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ment of them, by death or otherwise, as to the members of such court-martial should seem meet, had not, as I apprehend, received legislative sanction even in Ireland. Had I been consulted before the passing of that Act, I should have deemed it fully open to me, to express at least a doubt whether the prerogative of claiming and exercising martial law in time of actual invasion by a foreign enemy, or in time of actual rebellion, was not merely referable to the law for governing the royal army and all connected with it— that is, for governing those employed in defending the country against invasion, and in suppressing rebellion. I should have deemed it fully open to me to express at least a doubt—whether, under martial law, to try persons seized in rebellion, or seized upon suspicion of being rebels, before a court-martial constituted by the King's authority, and to punish them by death or otherwise, at the discretion of the members of such a court, was not an extension of martial law beyond its real object; and being so, was not an infringement of the law of England in a point of the most serious kind. But the Irish Act of the 30th of the present King, for suppression of the Irish rebellion, makes a vast difference; for in effect it contains recitals which not only recognized a royal prerogative of authorizing the trial and punishment of rebels by martial law, in the very harsh latitude I have already mentioned, but expressly authorized such application of martial law by new provisions for that purpose; and this Act, which was temporary, was afterwards continued for a further time by a subsequent Irish Act, and since the Union of Great Britain and Ireland, has been further continued with some amendments by Acts of the Parliament of the United Kingdom, the first of which is the 41st of the present King, chapter 15. With these statutes before me, I am forced to resist any contrary impressions I may have as to the real boundary of martial law. However, too, from previously settled notions, I may see these statutes as amounting to a melancholy change, first most unhappily generated in the code of Irish legislation by the heated atmosphere of civil convulsions in Ireland, and then insensibly, as it seems, insinuated into a code of English law through statutes of the United Kingdom of Great Britain and Ireland, not so much as stating the terrible prerogative I point at, but engrafting it by continuing Irish statutes, which, being mentioned by the title only, are probably at this moment little known even to practising lawyers in England; yet to such high authority I must succumb! [The rest of the opinion is not material.]
The foregoing Opinion, as published by Mr. Hargrave, in his "Jurisconsult Exercitations," is prefaced by the following remarks:—
The following small article includes, in some degree, matter of very high importance, which, though of great notoriety in Ireland, where the transaction occurred, is not so generally known amongst us in England. It relates to the case of Mr. Cornelius Grogan, an Irish gentleman of large fortune in the county of Wexford, who, during the horrid rebellion in that part of Ireland in the year 1798, was taken up for high treason, under the circumstance of there having been a previous proclamation authorizing martial law, in aiding the rebels, and was tried by a court of officers, and being found guilty, was put to death on the judgment of that court; and was, shortly after his death, attainted of high treason by Act of the Irish Parliament. Upon the case thus generally stated, with a view to the trial of rebels by martial law, it is proper to add that in 1799 an Irish Act of Parliament was passed, which in effect appears to recognize that it is a part of the royal prerogative during the time of rebellion to authorize the King's general and other coninianding officers to punish Rebels according to martial law, by death or otherwise, as to them, shall seem expedient. That an Act of Parliament may, for more effectually suppressing rebellion, so extend trial by martial law, and so also give to generals and other commanding officers a discretion of punishing rebels found guilty upon such trial, either with death, or indefinitely in any other way, is not to be doubted; for when such an Act is passed, though judges or others should ever so strongly feel either its incongruity with the principles of our law, or its harsh latitude otherwise, the Act must operate till it shall be revoked by the same high authority as engrafts it upon the law of England. But the question which forced itself, in a great degree, upon the author's mind, when he was called upon professionally to write opinions in answer to those who consulted him for the purpose of seeking a repeal of the Grogan attainder, was whether, independently of the express warrant of an Act of Parliament, and on the mere ground of prerogative power, authority could be given against persons taken into custody for high treason during the heat of rebellion, to try them by martial law for their offence, and to punish them, either by death or in any other way, at the discretion of the court-martial so trying them. Looking at that question, he could not forbear avowing how his mind was affected. But he so avowed himself under a conviction that martial law to such an extent was not the law of England without an express Act of Parliament. He saw the right of putting rebels to death in battle while the battle lasted. He also saw the right to arrest those found in actual rebellion or duly charged with being traitors, and to have them imprisoned for trial and punishment, according to the law of treason. But he could not see that trying and punishing rebels according to martial law was, when Mr. Grogan was tried and put to death, part of the English law as it was administrable in England, or even as it was administrable in Ireland. On the contrary, he saw such a prerogative doctrine to be unconsonant with several recitals and one enactment in that grand Act of Parliament, the Petition of Right in the 16th of Charles I. He saw it also to be irreconcileable with the opinions declared by some of the greatest lawyers of that time to a committee of the whole House of Commons sitting on martial law: namely, Sir Edward Coke, Mr. Noy (afterwards Attorney General), Mr. Rolle (afterwards Serjeant-atLaw, and author of the "Abridgement"), Mr. Banks (afterwards successively Attorney General and Lord Chief Justice of the Common Pleas), and Mr. Mason, distinguished both as a lawyer and member of Parliament; for which opinions the author begs leave to refer to the preservation of them in the Appendix to Rushworth's third volume. Further, the author found such a latitude of martial law equally crossed by the doctrines of Lord Chief Justice Hale, as expressed in his manuscripts and unprinted collections on the prerogative. This the author trusts will, without for the present looking further, sufficiently at least apologize for the strong terms used in those parts of his following Opinion on the Grogan case which relate to martial law, even though volumes of cruel and irregular practice during the sad extremities of civil war should be laboriously collected, to overcome the passing of the Petition of Right, and of the high, grave legal authorities the author inclusively relies upon as speaking^ the same language.
