisoners in custody might then well have been handed over for trial by 
 the ordinary tribunals." It may, indeed, be admit led that, as you have 
 s:iid, the Government would have incurred a serious responsibility if, with 
 the information before 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 ol the insurrection, nor participators In actual 
 murder or outrage of the like atrocity] while for the wholesale flogging 
 and burning ot houses, the circumstances of the case do not appear to 
 furnish any justification. Future good government is not t he object of 
 martial law. Example and punishment are not its objects ; its severities 
 can only be justified when, and BO far as, they are absolutely necessary for 
 the immediate re-establishment of the public satety." (Desp. of Mr. 
 Card well.)
 
 204 MARTIAL LAW IN THE COLONIES : 
 
 means of trials by court-martial, which have always been 
 deemed (a), by all authorities on the subject, as neces- 
 sarily of the very essence of martial law, and as rendered 
 necessary equally by considerations of policy and humanity, 
 and as the only practicable mode of dealing with prisoners ; 
 with the view, on the one hand, of avoiding anything like 
 indiscriminate massacre, and, on the other hand, of in- 
 spiring a salutary terror by some examples of speedy and 
 summary justice ; and in this double necessity, a necessity 
 springing from considerations of policy and humanity, will 
 be found the key to the solution of all the questions which 
 can arise upon the subject with reference to the authority 
 
 (a) It cannot be too often repeated nor too carefully borne in mind that 
 everything in martial law, whether it be put upon prerogative resting upon 
 necessity, or upon the necessity on which alone the prerogative can be sup- 
 ported, is based upon necessity. And this eminently applies to trials by 
 court-martial in rebellion, for it need hardly be said, that courts-martial 
 have ordinarily not only no jurisdiction over civilians, but not even over 
 soldiers as to civil offences or offences against the ordinary law of the 
 land. Hence their authority to try persons for crimes committed 
 in a rebellion must be sought in some principle of necessity, and as the 
 courts are necessarily constituted only under military authority, the neces- 
 sity must be in its nature a military necessity, so as to come within the 
 scope of the authority conveyed by the Commissions of military offences. 
 And according to the authorities that necessity arises in a double form, 
 from the necessity, on the one hand, of taking, and, on the other hand, of 
 dealing with prisoners. The necessity for taking them arises partly from 
 military exigencies and partly from certain principles of law. Thus, 
 Mr. Serjeant Spankie, when Judge Advocate-General of Bengal, in his 
 wise and humane observations on the subject, said, " Courts-martial during 
 martial law are invested with the power of administering that prompt and 
 speedy justice in cases presumed to be clearly and undisputably of the 
 highest species of guilt. The object is self-preservation by terror and the 
 example of speedy justice," and he elsewhere says that this is also neces- 
 sary to prevent indiscriminate massacre {Hough's Military Law, p. 350). 
 So that wise and able administrator, Mr. Elphinstone, in his instructions 
 to the militajy commander in a disturbed district, especially reminding 
 him of the necessity of courts- martial (Alphinstone v. Bedrechaud, 4 Moore's 
 Appeal Cases). Whether as regards prisoners taken in conflict in the 
 field, when the rebels meet the forces of the Crown in conflict, or as regards 
 the more embarrassing case when they avoid meeting them and pursue an 
 irregular system of outrage, and have to be pursued and driven out, pri-
 
 COURTS-MARTIAL: THEIR NECESSITY. 20" 
 
 to hold such trials; the nature of the offences to be tried, 
 the constitution or procedure of the tribunals, the proof to 
 be required, the penalties to be inflicted, or the period for 
 which such trials should he allowed to continue, and the 
 rules and principles by which they should be regulated, or 
 the principles on which they should be controlled. The 
 authority of courts martial in such cases rests only on 
 necessity, and the same necessity supplies the governing 
 rule or principle which must guide all their proceedings. 
 
 As, according to the law of England, rebels are not l< Be 
 subjects because they are rebels ; and, according to that law, 
 subjects, even though rebels, cannot be executed without 
 a trial (a), it follows that there must be prisoners ; and 
 
 Bonersmusi needs be taken unle sa system of indiscriminate massacre is 
 to l«e followed), ami the question must needs arise whether or how they 
 are to be dealt with, and they ran only be either released or tried, for it is 
 a principle of law that a British subject must not either be slain in resist- 
 ing nor executed without trial. Thus, on the occasion of what was called 
 the Manchester massacre, that the troops had lulled men, unarmed and 
 
 i ing, 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 are liable to be tried by the law 
 of the country " (Abbott, ('. J., 4 B. & Aid. p. 323). "At all events it 
 would import a crime, which might be cither murder or manslaughter, 
 according to circumstances" (Best, J, ih. p. 327 K 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 
 bedealt with summarily with tome trial. On the other hand, in Wright v. 
 Fitzgerald, 27 State Trials, and in Governor Wall's case, 28 State Trials, 
 i; was laid down in clear accordance with the clearest principles of natural 
 and English law. that even a rebel or mutineer musl no< be capitally 
 punished without trial, though it may be a trial by court-martial. Hence 
 in the Ceylon case, there were such trials, and the Government and Parlia- 
 ment upheld them. Hence, in the Jamaica case, the first questions putby 
 the Secretary of State were, whether any person had been flogged or hanged 
 without trial, and hence the Uoyal Commissioners examined carefully into 
 the trials; all this implied an authority arising From necessity and an 
 authority to be controlled by necessity. 
 
 (a) It is obvious that if there is not to be slaughter, there must be pri- 
 soners, and assuming thai tb iners, unless they are Bimplj to be 
 bold lor the civil power, they mii.-t bedealt with by the military. But if 
 the ordinary course of justice would Buffice, there is no need of martial law
 
 206 • MARTIAL LAW IN THE COLONIES : 
 
 that prisoners, if there is any necessity for martial law at 
 all, must be dealt with by the military authorities, and 
 cannot be dealt with except upon some enquiry, and this 
 enquiry by persons having authority, from necessity, to 
 deal with them is, in effect, a trial, and a trial implies a 
 tribunal. Thus, therefore, the authority of courts -martial, 
 courts of lawful though irregular character, establishes 
 itself upon the same principle as that upon martial law 
 itself, in any sense, must rest. 
 
 Trials by court-martial being only justified by the 
 double necessity of military exigency and considerations of 
 humanity, it is obvious tha/t it is desirable to control the 
 
 at all, and the military may merely act in aid of the civil power. If there 
 is, however, necessity for more than that, i. e., for martial law, there must 
 be deterrent measures, and the prisoners must be dealt with by the military. 
 But they cannot be so dealt with according to general principles of law and 
 justice without enquiry. And an enquiry by parties who have authority 
 to act is, in substance, a trial, and a trial implies a tribunal, and it is idle 
 to stickle, therefore, at calling these enquiries trials by court-martial. 
 Nothing is gained, and a great deal is lost, by denying that these tribunals 
 are courts, and lawful though irregular tribunals. To tell the persons who 
 arc to undertake such trials that they are not to regard themselves as 
 courts is the very way to make them careless, whereas to tell them that they 
 are courts, although it is true courts of irregular character, is surely the 
 strongest reason why they should regard their functions with respect and 
 exercise them with care. And, again, there is this consideration, which 
 seems to have been lost sight of, that unless there is a court and a lawful 
 tribunal, false evidence on oath will not be perjury so as to be indictable 
 and punishable at law, and this will deprive the unhappy rebels of all the 
 protection which the penalties of perjury afford. Every lawyer knows that 
 sworn evidence cannot be the subject of punishment as perjury, unless 
 given before a court having lawful jurisdiction. And if there are to be 
 trials at all there must be evidence, and evidence ought to be sworn evi- 
 dence. Nor is there any security against perjury but the penalties of 
 perjury, that is, in cases where there is likely to be false evidence at all, for 
 a wretch who would lie away the life of a fellow man is not likely to be 
 deterred by the moral sanction and solemnities of an oath. It is only fear 
 of punishment which will deter them. And it is only an indictment for 
 perjury which would lie, for it has been held that getting a man hanged by 
 false evidence is not murder (MacdanieU's case, 1 Leach's Crown Cases). 
 Unless, therefore, there are legal tribunals there can be no safe trials. But 
 it lias already been seen, that unless there are trials there must be indis-
 
 COURTS-MARTIAL: THEER JURISDICTION. 2(>7 
 
 administration of this law of necessity by some kind of 
 rule; and the most obvious is that afforded by the broad 
 analogies of military law in time of war. Courts-martial, 
 under ordinary military law, derive their jurisdiction, in 
 
 cases within the Mutiny Art and Articles of War, from 
 those enactments, which apply to soldiers in the service of 
 the Crown, and of course cannot, in their terms, embrace 
 soldiers serving against the Crown: as to which, whether 
 in war or rebellion, enactments or regulations have not 
 usually been provided, because they are not entitled to the 
 benefit of regular rules made for the protection of the 
 loyal soldiers and servants of the Crown. But as these 
 enactments do not in cases not within their terms, limit 
 th<' power of the Crown as to martial law, even over 
 its soldiers in its service ; so neither do they at all exclude, 
 limit, or restrain the power of the Crown over soldiers — 
 whether subjects or others — serving against it ; so that as 
 to the former, that is subjects, while, on the one hand, they 
 incur the doom of traitors, ami are, of course, not entitled 
 to the rules of regular war, as ransom, exchange of 
 prisoners, or the like, so, on the other hand, they are, as 
 subjects, still within the protection of the Crown, and en- 
 titled, when not actually in conflict, to the rights of subjects, 
 and, therefore, to trial at common law, except so far as the 
 
 eliminate slaughter. Therefore, for the sake of humanity, thero must be 
 trials, and the trials must be legal, therefore the courts-martial must be 
 deemed lawful tribunals. Now, if convened aa drum-head courts-martial, or 
 detachment general courts-martial are, by orders from the military com- 
 mander, who holds a commission from the Crown which authorises him to 
 convene such courts for trial of soldiers or persons liable to he treated as 
 such, and they are composed of persons holding commissions from the 
 Cn.wn which authorise them to sit on such courts-martial, it is conceived 
 that such courts during martial law are lawful tribunals, if it is true, as 
 has alrcadv been shown, that the effect is to establish tic slat.- of war and 
 the laws of war. Otherwise, how coidd a court-martial, in tine o\' war, try 
 and execute a subject who played the part of a spy. That ease is not 
 within the Articles of War, which apply in terms only to the soldiers of 
 the Crown. How thou is it | By virtue of the laws of war and their 
 general authority as commissioned officers of the Crown.
 
 208 MARTIAL LAW IN THE COLONIES : 
 
 exigencies and the emergency may necessarily deprive 
 thorn of that privilege by reason of an urgent necessity for 
 more summary justice ; and the jurisdiction of courts- 
 martial over them, therefore, rests upon necessity. 
 
 With regard to the constitution of courts-martial in the 
 distant dominions, colonies, or dependencies of the Queen, 
 where it would be impossible to constitute them regularly 
 as required by the Articles of War (a), special provision is 
 
 (a) Thus, the Mutiny Act originally only applied to the Queen's 
 dominions, and now mainly and almost entirely does so. So again it 
 recites that it is only necessary in time of peace, solemnly declaring, as the 
 reason for its enactment, that no man may be adjudged to lose life or limb 
 in time of peace by martial law or by any other manner than according to 
 the common law. Then its first enactment only limits the power of the 
 Crown within the realm. " No person within the United Kingdom or within 
 the British Isles shall, by the Articles of War, be subject to any punishment 
 extending to life or limb or to be kept in penal servitude except for crimes 
 which by the Act are expressly made liable to such punishments, or shall 
 be subject, with reference to any crimes made punishable by the Act, to be 
 punished in any way which shall not accord with the provisions of the 
 Act." And then the second section restricts the articles and pro- 
 visions of the Act to soldiers listed or employed in the service of the 
 Crown. The power of the Crown, therefore, as to martial law even over its 
 own soldiers out of the realm is not (except by one or two special provi- 
 sions) limited or restrained by the Act or the Articles, still less is its power 
 at all affected as regards soldiers not in its service, whether or not under 
 subjection to it. As regards soldiers not in subjection, nothing need be 
 said, save that they are left to the " custom of war." As regards soldiers in 
 subjection to the Crown and serving against it, i. e., armed rebels and 
 traitors, the power of the Crown is just what it was at common law, neither 
 more nor less, and it is conceived, that it is limited only by the extent of 
 the necessity created by the emergency, although when that necessity 
 ceases they are entitled to trial as traitors. 
 
 (a) These Articles ordinarily require a general court-martial to inflict a 
 capital penalty (Art. 115), to consist of thirteen members (Mutiny Act, s. 8), 
 but detachment general courts- martial are also allowed that power (117), 
 and any court-martial may sentence any soldier to corporeal punishment 
 for mutiny or for insubordination accompanied with personal violence, or 
 while on active service in the field, for mutiny or any breach of the Articles 
 of War, provided that no sentence of corporeal punishment of a regimental 
 court-martial shall, except in cases of mutiny with personal violence, be 
 put in execution in time of peace without the leave of the General com- 
 manding the district or station, superior to the officer by whom the
 
 ■**■ 
 
 
 COURTS MARTI A L : THEIR CONSTITUTION. 209 
 
 toade by the art icles, which allow of their being constituted 
 of so small a number of officers as three, and to be com- 
 posed also of members of both the laud and marine 
 services ; provisions dictated by obvious sense and con- 
 venience, and, indeed, by that necessity which is the sole 
 foundation for martial law, even as to the soldiers of the 
 Crown. And further, there is special provision for the trial 
 before courts-martial of all soldiers in these distant dcpen- 
 
 Bentence may have been confirmed (1 IS). No sentence of a general court- 
 martial shall be carried into effect till after a report .-hall have been made 
 to the officer commanding-in-chief ; and no sentence of death shall be 
 carried into effect in any of our colonial possessions until it shall have been 
 approved by the civil Governor (123). These Articles, it will be observed, 
 are only obligatory as to soldiers of the Crown, and are not, except by way 
 of analogy, applicable to a case of martial law in rebellion ; but the spirit 
 of the provisions would apply by analogy, except so far as affected by the 
 exigencies of the emergency and circumstances of distance, difficulty of 
 communication, lapse of time, and the like. A detachment general court- 
 martial shall have the same powers in regard to sentences upon offenders 
 as a general court martial, but no sentence of a detachment general court- 
 martial shall he executed until the General commanding the Army of 
 which the division forms a part shall have approved and confirmed (124). 
 Then the Mutiny Act, s. 12, provides that it shall be lawful for any officer 
 commanding any detachment serving in any place beyond seas, where it 
 may be found impracticable to assemble a general court-martial, upon com- 
 plaint made to him of any offence committed against the property or 
 person of any inhabitant by any person serving with or belonging to Her 
 Majesty's Army, being under the immediate command of such officer, to 
 convene a detachment general court-martial, which shall consist of not less 
 than three commissioned officers, for the purpose of trying such person, and 
 every such court-martial shall have the Bame powers, in regard to sentence 
 upon offenders, as are granted to general courts-martial, provided that no 
 sentence of any Buch court-martial shall be executed until the General 
 commanding the Army of which such detachment forms part shall have 
 approved and confirmed. Then the Articles of War further provided, 
 that any soldier who may be serving in anj place within our dominions 
 beyond the seas (except India), wJu re then is no civil judicature in fora , by 
 an appointment or under an authority competent to try such offenders, 
 and who shall be accused of treason or of any other civil offence which, if 
 committed in England, would be punishable by a court of ordinary cri- 
 minal jurisdiction, shall be tried by general court-martial, and if found 
 guilty, shall be liable, in the ease of any offence which, if committed in 
 England, would be capital, to suffer death, &c, no such punishment to be. 
 
 P
 
 210 MARTIAL LAW IN THE COLONIES: 
 
 dencies, even for such officers as would in this country be 
 cognizable only before the ordinary criminal courts of the 
 country, as rebellion or treason. And although the letter 
 of these articles may only be applicable to the soldiers in 
 the service of the Crown, it is obvious that they are equally 
 applicable in spirit and in principle, and by very close 
 analogy, as affording guidance in the constitution of courts- 
 martial for the trial of soldiers against the Crown ; that is, 
 of rebels : and, indeed, it admits of great doubt whether 
 some of these enactments are not in terms applicable to 
 rebels. 
 
 If the declaration of martial law for the suppression of 
 rebellion be, as it is conceived it is, the application to the 
 rebels, on the ground of necessity for the public safety, and 
 on the principle that they are soldiers, of that absolute 
 military rule which is, it is admitted, applicable even to the 
 loyal soldiers of the Crown, on the same principle of 
 necessity in time of peace to a great extent by statute, 
 and in time of war by prerogative ; then the offences 
 cognizable under martial law, and the penalties inflicted, 
 may be derived by analogy from those applicable under 
 martial law to soldiers ; and, at all events, by analogy to 
 
 carried into effect until the officer comrnanding-in-chicf shall have approved 
 and confirmed (143). Now this enactment in terms applies to any soldier 
 hi rving (not saying serving with our forces), and, therefore, there is really 
 strong grounds for contending that it applies even in terms to rebels in 
 arms, who are soldiers, although not serving their sovereign but serving 
 against her, and so it seems to be considered and is so laid down in Sim- 
 mons on Court- Martial. But at all events it is applicable in spirit and in 
 principle, and by way of very close analogy to the case of armed re- 
 bellion, provided there is a necessity for its application in order to the 
 suppression of the rebellion. Only it must always be borne in mind that 
 no application of martial law to civilians can be justified beyond that neces- 
 sity, which is its only basis or justification even as regards soldiers. If, 
 however, by reason of a formidable armed rebellion and the suspension, by 
 that course, of the civil judicature, so that it is practically powerless to 
 deal with the danger, there is an urgent necessity for the application of the 
 deterrent measures of martial law, these enactments appear to afford by 
 analogy the most obvious guidance.
 
 COURTS-MARTIAL: offences cognizable. 211 
 
 such as are defined in the Articles of War, which appear to 
 embrace and render capital all wilful acts of mutiny and 
 sedition, and all wilful attempts to stir up sedition. And, 
 if the true theory be that of necessity for the public safety, 
 the practical result is the same, for under neither theory 
 would the enforcement of martial law be justified beyond 
 the necessity; and, on the other hand, withi/n that neces- 
 sity it can scarcely be deemed unjust to apply to rebels, 
 i. e. to soldiers in arms against the Crown, the same mea- 
 sure of justice as it applied to the soldiers of the ( frown (a). 
 
 (a) Under the Articles of War, •' Any soldier who shall begin, excite, 
 cause, or join in any mutiny or .sedition in any of our land or marine forceSi 
 or who, being present at any mutiny or sedition, shall not use his utmost 
 endeavours to suppress the same, or who coming to the knowledge of any 
 mutiny or intended mutiny shall not, without delay, give notice thereof to 
 his commanding officers, shall suffer death or such other punishment as a 
 general court-martial shall award " (Art. 36-38). Now the letter of this 
 Article only applies to sedition in the army, but in principle and in spirit 
 it is ae applicable to rebellion, and the analogy indeed is perfect, when it is 
 borne in mind, that in rebellion there is no neutrality, and that the 
 General it in command of the v:holc district, and that the rebels are soldiers, 
 and, therefore, soldiers under his command. So as to offences in the field, 
 " Any soldier or officer who shall hold correspondence with or give intelli- 
 gence to the enemy, directly or indirectly, or relieve with money or 
 ammunition, or knowingly harbour and protect an enemy, shall sutler death, 
 or who being employed in foreign parts shall force a safeguard or break 
 into any house for plunder, shall sutler death or penal servitude," &c. The 
 letter of these Articles applies only to soldiers employed by the Crown; 
 but in war, even as to the soldiers of the Crown, the powers and penalties 
 of military law are not limited by the terms of the Articles, as is admitted 
 on all hands, and, therefore, it is beyond a doubt that a soldier under the 
 Crown who should stir up a sedition against the Crown or its officers would 
 be deemed amenable to the -ante penalty as for mutiny or sedition in the 
 army, and in martial law the Genera] is in command over the whole popu- 
 lation, and the attempt to stir up the inhabitants against him would be 
 justly made, if necessary for the poblie sat'etx, amenable to the same mili- 
 tary law as is applicable to the soldiers of the Crown only upon the ground 
 of the same necessity. But then, undoubtedly, this view only rests upon 
 and assumes the necessity. On the other hand, it will be obvious, that this 
 ,i\ may exist to a greater degree in the ease of a leader who is 
 stirring up rebellion than in that of an isolated soldier or rebel who is 
 merely caught in the act of mutiny or is taken in arms, for the latter only 
 
 p2
 
 212 MARTIAL LAW IN THE COLONIES : 
 
 The trials by martial law are under the entire control of 
 the military Commander (a), primarily under the control 
 of the military Commander of the declared district, who 
 determines according to the analogies aDd principles of 
 military law what courts-martial shall be held and what 
 cases are fit and proper to be tried ; but this is subject to 
 the control of the Commander-in-Chief, before whom the 
 proceedings should be laid for revision and review, unless, at 
 all events, there is any such imminent and urgent necessity 
 for instant execution of the sentence as precludes this 
 course. And, beyond all doubt, considering, on the one 
 hand, the analogies afforded by military law, and, on the 
 other hand, the extreme importance of having a clear, 
 calm, and cool review of capital convictions by a superior 
 
 represents the offence and the power of an individual, whereas the former 
 may by his influence excite, and wield, and embody the force of hundreds 
 or of thousands, and it does not consist with the sense of justice that the 
 humble and ignorant soldier, who merely yields to an impulse of insubordi- 
 nation, should be for the sake of public safety sentenced to death, and that 
 an educated person who raises a whole population to rebellion, and causes 
 hundreds to rise, should not be amenable to military law, provided it 
 appears necessary for the safety of the province, and the suppression of the 
 rebellion. 
 
 (a) That the primary authority would be in the military Commander of 
 the district, but subject to the control of the Commander-in-Chief of the 
 colony, is shown conclusively by what occurred in Jamaica, where the 
 General in command, on a question arising as to jurisdiction to try a case 
 by court-martial, submitted it to the Commander-in-Chief, and acted on 
 his opinion in declining to try the cases, on the ground that they were not 
 connected with the rebellion (Ev. p. 682). The Commander-in-Chief, in 
 that case, gave general directions to the General in command, and only 
 abstained from giving more specific directions because he had confidence in 
 his discretion. He gave it, indeed, as his opinion before a Royal Commis- 
 sion of enquiry, that he had nothing to do with the courts-martial, but the 
 above shows that he might have had, and the facts proved before the Com- 
 mission abundantly showed that it would have been far better if he had. 
 For although he gave a particular order to one officer as to the proper 
 course under martial law, viz., to try the prisoners speedily, and only exe- 
 cute those taken red-handed, no steps were taken to see if this rule was 
 followed, and in point of fact unhappily it was not, and some persons were 
 executed without any evidence of guilt. That he would have had autho- 
 rity to order the proceedings to be laid before him for revision is manifest,
 
 COURTS-MARTIAL: REVISION OF THEIR PROCEEDINGS. 213 
 
 Commander, standing aloof from the heat, the haste, and 
 the excitement of the district in rebellion, it is most 
 desirable that there should be such review. 
 
 The execution of martial law, and the measures to be 
 taken, especially the trials by court martial, being neces- 
 sarily, from their natiuv, as being carried out under military 
 authority, matters for military regulation, it is the military 
 Commanders who are primarily responsible. All that the 
 Governor can do is to communicate to them, or rather to 
 the Commander-in-Chief, general directions, leaving it to 
 them, or to him, to carry them out by issuing the proper 
 military orders to the officers, and by seeing that their 
 orders are observed and obeyed (a). And the general 
 tenour of the Governor's directions will doubtless be to 
 restrict trials by courts-martial to the graver and clear 
 cases of criminality, as murder, arson, and the like. 
 
 and in point of fact, as already seen, he did give orders, and some cases 
 were submitted to him. 
 
 (a) Thus, in the Jamaica case, about ten days after the operation of mar- 
 tial law began, the Governor wrote to the Commander-in-Chief : " 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 gaols to sentence prisoners to imprisonment, nor 
 would I advise that flogging should be resorted to more than can be 
 helped." The Commander-in-Chief then sent this in a letter to the mili- 
 tary Commander, and it was his duty to see that it was carried out. After 
 this the Governor wrote : " It is my intention to proclaim a general 
 amnesty in the county of Surry to all except those who have been partici- 
 j>ators in the murders, excepting those who are found in possession of stolen 
 property, and excepting those who arc 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" (Desp. Oct. 26). And 
 a little afterwards to the Commander-in-Chief': "I would beg to suggest 
 that the Colonel should be requested to furnish all the evidence he can, 
 either written or oral, against each and alt of the prisoners sent in under 
 his authority ; and if no evidence of serious crime was obtainable, they 
 would, as a matter of course, be released. If any of the prisoners sent in 
 were taken in arms or with stolen property in their po^etsion, the parties 
 who captured them should appear heforc the Court* to give evidence against 
 them. It is only the captors who can declare the grounds upon which the 
 captures were made '' (I'esp. < M. 30, 18G5).
 
