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passed before the settlement of that island in the year 1625, which authorizes the military, acting under the magistrate for the suppression of a riot, to take the life of rioters, if such a measure should be necessary, and, if not, is such a proceeding sanctioned by the common law of England?"
Your Lordship also enclosed despatches from the Governor, reporting the occurrences which had lately taken place in the island, and which had given rise to the present application. And your Lordship was pleased to state that you had received his Majesty's commands to desire that I would take the papers into consideration, and report to your Lordship as speedily as possible, for his Majesty's information, what instructions it might, in my opinion, be proper to transmit to the Governor upon the case stated.
In obedience to the commands of his Majesty, I have taken the papers as speedily as possible into my consideration, and beg leave to report to your Lordship that there is no statute passed before the settlement of the island of Barbadoes in the year 1625, and now in force, of the nature above alluded to; but by the common law the military may effectively act under the direction of the civil power in the suppression of riots. The late Chief Justice Mansfield, in the case of Burdett v. Abbott, in the Exchequer Chamber (4 Taunt. Rep. p. 449), in speaking upon this subject, observes that a "strange mistaken notion had got abroad, that because men were soldiers they ceased to be citizens. A soldier (he adds) is gifted with all the rights of other citizens, and is bound to all the duties of other citizens, and he is as much bound to prevent a breach of the peace or a felony as any other citizen. This notion is the more extraordinary, because formerly the fosse comitatus, which was the strength to prevent felonies, must in a great proportion have consisted of military tenants who held lands by the tenure of military service. If it is necessary for the purpose of preventing mischief, or for the execution of the law, it is not only the right of soldiers, but it is their duty, to exert themselves in assisting the execution of a legal process, or to prevent any crime or mischief being committed. It is therefore highly important that the mistake should be corrected which supposes that an Englishman, by taking upon him the additional character of a soldier, puts off any of the rights and duties of an Englishman." Soldiers, when called upon and required to aid the civil magistrate in apprehending or opposing persons engaged in a riot, will he justified in using the force necessary for that purpose; any excess will be illegal, and for such excess the soldier, as well as the mere citizen, will be responsible. In this respect the law as applicable to both classes is the same. If, in executing the commands of the magistrate, opposition is made by the rioters, force may be opposed to force; but the same rule still applies, viz., that the extent of the force used must be regulated by the necessity of the occasion. The excess only is illegal. If the military, in obeying the lawful commands of the magistrate, be so assailed that resistance cannot be effectually made without sacrificing the lives of the rioters, they would in law be justified in so doing. It is obvious, therefore, that each case must depend upon its own circumstances, and the only rule that can be given is that the force, to be legal and justifiable, must in every instance, as far as the infirmity of human passion will admit, be governed by what the necessity of the particular occasion may require.
I beg leave to suggest that it will be proper to direct the Governor to take especial care that a magistrate be present when the military are called out for the purpose of suppressing a riot, and that they act in his aid and by his command. Temper and coolness upon such occasions, and forbearance as far as it can be exercised consistently with the public safety, cannot be too strongly recommended.
To Earl Bathurst, J. S. Copley.
&c. &c. &c.
(5.) Opinion of the Judge Advocate General, Sir John Beckett, on a trial by Court Martial during the existence of Martial Law in Demerara.
Downing Street, February 10, 1824. My Lord,—I have the honour to acknowledge the receipt of your Lordship's letter of the 5th instant, transmitting to me the report of certain proceedings against John Smith, of the London Missionary Society, at a General Court Martial recently held in Demerara, during the time that it was deemed necessary to place that colony under martial law; and requesting that I would report to your Lordship, with all convenient despatch, for his Majesty's information, my opinion as to whether the proceedings referred to have been conducted with a due regard to every essential form of military law.
In compliance with your Lordship's request, I beg leave to report to your Lordship, for his Majesty's information, that the proceedings in question against John Smith appear to me to have been conducted, by the Court appointed to try him, with a due regard to every essential form of military law.
I think it right at the same time to make the following observation to your Lordship respecting two of the members of the Court.
On referring to the names of the several individuals who composed it, two of them are described as officers of the militia there— viz., the President, Lieutenant-Colonel Goodman, who is described as "half-pay 48th Regiment, and commandant of the Georgetown brigade of militia," and Lieutenant-Colonel Wray, who is described as "of the militia staff."