(3.) On Naval Courts Martial and Admiralty Jurisdiction (i).
The first statute that gave power to admirals to exercise martial law at sea is an Act of 15 Ric. 2, where the admiral is empowered to arrest flotes for the public service, and shall have jurisdiction upon the said flotes during the said voyage only.
I should suppose that in virtue of this statute, the admirals made and executed ordinances for the good government of the fleet, which probably was the original foundation of the Articles of War.
Afterwards these powers were given occasionally by patent under the great seal, which was only a temporary power; though in these patents all crimes whatsoever, including high treason, were allowed to be tried by courts martial under the admiral.
By an ordinance of Edward III., anno 1348, the King gives power to the captain or general of his galleys to try all crimes, felonies, and transgressions by sea and land.
By a special commission from Charles I., in 1627, the Duke of Buckingham, then Lord High Admiral, is vested with full power in the fleet and army, to call a martial court and proceed according to the justice of martial law against soldiers and marines and other dissolute persons.
In the same reign, anno 1637, there is a special commission to the Earl of Warwick, who was going with a fleet to the West Indies, by which he is empowered, during the service, "to punish all offenders for treason, murder, or any notable mutiny, with loss of life, or otherwise, after the form or order of martial law, in such sort and manner as is commonly used and accustomed in our armies by land, and in our fleets and navies by sea."
In the same reign, in the year 1639, the Earl of Northumberland has also a commission under the great seal to hold courts martial or military courts, or direct them to be held by his deputies, to hear, examine, and determine and punish, all capital and criminal offences whatever; and all lesser crimes are to be punished by him or his deputies, at their discretion, according to the usage in the King's armies at sea and land.
It would seem, however, that when these special commissions
(i) From a M. S. in the possession of Sir Travers Twiss, Queen's Advocate, which formerly belonged to Sir James Marriott, King's Advocate. No date.
were not in force, capital crimes committed at sea were tried at the common law courts.
In the instructions from the Duke of York, then Lord High Admiral, to Sir John Mennes, Commander-in-Chief in the narrow seas, he is directed, if any seaman or other shall commit murder or manslaughter, that he shall send him in safe custody to the next gaol, to be there kept until he shall have his trial according to law.
In the time of the Commonwealth, if any capital crime was committed on board a man-of-war, the offender was sent to the next gaol, to receive his trial according to common law, as abovementioned; but it is remarkable, that though, in the instructions given by the Committee of the Lords and Commons for the Admiralty in the year 1647, it is directed, as above, that criminals for murder or manslaughter should be sent to the next gaol till delivered by due course of law, in a subsequent order, in the year 1653, signed by Moncke and Penn, styling themselves Admirals and Generals of the fleet sent forth by the Parliament of the Commonwealth of England, that " the chief flag or commander of each squadron, with the assistance of his council of war, do fully determine, sentence, and punish all offences committed against any and every of the Articles of War and ordinances of the sea, provided that no execution or loss of life do proceed until we, the Generals, be made acquainted therewith."
In this state this matter seems to have remained till the 13th of Charles II., which brought the naval usages and ordinances into the form of a statute.
(4.) Opinion of tlte Attorney General, Sir John S. Copi,ey, on the authority of the Military to take away life in suppression of a Riot in the Island of Barbadoes.
Lincoln's Inn, January 18, 18*24. My Lord,—I have had the honour to receive your Lordship's letter, dated the 6th instant, transmitting to me therewith a letter from Governor Sir Henry Warde, dated Barbadoes, the 4th of November last, together with a memorial from the Council of that island, requesting the opinion of the Law Officers of the Crown upon the question therein stated, viz.: "Whether there is any statute,