 214 MAKTIAL LAW IN THE COLONIES : COURTS-MARTIAL : 
 
 The key to all questions as to acts cognisable by courts- 
 martial, under martial law, is the principle that martial 
 law is a measure of military necessity for the purpose of 
 meeting a state of war ; and that, therefore, it is restricted 
 to acts connected with the war. It is important to bear 
 in mind that courts-martial under martial law are, upon 
 general princijsles, restricted to the trial of offences com- 
 mitted in causing, or in carrying on, or aiding and abetting, 
 the rebellion ; and therefore are, in point of place, re- 
 stricted to acts done or taking effect within the district 
 declared, and, as to time, are precluded from trial of 
 offences prior to the rebellion, and not committed in 
 causing or inciting to it. It is a general principle that the 
 trial of crimes is local (a), and that it depends upon the 
 
 («) This principle is as ancient as any in the law, and hence in the Tear 
 Books it is laid down, that a man, who sends another to commit a murder 
 in another county, is guilty of murder where the murder is actually com- 
 mitted. The strongest illustration of the principle was afforded in a case 
 where a man who had committed the offence of abduction in Ireland, where 
 it was capital, was seized in England, taken to Ireland, convicted and 
 executed {Rex v. Kimberky, 2 Strange's Reports, 848). The principle is, 
 that crimes are in their nature local, and the jurisdiction (in the trial of 
 crimes) is local (L. C. Justice De Grey, Raphael v. Verelist, 2 Wm. Black- 
 stone's Rep. 1058), which was the case of imprisonment abroad under the 
 orders of the General of Bengal. So on this principle it was held, that a 
 person who had committed a crime in England might be arrested in 
 Scotland, and so in the converse case (Mure v. Ray, 4 Taunton's Rep. 43). 
 Hence it was held, that a British subject, arrested abroad on a warrant 
 upon an indictment for a misdemeanour, brought in custody to England, 
 and there committed to prison, is not entitled to be discharged (per Lord 
 C. J. Tenterden, and Parke, J. ; Ex parte Scott, 4 M. & R. 361 ; 9 B. & C. 
 446). Where the crew of a Dutch ship had mastered the vessel and ran 
 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 at common law, and apart 
 from statutable or special law, causes can only be tried in the counties 
 where they were committed (See Rex v. Burdett, 4 Barnard's & Alderson's 
 Reports). And in cases of offences which do not require personal presence 
 the crime is committed where it is caused and directed. Thus an informa- 
 tion at common law for a conspiracy, for planning and fabricating false 
 vouchers to cheat the Crown (which planning and fabrication were done 
 beyond seas), is well triable in a county where the receipt of the false
 
 THEIR JURISDICTION: AS TO PLACES OR TIME. 215 
 
 locality of the offence. Therefore, it follows that a pi 
 cannot be tried under martial law for an offence committed 
 out of the district; though, on the other band, it equally 
 follows that he may be tried under martial law for an 
 oflfence in its nature cognisable by martial law, if either 
 virtually or constructively committed within the district, 
 f hough he is out of if when arrested, and oven though he 
 has never personally been there al all. For it Lb familiar 
 law that a man who intentionally causes a crime commits 
 it where it is caused. 
 
 With regard to the time at which acts or offences mu-t 
 have been committed which are cognisable under martial 
 law, it follows on the same principle that courts-martial 
 under martial law can only take cognisance of such acts as 
 
 vouchers, transmitted thither by one of the conspirators through the 
 medium of the post, and the application there of a third person for pay- 
 ment, which he there received, took place (Rex v. Brisac, and Bex v. Scott, 
 4 East, 164). So in the case of a libel, if a publisher receives a letter, the 
 letter itself containing expressions of the writer, indicative of his having 
 sent it to the publisher for the purpose of publication — the whole is evi- 
 dence sufficient for the jury to find a publication by the procurement of 
 the defendant (Rex v. Johnson, 7 East, 65) in the place where it is received. 
 It was indeed, once doubted whether a libel be triable in any county but 
 t hat where the publication took place (Rex v. Burdett (Ban.), 3 B. & \. 
 717 ; 4 B. & A. 95). Bvit it isnow r held, that where a defendant writ 
 composes a libel in one county, with an intent to publish, and aft 
 publishes it in another, he may be indicted in either (ibid). When a letter 
 was inclosed in an envelope, and received in the county of M. open, accom- 
 panied with written directions for publication, as expressed in the envelope, 
 this was evidence to go to a jury of a publication in If. That law, how- 
 ever, only applies to libel, and if the offence is the incitement to rebellion, 
 the crime is committed where the incitement takes effect and where it docs 
 its mischief (ibid Rexv. O'Connor, 13 Law Journal (Magistrates' Cases), 33; 
 Rex v. Hunt, 10 Queen's Bench ltep. 925). So in other cases the locality 
 of the crime is where the crime takes effect, thus, in obtaining good- by 
 l'al->' pretences it is where the goods were obtained (Rcyina v. Stanbury, 4 
 Criminal Cases, 94). This principle was lately applied by a very 
 learned judge in the case of a trial by court-martial, a casein which an 
 officer was removed from Calcutta to Rangoon, to be tried there for an 
 offence committed there, and the learned judge (Mr. Just ire Willes), held 
 it lawful, laying it down, as a general rule and principle of law, and one of 
 universal application, that crime is local in its trial, and that otl'cnc'cs
 
 216 MARTIAL LAW IN THE COLONIES: COURTS-MARTIAL 
 
 have been committed in causing or keeping up the rebel- 
 lion («) ; and though it is to be borne in mind that, us the 
 declaration of martial law is only the declaration of a state 
 of things already existing, and therefore its operation 
 really commences from the time of the rebellion which 
 raises the necessity for it, and so the courts can take 
 cognisance of acts, in causing the rebellion, committed 
 before the declaration of martial law ; they cannot take 
 
 are to be tried where they have been committed (Keic/hlry v. Bell, 4 Finla- 
 son's Crown and Nisi Prius Reports, 790; where see a note collecting all 
 the cases on the subject). The principle was admitted by Cockburn, C. J., 
 in his charge in Nelson's case, the case of Gordon, who was removed into 
 the declared district to be tried by court-martial there for alleged incite- 
 ment to the insurrection there.j He distinctly laid it down that (as the 
 Author had laid it down in his book), even assuming the arrest to have 
 been illegal (as it clearly was not, for not only a Governor or Secretary of 
 State but any one may arrest on suspicion of such a crime), the illegality 
 of the arrest or custody v;ould not affect the legality of the trial, and he put 
 the very case put by the Author in his book, of a man committing a 
 murder in one county and flying into another and illegally arrested and 
 brought into the county where the crime was committed, where, beyond all 
 doubt, he could legally be tried. It was, indeed, suggested by Cockburn, C. J., 
 that if a man is triable in two places for an offence committed partly in 
 one and partly in another, he cannot be tried in either at the option of the 
 authorities, and that supposing martial law in force in one of them, he 
 cannot be tried there ; but this surely would depend upon whether there 
 was any real ground for trying him by martial law. And the Lord Chief 
 Justice, it is conceived, fell into error in supposing that the crime of in- 
 citing to insurrection can be committed anywhere but where the insurrec- 
 tion is incited. Moreover, he was in error in the particular case in 
 supposing that the prisoner could have been tried anywhere but where he 
 was tried, seeing that local statutes prevented it, and required his trial in 
 the district which was under martial law. And the question, therefore, 
 really was, whether there was any case for trying him under martial law at 
 all, which wonld depend upon the nature of the offence charged and of 
 the evidence to be adduced in support of it (vide the Jamaica statutes, 
 5 & 6 Vict.). 
 
 (") No point is better understood than this in military law, and as courts- 
 martial are only allowable as military measures, and are, therefore, under 
 military authority, it is for the military authorities to determine, in the 
 first instance, what cases are or are not within their jurisdiction, and their 
 decision that they will not try a case is conclusive. Thus, in the Jamaica 
 rebellion, certain cases having been sent to the Commander for trial, which
 
 OFFENCES OF WHICH THEY HATE COGNIZANCE, 1^17 
 
 cognisance of acts prior to and also unconnected with the 
 rebellion. 
 
 The most important consideration, however, with refer- 
 ence to trials by courts-martial under martial law is, it is 
 
 manifest, as to the nature of the acts or offences of which 
 they may properly take cognizance. This is important 
 with reference to the nature of the proof to be required, 
 and which such tribunals may properly consider, and, 
 especially, with reference to sentences; above all, as to the 
 
 the General in command deemed not within hie jurisdiction, he referred the 
 matter to the Commander-in-Chief, and wrote thus to him: "Having 
 deemed it my duly to refer a case oi one of the prisoners sent up for trial, 
 in order that I might be informed 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, 1 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 feci myself justified in exercising, and which I shall not exert unless I 
 receive positive orders so to do. The prisoners shall be kept under sur- 
 veillance till your instructions respecting their disposal be received." 
 Upon which the Commander-in-Chief wrote: "I entirely coincide in the 
 opinion ot the General. We may have the authority and power, but would 
 not be justified to try the prisoners by a military court-martial." The 
 Governor upon this wrote: "I assume that in coming to this decision, the 
 General has satisfied himself in each case that there is no evidence directly 
 connectiny the prisoners with outbreak, and in this view of the case I consider 
 General Nelson has exercised a wise and just discrimination in coming to 
 the determination ho has done." This must have meant the rebellion, of 
 which the first outrages were the outbreak, not merely the particular out- 
 break itself, for that was prior to martial law. 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 connec- 
 tion with the continuing rebellion that complicity in the outbreak, which 
 was before martial law, would differ from seditious language prior to 
 martial law, ool connected with the rebellion. And it should seem, from 
 the language of Cockburn, C.I.. in Nelson's case, that he concurred in the 
 view that a man who had caused the rebellion might be amenable to 
 martial law, although he had committed no act since the declaration of 
 martial law.
 
 2 18 MARTIAL LAW IN THE COLONIES : COURTS-MARTIAL : 
 
 infliction of capital punishment (a). The main consi- 
 deration to be regarded is the distinction between the 
 offences, the procedure, or the penalties of the common 
 law, or the ordinary law of the country, and the military 
 law, especially in time of war. The great question is, of 
 course, as to what are capital offences, which, by the com- 
 mon law of England, and probably at this time by the 
 ordinary law of most of our colonies, are virtually restricted 
 to treason and to murder ; as to the former of which there 
 are peculiar difficulties in the colonies, and as to both of 
 which, when there is no open or overt act of actual pre- 
 sence and concurrence in a rebellious or murderous out- 
 rage ; and, indeed, in the former case, even though there 
 
 (a) There have always been difficulties about the law of treason, even in 
 this country, and it is very difficult of application to a colony. At common 
 law, it probably meaut conspiracy to murder or dethrone the sovereign, of 
 which levying war against him would be evidence. But doubts arising, a 
 declaratory statute passed, which made it treason to levy war against, the 
 Crown within the realm, or to be adherent to the King's enemies in his 
 realm or elsewhere, which latter clause, however, has always been construed 
 strictly (according to the rule as to penal statutes) as applying to enemies 
 in the sense not of rebels who are subjects, but enemies who are aliens {vide 
 Ilaivkin's Pleas of the Crown, title " Treason "). Therefore, the Act only 
 applied to levying war within the realm, or aiding the King's foreign and 
 alien enemies out of the realm, and no project of rebellion appears to fall 
 within the letter of its enactment unless it ripen into a substantive act of 
 levying war within the realm. It is true that the conspiracy to levy war is 
 treasonable. It is reasonable to place conspiracies against the Sovereign 
 power upon the footing of actual rebellion, and to crush those, by the 
 penalties of treason, who, were the law to wait for the opportunity, might 
 silence or prevent the law itself, and who would justly deride an accusation 
 which could only be preferred against them when the banners were unfurled 
 and the forces arrayed {Hallains Constitutional Hist. vol. 3, p. 152). This, 
 however, only applied, be it observed, within the realm, and even there 
 the application of the doctrine to schemes of insurrection not directed 
 against the person of the Sovereign, was always deemed doubtful {ibid); so 
 that it could scarcely be applicable to rebellion in a distant colony. And a 
 modern statute on the subject (36 Geo. III. c. 7), which enacts that it shall 
 be treason within or without the realm to compass to depose the King, or 
 deprive him of any of his dominions, or to levy war against him within the 
 realm, or to move foreigners to invade any of his dominions, requires proof 
 of an actual intent to effect one of these objects. And it is manifest that
 
 CAriTAL OFFENCES COGNIZABLE: TREASON, ETC. 219 
 
 may have been an open and overt act, great difficulties 
 may arise at common law, even in this country, especially 
 as to proof of the criminal intent. 
 
 It is as to this consideration the question is of most im- 
 portance, whether the offences of which cognisance may 
 be properly taken under martial law, and the penalties 
 thai may be inflicted, are those of the ordinary law, or of 
 military law ; the latter being, as already has been seen, 
 marked by so much more severity than the former. As 
 the offence of mere rebellion is not at common law capital 
 unless associated with murderous purpose or treasonable 
 intent (a), it required a statute to render it capital ; and in 
 
 there may be a destructive rebellion without any of them. It is, indeed, 
 curious, and may appear B paradox, that, by our Law, rebellion as such is 
 not a crime. That is to say, riot is a mere misdemeanour, and, except 
 where, by the IUot Act, it is converted into a constructive felony, rebellion 
 is not, per se, a crime, except united either with felony or treason. Thus, 
 therefore, by ordinary law, rebellion in a colony cannot be crime, at all 
 events, not a capital crime, unless it is either for the commission of a 
 capital felony or murder, or is executed with the actual intent to effect one 
 of the specific objects mentioned in the statute. So that the clearest proof 
 that a man lias caused a rebellion which may ruin a colony, will not make 
 him amenable to a capital penalty, unless it appears that he intended 
 murder, or to deprive the Crown of the colony. And if it be necessary, in 
 order to arrest the progress of the rebellion, to inflict a capital penalty on 
 its leaders, the common law may be ineffective, for want of proof of intent 
 to commit cither of those crimes ; and as the intent to deprive the Crown 
 of the colony, if it cannot be proved against the leader, is still less likely to 
 be proved against the tools ; practically, no one will be liable to capital 
 penalty by the ordinary law except those guilty of murder, unless there are 
 any local laws which may make arson, or any other crime, capital. And, 
 on the other hand, under ordinary law, whatever the crime, and however 
 clear the proof, the criminal cannot be punished without formal trial. 
 
 (a) A statute, the Riot Act, was necessary to render mere rebellion a 
 capital felony; and it is hardly necessary to say, that in our own times, 
 such a penalty would never be inflicted, except in actual dispersion, unless 
 it amounted to treason. The difficulty at common law, even in this 
 country, in cases of constructive treason, may be well illustrated by the 
 case of Lord George Gordon, who was indicted for treason in levying war 
 against the King. The case on the part of the prosecution was, that the 
 prisoner, by assembling a great number of people, and encouraging them 
 to destroy the two Houses of Parliament, and commit different acts of
 
 220 MARTIAL LAW IN THE COLONIES : COURTS-MARTIAL : 
 
 this country, and probably many British colonies, the 
 capital penalty would not be inflicted under ordinary law, 
 except either in actual dispersion of rebels, or upon proof of 
 treasonable intent, or complicity in the crime of murder, or 
 some other capital felony. Although, by military law, 
 sedition is capital, yet that is sedition excited among sol- 
 diers ; and the general principle of military law is, that 
 even soldiers are not to be tried before courts-martial for 
 civil offences — as treason — except when there is no civil 
 judicature in force, and are then not to be capitally pun- 
 ished except for crimes as punishable by English law — as 
 treason or murder. It follows that, as a general rule, or as 
 the better and safer rule, rebels ought not, at all events 
 
 violence, particularly burning Roman Catholic chapel?, had endeavoured to 
 compel the repeal of an Act of Parliament, although the Court, on a trial 
 at 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 the King, and high treason ; and although the intimidation was 
 proved beyond a doubt, and the prisoner's actual presence and encourage- 
 ment, and even direct words of incitement, that the Scotch had no redress 
 until they pulled down the mass-houses, yet, the jury being directed that if 
 they were not fully satisfied as to the treasonable intent, they should accpiit 
 the prisoner, they did so (King v. Lord George Gordon, 2 Douglas, 592). 
 The distinction between common law and martial law, or that martial law 
 which is established under the Riot Act, or similar statutes, is, that com- 
 mon law requires strict proof of a particular criminal intent, as to dethrone 
 the sovereign, or commit certain particular murders or outrages; whereas, 
 the scope of martial law, or any similar law, being the war or rebellion 
 which it is the object to meet, it is manifest that the causing or keeping 
 up that war or rebellion must be within its scope, and a general intent to 
 cause or keep it up must be sufficient to bring a person under its penalties ; 
 and it is as clearly common law as it is common sense, that a man must be 
 taken to mean what he does and what he says, and that if he uses words 
 likely to stir up a rebellion, he must be taken to mean it and intend it. 
 Mr. Hallam, while acknowledging the law already laid down, that force 
 unlawfully directed against the supreme authority may, within the realm, 
 constitute the crime of treason by levying war against the Crown, reprobates 
 the application of the doctrine to mere trifling insurrections, more in the 
 nature of riot, and doubts whether a conviction for treason would ever be 
 obtained (Const. Hist. vol. 3, p. 158); and he adds, "One reason for this 
 might suffice, that the punishment of tumultuous risings, attended with 
 violence, has been rendered capital by the Riot Act of George I. and other
 
 CAPITAL OFFENCES COGNIZABLE: TREASON, ETC. 221 
 
 (except in sumo extreme <»r exceptional case <>f imminent 
 necessity for such an act), to be capitally punished < 
 for such offences; and that, therefore, in order to support 
 a capita] sentence, there must be a trial and conviction 
 upon such a charge. That is to say, the charge either of 
 treason or of murder, or of the legal guilt of one or other 
 of those offences. 
 
 And, on the other hand, it is not to be assumed that, at 
 all events, as regards the former head of offence, courts- 
 martial under martial law ought to take cognizance, in 
 all cases, of offences capital, by ordinary law, as for 
 
 statutes, so that in the present state of the law, it is generally more advan- 
 tageous for the Government to treat such an offence as felony than as 
 treason" (ibid). That Act, however, and, probably, any other similar An 
 afloat, only applies to the actual rioters, not to others, even their leaders, if 
 secret or absent ; and, it is obvious, that the dispersion of a riot is not the 
 suppression of a rebellion. As our statute law, however, has rendered 
 rebellious risings capital offences ; and as, by military law, the stirring up 
 of a sedition is capital, it should seem, by analogy, that if there is an 
 emergency such as justifies a resort to measures more stringent and sum- 
 mary than those of ordinary law, there may be nothing unreasonable, under 
 the pressure of necessity, in enforcing a similar penalty for such offences, 
 or, in other words, in applying to rebels more summarily the penalties 
 which an ordinary law applies to them by regular process of law, or apply- 
 ing to rebels the same summary severities which, in time of war, are 
 applied to soldiers. It would be no less a departure from ordinary law to 
 execute a man summarily for murder ; it would be no more a departure 
 from ordinary law to execute a man summarily for a felonious riot. If 
 caught in the act of riot, and refusing to disperse and resisting arrest, they 
 may be slain on the spot by our own law ; and if not so caught in the act, 
 but clearly guilty not only of that, but of worse offences, and there exists a 
 more urgent necessity, arising from an extraordinary emergency, it is, after 
 all, only an extended application of the principles of our own law, both 
 [municipal and military. And martial law is, in fact, only such an extru- 
 sion, by analogy, under the pressure of an urgent necessity. In a case, 
 however, of a colony, in which there is no Riot Act, or the rebellion is 
 carried on by other means than riotous assemblies, there may be a necessity 
 for the application of analogies derived rather from military than municipal 
 law, though the military law is only an extension of the municipal law, mi 
 account of necessity, and the same necessity may justify the extension of 
 the military law, as it prevails in time of war, to the rebellious part of the 
 population.
 
 222 MARTIAL LAW IN THE COLONIES : 
 
 instance, constructive treason or presumptive complicity in 
 murder. With regard to the nature of the acts or offences 
 allowed to be tried under martial law, whether or not there 
 be, as there have been in Ireland and in India (a), any 
 Regulation on the subject, a Colonial Governor will do well 
 to observe and adhere to the spirit of the admirable Regu- 
 lation issued by the Indian Government half a century 
 ago, and the Irish Rebellion Act of J 833, which very 
 judiciously restricted the province of courts-martial to open 
 and overt acts of complicity in a treasonable rebellion, acts 
 admitting of clear and conclusive proof, and not cases of 
 doubtful or constructive guilt. 
 
 (a) See the Irish Rebellion Act, 1833, (ante, p. 133) and the Indian 
 Regulation, to be found in Hough's Military Law, with the additional 
 advantage of a valuable exposition by that sound lawyer, Mr. Serjeant 
 Spankie, tben Advocate- General of Bengal. The preamble of the Regula- 
 tion states, that it may be expedient, in certain cases, that the Governor- 
 General in council should declare and establish martial law for the safety 
 of the British possessions, &c, by the immediate punishment of persons 
 owing allegiance to the British Government who may be taken in arms in 
 open hostility to the Government, or in the actual commission of any overt 
 act of rebellion against the authority of the same ; or in the act of openly 
 aiding and abetting the enemies of the Government within the territories 
 specified. Then the enacting part, conformably to the object developed 
 in the preamble, enacted that the Governor-General in council shall be 
 empowered to direct (among other things) the immediate trial by courls- 
 martial of all persons owing allegiance, and who shall be taken in arms in 
 open hostilities to the British Government, or in the act of opposing by 
 force of arms the authority of the same, or in the actual commission of any 
 overt act of rebellion against the State, or in the act of openly aiding or abet 
 ting the enemies of the British Government. The commentary of Serjeant 
 Spankie upon this was: Four overt acts are enumerated, and it seems clear 
 that the words ' taken in the fact ' must, by necessary construction, be carried 
 forward and annexed to each member of the sentence containing the descrip- 
 tion of the overt act. The circumstances in which courts-martial arc to have 
 authority to act are very clearly defined. The criminals must be taken in 
 open acts of the treasonable and rebellious description mentioned. If there 
 could be any doubt of the extent of the authority and jurisdiction of the 
 courts-martial, it would be removed by the instruction communicated for 
 their guidance during the disturbances. If any person charged with any 
 of the overt acts specified shall be apprehended by any military officer, 
 when not in the actual commission of offences of that description, they
 
 COURTS-MARTIAL: OFFENCES COGNIZABLE, 223 
 
 It is to lie borne in mind thai martial law is the law of 
 war, and cannot be allowable except in case of rebellion, 
 
 which amounts to war against the Crown, and therefore is 
 and that as, when apjolied to soldiers, it 
 takes cognisance only of cle;ir and manifest acts, so that, as 
 regards other than soldiers, these acts ought, at all events 
 as ;i rule, to be such as by ordinary law are capitally pun- 
 ishable, as acts of adherence to open enemies and traitors. 
 And bearing further in mind that, so far as either the 
 direction of legislative wisdom (a) or the opinions of able 
 
 Bhall bo handed over to the civil power. The courts-martial do not 
 appear to have considered themselves as at all confined to cases of persons 
 taken flagrante delicto, or even to traitorous and rebellious acts of the 
 specific quality stated in the Regulation. The manifest intention of the 
 Government was, thai none bul cases of the simplest and most obviously 
 criminal nature should be the subject of trials by courts-martial; the fact 
 whether a person was taken in the actual commission of an overt act of 
 rebellion, or in the act of openly aiding or abetting the enemies of the 
 State, or taken in arms in open hostilities, might safely be tried by such 
 courts, and such a provision for trial was calculated to prevent military 
 severity in the field from becoming absolute massacre. But all com; 
 
 3, depending upon circumstantial proof, and requiring either a long 
 examination of facts, or a discriminating inference from facts in themselves 
 equivocal, were purposely withdrawn from the cognizance of these tribunals. 
 It never was intended that these tribunals should try acts even of a criminal 
 nature in which the prisoner was not taken, and unless the acts were open 
 overt acts, and of the most material palpable quality. It is important that 
 the courts-martial should be confined to cases of the most obvious and 
 dangerous criminality " {Hough's Military Law, p. o4S-350). That, how- 
 ever, was on a special Regulation, and the author adds, the having arms 
 concealed in houses should be a punishable crime, and as such would allow 
 of military courts trying such cases under certain conditions. There may 
 be various acts, such as circulating papers, exciting disaffection, &c, which 
 should be defined, and the punishments laid down (ib 
 
 (a) As in the Indian Eegulations already alluded to, and in the Irish 
 Rebellion Act, 1833, which declare- martial law against open enemies and 
 traitors, and prohibits trials for mere sedition. So as to the case of .Mr. 
 Grogan, who was tried by court -martial in Ireland for treason, in the 
 opinion of Mr. Hargrave upon it, which was cited bythe Lord Chii I Ji 
 in his Charge, it appears to have been the opinion ot that eminent lawyer, 
 that a man could not properly be tried by court-martial for Bucb an offence 
 as constructive treason, .*. e, merely compassing a rebellion. That
 
 224 MARTIAL LAW IN THE COLONIES: 
 
 lawyers have been declared upon the subject, they have 
 tended to the conclusion that courts-martial, under martial 
 law, should only take cognisance of clear and undoubted 
 acts of causing or aiding and abetting a rebellion, either 
 treasonable in its character, or involving such attacks with 
 armed force as must lead to murder ; it should seem that 
 this is the safer rule to follow, although it cannot perhaps 
 be laid down that it is fixed and inflexible. 
 