If these proceedings had taken place upon the trial of an officer or soldier of the King's forces in the ordinary way, under the provisions of the Mutiny Act and Articles of War, the forms required to be observed thereby would not appear to have been duly regarded, inasmuch as it is provided, by the 6th article of the 16th section of the Articles of War, that " no officer serving in the militia shall sit in any court martial upon the trial of any officer or soldier serving in any of our other forces; nor shall any officer in our other forces sit in any court martial upon the trial of any officer or soldier serving in the militia."
I am aware, of course, that martial law, as stated in your Lordship's letter of reference, was in force when the trial of John Smith took place in Demerara; nevertheless the terms of your Lordship's reference to me seem to require, that the circumstances above mentioned should be brought under your Lordship's notice.
The Earl Bathurst, J. Beckett.
&c IVC. &c.
(6.) Joint Opinion of the Attorney and Solicitor General, Silt John Campbell and Sir R. M. Rolfe, as to the power of the Governor of Canada to proclaim Martial Law.
Temple, January 16, 1838. My Loud,—We have to acknowledge the receipt of a letter from your Lordship of yesterday's date, together with the copy of a letter addressed by the Earl of Gosford to the Attorney and Solicitor General of Lower Canada, and their reply, on tho subject of the power vested in the Governor of that province to proclaim martial law: your Lordship desires that we should take these papers into our consideration, and report to your Lordship our joint opinion whether the views expressed by the Law Officers of the Crown in Lower Canada are correct in point of law. We have now the honour of reporting to your Lordship that in our opinion the Governor of Lower Canada has the power of proclaiming, in any district in which large bodies of the inhabitants are in open rebellion, that the Executive Government will proceed to enforce martial law. We must, however, add that in our opinion such proclamation confers no power on the Governor which he would not have possessed without it. The object of it can only be to give notice to the inhabitants of the course which tho Government is obliged to adopt for the purpose of restoring tranquillity. In any district in which, by reason of armed bodies of the inhabitants being engaged in insurrection, the ordinary course of law cannot be maintained, we are of opinion that the Governor may, even without any proclamation, proceed to put down the rebellion by force of arms, as in case of foreign invasion, and for that purpose may lawfully put to death all persons engaged in tho work of resistance; and this, as we conceive, is all that is meant by the language of the statutes referred to in the report of the Attorney and Solicitor General for Lower Canada, when they allude to the "undoubted prerogative of His Majesty for the public safety to resort to the exercise of martial law against open enemies or traitors."
The right of resorting to such an extremity is a right arising from and limited by the necessity of the case—quod necessitas cogit, defendit. For this reason we are of opinion that the prerogative does not extend beyond the case of persons taken in open resistance, and w ith whom, by reason of the suspension of the ordinary tribunals, it is impossible to deal according to the regular course of justice. When the regular courts are open, so that criminals might be delivered over to them to be dealt with according to law, there is not, as we conceive, any right in the Crown to adopt any other course of proceeding. Such power can only be conferred by the Legislature, as was done by the Acts passed in consequence of the Irish rebellions of 1798 and 1803, and also of the Irish Coercion Act of 1833.
From the foregoing observations, your Lordship will perceive that the question, how far martial law, when in force, supersedes the ordinary tribunals, can never, in our view of the case, arise. Martial law is stated by Lord Hale to be in truth no law, but something rather indulged than allowed as a law, and it can only be tolerated because, by reason of open rebellion, the enforcing of any other law has become impossible. It cannot be said in strictness to supersede the ordinary tribunals, inasmuch as it only exists by reason of those tribunals having been already practically superseded.
It is hardly necessary for us to add that, in our view of the case, martial law can never be enforced for the ordinary purposes of civil or even criminal justice, except, in the latter, so far as the necessity arising from actual resistance compels its adoption.
The Lord Glenelg, J. Campbell.
&c. &c. &c. R. M. Rolfe.
(7). Joint Opinion of the Queen's Advocate, Sin John | Dodson, and the Attorney and Solicitor General, Sir John Campbell and Sir R. M. Kolfe, on the liability of Foreigners invading Her Majesty's dominions to suffer the penalties of High Treason; and on Martial Law.
Doctors' Commons, August 21, 1838. My Lord,—We are honoured with your Lordship's commands, signified in your Lordship's letter of the 11th instant, with reference to your Lordship's letters mentioned in the margin, and to our answers of the 28th and 31st of May and 7th of June last, and transmitting therewith copies of two letters addressed to the Lieutenant-Governor of Upper Canada by the Chief Justice and the Law Officers of that province, controverting the opinions expressed by us as to the liability of foreigners invading Her Majesty's