 As to both the offences alluded to as capital under 
 ordinary law, at all events in this country (although as to 
 any other crime likely to be capital by the law of any 
 colony — as arson or robbery with violence— it may be 
 usually otherwise), a party may be legally guilty and 
 amenable, even to a capital penalty, by reason of privity 
 or complicity (a), either as a co-principal in treason or as 
 
 the real purport of his opinion, and, at all events, to that extent it appears 
 sound. 
 
 (a) There are some elementary principles of our criminal law so deeply- 
 seated in common sense and justice, that they would hardly require 
 authority, if it did not appear that they have lately been doubted, disre- 
 garded, or ignored. Thus that men are answerable for acts they cause, as 
 well as for acts they do, is a fundamental and general principle. Hence in 
 treason, men are liable for a conspiracy to levy war, and the conspiracy 
 being the offence, the rule is that all are principals. In regard to murder 
 again, a party may be liable to the penalty of a principal, although only an 
 accessory, and although not personally present at the commission of the 
 act, just as if personally present he may be liable as a principal, although 
 he did not otherwise join in the act. An indictment lies against all 
 persons who actually connive at, or who procure, or assist in the commis- 
 sion of a crime. The general definition of a principal in the first degree 
 is, one who is the actor or actual perpetrator, but it is not necessary even 
 that he should be actually present when the offence was committed (.Foster's 
 Crotvn Law, 349), and if a person, not aware of the consequences of the 
 act, is incited to the commission of murder or any other crime, the inciter, 
 though absent when the act was committed, is liable for the act of his 
 agent, and is a principal (ibid ; Haw/tin's Pleas of the Crown, C. 31). If 
 the perpetrator is aware of the consequences of the act, he is principal, and 
 his employer, if absent when the act is committed, is an accessory before 
 the fact (ibid ; Ileyina v. Williams, 1 Denman's Crown Cases, 39). An 
 accessory before the fact is one who, being absent when the felony is com- 
 mitted, doth procure, counsel, or abet another to commit it (Rex v. Gordon, 
 1 Leach's Crown Cases, 515; East's Pleas of the Crown, 352). And the
 
 
 CRIMES COGNIZABLE: INCITING fO REBELLfo^, --'< 
 
 
 an accessory in the crime of murder, without any personal 
 I'M- ence, or, possibly, even without any actual <>r expr< a 
 direction of the particular acl committed, ii' it !><• in pur- 
 suance of a general design, <>r of general directions, or i ven 
 if it In; the natural result of actual incitements or general 
 directions; a man being hold liable for all that ensues in 
 the execution of an act he has incited to, although there is 
 no evidence, otherwise than by those very inciters □ 
 an actual intent to direct the particular acts committed, at 
 the precise time and place at which they were committed. 
 
 For it has always been a general principle of our crimi- 
 nal law (a), that men are to be judged by their words and 
 
 procurement maybe through the intervention of others (Foster's Crown 
 Law, 125 ; Rtgina \. Cooper, 5; Carrington v. Payne, 535), itmaybi al o 
 direct, bj counsel or conspiracy, or indirect, by evincing an express liking, 
 approbation, or assent to another's felonious design, though not bai 
 cealment or mere tacit acquiescenc ■ (2 tiawkin's Pleasoftitt Cro on, C. 29). 
 And although if the accessory counsel or incite to one kind of crime, and 
 the others commit a different one, he is not liable ; it is clear that if the 
 crime he docs incite to is by mistake committed against others than those 
 he intended, he is liable; and that he is liable for all that ensues i< t 
 execution of the unlawful act incited, as, for instance, if he incit - ; > beating, 
 and the party is beaten to death, the inciter is accessor}- to the , 
 ( I Blaclcstone's Commentaries, 37). And several persons may be convicted 
 on a joint charge against them as accessories before the fact to a particular 
 felony, although the only evidence against them is of separate acts done 
 by each at separate times and place (Regina v. Barber, 1 Carrington and 
 Kirwan's Rep. 442). Formerly an accessory could not, unless tried with 
 the principal, be tried until the principal had been convicted, but by 
 
 . : Geo. I V. c. 65, this was long ago alt red, and 
 be indicted For a substantive offence; and, by a more red . ii has 
 
 oacted that the accessory shall be liable tot! 
 the principal, that is to say, that if a man incites another to a m 
 or to an unlawful act to be carried out without r< gard to cons q 
 in the execution of which murder naturally ensues, he :s to be deemed 
 guilty of the murder, as if he himself struck the fatal stroke, and is to 
 Buffer death as the actual murderer. This is lav. as old as the V, 
 in which the case is put of a man in one county inciting one in another to 
 commit a murder, and held, guilty of tin murder in t/<-it county, although 
 never there in his life. And this ancient principle of law has thus, 
 being based on obvious justice, been latelj re enacted by the L 
 (a) Thus with regard to seditious and proclamations, it is said 
 
 Q
 
 226 MARTIAL LAW IN THE COLONIES : COURTS-MARTIAL : 
 
 acts, and are to be held criminally liable for such conse- 
 quences as their words and acts were naturally calculated 
 to produce, upon the obvious principle that they must be 
 presumed to have intended the consequences which they 
 cannot but have contemplated,, and must be taken to have 
 contemplated, because they are so obviously the natural 
 result. And thus it may be that even at common law, a 
 person may be liable to the guilt of treason or murder, and 
 amenable to the capital penalty for acts of rebellion, in 
 which there has been no personal presence or concurrence, 
 and possibly no actual privity ; the liability being, by 
 
 they endanger the public peace by stirring' up the parties immediately 
 concerned in it to acts of revenge, because they have a direct tendency to 
 breed among the people a dislike to their governors, and incline them to 
 sedition and rebellion (Hawkin's Pleas of the Crown, B. 1, c. 70). This 
 direct tendency is to stir up rebellion, which may be comparatively un- 
 important in the time of peace, but become fearfully formidable in a time 
 of popular excitement and of imminent insurrection, when large multi- 
 tudes of the people are only waiting on a little incitement to raise an 
 actual rebellion. Therefore martial law deals with it very severely. 
 Under the Articles of War it is a capital offence to raise a mutiny, ox- 
 endeavour to do so ; and a man could certainly be held guilty who had 
 used language, the natural effect of which was to stir up a mutiny, while 
 no otber evidence was or could be given of his actual intent. It is manifest 
 that in many cases it is impossible to prove men's intentions but by their 
 actions. And it is a general principle that men are deemed to contemplate 
 the natural consequences of their actions, and to intend what they must 
 have contemplated. Our whole law of constructive treason is based on this 
 principle, and men are taken to intend the death of the Sovereign from 
 conspiring to dethrone her. In Home Tooke's case, the judges said in the 
 House of Lords, " The crime of seditious libel consists in conveying and 
 impressing injurious reflections upon the minds of the subject. If the 
 writing is so understood by all who read it, the injury is done by the publica- 
 tion, before the matter comes into court" (C'owp. rep. 685). So Lord 
 Mansfield said, " It is the duty of the jury to construe plain words accord- 
 ing to their obvious meaning, and as everybody else who reads it must 
 understand them " (ibid. 680). And it has been laid down as 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 calcu- 
 lated to effect, unless he can shew the contrary, and the onus of proving 
 the contrary is upon him (R. v. Harvey, 3 B. & C. 257). And if its 
 contents were likely to excite sedition— that is, sedition in general — he 
 must be presumed to have intended it (/?. v. Burdett, 4 B. & Aid. 45). In
 
 CRIMES COGNIZABLE: INCITING TO REBELLION. 227 
 
 reason of the intent to be presumed from the natural 
 meaning and effect of the language he has used, — assuming 
 that its natural effect is to incite to such acts, or to acts 
 which naturally must have such results, whether or not 
 intended to take effect at the precise time or place. 
 
 Such being the general rule- and principles undi r which 
 martial law or military rule may he administered by courts- 
 martial, as a measure of military necessity excused by the 
 emergency, it is manifest that there must be great difficulty 
 in dealing, under martial law, with the case of a man (a) 
 
 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, 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 calcu- 
 late/ to produce the effect charged to be intended, you presume the intent. 
 Crimes of the highest nature, more especially cases of murder, are 
 established upon presumptive evidence only, and the wcllbeing and 
 security of society must depend upon receiving of such evidence (Lord 
 Mansfald, in the Douglas case, cited in 4 B. & Aid. 122). In the Author's 
 former work, intending to write in the spirit of the above, which he 
 cited, and not intending to go beyond them, and citing the case of a man 
 who it was admitted had used language calculated to incite to rebellion, 
 but who, it was urged, had not been proved to have intended a particular 
 massacre which took place, the Author wrote some sentences, in one or two 
 of which, by a slip of the pen, the absence of intention was spoken of, 
 instead of absence of express proof of it, and it was supposed by Chief 
 Justice Cockburn in his charge, that the Author meant that men might be 
 convicted without proof of acts "contrary to their intentions, and beyond 
 the scope of their motives." It is hardly necessary to say that the Author 
 intended nothing of the kind, and meant no more than is conveyed in the 
 above cases, which he cited, in order to illustrate what he meant ; and 
 moreover, he always carefully adapted the application of their doctrine 
 to cases under martial law, with the assumption of necessity. Under 
 martial law, the question is, whether it is plain he was the cause of the 
 rebellion, and that his death is necessary to remove the danger he has 
 caused. 
 
 (a) Such was the ease of Cordon, in the Jamaica rebellion, lie was a 
 man of colour, of unbounded influence among the blacks who were in 
 rebellion, and it was widely known in the island that he had in his mind a 
 revolution (Ev. of Ford, Beckwith, and others), with reference to which ho 
 had said, that all the powers of the great Napoleon could not put down the 
 
 Q2
 
 228 MARTIAL LAW IX THE COLONIES: COURTS-MARTIAL: 
 
 reputed to be the real cause and secret leader of the 
 rebellion, and who has so acted as to be looked upon 
 universally as its head, but who yet may have abstained 
 from any open and overt act during the rebellion or since 
 the declaration of martial law, and may even have absented 
 himself from the district covered by the rebellion and 
 under martial law ; but with whom, on account of the very 
 fact that he is regarded by the race or class in rebellion as 
 their leader and their head, it may appear to the colonial 
 
 rising in Ilayti, ami that it was successful, bemuse the troops died of disease, 
 befon they could no it the people in the mountains. And he added that India 
 was not a case in point, for [ndia was a flat country, and the English troops 
 could overrun and conquer it; but Jamaica was a mountainous country, 
 and before the English troops could reach the people in the mountain.-; 
 they would die <>f disease (Ev. of Ford). For months before the rebellion 
 he hid been going about the island in company with the chief active 
 leaders of it, using language of an inflammable character, against the ten- 
 dency of which to excite a rebellion his friends warned him, and in the 
 course of this system of agitation it was, at all events, stated that he had 
 urged the people to do as they had done in Hayti. At all events, so 
 obvious was the tendency of his language to excite rebellion, that a friend 
 foretold " the charges of anarchy and tumult which must follow these 
 powerful demonstrations " (Ev. of Mr. Eyre and Mr. Ford). 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 part, was fore- 
 seen by one of his most ardent supporters, who, writing to a common friend 
 on the subject, 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." And, therefore, " it appears exceedingly pro- 
 bable 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 insurrection exceedingly probable ; 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 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 by those engaged in the outbreak. Bogle did not hesitate to 
 speak of himself as acting in concert with him " (Report of Commissioners). 
 This being universally known when the rebellion broke out, the Governor, 
 within the first few days after the rebellion had broken out, took a course 
 which he thus described and explained at the time : " There was one 
 very important point to be decided upon. Throughout my tour I found
 
 CRIMES COGNIZABLE: INCITING TO REBELLION. 2:21) 
 
 authorities necessary to deal in some way with a view to 
 the thorough suppression of the rebellion, <»r the apparently 
 imminenl peril of its revival. 
 
 In Buch a ca e the Governor of the colony may consider 
 himself called upon to strike, as a measure not more of 
 justice than of necessity, at the person whom, not only he, 
 hut the entire colony, regard as the real origin and head of 
 the rebellion (a) ; and, with that view, in the first instance, 
 
 everywhere tin- most unmistakeable evidence that Mr. 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 ami seditious 
 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-ofiiee, directed in his handwriting, 
 t" tin parties who have been leaders in tin rebellion, I at once called upou the 
 Custos to issue a warrant, and capture him." Nearly all coincided in be- 
 lieving him to lw the occasion of the rebellion, and that he might to hi tola n ; 
 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." 
 
 (a) It has already been seen, that persons are amenable to martial law 
 for acts done in causing the rebellion, which must, of course, necessarily 
 be before its outbreak, and. therefore, before the declaration of martial law, 
 and also that persons may be amenable to martial law for acts d 
 
 1 or caused, within the district under martial law, even although 
 they are. when arrested, out of it or have never been in it. Further it 
 has been seen, that a Governor, like a Secretary of State, may certainty do 
 what an ordinary magistrate may do, viz., arrest upon sworn information 
 for sedition or treason, added to which, it is laid down by our Crown law- 
 yers, that any one may arrest on reasonable suspicion of felony, and that 
 [belief is reasonable cause (vidt Hawhin's Pleas of tin Crown). So 
 that an arre>t under such circumstances would clearly be lawful. I 
 arrest, of course, would be idle except with a view to some trial, whether at 
 common law or under martial law, and in cither case the trial for rebellion 
 could only lake place, upon principles already explained, iii the district 
 where the rebellion was caused, it being there and there only, if at all, that 
 the crime of causing it was committed, though the mere offence of pnbli-
 
 230 MARTIAL LAW IN THE COLONIES : COURTS-MARTIAL : 
 
 to direct his capture and arrest, even although he is not at 
 the time -within the district under martial law ; and this, 
 it is clear, he may lawfully do, provided he has, at all 
 events, a sworn information of some such fact — for instance, 
 recent communication between him and the active leaders 
 of the rebellion — as may afford, along with general belief 
 or suspicion founded upon facts universally known, reason- 
 able ground of suspicion of complicity with them in the 
 rebellion. And it would further be lawful for the Governor 
 to send the party in custody to that district where, if at all, 
 he had caused the rebellion to break out, and where, if at 
 all, he was liable to be tried, either at common law, or by 
 martial law. 
 
 The prisoner being there, it would be, upon principles 
 already explained, entirely for the military authorities to 
 determine whether or not they had, according to military 
 law — that is, the custom of war and usages of the service in 
 like cases — jurisdiction or authority to try him by martial 
 law (a) ; and it would be lawful for the Governor to refer 
 
 cation of seditious matter may be triable either where it was posted or 
 where it was received. Added to which, in the case referred to, by reason 
 of local statutes, the prisoner could only be tried, even at common law, 
 within the district in question (3 Vict. c. 65 ; 8 Vict. c. 8, Jamaica statutes). 
 Thus, therefore, the prisoner being arrested, it was not only lawful but 
 necessary to send him into that district, quite independently of the ques- 
 tion whether, when there, he should be tried at common law or by martial 
 law, which question could not possibly, therefore, be affected by his custody, 
 whether legal or illegal. 
 
 (a) As already seen, it would be for the military Commanders to deter- 
 mine whether they could or ought, according to the usages of the service, 
 and their understanding of military law or the custom of war in like cases, 
 try a prisoner by court-martial. Whether martial law could be declared 
 would be a question of law, and is here assumed. Whether it ought to be 
 declared or continued would be a question of policy or necessity for the 
 Governor, and is here assumed. But assuming martial law, whatever it is, 
 in lawful existence, then what it is, as it is entirely a matter of military 
 usage and understanding, must be determined by the military authorities, 
 and especially it would be for them to decide whether such or such charges 
 came within their cognizance as military offences, and accordingly, it has 
 been seen, they did decide all such questions {vide ante, p. 217). And so
 
 CRIMES COGNIZABLE: INCITING TO REBELLION. 231 
 
 that question to them, supposing any necessity existed, or 
 was honestly believed to exist, for his immediate trial : 
 that is to say, whether there was a charge against him 
 cognizable by court-martial, under martial law. in regard 
 either to its own nature, as connected with the rebellion, or 
 to the locality in which the act had been committed, or to 
 the time at which it was committed, ami whether there 
 videnee sufficient to sustain such a charge ; and if so, 
 then it would be lawful for them — supposing there was any 
 evidence to sustain such a charge, i. e., of complicity in, or 
 having caused the rebellion — to try the prisoner by court- 
 martial, the court being constituted, as nearly as possible, 
 according to the Articles of War, in respect of soldiers in 
 like cases. 
 
 It is hardly necessary to observe, after what has already 
 been remarked upon that head, that, if the rebellion had 
 been not merely stopped, but entirely subdued and sup- 
 pressed (a), the trial of any case by court-martial would of 
 
 it was in the case in question. Thus, 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 1 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 havi him tried; went 
 ashore : went through the papers, and selected them; the court-martial was 
 to assemble under my orders ; / trained the charges ; the proceedings were 
 sent to me for confirmation." So he stated in his lotto to the Commander- 
 in-chief, " After six hours' search into the documents connected with the 
 case of G. W. Gordon. I found thai 1 had sufficient evidence to Kan-ant my 
 directing his trial. I pvepared <> draft dhargi and pricis of < videnct for the 
 court." It may be observed here, that the course of military law in such 
 cases interposes an insuperable obstacle to anything like conspiracy to 
 destroy a man, or the sacrifice of a man to local prejudice or enmity, and 
 one might have supposed would have been a sufficient security against the 
 imputation of anything so abominable. For, in the first place, it rested 
 with the military Commanders whether the man should be tried, and in the 
 next place the sentence would be nought unless confirmed by the Com- 
 mander-in-chief as well as the Governor. And it would never happen that 
 those three parties should be in collusion. 
 
 («) The Governor, in the particular ease alluded to, had a day or two
 
 232 MARTIAL LAW IN THE COLONIES: COURTS - MARTIAL : 
 
 necessity be improper. So, of course, a multo fortiori, the 
 trial of a case of constructive treason or presumptive 
 criminality would be at all events improper. But, on the 
 other hand, if the armed resistance or attacks upon the 
 Queen's forces, or the loyal subjects in the field, were still 
 going on at the very time the trial was proceeding, it could 
 hardly be considered that the rebellion was so entirely sub- 
 dued as to bring the case so clearly withiu this principle as 
 
 before the trial, which was on the 21st October, written a despatch, stating 
 thai the rebellion appeared to be subdued (though in other passages he 
 spoke of it as still smouldering), but this was written upon the then state 
 of his knowledge and without full knowledge of facts which had taken 
 place, and of course without means of foreseeing things which afterwards 
 took place, or which were taking place at a distance. On the 17th Oct. a 
 proclamation or circular letter, signed by the ringleaders, was found (E v. 
 of Oxley), proclaiming a war of colour, and vehemently inciting the blacks 
 to rise. On the 21st Oct. an armed body of rebels actually attacked the 
 Queen's forces in the field (Ev. of Fyfe), and threatening and arming was 
 going on in different parts of the island ; while, on the other hand, the 
 active ringleaders were still at large, and the reinforcements did not arrive 
 until nearly tea days afterwards. The trial was on the 21st Oct., the exe- 
 cution on the 23rd. It was not until the 24th the active ringleaders were 
 captured, and not till the 29th that the reinforcements arrived. Upon 
 these facts the Royal Commissioners, of course, could not and would not 
 report that at the time of the trial the rebellion was over, so that the trial 
 was illegal or improper. On the contrary, the terms in which they reported 
 on the subject implied quite the reverse, upon that point at all events. 
 For after mentioning the armed attack on the 21st, they reported that on 
 the 29th the reinforcements arrived, and on the 30th an amnesty was pro- 
 claimed ; the Governor then stated that the ringleaders had met with the 
 punishment due to their heinous offences, and that he 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 inquiry 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 
 implied that martial law, in its full force, did deprive them of these privi- 
 >r, in other words, that the trials by court-martial were legal, and 
 that up to the time mentioned they were not only not illegal but not im- 
 proper. That is to .-ay, that the trial of the supposed leader, nearly ten 
 this time, was neither illegal nor improper. It is true that
 
 < RIMES OOQNIZABLB: INCITING TO REBELLK »N. £38 
 
 to render the trial illegal ; and its propriety would depend 
 upon the degree of danger or of appearance of it still 
 remaining, and the existence of reasonable grounds for 
 apprehension of its renewal. 
 
 When the military Commander had determined that 
 there was evidence to sustain a charge against the prisoner 
 within their cognizance, it would be for him to frame the 
 charge a and constitute the court, which he would do in 
 accordance, as far as possible, with the analogies of military 
 law in the like cases. The charge, in order to justify a 
 capital sentence, would require to be one either of treason 
 or of complicity in the crime of murder; and the former 
 would require evidence of an intent to deprive the Crown 
 
 Cockburn, C. J., in hi* charge, spoke of the rebellion as over at the time 
 of the trial, but if it were so, thou all he said on the subject of martial law 
 was cl.iicr (for of course in any sense it would then have been illegal), 
 and the statement is entirely at variance with the evidence and the Report 
 Of the Royal Commissioners. 
 
 (a) As already seen, when soldiers are tried for civil offences, a>. for 
 - they may be under the Mutiny Act in a colony or foreign de- 
 pendency where there is no civil judicature in force {ride ante, p. 20i>), the 
 sentence can only be capital, if the crime would be so by ordinary law. as 
 it is in treason or murder, and an armed attack upon loyal citizens or 
 soldiers, certain to end in murder, would, of course, amount to murder. 
 And by obvious analogy this would apply to courts-martial under martial 
 law. Therefore, the charges in the case in question were framed with 
 reference to this view of the law, and they comprised a charge of treason and 
 a charge of c implicity in an outbreak ending in murder. The chargi s were 
 the.-: reciting that before the insurrection the prisoner did, in furtherance 
 of the mas acre at divers periods, incite and advise with certain of the bi- 
 ota, thereby, by his influence, tending to cause the riot, whereby 
 many of Eer Majesty's subjects lost their lives ; the prisoner was charged 
 1, with high treason; 2, with having complicity with certain parties who 
 were engaged in the rebellion, riot, or insurrection. That is, of course, as 
 the recitals explained, by means of incitement before the rebellion broke 
 out. The court-martial, in like manner, would be properly constituted by 
 analogy to the Articles of War, as a detachment general court-martial may 
 be constituted in a colony only of thru officers of either service. And 
 ordingly, in the case in question, the court was bo constituted, as is 
 conceived, with strict legality. The Lord Chief Justice, in his charge in 
 Kelson's case, supposed otherwise, but he was obviously unaware of the 
 provisions alluded to in the Article- of War.
 
 234 MARTIAL LAW IN THE COLONIES: COURTS- MARTIAL : 
 
 of the colony ; the latter would require, in order, at all 
 events, to justify a capital sentence, proof of complicity in 
 an armed attack upon the Queen's troops or loyal subjects 
 calculated to lead to murder. 
 
 Assuming a court-martial lawfully and properly con- 
 stituted according to the nearest analogies of military law, 
 and assuming also a charge of an offence within its legal 
 competence or cognizance, there would arise the question 
 as to its procedure, and especially as to the proof of the 
 charge, which divides itself into two questions, as to the 
 nature of the evidence, and its sufficiency in amount. 
 With regard to the procedure of courts-martial, in trials by 
 court-martial, under martial law (a), as the declaration and 
 
 (a) In the case of Grant v. Gould (2 H. Blackstone, 6), it was formally 
 and solemnly decided that even a regular court-martial is not bound by 
 the rules of evidence which prevail in our courts of common law, and any 
 one at all acquainted with law is well aware that those rules only bind 
 courts which proceed according to the course of the common law. In that 
 case a sergeant had been sentenced by regular court-martial, in time of 
 peace, to receive a thousand lashes, and notwithstanding the horrible severity 
 of the sentence, the court declined to hold that the court was bound by 
 the common law rules of evidence. " That all common law courts (said 
 Lord Loughborough) ought to proceed upon the general rule, viz., the best 
 evidence that the nature of the case will admit, I perfectly agree. But that 
 all other courts are in all cases to adopt all the distinctions that have been 
 established and adopted in courts of common law, is rather a larger propo- 
 sition than I choose directly to affirm," and accordingly upon that principle 
 various irregularities, which undoubtedly would not have been allowed in a 
 common law trial, were declared to be no sufficient grounds even for pro- 
 hibiting the execution of the sentence, it not appearing that they had 
 operated any substantial injury to the prisoner. There, however, the 
 charge was specific, and the evidence adduced in support of it fully verified 
 it (ibid). So in the case of Governor Wall (28 State Trials, 148), the 
 defence being a summary trial by drumhead court-martial, Mr. Law (the 
 late Lord Ellenborough) said, he admitted the validity of it if there was a 
 mutiny, which it required the strong arm of power to suppress, and it was 
 so dangerous in its probable and immediate consequences as to supersede 
 the ordinary trial for such offences, and the Lord Chief Baron (Macdonald), 
 ia his summing up, adopted that view, and drumhead courts-martial are 
 recognised in the books of military law. So in Wright v. Fitzgerald, 29 
 State Trials, 7(50, the judge said, " It is expected that in such cases there 
 should be a grave and serious examination ; he did not mean that sort of
 
 THEIR PROCEDURE: ESPECIALLY AS TO PROOF. 235 
 
 execution of martial law can only be excused on the ground 
 of an urgenl necessity, and the presence of a great public 
 peril, it is manifest thai there cannot possibly be expected 
 to be an observance of those mere formal rules of proof or 
 of procedure, which, however ordinarily desirable and 
 valuable as precautions and securities, are not necessarily of 
 the essence and substance of justice, and the observance of 
 which would involve so much delay or difficulty as to 
 defeat the paramount object for which martial law is pro- 
 claimed. But, on the other hand, it is equally obvious, thai 
 the more substantial rules and principles of evidence ought, 
 as far as possible, to be observed. The broad rules of 
 common law and military law require that there should 
 be a specific charge and sufficient evidence ; and espe- 
 cially where the sentences are capital, the sanctity of 
 human life — which always demands the gravest considera- 
 tion — requires that there should, at all events, be a charge 
 of an offence cognizable and capitally punishable under 
 martial law, and that there should be an adequate amount 
 of evidence of it, and a most careful consideration of its 
 effect. 
 
 The common law (a), the ordinary municipal law of the 
 country, is extremely strict in its procedure in all cases 
 affecting life or liberty, and requires the most exact and 
 accurate accordance between the allegation of the offence 
 and its proof in evidence ; and sometimes this strictness 
 
 trial which took place at common laic, but the best that the nature of the case 
 and the circumstances trill allow of." But in that case there was no 
 capital offence (as the sentence itself showed), and the man was in effect 
 need to death under pretence of corporal punishment. 
 (a) "The scope of the common law on criminal questions, is the vindica- 
 tion of the law in ordinary times and under ordinary circumstances. And 
 in time of peace the courts can afford to be strict, critical, and technical in 
 the definition of offences, or the proof of them as law, which sometimes lead 
 to miscarriage of justice" (Treatise on Martial Law). Alluding to such 
 cases as that of Home Tookc, where it was said, by Lord Mansfield, " An 
 indictment or information must charge what in law constitutes the crime 
 with such certainty as must he proved, though that certainty may ari-c
 
 236 MARTIAL LAW IN THE COLONIES : COURTS-MARTIAL : 
 
 has been considered by great judges as reflecting some 
 scandal on our law, as causing miscarriage of justice. But 
 everyone must feel that the error is on the right side, and 
 that it is possible to catch the spirit and carry out the prin- 
 ciple of the common law on the subject without adhering 
 to its more formal and technical rules. And that spirit 
 and principle appear to dictate the gravest care and con- 
 sideration in dealing with human life or limb ; and it is 
 obvious that, under martial law, there is all the greater 
 necessity for this care and consideration, for the very rea- 
 
 from necessary inference. Wliatcver the degree of guilt may be — however 
 strongly it may be proved — yet if the defendant is entitled to a legal ad- 
 vantage, even from a literal flaw, God forbid that he should not have the 
 benefit of if (Be Home, Cwper's Rep. 655). Numerous illustrations of 
 this could be given from the books of our law ; but it is to be observed that 
 in the most extreme instances they do but exhibit an excess of care on the 
 right side, viz., in favour of human life or liberty, and the spirit and 
 principle of the common law may be caught, although its technical rules 
 may not bind the above, and similar cases had been cited by the Author, 
 and it was to such cases he alluded when he wrote the above passages, 
 which are in entire accordance with what has been laid down by the courts 
 in various cases. Thus, in Grant v. Gould, 2 H. Bl. 90, it was said, that it 
 would be absurd to expect as much precision in a sentence by court- 
 martial, even regular court-martial, as in a conviction before a magistrate 
 (2 H. Blackstone, 1 07). So the Court of Queen's Bench, in considering 
 the sentence even of a regular court-martial abroad, said: "The natural 
 tendency of our minds is in favour of prisoners, and in the mild manner in 
 which the laws of this country are executed, it has been rather made a 
 subject of complaint by some, that the judges have given way too easily to 
 mere formal objections on behalf of prisoners. We must, however, take 
 care not too urge this disposition too far, lest we loosen the bonds of society, 
 which are kept together by the hope of reward and the fear of punishment. It 
 has always been considered that the judges in our foreign possessions abroad 
 are not bound by the rules of proceedings in our courts here. On appeals 
 from our colonies, no formal objections are attended to, if the substance of 
 the matter or the corpus delicti sufficiently appears, to enable them to get 
 at the truth and justice of the case (Lord Kenyon, C. J., Bex v. Suddis, 1 
 Rep. 314). "We are not now sitting as a court of error to review 
 the regularity of the proceedings, nor are we to hunt after possible objections " 
 Qibid). The spirit and effect of these judicial observations is, that on trials, 
 even by regular courts-martial, the substance of justice is to be looked to 
 rather than its forms, and in that spirit the Author wrote in his former 
 book, in passages which were very much misapprehended.
 
 THEIR PROCEDURE: ESPECIALLY AS TO PROOF. 2,37 
 
 son that it is necessarily administered amidst greal excite- 
 ment, and without the safeguards of these formal rules. 
 And no emergency can dispense with substantial rules, 
 which require sufficient evidence of the offence, and of an 
 offence of which the tribunal can take cognizance, and an 
 offence capitally or corporally punishable. It is hardly 
 necessary to add that there must he a fair hearing and a 
 reasonable opportunity for answer and defence. But it 
 is obvious that, it there be an observance by courts-martial, 
 under martial law, of these substantial rules, the non- 
 observance of the more formal or technical rules of pro- 
 cedure, which cannot be applicable to such exceptional 
 tribunals, with such an irregular procedure, can work no 
 substantial injury or injustice to the accused. And it 
 should never be forgotten that the object of trials by 
 court-martial is justice, though rough and summary justice, 
 ami that no theory can justify the disregard of those sub- 
 stantial rules of that justice which is the object ; though, 
 on the other hand, there are occasions when the mere 
 forms of justice must not be allowed to defeat that object, 
 and the end must not be sacrificed to the means. 
 
 Courts martial have been called courts of natural pro- 
 cedure (a), and are bound rather by the rules of natural 
 
 (.<) This is the description given of them by Bentham, in his Rationale 
 of Judicial Evidence, because they are not hound by mere formal rule; and 
 Mill, in his History of India, in Ins first edition, had a chapter direi 
 against the artificial rules of our law of evidence. It should, however, be 
 borne in mind that these observations apply only to Buch artificial nil 
 excluded evidence reasonably admissible, or required evidence not reason- 
 ably obtainable (many of which rules have since been removed by legisla- 
 tion), una that they imply aid assume that there is and OUghl to be 
 evidence reasonably sufficient. As a general rule, there must be ex, 
 evidence of tacts which are to form the basis of a verdict, though from facts 
 proved the jury may draw inferences or presumptions, and this Bubst mtial 
 rule applies equally to courts-martial (Hunter v.OiAson.2 Hen. Blacket. 
 1S7 ; Grant v. Gould, ibid, 38; Rex v. B'urdi '. i B. & Aid. Rep.). The 
 only qualification is, that juries ma] judge of the proof by the light of their 
 own general knowledge {Ru&forth v.Hadfi Id, 7 Bast's Rep. 224); ami 
 that they do not require express proof of public notorious facta At all
 
 238 MARTIAL LAW IN THE COLONIES : COURTS-MARTIAL : 
 
 good sense and justice than by formal or artificial rules ; 
 but it should be carefully borne in mind that it is a dictate 
 of natural good sense and justice, especially under circum- 
 stances of heat, of haste, and excitement, which require a 
 greater degree of care, that there should be an observance 
 of those substantial rules which experience and good sense 
 in this country have caused to be established in our regular 
 courts as safeguards and securities, especially in cases which 
 affect life or limb. 
 
 So of the cardinal principle, founded equally on natural 
 good sense and experience, that the best evidence which 
 can reasonably be expected to be produced should be pro- 
 duced ; and the two great rules (a) deduced therefrom, that 
 
 events, though it is the practice to require express evidence of particular 
 facts, it is hy 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, 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 as a war (The King v. De Beranger, 3 M. & S. rep. 69). 
 Thus, a court-martial, in time of rebellion, would hardly be expected to 
 require express and formal proof of the fact of the rebellion, and though, in a 
 criminal court, nothing can be taken, without such proof, it would be too 
 much to say that this strict rule would apply, in a trial by court-martial, to 
 facts which no one doubts, and which are not denied, and which are open 
 and notorious. 
 
 (a) These rules were carried out so rigidly at common law as to produce 
 inconveniences, which were removed either by exceptions introduced by
 
 THEIR PROCEDURE: ESPECIALLY AS TO PROOF. 23!) 
 
 matters of fact should bo proved by witnesses produced and 
 examined in the presence of the accused as to facts they 
 have seen and heard, and that matters in writing Bhould Im- 
 proved, if possible, by the production of the writing itself. 
 And although, as these rules uiay be sometimes difficult of 
 application, so as to perplex our judges in our common law 
 courts, and have been carried to excesses of refinement, 
 which have, in some instances, required legislative correc- 
 tion, and their disregard does not necessarily involve injus- 
 tice ; yet, it is obvious that they embody principles of 
 sound sense which ought never, in substance, wilfully to be 
 departed from. 
 
 the courts or by legislative enactment. Thus, for example, to prove the 
 state of a man's account al a hank, it would strictly be requisite to call any 
 clerk who could possibly have received money, that is, all the clerks in the 
 bank, and in order to avoid this monstrous inconvenience the courts 
 allowed the fact to be proved by the ledger (Furneaa v. Cope, .". Bingham's 
 Rep. 114). Again, the rule which required an attesting witness should be 
 eallcd to prove the execution of a document was, as Lord Ellenborongh 
 said, "as fixed, formal, and universal, as any in the law,'' yet it was abso- 
 lutely necessary in some cases to introduce exceptions, provided the execu- 
 tion was fully and satisfactorily proved, as it might be, by other evi- 
 dence; and, at last, the rule was got rid of in civil cases by the Com- 
 mon Law Procedure Act, 1854, but it remains in criminal cases. So as to 
 the rule which requires the production of a document, if it be in existence, 
 to prove its contents, so salutary as a general rule, though it often works 
 injustice. " Our ancestors were wise in making it a rule that in all cases the 
 best evidence thai could be had should be produced, and great writers on 
 the law of evidence say, that if the best evidence be kept back, it raises a 
 suspicion that if produced it would falsify the secondary evidence on which 
 the party has rested his case " (Best, C. J., Stroiher v. Barr, 5 Bingham's 
 Pep. 151). The very reason of the rule, indeed, implies that if it is made 
 clear that the best evidence is not kept back, and the fact is clearly proved, 
 the principle of the rule does not apply, but it is safe to adhere to a general 
 rule, though in some cases there is great difficulty in its application. Though, 
 however, the substantial sense and reason of the rules are easily intelligible, 
 their application may be difficult. Thus, for instance, in a case where the 
 judges were divided, it was said, ''Suppose it be found under an indictment 
 for treason that arms and treasonable papers are found in a house, to prove 
 that it was in the occupation of the prisoner the landlord is called, who 
 proves that the prisoner took the house of him and paid him rent, and upon 
 this he is asked if he did not let his house by a lease in writing, and he
 
 240 MARTIAL LAW IN THE COLONIES : COURTS-MARTIAL : 
 
 And there is one plain, broad, and substantial rule, of such 
 obvious sense and justice that it not only can never be 
 safely disregarded, but it can never be disregarded without 
 a grave degree of culpability ; viz., that men must not lie 
 convicted upon the strength of evidence taken behind their 
 backs, and produced merely in the form of written depo- 
 sitions, not taken in the presence of the prisoner, and the 
 witnesses themselves being kept back, or, at all events, not 
 produced in court for examination and cross-examination 
 in his presence (a). 
 
 answers that he did ; and suppose the objection taken for the prisoner, that 
 it ought to be produced, the judge answers that the tenancy may be proved 
 by payment of rent. Again, a gunsmith proves that the prisoner bought 
 arms of him, and that lie sent them to his house, and that a person who 
 appeared to be the tenant and resembled the prisoner paid for them. lie 
 is asked if the order was in writing, and he says it was ; he is asked whether 
 he ever had before seen the person who appeared to be the prisoner, and 
 he says he had not. Then an objection is made that the order should be 
 produced The judge says, the arms are sent to a house of which the 
 prisoner is tenant, and were paid for by a person who appeared to be occu- 
 pier, and that this is evidence from which the jury may infer that the 
 prisoner was the person who bought the arms. The prisoner is convicted, 
 and on further enquiry the lease and letter are produced, and it appears 
 that the lease was to the prisoner's brother, and the order signed by him ; 
 would any judge venture to induce the King to execute a prisoner under 
 such circumstances]" (Lord Chief Justice Best, S tr other w. Barr, 5 Bing- 
 ham's Rep. 155). That case, in which the judges were equally divided as 
 to the application of a rule of evidence which they all agreed was "essen- 
 tial to the security of life," may illustrate at once the importance of these 
 great rules and the great difficulty which may occasionally arise in their 
 application. 
 
 (a) Though, as it is the practice of foreign countries to use depositions 
 thus taken, it may be too mnch to say that it is necessarily contrary to 
 natural justice; it is so contrary to our own practice, and i3 so open bo 
 obvious danger, that though it may be going too far to say that the use 
 of a deposition would necessarily be a violation of justice, or invalidate 
 the proceedings, or involve any grave culpability, it may safely be said 
 that this would be so, if such evidence constituted the only evidence, or 
 if the accused were convicted on the streagth of such evidence. This 
 was what the Author meant to convey in his former work, which was written 
 mainly with a view to criminal culpability on the part of the members 
 of the court-martial. The true principle is stated above. Thus the Royal 
 Commission, in the Jamaica case, carefully drew a distinction between
 
 PROCEDURE: ESPECIALLY AS TO PROOF. 241 
 
 And as courts-martial are at once judges and jurors — 
 that is to aay, have to judge of the quality and character of 
 
 cases in which affidavits and depositions formed the only evidence, and 
 cases in which depositions were only received. Thus they stated, "that at 
 a certain place affidavits we're regularly received as proof of the facts 
 deposed to, and in some cases, in which death was the sentence, the 
 affidavits con tituted the only evidence.' 1 So they state, "three persons 
 were convicted and in the production and proof of affidavits 
 
 m id* I hind < ■ ir '■ ■ sons who, for anything thai appears, might 
 
 perfectly well have given their evidence in open court " {Report of Royal 
 Commission). It is a say how monstrous these cases must be 
 
 considere I. They were, it will be observed, cases In which witnesses were 
 not produced at all, and the only evidence was evidence taken behind tfie 
 backs of the prisoners. There is, it is obvious, a great distinction between 
 such cases and eases in which the witness is produced, although his depo- 
 sition is also read, or in which other witnesses are produced, whose 
 evidence, more or less, tends bo Bupport the case. The degree of culpa- 
 bility, it is manifest, because the degree of danger and of mischief, depends 
 on the degree to which the objectionable evidence is relied on. But the 
 character of such evidence is essentially vicious, and it cannot be safely 
 or properly relied on at all. This is said of depositions taken b<hiid 
 the back of the prisoner, and depositions of witnesses not produced. The 
 law of England allows depositions even in criminal cases, if taken in the 
 prisoner's presence, and the witnesses are unable to attend. In foreign 
 countries depositions are admissible, although not taken in his presence; 
 as stated by Mr. Fit/.james Stephen, in his interesting View of the 
 Criminal Law (p. 161); but that is obviously open to grave objection, 
 and in this country, if the deposition is to be used as evidence, it is an 
 inflexible rule that it must have been taken in the prisoner's presence. 
 It, however, it, is not to be used as evidence, it is otherwise, if the witness 
 is produced in court and examined, and the deposition is merely pro- 
 duced, with any other statement of his, to cheek him, or furnish material 
 for examination, and it is not. as though it were used in evidence. In 
 <; >rdon's case, in the .Jamaica rebellion, there was strictly legal evidence; 
 there were depositions by parties as evidence, which were taken behind 
 the prisoner's back, and were made by witnesses not produced, and there 
 were also depositions read by witnesses who were produced, probably to 
 check their evidence. It was the former as to which the Koyal Commis- 
 sion truly stated, that " the written statements of these persons had been 
 taken in the absence of Mr. Cordon, and were i n a dmi ssi b le as proofs 
 against him, according to the rules that regulate evidence in English 
 courts, either civil or military." Thus, they added, "with regard to the 
 written tatements of J. Anderson, dames Gordon, and Elizabeth Jane 
 Gouc;h, they were not legal evidence, but those persons were called and 
 examined." This, it is obvious, made all the difference, but the distinction 
 
 R
 
 242 MARTIAL LAW IN THE COLONIES : 
 
 evidence, as well as its weight, force, or effect (a) — so it is 
 to be fairly expected of them that, while, on the one hand, 
 not held to a strict observance of mere formal or artificial 
 rules, they shall not only adhere to the substantial rules of 
 evidence, but also attend to all reasonable considerations, as 
 to the credibility of witnesses, or the interest or influences 
 which may possibly affect the value of their testimony, and 
 the necessity for confirmatory evidence ; and so as to con- 
 was not kept in mind by Chief Justice Cockburn, in the comments on the 
 case in his charge in Nelson's case ; and the Lord Chief Justice also forgot 
 that the objectionable evidence was of the least importance in the case. 
 
 (a) In this respect they differ from common law courts, as other courts 
 known to our law do. Thus, in the Ecclesiastical Court, the judge, a 
 Bkilled lawyer, who receives the evidence, also judges of its weight and 
 effect, which is quite contrary to the common law system, in which the 
 jury are the sole judges of the effect of evidence when it is fit to be 
 submitted to them on any objection. Hence there are many material 
 differences betwen the two systems as to the admission of evidence, in 
 a great degree arising from this most important difference between them : 
 and in the common law system the examination of witnesses is oral and 
 open, and subject to cross-examination before and by a popular tribunal, 
 on which the common law system greatly relies for the eliciting of truth 
 and detection of falsehood (per Coleridge, J. ; Wright v. Tatham, 4 B. N. C. 
 601). This consideration, indeed, has a double bearing ; on the one hand, 
 as pointed out in that case, such courts may fairly be deemed to be 
 emancipated from those more artificial rules of evidence which are deemed 
 necessary on account of what judges have called the infirmity of trial by 
 jury, as a popular tribunal, composed of persons taken at hazard from the 
 general ranks of society, and generally persons not of much education (in 
 criminal or common jury cases), whereas courts-martial are always com- 
 posed of gentlemen of education ; while, on the other hand, from that very 
 circumstance, they may be reasonably expected to observe the more 
 important and substantial rules of law as to evidence, and also those obvious 
 considerations of good sense, as regards the effect of interest or influence on 
 the mind of the witnesses, which judges always take care to point out to 
 the attention of juries. Thus, by our law, an accomplice is an admissible 
 witness, though his expectation of pardon depended upon the prisoner's 
 conviction, and so an accessory is a competent witness against the principal, 
 and the principal against the accessory, but the fact of the witness being 
 an accomplice of necessity detracts very materially from his credibility, 
 and it is always considered necessary, though in strict law not essential, 
 to give other evidence confirmatory of the testimony (Regina v. Hastings, 
 7 Carrington's and Payne's Reports, 152). Hence it is obviously better,
 
 COUUTS-MAUTIAL : PROCEDURE: AS TO PBOOF. 243 
 
 siderations, not only with reference to credibility, but 
 memory, accuracy, and other circumstances, especially in 
 evidence as to words spoken by the accused, such as it is tin- 
 practice of judges to recommend, whether or not matters of 
 law, as of importance, for the guidance of juries in criminal 
 case-. 
 
 While, therefore, it is laid down (a), both by military 
 and legal authorities, that courts-martial, under martial 
 
 if possible, in a capital case, to avoid acting on it mile* confirmed. The 
 
 Royal Commission in the Jamaica case made comments on some of the 
 cases, which it may bo useful to record as warnings. " At another place 
 the evidence allowed to be given was of a most objectionable descripti n. 
 A gave evidence against 13. of a confession made by the latter of his having 
 assisted in a murder, and immediately afterwards was himself put upon 
 hi> trial as an accessory to the same murder, and was convicted, upon the 
 evidence of B., of a confession made to him, coupled with the affidavit of a 
 person whose absence was not accounted for. 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 the murder for which he himself was about to suffer. Fire ; r- 
 sons 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." In such cases, 
 it is obvious that, on the one hand, there may be danger of the witness 
 trying to screen himself by throwing the guilt upon the prisoner; and, on 
 the other hand, there may be danger of his seeking to revenue himself by 
 convicting the person on whose testimony he himself has been condemned. 
 It is, indeed, to be borne in mind that in such cases, as held long ago in 
 the familiar case of an accomplice, the evidence is admissible, and may be 
 sufficient. It was held, in Lord Mansfield's time, that a person who has 
 been admitted witness for the Crown, may be afterwards tried for the same 
 matter, and tried on the evidence of the party already convicted (Riuhrs 
 case), and it has been always a practice to admit a fellow prisoner as 
 witness, either after his conviction or acquittal, as then he has lost his 
 interest {Regina v. Jlu;/!tcs, 1 Denman's Crown Cases, 84), though not 
 until then. Still the question will be, in substance, whether the 
 evidence was confirmed ; and in Winsor's case, one prisoner was 
 allowed to give evidence against the otliLi - in a case of murder, ami 
 Chief Justice Cockburn, and all the judges, hell thai as there was other 
 evidence, the prisoner convicted had sustained do substantial injustice, 
 though it was clearly contrary to practice. 
 
 (a) Thus it h.u always be.u laid down by Judge Ad voeaUs-l ieneral 
 
 B 2
 
 244 MARTIAL LAW IN THE COLONIES : 
 
 law, are not bound by fixed and formal rules, and have no 
 settled and regular practice, like courts of common law, but, 
 by their oaths, are bound to proceed according to their 
 consciences and the custom of war in like cases ; it is 
 equally clear from the same authorities, and by the terms 
 and real meaning of their oath, that conscience itself 
 requires the observance of the obvious analogies, the broad 
 principles, and the substantial rules, common to all law, 
 regular, municipal, or military, and based upon experience, 
 
 when officially animadverting upon trials taking place under martial 
 law. Thus in the Ceylon cases, the Judge Advocate- General, Sir D. 
 Dundas, stated officially, there is no practice laid down for martial law 
 (vide ante, p. 9). " There is no practice laid down as to how courts- 
 martial are to he conducted under martial law, but, on the other hand, 
 they should approximate as near as possible to tbe regular forms and 
 course of justice, and the usage of the service, and should be conducted with 
 as much humanity as the occasion will allow, according to the conscience and 
 good judgment of those entrusted with its execution " (Ev. of Sir D. Dundas, 
 before the Ceylon Committee). This quite agrees with what was said by the 
 Lord Chief Baron in Governor Wall's case (28 Sta. Tri. 154). "If there was 
 a mutiny, and such a court-martial as could be had, if there was reasonable 
 notice to the man that he was charged, and if there was an opportunity 
 given him of defending himself, and as much attention to his interest as 
 the case would admit of, the defence would be made out." So as to drum- 
 head courts-martial, he said: "they mean, that when the alarm is such, and 
 the danger so great, that the regular mode of summoning courts-martial 
 cannot be followed, so many officers as are upon the spot may be sum- 
 moned together, but they are not to proceed altogether without any regard 
 to the interests of the prisoner, though they may not proceed exactly 
 according to the directions laid down in the Articles of War " (ibid). This 
 again accords with the oaths of the members of courts-martial, which 
 would be found according to the Articles of War or the Mutiny Act, and 
 where any doubt shall arise which is not explained by the Articles of War, 
 then according to their consciences, the best of their understanding, and the 
 custom of war in such cases (Articles of War, 152). And it accords 
 with the exposition of that oath given in Simmons on Court-Martial, 
 or Mac Arthur on Court-Martial. The terms of this oath, however, may 
 well be interpreted and explained by the language of the military text 
 bo jks and the Queen's Regulations. The former lay it down, that it is 
 proper in regular courts-martial to follow, as far as possible, the common 
 law rules of evidence ; and the Queen's Regulations lay it down, that it is 
 the <luty of officers to take great care to qualify themselves for sitting on 
 courts-martial, by attending such courts and observing their proceedings.
 
 COURTS-MARTIAL : NATURE AND AMOUNT OF EVIDENCE. 245 
 
 sound sense, and natural justice ; and that, as far as possi- 
 ble, they should proceed in accordance with the spin and 
 principles of ordinary law. 
 
 The grand and all important rule, of course, is, that there 
 should be a sufficient amount of evidence admissible accord- 
 ing to these substantial rules and principles; that is to say, 
 there ought to be legal evidence, and enough of it (a). 
 Even assuming that the evidence is such as is properly 
 admissible and reasonably credible, there will come the 
 
 («) As observed in the Author's former work, there are all degrees of 
 proof, from demonstration down to slight probability ; and it need hardly 
 he said that the latter can never be sufficient, and that the former never is 
 required. There are many intermediate degrees, but it may be laid down 
 as law that in a criminal case— and, above all, a capital case— the evidence 
 should be such as to leave no reasonable doubt in the minds of reasonable 
 men ; and though a less degree of evidence may involve no criminality on 
 the part of those who act on it, nor, perhaps, any legal culpability, it will 
 certainly involve grave moral responsibility, and may entail undying self- 
 reproach. In the Jamaica case, the Royal Commissioners reported, in 
 several capital cases, that the evidence was, in their opinion, insufficient. 
 Thus, in one case, that of Cordon, they reported that the evidence, 
 oral and documentary, appeared to them to be wholly insufficient to estab- 
 lish the charge upon which the prisoner took his trial — that is, the twofold 
 charge of complicity in treason and murder; and though it is obvious that 
 their finding did not in the least affect the legal validity of the conviction 
 ( seeing that convictions constantly take place at the assizes on evidence 
 which lawyers deem insufficient, and yet no one, on that account, doubts 
 the legality of the sentences), it would be desirable to avoid the possibility 
 of such reflections, and with that view to err on the right side, remembering 
 that the parties are still liable to be tried in courts of law. In that case, as 
 already mentioned, there was some evidence strictly and legally admissible 
 — that of a prisoner — produced, and (here was evidence legally inad- 
 missible—as depositions taken behind the back of the accused; and what 
 the Commissioners must be presumed to have meant was, thai there was 
 not enough of admissible evidence to sustain the charge in either aspect of 
 it, both practically resolving themselves into complicity in the outbreak. 
 The offence, to justify a capital sentence, must have been treason or 
 murder, and the one would require proof of an intent to deprive the Crown 
 of the colony, and the other would require proof of criminal liability for an 
 outbreak or attack ending in murder. The Commissioners said, " We can- 
 not sec, in the evidence which has been adduced, any sufficient proof 
 cither of his complicity in the outbreak at Morant Bay, or of his having 
 been a party to a general conspiracy against the Government." There is
 
 24-6 MARTIAL LAW IN THE COLONIES : 
 
 question of its effect, and its sufficiency in point of 
 amount, as to which it is of course impossible to lay clown 
 any definite rule (a) ; and all that can be laid down is a 
 general rule or principle that the evidence ought to be such 
 as may reasonably satisfy honest and sensible men, sincerely 
 desirous to decide justly, and in a fair and dispassionate 
 state of mind. The only rules of law on the subject are, that 
 it is for the prosecution to make out their case against the 
 prisoner ; and that though evidence may be circumstantial, 
 
 some reason to suspect that the Commissioners were under the impression' that 
 to sustain the charge of treason, there must be proof of complicity in a general 
 conspiracy, although complicity in a local conspiracy, with the same general 
 object, and certain to become general if it succeeded, would equally have sus- 
 tained the charge, and it is very observable that they cautiously abstained 
 from negativing a sufficiency of evidence of complicity in the local con- 
 spiracy, the existence of which they affirmed, so that their special finding 
 leaves the question wholly undecided, and their general finding was 
 apparently given under an impression as to the law, or as to its application 
 to the case, which, it is conceived, was erroneous. Then, as to the other 
 charge — of complicity in a murderous outbreak — they appear to have 
 conceived that it was necessary that there should be express proof of actual 
 complicity in the outbreak ; whereas, it is conceived that, on the well- 
 known doctrine of law already alluded to, supposing it to be clearly made 
 out that the prisoner had used language which he must have known was 
 naturally calculated to incite to some such outbreak, he would be legally liable, 
 although he might not have intended one on that precise day or occasion. 
 But as to that, it would be necessary that the evidence should be clear and 
 conclusive. And the evidence was, in substance (discarding what was not 
 properly admissible), that the prisoner had, some time before, said to the 
 active rebels that the whites were to die if the blacks did not get 
 the back lands, and that, just before the outbreak, he had sent them a letter 
 requiring them, on the occasion of the meeting at which it took place, to be 
 "up and doing, and help themselves," &c, &c, which it was probable they 
 would refer to and connect with the language previously used. But, then, 
 all turned on the real sense and meaning of that language, as to which there 
 was only one witness, who spoke as to words used months before, and which 
 he might easily have mistaken, and the Commissioners no doubt meant 
 that this evidence was not sufficient to sustain a capital charge. 
 
 (a) The Royal Commissioners, in their Report, said, " The number of 
 executions by order of courts-martial appeared to us 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 pronounced. It would be unreasonable to expect
 
 COUltTS-MARTIAL : AMOUNT OF EVIDENCE. 24J 
 
 and need not be conclusive, in the sense of excluding all 
 possible doubt, it must be such as to exclude all reasonable 
 doubt. And, further, it may be laid down generally that 
 courts-martial, under martial law, ought to deal only with 
 very clear cases, and leave others to courts of law. 
 
 The amount of proof to be required necessarily much 
 depends upon the view taken of the nature of the charge, 
 and the requisites or elements of the offence (a) ; as to 
 which, when it is not of the character of an open and overt 
 
 that in the circumstances under which these courts were assembled, there 
 should l>c the same perfect regularity and adherence to technical rules which 
 we arc accustomed to witness in our tribunals ; but there are certain jreat 
 principle* which ought, under no circumstances, to be violated, and there is an 
 amount of evidence, which < very tribunal should require before it pronounces a 
 judgment which shall affect the life, libertij, or person of any human being. 
 In older to ascertain whether these principles have been adhered to, and 
 whether, in all cases, (his 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 sentence 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 trustworthy 
 witnesses as to the manner and deportment of the members of the courts 
 was decidedly favourable. But we think, it right also to call attention to 
 cases in which either the finding or the sentence was not justified by any 
 evidence appearing on the face of the proceedings." 
 
 (n) Thus, for example, in the case of Gordon, on the charge of treason, 
 proof would be necessary of an intention to deprive the Crown of the 
 colony; although this would not require, as the Commissioners seem to 
 have supposed, express proof of an actual and general conspiracy with that 
 object, and it would be proved by evidence of the prisoner's complicity in a 
 mere local outbreak, which, if successful, must, by reason of its inevitable 
 tendency to spread with rapidity, have the same result; and this com- 
 plicity again would not require express proof, but might be shown by acts 
 and words, of which the natural result would be such an outbreak. It is 
 undoubtedly true that this would require clear proof of language clearly 
 calculated to have that effect, and which the prisoner, therefore, must be 
 taken to have intended ; but the Commissioners virtually found that fact, 
 and though the evidence given of it may have been hardly reliable, that 
 was for the Court, and they might well and honestly deem it so, though 
 others as honestly, and, perhaps, more wisely, might deem it not so. And 
 both as to its reliability and as to the natural result of such language, they 
 might well and honestly, and even, it is conceived lawfully, use their
 
 248 MARTIAL LAW IN THE COLONIES: 
 
 act, nice questions may arise — as, for instance, as to con- 
 structive treason or presumptive intent, or with reference 
 to the distinction between a general and a particular 
 intent — and the effect of proof necessarily so much depends 
 upon the extent to which it may be interpreted or applied 
 by the general knowledge of the tribunal, or the extent to 
 which it might take cognizance of facts as general, public, 
 and notorious, without express or formal proof ; and these, 
 again, are of themselves matters necessarily of some 
 
 general knowledge of notorious facts of a public and general nature — as, for 
 instance, the contiguity of Hayti, and the condition of the black population, 
 and the necessary tendency of an insurrection of colour and of race to spread 
 rapidly. For of these general public and notorious facts the prisoner must 
 be assumed to have been as well aware as any one else, and they had, it is 
 obvious, an important bearing on his presumed intention, with reference 
 especially to the charge of treason, and a bearing which the Commissioners 
 wholly overlooked. And, assuming that they were wrong in the view of the 
 law, which it is manifest lay at the basis of the finding, then that finding 
 cannot be relied upon. To this, it may be added, that, as the Author 
 observed in his former work, although depositions taken in the absence of 
 the prisoner could not, per se, be properly relied upon, and the evidence as 
 to the prisoner's allusion to Hayti was of that character, the Court might 
 honestly, though erroneously, use that evidence, in accordance with their 
 general knowledge of public and notorious facts, in confirmation of the 
 other evidence, strictly and legally admissible, viz., that the prisoner had 
 spoken at a meeting about the death of the whites, and had sent them a 
 letter to be " up and doing;" also, it is to be added, that the prisoner did 
 not deny having made an allusion to Hayti, although he denied it on the 
 particular occasion, and, of course, the particular occasion would be very 
 immaterial — the significance and importance lay in the allusion itself. And 
 as it would be idle to say that the Court were not to use their general 
 knowledge of the fact of history about Hayti, or the general knowledge of 
 the notorious fact that there was an enormous black population in the 
 colony ; so it would surely be idle to say that they might not fairly 
 draw an inference, that a local outbreak, if successful, ivas certain to be 
 general, and another inference, that the prisoner must have been as well 
 aware of it as anybody else. These observations show that the view 
 taken of the proof to be required must depend upon the view taken of the 
 law; and as the Author, after great consideration, ventures to differ from 
 the Commissioners, in their implied or apparent view of the law— although 
 it is very likely he may be wrong — yet this surely is sufficient to show that 
 the Court might honestly, even although erroneously, have taken the view 
 which appears to him to be the true one, viz., that if the prisoner used
 
 
 COURTS-MARTIAL: amount of evidence. 249 
 
 uncertainty, that there must always be a great difficulty in 
 conveying to the minds of others a just appreciation of the 
 evidence on which the court may have convicted. And 
 thus it may happen that in a case of a constructive rather 
 than of active complicity, and of presumptive rather than 
 of express proof, it might be, upon evidence on which a 
 judge could advise a jury not to convict, but upon which, if 
 their feelings were excited, they might possibly convict ; — 
 a court-martial might honestly enough convict, although 
 others, in a different state of mind, and with a different 
 degree of general knowledge, might honestly, and perhaps 
 properly, consider the evidence as " wholly insufficient to 
 sustain the charge." 
 
 And while, on the one hand, such a conclusion would 
 not, it is conceived, necessarily involve any imputation 
 upon the members of the court-martial who convicted 
 upon such evidence, or upon the military Commander who 
 confirmed their proceedings, nor upon the Governor who, 
 after such confirmations, allowed and approved the exe- 
 cution of the sentence under a belief of its necessity ; still 
 it may well be deemed to convey a lesson of caution for the 
 future ; and it undoubtedly involves this, that as, in such 
 cases, it is necessary for the purpose of justification, not 
 merely to feel a conscientious conviction, but to carry that 
 conviction to the minds of others, the very difficulty of 
 doing so, in cases rather of constructive than active com- 
 plicity, suggests that it is, as a rule, wiser, safer, and better 
 
 language calculated, aa he must have known, to cause an outbreak, lie was 
 guilt; of treason, and might also honestly, though erroneously, have 
 arrived at the conclusion that he had used Buch language. On the other 
 hand, others might honestly and rightly arrive at an opposite conclusion, 
 and a judge, no doubt, would have advised an acquittal; hut that would 
 have been, partly because the lavas to treason wisely requires two witrn 
 to words, and partly because our criminal law requires Formal proof of 
 almost all facts ; and even although the judge might have advised an 
 acquittal, a jury might, under honest though mistaken feelings, have con- 
 victed. Similar observations apply with stronger force to the second 
 charge, of complicity in the crime of murder.
 
 2.50 MARTIAL LAW IN THE COLONIES : 
 
 to avoid dealing with such cases under martial law (a) ; and 
 that, as martial law is necessarily administered under cir- 
 cumstances of heat, haste, and excitement incident to a 
 great emergency, and which, while they may excuse errors 
 into which, under such circumstances, men may fall with 
 perfect honesty, certainly expose them to greater risk of 
 error ; it is better to confine it to cases of a clear and 
 simple character, and avoid others, except under the pres- 
 sure of some unavoidable necessity. 
 
 (a) The two charges virtually reduced themselves into the same, in this 
 respect, that neither was maintainable without showing a constructive lia- 
 bility for the outbreak. The Author designedly uses the word " liability " 
 instead of " complicity,*' which he ventures 10 think may have suggested to 
 the Commissioners the idea that express proof of an actual complicity was 
 necessary, whereas, as he conceives it, it would be enough if it was clearly 
 proved that the prisoner had used language to the actors in the outbreak 
 which he must have known would be likely to cause some such outbreak. 
 In his opinion this would be ample presumptive proof, according to autho- 
 rities already quoted, that he must have intended it. If so, he would be 
 guilty of the murders which took place on the occasion, because no one 
 will dispute that they were the necessary consequences of the outbreak, so 
 that if he intended the outbreak he intended murder. And no lawyer will 
 pretend that an intent to kill a particular person is necessary to constitute 
 the crime of murder, if there be clearly an intent to kill some one ; added 
 to which, no one will dispute that if there was here an intent to kill any 
 one, it was an intent to kill the very persons who were killed, at all events* 
 inter alia. An intent to kill a class to whom A. and 13., belong is an intent 
 to kill A. and B. And an intent to incite others to kill them is an intent 
 to kill them. And language which must have been understood so to incite 
 must have been so intended. This, no doubt, involves, as already observed, 
 clear proof of language which must have been so understood, and must 
 therefore, have been so intended ; and as nothing is more dangerous than 
 evidence of words used, for which reason our law wisely requires two witnesses 
 in treason, any one may fairly think that a court-martial would act wisely 
 in not convicting on evidence of words without the clear evidence of at 
 least two respectable and credible witnesses, nor even then without circum- 
 stances of confirmation. And, of course, in such a case, a judge would 
 have advised a jury to an acquittal upon either charge, but that would 
 have been because, as to the law of treason, positive law absolutely would 
 exclude a conviction ; and as to the charge of murder, because as our judges 
 always require conclusive proof, and this proof would be very far from con- 
 clusive, such a course would be in accordance with ordinary practice. But 
 many things are in accordance with practice which are not strictly obliga- 
 tory in law, as, for instance, requiring confirmation o f ' the evidence of an
 
 COURTS-MARTIAL : CONFIRMATION OF THEIR FINDINGS. 251 
 
 So careful is military law to compensate fur the absence 
 of the safeguards and securities of common law in trials by 
 courts-martial, that, in order to secure a review of the 
 evidence and the findings, at all events in capital cases, by 
 superior authority (a), it requires that the proceedings shall 
 be submitted to the highest accessible authorities ; that is 
 to say, not only to the General in command, but to the 
 Commander-in-Chi f of the colony or dependi-nry, and to 
 the Governor, so as to secure a review of the case by 
 
 accomplice. And notwithstanding the advice of the judge, it may be that 
 a jury of a county in which a cruel massacre had taken place might, trader 
 the influence of honest though excited feeling, insist upon convicting. 
 Nothing is more difficult than for men to separate in their minds facts 
 proved before them from facts they already know as matter of notoriety, 
 and it was found by the Commissioners thai it whs a matter of notoriety 
 thai the prisoner had for some time beeu engaged, along with the actors in 
 the outbreak in using language calculated to excite to insurrection {ride 
 ante, p. 228). And this affords a solution of the conclusion quite consis- 
 tent with honesty, and, on the other hand, tpiite consistent with the insuffi- 
 ciency of the evidence. What lawyers would advise, under such circum- 
 Btancea, though useful for the purpose of future guidance, involves no 
 imputation upon what has already been done by men acting honestly under 
 great excitement and in a great emergency. In the Author's former book, 
 written with reference to the past, he may have been somewhat unguarded 
 as to the future, especially in writing with reference to cruel charges of 
 murder against men who had thus acted. The Lord Chief Justice and 
 others, on the other hand, apparently more anxious for the future, have 
 perhaps fallen into the opposite error of doing some injustice as regards 
 the past It is the de-ire oi the Author, in the present work, to unite both 
 views, and show that it is quite possible to be candid and indulgent a"s to 
 errors of the past, and yet stringent as regards the future. 
 
 (a) Tnifl was well illustrated in the most remarkable of the cases which 
 occurred in the Jamaica rebellion, in the case of Gordon. The proceed- 
 ings first came before the General in command of the district under mar- 
 tial law, who having approved, sent them to the Commander-in-Chief with 
 a letter, which ran thus : ' ; The President having transmitted the proceed- 
 ings, I carefully perused them. The sentence was death. I considered it 
 my duty fully to approve and confirm. I enclose the whole of the pro- 
 ceedings of the court for your information, as you may desire to Bee 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 reports should be made 
 through you, uiy immediate commanding officer. Hoping, as heretofore,
 
 252 MARTIAL LAW IN THE COLONIES : 
 
 several successive military authorities, and also by the 
 supreme civil authority ; and the sentence is not to be 
 executed until approved and confirmed by all of them, 
 thus ensuring, as much as possible, the concurrence of 
 separate and independent opinion and responsibility before 
 allowing the infliction of a capital penalty. And it is 
 manifest that, as far as is practicable, the spirit and prin- 
 ciple of military law in this respect applies not only 
 equally, but a multo fortiori (at all events as regards the 
 highest accessible authority) to capital convictions under 
 martial law. 
 
 to gain your approval, I have the honour to be," &c. The whole proceed- 
 ings of the court were enclosed for the General's information. These 
 proceedings reached the General, who, after reading them to two members 
 of the Executive Committee, forwarded them the same day to Governor 
 Eyre, with a request that he would return them with as little delay as pos- 
 sible. These proceedings were returned to the General the same day by 
 Governor Eyre, who wrote at the same time that he fully concurred in the 
 justice of the sentence, and in the policy of carrying it into effect. The 
 Commander-in-Chief transmitted, in letters to the Secretary of State for 
 War and to the Military Secretary at the Horse Guards, a copy of General 
 Nelson's despatch reporting the trial, sentence, and execution of Mr. Gordon, 
 and in both letters he adds, " A copy of his Excellency the Governor's 
 letter approving the same is enclosed, in which I fully coincide." This, it 
 is to be observed, was the ordinary course under regular military law ; 
 which requires in capital cases the approval of the Commander-in-Chief of 
 the colony and of the Governor (Queen's Regulations) ; and although under 
 martial law, it may obviously not be possible always to wait for the approval 
 of the Governor, who may be at a distance, it is always proper, by analogy, 
 to ordinary military law, to have the approval of the Commander in-Chief, 
 who (as in the case of Jamaica), was much nearer, and had only military 
 affairs to look to ; whereas the Governor would have the affairs of the 
 general Government to attend to, and would very likely be overwhelmed 
 by the anxieties and alarms of the whole island. Where, however, it was 
 practicable, the proceedings should be submitted to him, and in this 
 instance they were so. And it is to be observed how carefully the course 
 prescribed by military law provides not only the highest security for the 
 prisoner, but also the best protection for those engaged in the suppression 
 of rebellion, for the concurrence of authorities so separate and independent 
 as the Commander-in-Chief and the Governor, afford the strongest possible 
 safeguard, if not against error, at all events against anything like a com- 
 bination to destroy a man, such as was indeed imputed in the case alluded 
 to by some persons, who had not attended to this circumstance, of the con-
 
 COURTS- MAUI! A I. : APPROVAL OF SENTENCES. 253 
 
 The approval by the Governor of the execution of the 
 sentence in such a case might, and indeed must, proceed 
 upon larger considerations than the mere Legality of the 
 conviction or the sufficiency of the evidence. On the one 
 hand, the insufficiency of tin- evidence, even assuming its 
 insufficiency, would nol affect its legality, there being evi- 
 dence on which the courl might honestly have acted ; and, 
 ontheother hand, in considering the necessity for the execu- 
 tion, the Governor would have to consider not only those facts 
 of a public, general, and notorious character, which perhaps 
 irregularly, but almost unavoidably, might have affected 
 the minds of the members of the court, but facts which 
 may have become known to himself, as to the character and 
 designs of the prisoner, and the condition of the colony, and 
 which might have an important bearing upon the prospects 
 of the rebellion (a). 
 
 currcncc of the Commander-in-Chief, who happened to he, as often happens, 
 in a state of constant disagreement with the Governor, and stood entirely 
 aloof from those local influences which it was suppled had affected the 
 mind of the latter. It is conceived that, for this reason, all the capital cases 
 ought to have gone to the Commander-in-Chief hefore the execution of the 
 sentence. 
 
 (a) It is of importance that it should not he supposed that a British 
 Governor had sanctioned an execution in such a case without strong 
 grounds; and it should he borne in mind that at the time of the trial and 
 execution, the chief actors and active leaders in the outbreak were at large, 
 and urging those of their own race to keep up the revolt (vide ante). More- 
 over, at that time the Governor had not only that general knowledge which 
 (as the Commissioners found), every one in the colony had, of the course 
 which had been for some time taken by the prisoner in concert with others, 
 and which was calculated to excite revolt, and that he was universally 
 regarded as their leader, but he had also received information from several 
 persons that the prisoner had for months been speaking of a revolution or 
 rebellion, and had significantly alluded to the precedent of Hayti, and 
 boasted how a bush warfare could baffle any amount of military force (vide 
 ante, p. 228; «t vi<U, Ev. of Ford and Beckwith); concurrently with all 
 this, it appeared that, a- had been from the first expected would he the case, 
 the bauds of men who had been engaged, as was believed, in these acts of 
 outrage, had, on the approach of the troops, betaken thcin.-chcs to the 
 woods; the officers represented that they were led to inter from those cir- 
 cumstances, and from the report- they received, and from the appearance-
 
 '2o4< MARTIAL LAW IN THE COLONIES : 
 
 The approval of the sentence by the military Commanders, 
 in such a case, might proceed rather upon analogies of mili- 
 tary law, with reference to sedition in the army, the 
 penalty for which by military law is capital. The approval 
 by the Governor, as supreme civil ruler, would proceed 
 probably rather upon the analogies of ordinary law, and 
 
 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. It was this which the Governor, at the first outbreak of the rebel- 
 linn, dreaded and apprehended. And it is notorious that it is this phase 
 of rebellion which has always proved most dangerous and difficult to van- 
 quish. It has baffled us in New Zealand and Caffraria, and inflicted upon 
 our forces the most severe and mortifying repulses ; and the island afforded 
 such facilities for this sort of warfare, that the insurgents might have held 
 out long enough to cause great disasters. Numerous passages in the reports 
 showed that the officers, for some time, continued to expect attacks from 
 men in such positions. One of the officers received a challenge from the 
 rebels that they were ready to meet the forces at a place where they said 
 they had a fort from which they could "kill a hundred men coming one at 
 a time," and from which, according to the evidence, armed men marched 
 down to the scene of the outbreak. On the morning of the trial this 
 officer sent a force against this fort, and they were actually attacked by the 
 rebels, and though the rebels were scattered, and the fort was deserted, 
 they had taken to the bush. So another officer reported, "As I passed 
 through the villages, about 300 rebels rushed through the bush, armed with 
 cutlasses'' (Rep. of Adcock). The execution was sanctioned on the 22nd 
 Oct., the actual occurrence 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, and in the meantime the force was extremely 
 weak, and becoming exhausted and worn out by fatigue. The authorities 
 may have been right or wrong in their judgment upon that point; but the 
 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 (Pari. Pap. 21), so that, in their view, there was 
 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, and there can be no doubt that it formed one of the main 
 grounds for the execution of the person who, as the Commissioners 
 reported, was universally regarded as the real leader of the rebellion. It is 
 not for the Author, as a lawyer, to consider whether these grounds were or 
 were not sufficient, but he is bound to point out that they existed, and 
 might well enough at the moment have led the Governor to apprehend 
 that the rebellion had reached its most critical and formidable phase.
 
 COURTS-MARTIAL : SANCTION OF EXECUTION'S. 255 
 
 would be based upon evidence of criminal liability (a) for 
 acts or offences capital by that law, as treason or murder. 
 As it is only such offences which are capital by ordinary 
 law, even assuming the Legality of the proceeding, its pro- 
 priety could only be justified to the Crown by proof of such 
 offences; and also by considerations of urgent necessity 
 with reference to the safety of the colony ; though, on the 
 other hand, the proof might, if conclusive, be presumptive, 
 and the necessity might reasonably be considered, not 
 merely with reference to the continuance of armed resist- 
 ance in the field, or acts of open rebellion, but with re- 
 
 Legal principle and moral justice equally dictate that in judging of the acts 
 and conduct of a public officer under circumstances of great danger, the 
 grounds on which he acted should be looked at, and should be looked at as 
 much as possible as they appeared to him at the moment. And it is of 
 great importance that it should be clearly understood how extreme and 
 exceptional were the circumstances under which an execution in such a 
 case was sanctioned. 
 
 (a) And accordingly it was upon these considerations it was justified. 
 Thus, in the case referred to, the Governor, in his despatch to the Secretary 
 of State announcing the execution, said : — " 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 origi- 
 nated. I enclose copies of the report from the General, and of my letter 
 in reply." (Desp. of Mr. Eyre.) That letter ran thus : — " I have read the 
 papers referred to, and I really 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 intent ions may have been, it i6 entirely due to his 
 agitation, bad advice, and seditious language amongst the peasantry of this 
 colony, that the rebellion broke out, and tin matsacre of so many gentlemen 
 took placed In that letter he wrote : — " I believe that, were coudign 
 punishment to fall only on the ignorant people, who have been misled into 
 rebellion, and the educated coloured men, who led to that rebellion, were 
 allowed to escape, a very unfortunate impression would be produced upon 
 the public mind, which, in the present state of the colony, might had to 
 very serious results. It is only by making it plain to the entire population, 
 that the guilty agitator and user of seditious language 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
 
 256 MARTIAL LAW IN THE COLONIES : 
 
 ference rather to the continuance of the danger aerainst 
 which it is the object of martial law to guard — a danger 
 arising, on the one hand, from the existence of the same 
 spirit of rebellion ; and, on the other hand, the same 
 deficiency of military force ; and therefore the same proba- 
 bility that at any moment the spirit of rebellion, although 
 temporarily subdued, might again burst forth. 
 
 In such case the minister of the Crown would probably 
 require, to justify the execution, proof of an offence which 
 
 outrages similar to those which have recently occurred." (Desp. of Mr. 
 Eyre, 27th October.) It was supposed that the words, " whatever his inten- 
 tion may have been," meant that the man might be justly executed, though 
 the rebellion was contrary to his intention, or not in accordance with it, 
 nor within the scope of his words or acts, a monstrous conclusion, for which, 
 it is conceived, there is no foundation. What was meant, it is to be 
 presumed, was that, assuming the prisoner had used language, the natural 
 effect of which was to incite to insurrection (as the Royal Commissioners 
 in effect reported), it was to be presumed that he intended it ; and it was 
 not material whether he had intended that particular outbreak, or rather 
 an outbreak on that particular occasion. So the Author understood, and it 
 was in that sense, and in that spirit, he wrote, in various passages, which 
 (perhaps from their being inaccurately written) have been quite misunder- 
 stood by the Lord Chief Justice in his charge in Nelson's case. What he 
 meant was, as he conceives, sound law, viz., that a man must be taken to 
 mean what he says, and to intend the natural consequences of his language; 
 and that, therefore, assuming that the accused used language which he 
 must have known would be understood to mean massacre, it would be quite 
 immaterial whether he meant it to take place on a particular day. As the 
 Author observed in his book, the insurgents might, in that respect, have 
 acted precipitately; but, if he incited them to it, his legal liability would, 
 it is conceived, be the same. This, however, would require clear and 
 conclusive proof, as to which, vide ante. It is manifest that, rightly or 
 wrongly, the Governor based his justification of the execution mainly upon 
 the ground of an assumed necessity for the public safety, with reference to 
 the entire suppression of the rebellion, the removal of the danger, and the 
 restoration of peace and confidence. It has already been remarked, that a 
 passage in the despatch, supposed to indicate that the rebellion was entirely 
 over, because resistance was temporarily at an end, was, in the first place, 
 misunderstood ; and, in the next place, written in ignorance of facts which 
 were taking place in distant parts of the colony. For, on the very day of 
 the trial, the rebels had met the Queen's troops in the field {ride ante), and 
 the active leaders were at large, doing their utmost to arouse the population 
 to resistance. Taking, however, the whole tenor of the despatch, it indi-
 
 SANCTION OF THEIR SENTENCES. 557 
 
 deserved death according to ordinary law (a). And as, ac- 
 cording to the law already explained, a person conld not be 
 capitally punishable under ordinary law, except for treason 
 or rebellion, the proof of which would require an intent to 
 deprive the Crown of the colony, and the latter would re- 
 quire a general intent to incite to murder, or at all events 
 outrages likely to lead to murder, it would be natural 
 that the minister of the Crown should require, in justifica- 
 tion of the execution, proof of one or other of such crimes. 
 
 osted a deep sense of danger rtill pervading the colony : and, it is to be 
 remembered, the reinforcements had not arrived, and did not arrive, until 
 nearly ten days after the trial. And the Royal Commissioners rep:rted 
 that " in their opinion that was t lie date to be assigned for the cessation of 
 trial by court-martial " {vide ante, p. 20m. If that were so, as to the more 
 ignorant tools and instruments of rebellion, it might not unreasonably be 
 supposed to be as to the person believed to be the real author and leader 
 of it. 
 
 (a) Thus, Mr. Secretary Canhvcll, in his despatch to Governor Eyre 
 (23rd Nov.), wrote thus : " In your letter to the Commander-in-Chief 
 [rich "nit, p. 256), you approve the execution of Gordon, which had taken 
 place under the orders of the General, 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 proceedings, 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 inflamma- 
 tory 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 lav.- 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 pun- 
 ishment was necessary to rescue the colony from imminent danger, and 
 from the horrors of a general and widespread insurrection, and the repeti- 
 tion elsewhere of such a slaughter of the white and coloured coloni 
 had taken place in the eastern parts of the land." Although at first sight 
 some parts of this despatch might appear to imply thai there must he some 
 proof of the intent apart from the words themselves, yet upon examination 
 this will not be found to be the meaning, and if it were, it would be clearly 
 
 S
 
 258 MARTIAL LAW IN THE COLONIES: 
 
 For although, by military law, a soldier is liable to be 
 capitally punished for sedition or mutiny, that is on account 
 of the extreme peril arising from mutiny or sedition among 
 armed men. And although no doubt the offence of inciting 
 armed men to rebellion might not unreasonably be deemed 
 to deserve a similar penalty, provided the offence were 
 clearly proved ; 3 T et, on the other hand as, by analogy to 
 the provisions of the Mutiny Act, under which a soldier is 
 not to be capitally punished for a civil offence, unless it be 
 capital by ordinary law, it might be considered that prin- 
 ciple should be applied under martial law in time of rebel- 
 lion, and this would require proof of an intent to incite to 
 treason or murder. 
 
 If the offence were in its nature rather constructive than 
 actual, or at all events active, and the proof rather pre- 
 sumptive than express, or positive, the justification of the 
 
 contrary, as already shown, to an established doctrine of law, under which 
 men must be taken to mean what they say, and therefore, if, as was clearly 
 proved, the prisoner had used language which might have been understood 
 as inciting to murder or to armed attack certain to lead to it, the only 
 question would be, whether it was so obviously certain to be so understood 
 thtt it must have been meant to be so understood. What the Secretary of 
 State meant, it is manifest, was, that if the case were rested entirely or 
 mainly upon this presumptive intent, it must at all events be plain and 
 beyond doubt, and that if not quite so plain and beyond a doubt, the excuse 
 for the execution must be sought in some other circumstances confirmatory 
 of it, and also, and above all, in the existence of an urgent necessity for 
 the execution. It cannot be supposed that the Secretary of State meant 
 that although the prisoner had used language which he must have known 
 was certain or likely to produce murder, he would not be deserving of death 
 cither at common law or by martial law, without any other proof of inten- 
 tion other than the necessary meaning of the words. What he desired to 
 have shown was that this was so. And it is obvious, that his attention had 
 not been directed to the two main pieces of evidence against the prisoner, 
 viz., that not long before the outbreak he had said to the active leaders, 
 that if the blacks did not get the back lands the whites must be slain, and 
 that a few days before the outbreak, he sent them a copy of a letter telling 
 i to be " up and doing." The evidence, it should be observed, was 
 ob cure, because couched in negro dialect, and this may have led the 
 Secretary of State and the Royal Commissioners wholly to overlook this 
 the most important part of it.
 
 COURTS-MARTIAL: Tiir.n: 3ENTKNGES. 259 
 
 execution would rest mainly on necessity, as to which there 
 would be a great opening for difference of opinion, which 
 might be more or less influenced by the natural aversion to 
 such species of proof. And the condemnation of such an 
 execution (a), if condemned it should be, though it might 
 proceed both either upon the assumption th.it the evidence 
 was wholly insufficient to sustain a charge of an offence 
 capital by ordinary law, or that there was no urgent neces- 
 sity for the execution arising from any existing emergency 
 or imminent danger to the public safety, or partly upon 
 both grounds, would proceed upon a difference of judgment 
 on a matter of opinion. And the very condemnation upon 
 such grounds would imply that, although there might be 
 error, and some degree of liability to censure for erroneous 
 opinion, there could be no serious culpability, and it would 
 also imply that if there were sufficient evidence of such an 
 
 (a) The Royal Commissioners, in the case referred to, after an elaborate 
 iv\ iew of the case (in which thi j ny allui ion to the main e\ idence 
 
 against the accused), pronounced tint, in their opinion, the evidence 
 was wholly Insufficient to sustain the charge, i. c, the charge of a capital 
 offence, either treason or incitement to murder. For the reason already 
 given, it is not so easy to account for this finding on the other charge, and, 
 as already observed, the main evidence was not noticed. However, such 
 having been the finding of the Royal Commission, the Secretary of State 
 followed it, and wrote bis opinion upon the case thus: "The Government 
 concur int] ion arrived at. The Governor concurred in the justice 
 
 of the sentence and the policy of .carrying it into effect, 1 it as 
 
 absolutely necessary for the future security of Jamaica, that condign pun- 
 ishment should be inflicted on those through whose seditious acts and 
 language the rebellion originated. But it is evident that such considera- 
 tions ought to be admitted with great hesitation. If lightly adopted, 
 they would be liable to great abu ses like the pi" I qf 
 
 being regarded as warnings, might become precedents for future action. In 
 the present case, the necessity of the course adopted has not been proved. 
 Considerations of public safety justified the arrest of Mr. Gordon and his 
 removal, but his trial by court-martial and his execution by virtue of the 
 sentence of that court arc events which the Government cannot but deplore 
 and condemn" (Desp. of Mr. Cardwell, 18 June, L866). That is to say, 
 although in the opinion ol the Commissioners trials by courts-martial did 
 not become irnproi" r It U not clear whether the 
 
 view of the Secretary of state proceeded upon the ground that the pris 
 
 S 'I
 
 260 MARTIAL LAW IN THE COLONIES: 
 
 offence, and if there were such a necessity arising from such 
 an emergency and such a danger to public safety, both 
 which would necessarily be more or less matters of opinion, 
 the execution would be not only legal but justifiable. It is 
 obvious that such a case must be extreme and exceptional, 
 and, in any view of it, more likely to prove a warning than 
 a precedent. 
 
 As already mentioned, it appears to have been the 
 opinion of the legislature, and, therefore, is the wiser and 
 better course, not as a general rule to inflict capital punish- 
 ment under martial law, except in cases capital by the 
 ordinary law. But the same view does not appear to have 
 been taken by the legislature as to the infliction of corporal 
 punishments (a) for acts not merely of open participation in 
 
 ought not to have been tried by court-martial at all, because there was no 
 necessity for such a course, or because there was not sufficient evidence. 
 On the former view, his opinion was not consistent with that of the Com- 
 missioners; on the other view, it is obvious that it proceeded, as theirs did, 
 on the ground that there had been no language used, the natural result of 
 which was to incite to an outbreak likely to end in murder, a view not easy 
 to reconcile with the evidence, and, accordingly, Cockburn, C. J., who 
 adopts it in his charge, scarcely notices the main evidence in the case. 
 But, at all events, such were the grounds for the opinion and the decision 
 of the Secretary of State, and it is obvious that they implied that had the 
 evidence been sufficient on that point, and the public danger more immi- 
 nent, the execution would have been justifiable. And neither he nor the 
 Commissioners suggested that it was illegal. Whatever view may be enter- 
 tained of this case, it is abundantly manifest that it was one extreme and 
 exceptional, and could scarcely, in any view, be drawn into a precedent, for 
 it could only apply in the case of a person universally regarded as the 
 real author of a bloody rebellion, and proved to have used language shortly 
 before it at all events likely to cause it, and which he must have known 
 was so. In any view the case is more likely to prove a warning than a 
 precedent. 
 
 (o) Vide ante, p. 99. It is only if the offence is capital, by the ordinary 
 law, that death is to be inflicted, but otherwise it may be any punishment, 
 provided it is not in its nature contrary to the usages of English law, which 
 of course excludes any torture. But flogging can hardly be said to be con- 
 trary to the usages of our law, seeing that it is applied by the Mutiny Acts 
 even to the punishment of mere offences against discipline, and by statutes 
 it has been applied to acts of rebellion or tending to rebellion (vide ante, 
 p. 137). Nevertheless, there are obvious considerations pointing to the
 
 COURTS-MARTIAL: THEIR SENTENCES. 261 
 
 actual rebellion which might be deemed capital, and in 
 which, therefore, the iniiiction of corporal punishment 
 might be comparatively merciful ; but even acts of inchoate 
 rebellion, or acts of preparation for it, such as arming or 
 obtaining arms, &c. And as the loyal subjects of tin- 
 Crown are, on the principle of expediency, with a view to 
 the public safety, subject to corporal punishment, even for 
 breach, s of discipline, it naturally has not been deemed by 
 the legislature unreasonable or unfair that disloyal subjects 
 detected in acts of rebellion, or tending to rebellion, should 
 be liable to such punishment. Nevertheless, there are 
 obvious considerations, certain to be recognized by a wise 
 and judicious Governor, pointing to the restriction of this 
 species of punishment, and as much as possible limiting it 
 to cases of personal violence, analogous to such as even by 
 ordinary law are deemed to merit it. 
 
 limitation of this punishment under martial law, considerations both of 
 policy and humanity not likely to he lost sight of by a wise and judicious 
 Governor or military Commander, and accordingly, in the Jamaica case, 
 the Governor very early sent an instruction to the Commander that he 
 thought flogging should not be inflicted frequently (vide ante, p. -213). It 
 afterwards turned out that it was inflicted far too frequently, but this was 
 contrary to his instructions, which he might presume were carried out, and 
 was to be ascribed to unhappy animo?ities of class and race. .Moreover. 
 he promptly punished a magistrate who had exceeded in this respect, and 
 doubtless would have imposed penalties had he not been superseded by a 
 Commission of Enquiry (Bv. of .Mr. Eyre). And those who uttered whole- 
 sale reprobation upon the practice were not aware of the precedent Bet by 
 the Imperial Legislature, nor of the direction which had been laid down 
 to limit the punishment as much as possible. Moreover, there is reason to 
 believe that what the Royal Commissioners denounced as a wholesale inflic- 
 tion of the punishment, arose partly from a natural error which may here 
 be pointed out, thai the possession of plunder was sufficient evidence of 
 participation in the rebellion. It was, according to a well-known rule, 
 presumptive proof of larceny or guilty receiving, or, if there had been a 
 robbery, of participation in that robbery. In burglary and highway 
 robbery, if a person is found in possession of the goods recently after the 
 crime, we presume the possessor guilty unless he can account for the pos- 
 session i /;■>■ \ . Bwrdett, I Barn wall's and Anderson's Reports, 115). And 
 if there were a murder accompanying the burglary or robbery, the po 
 6ion might, with other circumstances, be evidence of participation iu that
 
 262 MARTIAL LAW IN THE COLONIES : 
 
 It has already been seen that the Crown will hold the 
 Governor responsible for a general direction and control of 
 the execution of martial law. But it is obvious that, as it 
 is in its nature military power and military rule, probably 
 exercised at a considerable distance, and with great diffi- 
 culties of communication, this control and direction can 
 only be general, and that the immediate direction must be 
 under the General in command of the district and the 
 General Commanding-in-Chief. The Governor can only 
 issue general directions or instructions to them, and of the 
 manner in which these directions or instructions are carried 
 out, he can only be informed by means of reports (a), which 
 
 crime [Rcyina v. White, 4 Finlason's Crown &Nisi Prius Reports, 383, and 
 Regina v. Exall, ibid. 933, where the doctrine is fully expounded). But 
 the mere possession of plunder not known to have been the produce of 
 robbery with violence, only proves a larceny, or, what is equivalent, a guilty 
 receiving. Hence it follows, on the above principle, that persons in time 
 of rebellion should not be capitally or corporeally punished for the mere 
 possession of plunder, without the proof that it was the produce of acts of 
 robbery with force and numbers, which can be fairly referred to a participa- 
 tion in the rebellion. There is reason to believe that the punishment was 
 never inflicted by military orders or in accordance with orders of the mili- 
 tary Commander, except in cases of possession of plunder, and the pre- 
 sumption was a natural one; but, as will be seen, it was fallacious, and it 
 would have been better if the directions of the Governor had been carried 
 out, which, although general in their terms, obviously meant that the 
 punishment should be reserved for acts which were of the worser kind, i. e., 
 it is to be presumed, acts accompanied with evidence of robbery by force 
 or terror of numbers, or personal violence or threats of it. It was, in such 
 cases, only the military Commander ordered it, and the analogy of the 
 military law as well as ordinary law appears to suggest this limitation. 
 
 (a) This was illustrated very remarkably in the Jamaica case. There the 
 Governor issued at the outset general instructions, in the only way in 
 which he could, and by such suggestions to the Commander-in-Chief, 
 which, if they had been carried out, would have prevented any of the errors 
 or excesses which afterwards occurred (vide ante, p. 213) ; they could only, 
 however, be carried out by the military Commanders, for the natnre of 
 martial law is military authority, and, perhaps, no persons are so jealous 
 or tenacious of their authority as military Commanders, a fact amply 
 illustrated in (he Jamaica case: and how far the intentions or instructions 
 of the Governor were being carried out, as he might naturally presume 
 they were, by the military officers, he could not ascertain, except by means
 
 KESPOXSiniLITY OF A GOVERNOR 263 
 
 usually go to the < '< >nn i i.uk I« r- i n-( '1 1 1 < • t". ;ui<l require a certain 
 time for preparation ;md transmission ; and even if In- lias 
 time to give immediate attention t<> them, iho brief pi riod 
 allowable for martial law may elapse before he bag 
 tained what has (akin place throughout the disturbed 
 district. 
 
 It might, hut for recent events, hive been deemed need- 
 less to point out that, as regards the responsibility, legal or 
 moral, of a Governor or military Commander, for acts done 
 under martial law, neither the one nor the other can reason- 
 ably be held responsible for acts done by others, and not by 
 their personal direction, unless either in pursuance of 
 general or special instructions (a). As regards the Governor, 
 
 of information to bo afterwards acquired. Thus Mr. Secretary Caldwell 
 wrote for information: "In reference to the proceedings generally, I 
 am desirous to point to the main topics which, in the opinion of Her 
 Majesty's Government, demand your report, &c. : — 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 appended to the return ; and whereby any and what oral or written 
 instructions were given to officers in command of detachments Benl in 
 pursuit of rebels, -whether they might know on what evidence or appear- 
 ances, other than hostile action or attitude, they were to assume that those 
 they might meet with were rebels." It is manifest that all these matters 
 primarily vested with the military Commanders. 
 
 («) It is a genera] principle, which is so founded on natural justice, 
 that it may almost be deemed a principle of morality, as well as of law, 
 thai, as on the one hand, men may fairly be held liable for acts they have 
 caused, or even allowed; so, on the other hand, they cannot fairly be 
 deemed liable for acts even of persons under their control, not in accord- 
 ance with, but contrary to, their own orders and directions. And it is 
 obvious that all general orders and directions must be reasonably construed, 
 subject to all conditions and limitations imposed by usage, or obligati ins 
 common to and understood by other parties. Upon this principle, a master 
 or superior is responsible for acts done in carrying out general instructions, 
 or in the course of an employment, such acts being naturally incident to or 
 necessarily involved therein, but not for acts wilfully done in departure 
 therefrom, and not in the course of employment. Thus, for instance, an 
 employer is held liable to a revenue information for frauds committed by 
 the servant in the course of an employment to which such frauds are
 
 2b'± MARTIAL LAW IN THE COLONIES : 
 
 as martial law is military rule, and that is under mili- 
 tary discipline and authority, so the declaration of martial 
 law, and the delegation to a military Commander of the 
 authority and power to execute it, means its execution with 
 due humanity and discretion, and subject to all the re- 
 straints of military discipline, and according to the usages of 
 the service. And in like manner, as regards the military 
 Commander, to whom the duty of carrying out martial law 
 is thus delegated, his general directions to the officers under 
 him to do so, must be understood as having a similar mean- 
 ing ; and as neither the one nor the other can be deemed to 
 have sanctioned acts departing from these conditions, so 
 neither the one nor the other can fairly be held liable for 
 violation of their instructions, until it can be shown that 
 after knowing of them they tacitly sanctioned or ap- 
 proved. 
 
 incident, as the employer is aware of such, and derives the advantage 
 (Attorney General v. Siddons, 1 Compton's & Jervis Reports, 226), for 
 then the act is done in pursuance of a general purpose which the servant 
 was authorised to carry out (ibid, et vide Re gin a v. Dean, 12 Meeson & 
 Welsby's Exchequer Reports, 226). But it is equally well settled that an 
 employer is never liable for a wilful act of his servant, not in the course of 
 his employment, and not within the range of his general directions ; and 
 upon this principle, so just and so equitable, it has been held that a party 
 giving another into custody of an officer is responsible for everything 
 done by the officer in the ordinary course and performance of his duty, but 
 that such responsibility does not attach in the case of any irregular or 
 unnecessarily harsh treatment of the prisoner by the officer (Edgell v. 
 Francis, 1 .Manning & Granger's Reports, 222). The application of this 
 principle to the case of a Governor or military Commander, in the exercise 
 of a discretionary authority, necessarily exercised by orders, more or less 
 general, is obvious. The general orders must be taken as subject to all 
 reasonable conditions, and as only authorising what could be reasonably 
 proper and according to the usages of the service. If the particular act 
 departs from these conditions, then the Governor or military Commander 
 can only be rendered liable by showing that he personally ordered or 
 caused and procured the a.ct(Green v. Elgie, 5 Q.B. 99 ; Brown v. Chapman, 
 6 Common Bench Reports). It is a general principle that no one is liable for 
 the wrongful or illegal act of another, unless that other has acted under 
 and in accordance with his general or special instructions ; and in the 
 cafce of general authority it must be shewn that the act was in performance
 
 RESPONSIBILITY OF A GOVERNOR 205 
 
 Besides the measures of repression peculiar to martial 
 law, there may be a necessity f<»r recourse to measures of 
 precaution or prevention, as, for instance, arrests of sus- 
 picious persons, which may for various reasons not come 
 under martial law, lutt may be justifiable at common law. 
 As it would be idle to attempt the suppression of a rebellion 
 without putting down its authors as well as its actors ; and 
 exciting" and inflammatory publications may be main causes 
 of a rebellion (a), it is manifest that the same necessity or 
 
 of it, and in accordance with its Datura] meaning and evident tendency. 
 li is true that the authority may !»■ implied from a subsequent sanction, 
 
 or in the case of an arrest ordered by the secretary of a Governor in pur- 
 suance of his general object and obvious intention, and of which he, when 
 he hears of it, docs nut disapprove (G/i/nv. Houttown, 2 Manning & Gran- 
 ger's Heps. ), but that case come- fully within the principle already laid 
 down; and as an authority to do an illegal act is not lightly to be implied, 
 the mere knowledge of the act, and absence of express disapproval, if there 
 were no previous authority within which it could possibly have come, will 
 not be sufficient to involve a legal liability ( Wilton v. Tummon,6 Man. 
 & Gr.). And therefore, if, as in the Jamaica case, the Governor merely 
 declared martial law, and gave general directions to the military Com- 
 manders to capture or cut off the rebels, and to deal with severe cases, 
 and not to inflict corporal punishment frequently (vide ante p. 213), he 
 could not be held morally or legally responsible for acts, if any, done in 
 excess of those general direction;}. And so, if the Commander issued 
 general instructions that all ringleaders or rebels found in arms were to be 
 executed, though this might fairly be deemed to include all found to have 
 been in anus, as well as those actually taken in arms, it could not be 
 deemed to sanction executions of men without evidence of actual or active 
 participation in the rebellion. Nor could either the Governor or Com- 
 mander be blamed for not preventing acts which they had virtually pro- 
 hibited, and of which they were not cognizant. 
 
 (e») Thus the Governor of Jamaica, shortly after the expiration of martial 
 law, wrote to the Secretary of State : "Ihave the honour to report that 
 
 during the progress Of the rebellion it became evident that several persons 
 of better position and education had been engaged in misleading the negro 
 population by inflammatory speeches or writing.-, and that these evil 
 influences had a large share in causing the immediate outbrc.ik in St. 
 Thomas-in the-East, as well as in leading to the brutal massacre of particu- 
 lar individuals who had been pointed out by name as the parties by 
 whom the wrongs and oppression were in a great measure wrought, there 
 could be no shadow of a doubt." lie then went on to state, that chiet 
 amongst the parties concerned in this attempt to stimulate the negroes to
 
 266 MARTIAL LAW IN THE COLONIES : 
 
 the same honest belief in it, which may lead the Governor 
 of a colony, in cases in which such publications can be con- 
 nected with the rebellion, to subject persons thus implicated 
 in it, to trial by court-martial, may also lead him to appre- 
 hend others for such publications, who, in the absence of 
 such evidence, it may be necessary to detain for trial by the 
 ordinary tribunals, and it is conceived that such detention 
 may be legal and justifiable at common law. 
 
 In such cases, whether the act of the Governor were 
 
 rebellion were Gordon, a person who had been convicted and executed by 
 court-martial, and also two other persons, A and B., the latter editor of 
 a paper. These persons also had been arrested, and were intended to 
 be tried by court-martial, but the military Commanders considered that as 
 the alleged seditious publications were prior to the rebellion, and there 
 was no evidence of any overt act to connect them with the rebellion or the 
 actors in it, as there was in the case of Gordon, they were not properly 
 triable by court-martial ; a view in which the Governor had acquiesced 
 (vide ante, p. 192). He then Avent on : "A. and B. were also taken, but 
 were not tried by court-martial, the evidence available not being considered 
 sufficient. It was thought better, therefore, to detain them in custody, 
 and institute civil proceedings against them when martial law should be 
 terminated. This course the Attorney- General bas been instructed to 
 take. There are several other prisoners of less position and note, but 
 whose sedition and inflammatory teachings have had a most mischievous 
 effect amongst the negroes, who were also captured during martial law, 
 and arc still detained in custody to be dealt with by the Attorney-General. 
 I enclose an extract from a letter from A. to B., in which he states that 
 he was writing editorial articles .in his newspaper ' to shield you from the 
 charge of anarchy and tumult that in a short time must follow these 
 powerful demonstrations.' It is evident, from this letter, that both A. 
 and B. were fully aware of the effect which the ' strong demonstrations ' 
 they were making would have on the negro mind, and that they wilfully 
 and designedly pursued them to the issue they expected, 'anarchy and 
 tumult,' whilst A. avows that he was engaged, as editor of a paper, in 
 writing leading articles to screen B. and others from the charge of having 
 led to the disorders which it was expected would take place." As to 
 these persons, the Governor, shortly before the expiration of martial 
 law, wrote to the military Commander to desire that they be kept in 
 custody until the Government was in a position to deal with their cases, 
 although martial law might have expired (Pari. Pap., Part 1, 190). It is 
 conceived that at common law this course would be perfectly legal and 
 justifiable, upon principles already fully explained and authorities already 
 cited (ride ante). No lawyer can doubt that the above would be
 
 IMMUNITY OF A GOVJEBNOB AT COMMON LAW. 2G7 
 
 before or after the period of actual rebellion (a), or whether 
 after the expiration of martial law or out of the district to 
 which it applied, the validity or legality of his .act, or 
 rather his legal liability, for it would depend upon the com- 
 mon law, which, as already shown, independently of martial 
 law and bills ol indemnity, allows the largest possible im- 
 munity for acta reasonably necessary for the prevention of 
 rebellion, although it does not until a state of war, resultL 
 from actual rebellion, has been lawfully declared, allow of 
 a resort to the means and measures of law, that is to say, 
 martial law. Assuming any such acts of a Governor under 
 such circumstances not to be legal or allowable, or entitled 
 to legal immunity at common law. then it would be neces- 
 sary to fall back on a bill of indemnity, which in such case 
 
 reasonable evidence on which to detain persona in custody during a period 
 of great public danger, to abide their trial when order should he restored. 
 
 (a) As already shown, the operation of martial law, supposing it lawfully 
 declared, commences, not from the declaration of it, but from the rebellion, 
 which ji tifi « it, for the declaration only declares an existing state of 
 thing! te, p. 216"). But then it requires an actual rebellion, and 
 
 operates only from the time of such rebellion, and for so long as it is law- 
 fully declared, the latter point, necessarily, not so determinate as the 
 former, but at some point of time it ends, and either before its beginning, 
 or after its end, or out of the district, the legal liability of the Governor for 
 acts he deems necessary for the public safety rests on common law, or the 
 ordinary law of the colony, whichever it may be (ride ante), which is 
 certain to allow, at least, as much power to the Governor as the common 
 law allows, and thai allows, it is conceived, of all measures of precaution or 
 prevention which may honestly and reasonably be deemed necessary in a 
 state of public emergency resulting in rebellion, although, nol without 
 martial law, measures of summary punishment are by force of arms. The 
 arrest of persons whose publication or acts appear likely to cause a rebellion 
 may, it mint be obvious, be a wry reasonable measure of precaution or 
 prevention, and their detention for trial after the expiration of martial law 
 upon reasonable grounds, must equally be legally justifiable, according to 
 authorities already alluded to. At all events, any step in an act of this 
 sort i> precisely the sort oi thing intended to be covered by an act of 
 indemnity, the scope of which, as already observed, is but casual, trivial, or 
 incidental illegality, not wholesale and wilful violence to life or limb. 
 Mere confinement for a few weeks, in a season of public peril, of persons 
 isidered gnilty of seditious publications, is, it is manifest, a compara- 
 tively trivial matter, assuming it to have been a reasonable measure of
 
 2b8 MARTIAL LAW IN THE COLONIES: 
 
 is certain to be passed, and as to which, it is to be 
 observed, that though, under the Colonial Governors Acts, 
 criminal proceedings, and at common law civil proceedings, 
 may be taken in this country for acts committed abroad, 
 and assumed to be criminal, or not to be legally justifiable, 
 that is only a matter of practice or procedure affecting the 
 place of trial, and not in the least affecting the legal liability, 
 which remains as before, governed by the lex loci, the law of 
 the colony, and, therefore, if by reason of a bill of indemnity 
 proceedings could not be taken there, so neither could they 
 be taken here. 
 
 For it is a fundamental principle of our law, that the 
 legality of an act, or the validity of any legal immunity, or 
 the operation of any matter of legal discharge (a), depends 
 
 precaution, and must be plainly within the scope of a bill of indemnity. 
 And for reasons perfectly clear upon legal principle, a bill of indemnity in 
 the colony would have an equal operation in this country. 
 
 (a) No principle is better established than this, that the lex loci governs 
 the liability, the lex fori the law of procedure. Thus, the plaintiff cannot 
 recover upon a written contract made in Jamaica which, by the laws of 
 that country, was void for want of a stamp (Alves v. Hodgson, 7 Term 
 Reports, 241); although, otherwise, if a mere stamp duty, our courts not 
 taking cognizance of mere revenue law of a foreign country (James v. 
 Catherwood, 3 D. & R. 160 ; Pelhcat v. Angel, 2 C. M. & R. 311). The law 
 of the country where the matter arose governs the legality of it, unless that 
 law is contiary to natural justice or the usages of nations ( Wolfe v. Oxholme, 
 6 Maule & Selwyn's Rep. 92). Generally, the lex loci governs the contract 
 {Power v. Whitmore, 4 M. & S. 141), unless the law of the foreign country 
 or colony is contrary to some law of this country, as the law of marriage, 
 which, by its nature, pursues a British subject, and the matter arose 
 between British subjects ; and thus, a marriage abroad contrary to our law, 
 as to British subjects, might not be valid, because British subjects, resident 
 in a British settlement abroad, are governed by the laws of this country, 
 and consequently, with respect to marriage, by the law which existed here 
 before the Marriage Act, viz., the Canon Law {Lautour v. Teesdale, 2 
 Marsh. 243). But, on the other hand, on a plea of coverture, where the 
 parties, British subjects, were married in France: — Held, that if the 
 marriage would not be valid in that country, it would not be so in this 
 (Lord Tenterden, Lacon v. Higgins, D. & R. N. P. C. 38 ; 38 Stark. 178). 
 It is the general principle that a matter of discharge must be valid by the 
 law of the country where the matter arose, and that if so valid, it will pre- 
 vail everywhere, the only exceptions being those just pointed out; and
 
 EFFECT OF ACTS OF INDEMNITY. iM!) 
 
 upon the law of the country where the act was committed, 
 or where the legal liability, if any, or the legal immunity, if 
 
 any, or the matter of discharge, if any, arose, i.e., upon the 
 lex loci ; although the law of procedure which is applied, is 
 the law of the country where the civil or criminal suit is 
 brought, i e., the lex loci. This is one of those prin- 
 ciples which are fundamental, because founded on natural 
 justice and good sense. For otherwise it is obvious that, on 
 the one hand, a man might act under one law and be tried 
 by another ; and, on the other hand, a plaintiff or prosecutor 
 might, by merely altering the place of trial, alter the whole 
 law applicable, which would often operate the grossest in- 
 
 thus, for instance, in the case of marriage, no sentence of divorce of any 
 foreign country or state can dissolve an English marriage a- vinculo, for 
 grounds on which it was not liable to be dissolved a vinculo in England 
 (Rex v. Lciley, I Rues. 0. & M. 190 ; R. & R. C. C. 237). But the general 
 principle, for civil and criminal cases, is that the law of the country where 
 the matter arose governs its legality, and governs also the validity of any 
 matter of discharge. Thus, for example, where a husband and wife carried on 
 trade as partners in Spain, they cannot sue such as in our courts, nor main- 
 tain a joint action against persons resident in this country, to recover the 
 amount of a balance due to the partnership account, without proof being 
 given th it by the law of Spain a feme covert is permitted to trade; and it 
 is doubtful whether an action could be maintained by both even on such 
 proof being given (Lord Tenterden, C. .J., Cosio d. I'ineyro v. De Bernales, 
 1 C. & P. 2fiii ; K. & M. 102). And so, again, where the cause of action 
 accrued in Scotland, and infancy is pleaded, the defendant must show that 
 infancy is a legal defence to the demands by the law of the country (Lord 
 Eldon, C. J., Male v. Roberts, S Eep. 163). It is true that it has been held 
 that acts ot attainder and confiscation being passed by sovereign indepen- 
 dent states, do not disable A. from suing, nor exempt B. from being sued 
 in England (Oyden v. Tollett, in error, 4 Brown's Pari. Cases, 111); and 
 that penal laws of another country do not import a personal disability to 
 sue in this country, civilly or criminally, because the penal laws of foreign 
 countries are strictly local, and affect nothing more than they can reach ; 
 and it is to be observed that the judgment in that case was affirmed on a 
 different ground, viz., that the acts of confiscation (by American States 
 against loyal British subjects) were to be deemed void in the courts of this 
 country, a ground coming within the exceptional principles already laid 
 down. But the general principle is, that in a suit between parties 
 resident in England, on a contract made between them in a foreign 
 country, the contract is to be interpreted according to the foreign law, 
 but the remedy must be taken according to the law here (De l<t Vega
 
 270 MARTIAL LAW IN THE COLONIES : 
 
 justice, and, moreover, a contrary doctrine would often 
 virtually violate the comity of nations in the case of inde- 
 pendent states, or the legislative rights of free communities 
 in the case of our own colonies. Upon the same general 
 principles of natural justice, practical convenience, and 
 comity of nations, on which the law of the foreign country or 
 colony is recognized and applied to the cause of action, the 
 judgment of a court of justice there upon the same subject- 
 matter, and between the same parties, is equally recognized 
 as a legal discharge, i e., as a judicial discharge, in the 
 courts of this country ; and upon the same principle, an act 
 of indemnity passed in that country or colony, which is 
 
 x.Vianna, 1 B. & Adol. 284). Thus it is that one foreigner may arrest 
 another in En-land for a debt which accrued in Portugal, while both 
 resided there, though the Portuguese law does not allow of arrest for debt 
 (Hid). The rule applicable to contracts made in one country, and put in 
 suit in the courts of law of another, is this: the interpretation of the con- 
 tract must be governed by the law of the country where the contract was 
 made, and the mode of suing, and the time within which the action must 
 be brought, by the law of the country in which it is sought to be enforced 
 (Trimly v. Vigour, 4 M. & Scott, 695 ; 1 Bing. N. It. 151). Thus, where 
 a contract is made between persons domiciled in a foreign country, and in 
 a form known to the law of that country, the court, in administering the 
 rights of parties under it, will give it the same construction and effect as 
 the foreign law would have given to it (Anstrulhcr v. Adair, 2 Mylne & K. 
 513). Where a personal contract made in a foreign country is sought to be 
 enforced, so much of the law as affects the rights and merits of the contract 
 is adopted from the foreign country, and all which affects the remedy is 
 taken from the lex fori of the country where the action is brought. The 
 distinction between that part of the law of the foreign country where a 
 personal contract is made which is adopted, and that which is not adopted 
 by our courts, is, that so much of the law as affects the rights and merits of 
 the contract, all that relates ad decisionem litis, is adopted from the foreign 
 country, so much of the law as affects the remedy only, all that relates ad 
 litis ordinationcm, is taken from the lex fori of that country where the 
 action is brought. In the interpretation of this rule, the time of limitation 
 of the action is governed by the law of the country where the action is 
 brought, and not by the lex loci contractus. Thus, as by the French law 
 of prescription relating to bills of exchange, the debt is not extinguished, 
 but the remedy only is taken away (Iluber v. Steincr, 2 Scott, 304 j 2 Bing. 
 X. E. 202). An action lies in this country though barred in France (ibid) ; 
 and, on the other hand, an action on a Scotch contract may be barred here,
 
 EFFECT OF ACTS OF INDEMNITY. -71 
 
 another species of legal discharge, i. e., a legislative dis- 
 charge, would be equally recognized in the courts of this 
 country In auy court or criminal proceedings. If it were 
 not so, a legislative discharge would not have the same 
 as a judicial discharge, and the power of legislation in 
 ili colony, over matters within it- jurisdiction, would 
 virtually be set aside or neutralized by the courts of this 
 country. 
 
 It will have been manifest that the most important and 
 difficult question likely to arise is as to the continuance of 
 martial law, or rather the continuance of its execution. 
 The considerations which would influence a Governor, 
 
 although not barred in Scotland {British Linen Company \. Drummond, 10 
 B. & C. 903). And on arising in India or any colony 
 
 ( Williams v. Jones, 13 East's Reports, 139). Bui the reason is, that Statutes 
 of Limitation bar the remedy and not the right (Biggins v. Scott, 2 13. & 
 Adolphus, 913). So strong is the principle that the lex loci governs the 
 of actions, that as regards our colonies, though our courts would not 
 recognize the state of slavery, bo as to give effect to it, they would recognize 
 the law as to slavery existing in some of those colonies, with respect to its 
 bearing on the cause of action (Keane v. Boycott, 2 Henry Blackstone, 
 511 ; Madrazo v. Wittes, 3 Barn. & Alderson's Reports). It has, indeed, 
 been held by the House of Lords, that the law of a country where the con- 
 tract is to be (/. < . by the contract), performed and enforced, must govern 
 the construction of the contract, but that is by virtue of the contract itself 
 {Don v. Leppman, 5 Clark & FineUy's Rep. 1 >. A similar principle 
 obviously applies to all acts or causes of action ari ing abroad; and on the 
 same principle, and also according to the "comity of nations," a principle 
 applied by analogy to the courts of our own colonies, the judgment of a 
 foreign court on the Bubject-matter is recognised as conclusive in the 
 courts oi this country, unless the proceedings arc shown to have been 
 clearly contrary to natural justice (Phillips v. Allen, S 13. & < '. 177 : Martin 
 v.Meolle, 3 Simon'e Rep. \; Douglas v. Forest, 4 Bingham's Rep.). 
 To render a foreign judgment void on the ground that It is contrary to 
 the law of the country where it was given, it must be shown clearly and 
 unequivocally to be so (Beckett v. McCarthy, 2 15. & Adol. 951). The 
 sentence ol a foreign court of competent jurisdiction, condemning a neutral 
 vessel taken in war as a prize, is good against the world | Dolt ■'■ v. Napier, 
 2 Bingham's N. C. 7S1). And although, on the other hand, an action may 
 be maintained here for I Lone abroad, as in a colony, it is 
 
 Bubject to the law of the foreign country or colony; and also if judgment 
 has been given by a court there on the same matter, it is final {Smith v.
 
 272 MARTIAL LAW IN THE COLONIES : 
 
 rightly or wrongly, in sanctioning the measures of severity 
 or repression, which appeared to be required for the sup- 
 pression of rebellion, whether or not under martial law, 
 would he the same as those which would influence him in 
 determining the continuance of the execution of martial 
 law, i. e., considerations of danger (a). The evidence of 
 such danger would probably be considered to be afforded by 
 information from the local authorities as to facts showing 
 the continuance of the spirit of rebellion, especially if indi- 
 cated by acts of outrage, or threats of outrage, or acts of 
 preparation for outbreak, among a numerous class of the 
 population, and the continuance of that disproportion 
 
 Nicholls, 5 Bingham, N. C. 20S). A judgment, whether for one party or 
 the other, is, it is obvious, a species of legal discharge, i. e., a judicial 
 discharge ; and the same principle of law applies in either case. To any suit 
 here, on a foreign contract, it is a good bar that it was illegal by the law of 
 that country (Herizv. De Casa, 11 Simon's Rep. 318); and the same principle 
 would apply as to legality (it not being contrary to any law of this country 
 applying to the parties), and would equally apply to any other acts, and to 
 torts as well as contracts. Thus, the courts of this country, in dealing with 
 real property in Jamaica, will follow the law of Jamaica, even as to evidence 
 (Tidlock v. Hartley, 1 Young & Collyer, 114) ; and although they will apply 
 general principles common to all countries, this is only provided the law of 
 the colony or foreign country is not different (Bentinck v. Welbeck, 2 Hare's 
 Ren. 1). It is only when the English law has been applied in the colony 
 that it governs the contract or cause of action (McKay v. Rutherford, 6 
 Moore's Privy Council Cases, 413; Logan v. Mesurier, ibid). These prin- 
 ciples were recognised in a recent case, where a party sued here for an 
 assault in Naples, and the defendant set up mere matter of procedure by 
 Neapolitan law, which, of course, would not avail; but it was not disputed 
 that if there had been a legal justification or discharge by Neapolitan law, 
 it would have been valid here (Scott v. Lord Seymour, 6 H. & N. ). 
 
 (a) As the Author observed, in his former work, the propriety of relaxing 
 or terminating martial law would depend upon the advices received by the 
 Governor. In this case, 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 im- 
 pending (Treatise on Martial Law, 207). To this he added, that as the 
 object of the Government is that confidence which can only result from the 
 sense of security, if, in point of fact, there was widespread alarm and ap-
 
 CONSIDERATIONS AS TO ITS CONTINUANCE. 27-'i 
 
 betwe'en that class and the loyal portion of the community*, 
 and th.it deficiency of military force for then- protection, 
 which would probably render a rebellion successful, if in 
 such a state of things it were once allowed again to break 
 out and to spread, and would expose the loyal to certain 
 destruction. 
 
 It is obvious that at the time of the suppression of an 
 
 prchcusion, whether well or ill -grounded, that itself was a bet, which could 
 not be an importanl element in bis judgment. In the Parliamentary 
 Papers, Pari I., and in the evidence of Mr. Byre, are given a vast number 
 of communications received by the Governor at the time of the trial of 
 Gordon (21 Oct.), and thence until and up to, and even after the cessation 
 of martial law. showing, in every part of the island, the plainest proofs of 
 a strong disposition to rebellion, and even acts of open outrage, or threats 
 of outrage, arming, drilling, &c, in fact all the indications of an imminent 
 danger of a renewal of actual rebellion. Thus, on the day of Gordon's 
 trial, the leaders being still at large, the Gustos of Clarendon wrote to the 
 Col. Sec., October 21, 1S65.—" I regret to say that an attempt to burn down 
 the Court-house has been discovered. 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." The Custos 
 of Westmoreland wrote, a day or two afterwards, that he had held a magis- 
 terial investigation as to arming or drilling, and had issued a proclamation 
 against it, and about the same time the rebels met the Queen's troops in 
 the field in another district. On the 24th the Custos of Ann wrote, that 
 from all he had learnt he believed that there would be a serious outbreak 
 on the 2nd Nov. Men belonging to the rebel class were heard to say, that 
 there would be more blood spilt ; that they wished the rebel force would 
 arrive here, as they were quite ready to join ; that men had been using most 
 seditious language, and that the magistrates had not apprehended them ; 
 that 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, <xc. So the 
 Custos of Manchester (Oct. 28), received information that assemblies of 
 persons were taking place, and they were fearful these gatherings might be 
 evil. These are mere instances as illustrations. Such communications for 
 were received daily from the time of the execution of the leaders up to the 
 cessation of martial law. And alter careful enquiry, the Royal Commis- 
 sioners pronounced their deliberate opinion, that on these communications 
 the Governor " would have done wrong if he had thrown away the advan- 
 tage afforded by the terror which the name of martial law inspired," only 
 they thought that after ten days the execution of martial law might have 
 stopped. But they overlooked this, that as even the execution of martial 
 law did not do more than just keep the rebellion down, the mere name 
 would hardlv have had that effect. 

 
 274( MARTIAL LAW IN THE COLONIES ! 
 
 actual insurrection (a) in a particular district, there may be 
 manifest proofs of the prevalence of a spirit of rebellion, 
 and of actual preparations for insurrection in other districts, 
 or even perhaps throughout the colony, which, coupled with 
 the enormous preponderance of the disaffected portions of 
 the population, and the deficiency of military force for the 
 protection of the loyal and peaceable, may constitute a case 
 of great and imminent danger of the renewal of actual re- 
 bellion in the same or other districts, and may imperatively 
 require either the terror of martial law or the distribution 
 
 (a) This was the case in Jamaica, when rebellion had broken out in a 
 particular district, and Mr. Eyre's statements that it had been subdued, i.e., 
 the actual insurrection in the particular district where it had broken out, 
 were strangely misconstrued to mean that all danger was over, and that 
 the rebellion was entirely at an end, because actual rebellion whei - e it had 
 first broken out was subdued. But the whole tenor of his despatches, down 
 to and after the cessation of martial law, disclosed a very different meaning 
 and a very different state of things. Thus the Governor wrote to the 
 Commander-in-Chief of the colony : " 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 county so extensive as Jamaica, and 
 affording so few facilities for receiving early intelligence, 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 posi- 
 tions around the coast and island " (Mr. Eyre to Gen. O'Connor, Oct. 27). 
 And afterwards, on the day before the expiration of martial law, when after 
 a delay of ten days, caused by differences with the Commander-in-Chief as 
 to the distribution of the troops, that distribution had just been completed, 
 the Governor wrote to a military officer : "At the time that you arrived 
 the insurrection in the eastern parishes was thoroughly got under, but 
 from information reaching the Government from every direction it was 
 evident that a seditious and disloyal 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 con. 
 siderable amount of intercommunication had taken place between the 
 disaffected of the different parishes, and that had the rising not been brought 
 about somewhat prematurely at Morant Bay, it would at a later period of 
 01 the year have been more general and simultaneous. Under these cir- 
 cumstances the natural and, indeed, the necessary action of the Government 
 was to station small parties of troops as rapidly as practicable at as great a
 
 CONSIDERATIONS AS TO ITS CONTINUANCE. 275 
 
 of military force for its suppression, and, therefore, may ap- 
 pear to require the continuance of martial law, until there 
 lias be< 11 such a distribution. 
 
 Such circum rosidered to raise a difficult 
 
 ion, which in the United Kingdom has been deemed 
 under similar circumstances to require Legislative solution, 
 whether martial law may not be justified as a incisure of 
 prevention, even in other districts, where there has not as 
 yet been any actual rebellion (a). And although a Colonial 
 
 number of distinct p siti in is possible ; under the circumstances in which 
 the colony is placed there is no help tor it, and it is better that the troops 
 should sutler in their military organization and discipline for a time, if 
 thereby thej can prevent tin outbreak of rebellion, that by being con- 
 centrated and kept in good military order they should leave openings for 
 the disaffection bo train ground and break info a rebellion, which once 
 existing might require a much larger number of troops and a long period 
 of time tor its suppression. That the policy is a sound one is shown by 
 the result at each station where difficulties were anticipated; the mere 
 stationing of a small body of troops has allayed apprehension, and has so 
 far had the effect of keeping the several districts quiet. It i>, however, 
 important to hear in mind that it does not follow because the districts arc 
 quiet, then tore the troops may be withdrawn ; it is 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." (Gov. Eyre to Col. Whitfield.) 
 
 («) This state of things in Ireland has led the Imperial Legislature 
 either to sanction the Government in declaring martial law, even although 
 there had been no actual rebellion (a course always of doubtful legality), 
 or to pass a measure allowing a partial or modified form of martial law in 
 case of apprehended rebellion [vidt ante, p. 133). In a colony where there 
 is no such modified form ol" martial law provided, it is manifest that the 
 position must In- one of great difficulty, and that difficulty waa one of the 
 many which arose in Jamaica. Martial law had been strictly limited to 
 the district covered by the actual rebellion, but there were such DTOO 
 
 disposition to rebellion all over tin- colony that the military Commander 
 wrote to the Commander-in-Chief, that from what he had seen of parts of the 
 island, and the great difficulty experienced in procuring means of transport, 
 of opinion that the other parts should he immediately placed under 
 martial law, or his presence here, with my present small force, will be of 
 little service to the colony. To this the Commander-in-Qhief added : — 
 " I endorse the opinion, having been eonvinced from the first breaking out 
 of the rebellion that the whole island ought to have been placed under 
 martial law." Nevertheless, notwithstanding this strong opinion, the 
 
 T -2
 
 276 MARTIAL LAW IN THE COLONIES : 
 
 Governor may be deemed to have acted wisely and judicially 
 in resisting representation for an extension of martial law, 
 under such circumstances, to districts in which there has 
 not been any actual outbreak, he will probably be con- 
 sidered justified in maintaining it in the district in which 
 there had been an actual rebellion. 
 
 The necessity for continuance, and even for the continued 
 execution of martial law, might be shown by cases in which 
 the infirmity of the means and measures of common law, 
 for the repression of acts of preparation for rebellion, have 
 been remarkably illustrated. Thus, as to secret arming or 
 drilling, as there is nothing in such acts of themselves 
 necessary illegal, and they could only be rendered punish - 
 
 Governor declined to take that course, and wrote : " My own views being 
 strongly adverse to the establishment of martial 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 the communication." And then he 
 wrote as to the result : " We are of opinion that strong indications exist 
 of a considerable amount of excitement and disaffection in most of the 
 western parishes. 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 protection to the loyal and well-disposed inhabitants, 
 we are of opinion that certain posts should at once be occupied by troops, 
 as originally proposed, &c. With regard to the immediate proclamation 
 of martial law in the other parishes as requested, 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 dis- 
 turbance take place, I should be ready to recommend its adoption to a 
 Council of War, which would have to be summoned to consider the ques- 
 tion." This course was highly approved of by the Secretary of State, who, 
 although he considered himself compelled to censure the course taken bj 
 the Governor in continuing the execution of martial law in the district 
 where it had been proclaimed, couched his censure in the most considerate 
 terms, and coupled it with an entire approval of the course taken in resist. 
 ing the pressure put upon liim to induce him to extend the area of martial 
 law, and perhaps some may think that in pronouncing this censure suffi- 
 cient weight was not given to those considerations which may have been 
 drawn from the general condition of the colony, in regard to the continu- 
 ance of the operation of martial law in the district where it existed, as a 
 compensation for not extending it beyond that district.
 
 CONSIDERATIONS AS TO ITS CONTINUANCE 277 
 
 able by strict proof of a treasonable intent, afforded through 
 the doubtful and dilatory process of legal prosecution, it 
 might practically be impossible to pul a stop to such acts 
 at common law, and yel it is manifest that to permit a 
 disaffected class of the population, possessing an over- 
 whelming preponderance in numbers, to arm themselves 
 and organize thriii ml thus prepare for actual re- 
 
 bellion, would be simply to sacrifice the loyal portion of the 
 community, or place them entirely at the mercy of the 
 rebels ; and, under such circumstances, it might be essential 
 to continue martial law in force until an adequate military 
 power was distributed throughout the country (a). 
 
 (it) Tims, nt tin: time martial law had actually terminated in Jamaica, 
 the Governor received from the Custoa or Lord ■ L ieutenant of a district, 
 far distant from the scone of actual insurrection, official communications 
 from tin.- local magistrates, enclosing reports of police inspectors as to dis- 
 - Hi' anr,-. Thus, there were found at one place upwards of a 
 hundred pikes, or spikes made of hardened wood, evidently intended lor 
 offensive use, as they could not possibly be of any other use. The report 
 ' of the Police Inspector, November 16 (two days after martial law was over), 
 stated, •' I received a despatch, stating a number of people in the district 
 were armed with spikes. I wont up during the night, accompanied by 
 police, and searched the house, in which I lound upwards of 100 spikes 
 made of hard wood ; they are about eight or nine feet long." He adds, 
 that ho has also sent down some from another district, also armed with 
 spike-, lie saj - be is told there is no Act to try the people by, and he has 
 therefore written to ask how he i- to act. and he Bays, -I believe all the 
 Bevivaliste in this parish and Manchester are similarly armed. Mr. Law- 
 rence wished mo to apprehend them all in this parish. If I had done BO, 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." He added, "as the soldiers are now hero, I 
 believe that they are needlessly alarmed." So ii was plain that it was only 
 the presence of the yhich afforded any adequate protection. Yet, 
 
 when the magistrates desired to know what could he done, the Cusl 
 Lord-Lieutenant, wrote to them in these terms : — "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 a- are specified in 
 the Island Act, ith Geo. IV., e. 18, a 1. If. upon examination of the 
 prisoners, corroborative, intial, or other evidence bo obtained, 
 
 showing a reasonable suspicion of a plot for any such purpose, they should
 
 278 MARTIAL LAW IN THE COLONIES : 
 
 It is manifest that, as the only necessity for martial law 
 arises from the absence or deficiency of military force, the 
 mere presence of which of itself exercises a deterrent in- 
 fluence sufficient to give peace and confidence (a), that ne- 
 cessity may exist so long as that deficiency exists, but must 
 terminate as soon as that deficiency is at an end ; and that, 
 
 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 possi- 
 bility of their bringing the infliction of martial law on themselves by the 
 manifestation of a disloyal spirit, and should be informed that the Governor 
 can declare it much more promptly now than heretofore." And he added, 
 " It is not desirable to apprehend any subject on a charge which, if proved, 
 the laiv does not deem a punishable crime" 1 (Pari. Pap., part 1). The 
 Attorney-General of the Island" 1 appears to have sanctioned the same view 
 (Pari. Pap.), which is supported by the fact that special statutes were 
 deemed necessary in this country and in Ireland to prevent arming and 
 drilling. And such a statute was afterwards passed in the colony alluded 
 to. But in the absence of any such statutable provision, it is manifest, 
 that in such a state of things protection could only be afforded in one of 
 two ways, either by the terror of martial law, or by the presence of an 
 adequate military force. Accordingly, under such circumstances in Jamaica, 
 martial law was continued until a military force was distributed through 
 the disturbed districts. These matters, of course, would weigh strongly 
 with the Governor, and shortly afterwards he wrote to the Secretary of 
 State : — " There can be no question but that the island is still in a very 
 precarious position, and that we are only enabled to keep down a further 
 rising of the negro population by the most watchful vigilance and by the 
 constant presence of troops and men of- war. The pikes described in the 
 letters to Mr. Salmon are similar to what the people in Hayti use as 
 weapons " (Mr. Eyre to Mr. Cardwcll, 20th Nov.). 
 
 (a) Thus, in the Jamaica case, the Governor, so soon as the military 
 reinforcements arrived, desired to take steps for their distribution through 
 the island, in order to remove the danger and restore peace and confidence, 
 which would have enabled him to dispense with martial law ; and he wrote 
 thus to the Commander-in-Chief:— "In the existing state of matters in 
 Jamaica, with seditious language, expressions of sympathy with the rebels 
 id' 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 
 i lovernment to capture and punish the offenders without incurring the risk 
 of allowing an actual rising of the negro population to take place, and 
 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
 
 CONSIDERATION! AS TO ITS n»NTlM\\N< E. -J7:> 
 
 therefore, martial law oughl to 1"' suspended as booh as a 
 sufficient military force is obtained to distribute through 
 the disturbed district, in such a way as to restore pet ce and 
 remove danger, or, at all events, so soon as that distribution 
 
 has taken place. 
 
 prevent rebellion breaking out, will, as fer as Bueh ean be provided for, 
 render life and property safe, and will give a feeling of confidence to the 
 settlers. Neither war nor actual rebellion exist al preaenl in tbe western 
 districts s there are do parties in arms against as, nor is there any organised 
 body oi negroes, bo far as I am aware ; consequently there is si preaenl 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 men 
 only, aided, moreover, as they would be by volunteers, police, or the resi- 
 dent settlers, in the case of any disturbance. The principal positions at 
 which military support is considered to be required for a time arc com- 
 paratively Isolated from each other, with no very rapid or constant inter- 
 communication, and that an outbreak might occur at any one of them, and 
 the white population be massacred, and property destroyed, as at Morant 
 Bay, before aid could be rendered from a position only a few hours off In 
 point of time. It is better to locate troops in spots where, 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 con- 
 tinued for some little time, the country will settle down into its usual 
 quietude " (Governor Eyre to General O'Connor, 29th October. Pari. Pap. 
 Part 1, p. 70). The Commander-in-Chief, however, differed with the Gover- 
 nor, and desired to keep the troops chiefly in one position, and to declare 
 martial law over the whole island or over great portions of it, which the 
 Governor refused to do. Hence from the 30th October to the 10th F. b- 
 ruary, the distribution of the troops was delayed, and only three days 
 afterwards martial law was put an end to. Throughout, the main danger 
 was the spiv id of the insurrection, and when it was subdued in one district, 
 lest it ahould break out in another. Thus, the Governor writing for more 
 troops, said : "General apprehension and alarm exists lest the movement 
 extend to the entire island, and the insurrection 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. 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 supprc.-s the insurrection in the districts where it now exists, and would 
 not supply any troops whatever for the assistance or defence of other por- 
 tions of the colony, should the outbreak, as is feared may be the ease, 
 unhappily extend to them. It may be as well to bring to your Excellency's 
 notice, as an additional reason for tin- urgency, the immense area of
 
 280 MARTIAL LAW IN THE COLONIES : 
 
 Under such circumstances (a), in presence of an imminent 
 peril of renewal of the rebellion, a Governor will be deemed 
 justified in maintaining martial law, in order to have the 
 advantage of the terror which its name inspires, although 
 the period or the degree to which its execution shall be 
 continued is a matter upon which he must exercise his 
 judgment, under his responsibility to the Crown. And, at 
 all events, so long as a real danger exists, or can reasonably 
 be deemed to exist, the Governor of a colony need not fear 
 
 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 fastnesses of the 
 mountains, where a large portion of the peasantry reside " (Desp. of 
 Mr. Eyre to Governor of Nassau). 
 
 («) Thus, with respect to the primary question as to the proclamation of 
 martial law, the Commissioners said that 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, though they disapproved of the con- 
 tinuance of martial law in its full force to the extreme limit of its statutory 
 operation, and to the excessive nature of the punishment 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 pos- 
 sible 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 black populations ; the real dangers and the vague alarms by 
 which he was on every side surrounded ; the inadequacy of the force at his 
 command to secure superiority in every district ; the exaggerated state- 
 ments which reached him continually from different 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 slight appearance of indecision." The Governor gave these reasons 
 for continuing martial law : — " 1st. 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. 2ndly. To preserve peace and good order in the districts 
 where the rebellion had existed, and to afford time to reorganise the 
 civil institutions. 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 became disorganised and demoralised
 
 *** 
 
 CONSIDERATIONS AS TO ITS CONTINUANCE. 281 
 
 that ho will be considered to have acted rightly in maintain* 
 ing martial law, provided its execution be kept as far as 
 possible under due control. And it is manifest that its 
 control must be based upon the same principles, and those 
 considerations of necessity for the public safety, which alone 
 justify its declaration. 
 
 The true principles of martial law (a) have, indeed, been 
 admirably explained and expounded by the ministers of 
 the Crown, in their comments upon the events of a recent 
 unhappy rebellion (a) ; and although it has been acknow- 
 
 3rdly. It was important that for some time longer at least the Government 
 should continue martial law, to operate as an example and a warning in 
 terrorcm 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 tic (Jovernment 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 overawe the evil-dis- 
 posed in other parts of the colony, and thereby prevent any rising amongst 
 the negro population of the districts where disaffection and seditious ten- 
 dencies were known to exist. Those were the lour principal reasons which 
 operated with the Government at the time." The Commissioners reported 
 that the Governor would have been to Maine if lie had thrown away the 
 advantage given by the terror which the name of martial law inspired, and 
 the Secretary of State concurred in the view (vide ante, p. 202), although 
 he thought that the execution of martial law ought to have been suspended 
 so soon as the reinforcements arrived. 
 
 (a) Thus Mr. Cardwcll, in his final despatch upon the subject, lays down 
 in clear terms the governing principle. Future good government is not 
 the object of martial law. Example and punishment arc not its objects ; 
 ii~ severities can only be justified when, and so far as, they are absolutely 
 ssaryforthe immediate re establishment of the public safety. Next, 
 in accordance with the Report of the Royal Commissioners, he laid down 
 the great rule that " measures of severity, when dictated by necessity 
 and justice, are in reality measures of mercy," for then the course of pun- 
 ishment was arrested as soon as you w< re able to do so, and you have exerted 
 yourself to confine it, meanwhile, to ascertained offenders, and to cases of 
 aggravated guilt. And that no time should be lost in checking, at the 
 earliest possible moment, Lhose measures of instant severity which only an 
 
 Overwhelming sense of public danger justifies, and returning to the ordinary 
 
 course of legal inquiry, and of the judicial trial and punishment of 
 offenders. The Secretary of State admitted (vide <utt<), that the mat- 
 ter was one of difficult and delicate judgment, and one on which the
 
 282 MARTIAL LAW IN THE COLONIES: 
 
 ledged thai any error of judgment which may have arisen 
 on that occasion may be in a great degree accounted if not 
 atoned for by the suddenness of the emergency and the 
 absence of instructions, those despatches have gone far 
 to dispend with the need for such instructions, and afford 
 ample materials for future guidance, should the occasion 
 ever again unhappily arise in any British colony. 
 
 Under the conditions, and within the limitations thus laid 
 down, and subject to such restraints and regulations as have 
 thus been suggested as arising naturally and necessarily out 
 of the principles upon which, and upon which alone martial 
 law, or the means and measures of war, can be justifiable, 
 such measures are not only undoubtedly lawful and allow- 
 able (a), but it is the bounden duty of the Governor of a 
 
 conduct of the Governor was entitled to every consideration. Sir. Cardwell 
 indeed added with characteristic candour, that there were no instructions 
 on the subject, and that it might he matter for consideration whether any 
 could he issued ; but his successor, Lord Carnarvon, has intimated very 
 truly, that no instructions can relieve a Governor from the necessity of 
 acting on his own responsibility, and the admirable despatches which the 
 Jamaica case has elicited, and the substance of which has been carefully 
 embodied in these pages, must go far to dispense with the necessity for any 
 further instructions, and to afford ample guidance for the future, should 
 any occasion for it unhappily arise. And this reflection may mitigate the 
 regret that otherwise might be felt at much that has occurred. 
 
 («) Thus, in the course of a recent debate on the subject, the eminent 
 person, Mr. Headlam, whose official opinion as Judge Advocate-General 
 has already been alluded to, said : " He thought that the law of this 
 country was not only amply sufficient to justify the Crown in taking 
 sufficient measures for the defence of the realm, but that the minister of 
 Crown would be liable to the gravest censure — would be liable almost to 
 impeachment — if he neglected to take sufficient precautions for the defence 
 of the country. He was, further, of the same opinion in the present case 
 also ; that it was not desirable to alter the existing law, and that it was better 
 to leave it in the same state in which it had always been, the duty of the 
 Governor being to take care, in tbc words of the old Latin maxim, ne quid 
 detrimenti respublica capiat. Whether they called it martial law, or the 
 law of necessity, it was precisely the same thing. If the executive autho- 
 rity superseded the ordinary law of the country when a sufficient case of 
 necessity arose, they were all agreed that it should be supported in that, 
 and also that it should be covered by an act of indemnity afterwards. At 
 the same time he was not prepared to say that they ought to fetter and
 
 PRACTICAL CONCLUSIONS AS TO ITS LEGALITY. 283 
 
 colony, in case of rebellion, bo declare martial law, and he 
 
 will be held seriously responsible if he does not ; and if in 
 
 [ii.iice of such neglect a rebellion gains ground which 
 
 otherwise might be suppressed. And the declaration of 
 
 martial law, when thus lawfully declared, will be deemed to 
 justify all such measures as arc Ik mostly deemed necessary 
 by the military authority to meet the emergencies, martial 
 law bring in effect the law of war, justified by necessity, and 
 administered by military authority. 
 
 control any such authority by declarations of that description. There 
 were two distinct dangers before them. It' tiny made precise declarations 
 of thai description they might fetter and control public men, and render 
 them so timid in case of emergency that they would fail in their duty. 
 On the other hand, they might pass enactments which would tempt weak 
 men to exercise powers which ought not to be exercised unless absolutely 
 iry. It was, perhaps, too much to expect men to act with perfect 
 wisdom in every ca<e, but if they acted in strict good faith, and for the 
 best, they could not ho fairly refused an indemnity afterwards. Whether 
 such proceedings were justified by martial law, or upon the plea of 
 necessity, appeared to him a matter more of words than of substance." 
 The Secretary of State for the Home Department, Mr. Gathorne Hardy, 
 while deploring the fact, that necessity sometimes compelled the proclama- 
 tion of martial law, noticed " that honourable members had admitted the 
 occasional occurrence of such a necessity, nor did the Lord Chief Justice 
 ignore the necessity which might arise of setting aside the law of the land 
 and securing with great vigour the military law such as is enforced by a 
 General in an enemy's country. The Lord Chief Justice, indeed, admitted 
 that though an insurrection were suppressed, it might be necessary to 
 continue the enforcement of martial law, in order to strike terror into the 
 minds of the people for their better order in future. Everyone was 
 that in cases of insurrection and danger to the lives of peaceful citizens it 
 was the duty ot those exercising the supreme power to put aside the 
 ordinary laws, and to proclaim martial law until the insurrection was 
 suppressed; and it did not need the existence of armed resistance to 
 constitute insurrection. He knew of none who said that the Jamaica 
 authorities who had been referred to were wrong in using, in the first 
 instance, the most forcible means to put down the rising. He thought, 
 that if an executive were to act by military power, it would proceed in 
 accordance with the ordinary law of the case, and military force would 
 involve military law. If military force were adopted, it was BUrely fairer to 
 announce to those against whom it was proposed to act that the ordinary 
 course of law be superseded ? lie trusted that neither in Ireland nor in 
 the United Kingdom, nor in any of the colonies, would the occasion ever
 
 284 MARTIAL LAW IN THE COLONIES: 
 
 Thus, those general views of the law upon the subject 
 which had been put forth by the Author in his former 
 work, and are maintained in the present, have been, after 
 prolonged discussion, substantially upheld by Parliament ; 
 and with the full assent and sanction of Parliament it has 
 been stated that the Crown has issued general instructions 
 to the Governors of colonies ; for the commanders of naval or 
 military forces, in which those views (a) are embodied. That 
 
 again occur for the employment of those powers which were necessary to 
 the executive in times of great emergency. At the same time he implored 
 the House of Commons not to place an impediment in the way of those 
 who were acting in distant spheres, and to whom, with great responsibili- 
 ties, was committed the duty of upholding the authority of the crown and 
 the rights of this country."' The right honourable gentleman, Mr. Cardwell, 
 who had been Secretary of State for the Colonies during the period when 
 the Jamaica case occurred, and whose considerate despatches have afforded 
 such valuable guidance, substantially concurred in this view, and truly 
 observed, "that the chief and most fertile source of abuse, when the deplor- 
 able emergencies to which the motion pointed to occurred, was the fact 
 that usually the inferior agents over whom the higher authorities were 
 called upon in circumstances of extreme difficulty to exercise control, were 
 guilty of excesses which their superiors would, if they could, have been 
 glad to restrain. The adoption of a vague abstract resolution like the 
 present one, however, instead of strengthening the bonds of discipline, and 
 increasing the control of the superior authority over its subordinates, 
 might have rather a contrary effect." 
 
 (a) The Admiralty issued, under the advice of their able counsel, the 
 following instructions, in which the distinction between the actions of the 
 military in aid of the civil power, and the functions of the military power 
 under martial law, was well drawn: " Instructions for the guidance of officers 
 and party when the ordinary law prevails. 7. If called upon to act for the 
 suppression of riots and other disturbances when the ordinary law prevails, 
 the following precautions are to be strictly observed : — The party is to be 
 employed only on the requisition of the civil authority. The party is not 
 to act without the presence of the civil authority, except for the purpose 
 of self-defence, or the prevention of actual violence to the persons or pro- 
 perty of Her Majesty's subjects. The party is to fire only by order of 
 the officer in command. Notice is invariably to be given that the fire 
 will be effectual, &c, &c. Instructions to the commanding officer of a 
 party landed when martial law has been proclaimed. 9. If martial law 
 should be proclaimed in any district, you are then to follow the directions 
 of the officer appointed to the military command of the district. 10. The 
 arbitrary will of such officer in such case supersedes the ordinary law for
 
 PRACTICAL INSTRUCTIONS AS TO ITS REGULATION. 285 
 
 is to say, that there is an essential distinction between the 
 function of the military forces when called out merely in aid 
 of the civil power, and when acting under martial law ; that, 
 in the former case, they are under the civil power, and in the 
 latter case they are not ; that, in short, martial law is military 
 rule, and supersedes or suspends the ordinary law, and 
 establishes for the occasion absolute military power. It 
 follows that from the very nature of martial law, as it is 
 absolute and discretionary military authority, it is hardly 
 
 the time being, iii the .same manner and degree as it would if the district 
 placed under martial law were an enemy's country. 11. You are to require 
 directions in writing from the officer in military command of the district 
 under martial law as to your conduct in all matters of importance, especi- 
 ally in regard to the treatment of prisoners taken by you, whether they be 
 taken in the actual commission of violence against the persons or 
 property of Her Majesty's subjects, or under other circumstances. 12. It 
 is competent for the officer in military command of the district under martial 
 law to order prisoners to be brought to trial in a summary manner before 
 a council, to be named as he may direct. 13. If you are to preside over any 
 such council, usually termed a court-martial, although not necessarily 
 constituted under the provisions of the Mutiny Act, you are to request 
 instructions in writing from the officer in military command of the district, 
 and you are not to carry into execution any sentence of such council, 
 whether of death or otherwise, without being empowered so to do in writing 
 by such officer. 14. You will take minutes in writing, if employed on any 
 such council, and you will require such of your officers as may be so em- 
 ployed to take minutes in writing of all the proceedings and evidence, to 
 be communicated to your Commander-in-Chief for his information. 15. 
 You will take care, if so employed, and you will direct your officers, when 
 so employed, and apply for the assistance, if possible, of a legal adviser. 
 
 16. In case it shall not be practicable *<> obtain directions in writing from 
 the officer in military command of the district, you will endeavour to obtain 
 directions in such mode as will admit of no subsequent doubt as to their 
 tenor, and shall commit them as soon as possible, if practicable, to writing. 
 
 17. Under no circumstances are houses or property to be destroyed, except 
 under the exigencies of military operations or of self-defence, or under an 
 order from the officer in militaay command of the district under martial 
 law. IS. The officer in command of a party is to keep a journal detailing 
 all his proceedings, a copy of which is to be forwarded for the information 
 of the Commander-in Chief. 19. In conclusion, you will observe that these 
 instructions are framed for your guidance, in the absence of specific direc- 
 tions from the officer in the military command of the district, and you are 
 in all matters relating to operations on shore to follow his directions. 20. If
 
 286 MARTIAL LAW IN THE COLONIES: 
 
 possible to issue before band specific instructions, and such 
 as have been issued to the Governors of colonies or Com- 
 manders of forces are only designed to aid them in the 
 exercise of their judgment and discretion, by the suggestion 
 of considerations which should guide them, or regulations 
 
 any directions given by the said military officer should conflict with any 
 of these instructions, you arc nevertheless to act in accordance with his 
 directions, first bringing to his notice, if possible, these instructions. You 
 are carefully to weigh the comparative importance of any conflicting instruc- 
 tions you may receive, remembering that you will still be responsible to your 
 naval superior for the execution of any orders you may receive from him. 
 So the late Under-Secretary of State, Mr. W. E. Foster, last session asked 
 the Under-Secretary of State for the Colonies when he would lay upon the 
 table of the House the instructions which he had informed the House 
 would be sent to the Colonial Governors for their guidance in case of in- 
 surrection ; and, if not able to do so at once, whether he would object to 
 state the purport of such instructions] And Mr. Adderley in answer 
 said, the instructions to which the question referred were not complete. 
 They were sent out in confidential draught for the consideration of the 
 Governors of all colonies, and it was thought in the office that some modi- 
 fication would be necessary in their phraseology. In fact, the instructions 
 were not meant to be imperative recommendations, but were intended in 
 the way of advice and caution to Governors in the case of insurrection. 
 As to the general purport of them, it was to this effect : — That no place 
 should be proclaimed as in a state of insurrection unless there be armed 
 resistance to law beyond the ordinary powers of suppression. Then such 
 proclaimed district should not extend further than was necessary for public 
 safety. Such proclamation should be published by all possible means 
 throughout the district. As far as possible the Governor should give 
 instructions to the officer commanding the military. Civil magistrates should 
 be warned that the proclamation gives them no extraordinary powers. 
 Commanding officer to take the entire military authority. All officers to 
 report as often as possible to him, and he to the Governor. Troop3 never, 
 without urgent necessity, to be detached, except in command of a commis- 
 sioned officer. All injury to non-combatants, women, and children, as far 
 as possible to be avoided, and destruction of property. The Trovost-Mar- 
 shal, when appointed, to be limited by written order as to punishments. 
 No punishments, unless trial impossible, without court martial of at least 
 three officers ; and every reasonable facility for defence, and no sentence of 
 death except by two-thirds of the court. Written records to be left." It 
 will be seen that these instructions are in spirit and effect precisely what 
 may be deduced from the principles laid down in the present work ; and 
 that, on the other hand, they necessarily imply the legality of the measures 
 thus recommended.
 
 PRACTICAL [NBTRUCTIONS AS TO ITS REGULATION. 28? 
 
 which should be issued. It need not be pointed out how 
 entirely this assumes and implies the doctrines which it 
 lias been the object of the Author to establish. And it 
 will be .sjvu, also, that the general tenor and effect of the 
 Instructions which have been issuedj is to embody and 
 carry out those restraints and regulations which have been 
 suggested in this work, as arising naturally and properly 
 out of the principles upon which alone the legality of mar- 
 tial law cao be properlj upheld. 
 
 FINIS. 
 
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 London : Printed by C. W. Stbykhb, 5, Greal Queen Street, \\ I
 
 JUL 1 6 1980 
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