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territories to suffer the penalties of high treason in the same manner as any of Her Majesty's natural-born subjects, or as aliens domiciled within the British dominions: your Lordship is pleased to request that we would take these documents into our consideration, and report to your Lordship whether we see any reason to retract or qualify the joint opinions which we formerly expressed on this subject. Should we continue to adhere to our former opinion, your Lordship is pleased to request that we would state the grounds of that opinion at length, for the information of the Judges and Law Officers of the Crown in Upper Canada.
In obedience to your Lordship's commands, we have the honour to report that, after a most attentive and respectful consideration of the objections of the legal functionaries in Canada, and an anxious reference to all the authorities to be found in the English law-books, we see no reason to retract or qualify the opinions we have before expressed on this subject.
We continue to think that an alien, a native of a State at peace with our Queen, and not in the service of a State at war with our Queen, who levies war against the Queen within her dominions, is liable to be tried for high treason, although he entered her dominions in a hostile manner. Treason certainly consists in the breach of allegiance, and where no allegiance is due there can be no treason. For this reason an alien enemy cannot be tried for treason, for while in arms within the British territory he owes allegiance only toxins own Sovereign; and, while observing the laws of war, he is fully justified in any act of hostility which he may commit. But we conceive that an alien amy does owe allegiance to the Queen within her dominions, and both according to the technical form of an indictment for treason, and on principle, the question is, whether allegiance is due from him ?—whether he owes obedience to the law of the territory which he has entered? The obligation of allegiance does not arise from the protection which, de facto, he has enjoyed, but from the protection to which he was entitled, and which he might have enjoyed if he had thought fit .
An alien enemy occupies a portion of the British territory, as the territory of his own Sovereign; the laws of his own country are supposed to prevail there as far as he is concerned, and he owes exclusive and undivided allegiance to his own Sovereign. If he is captured he is to be treated as a prisoner of war; he can in no shape be tried as an offender for any act of hostility in which he may have participated.
An alien amy is subject to the law of the country where he is, and he cannot be permitted, without authority from his own or any foreign Government, to absolve himself from this obligation by saying that he entered the country as an enemy.
He cannot claim to be treated as a prisoner of war, or to be ransomed or exchanged.
If he may not be tried for treason, he is guilty of no offence whatever; he is entitled to demand his immediate discharge, and, enjoying entire impunity, he may again repeat his hostile acts without any apprehension of punishment at any time before he has once submitted himself peaceably to the law of the country, and voluntarily sought its protection.
For hostilely invading a country to assist rebels and bring about a revolution he could not be tried for piracy; and if he were to kill an English soldier in action, we apprehend that he could not be tried for murder if he is not liable to be tried for treason.
In the old law-books there is much said about martial law; but in such a case as the present, this would afford no remedy. Martial law is merely a cessation from necessity of all municipal law, and what necessity requires it justifies. An alien amy hostilely invading the English territory while in arms, might lawfully be put to death, and when taken prisoner, if his immediate execution were necessary to the suppression of insurrection, he might be executed immediately, without any reference to municipal law. But the insurrection being quelled and tranquillity restored, and the ordinary tribunals proceeding regularly in the administration of justice, an alien amy who had been taken in arms could not be lawfully put to death, either with or without the form of being tried by a court-martial, and all who should take part in such an execution would be guilty of murder.
We think that the alien amy is liable to be tried for treason, in the same manner as if he were a native-born subject. Although he might have been put to death in a summary manner flagrante bello, he cannot complain that such a right is waived, and that he is reserved to take his trial, as if he had been born within the allegiance of the British Crown.
The case we have been considering is clearly distinguishable from that of a foreigner assisting in a civil war. Where an insurrection against a Government has become so formidable as to assume the aspect of an equally-balanced civil war, the laws of war are to be observed between the Government and the insurgents; and nativeborn subjects taken prisoners could not properly be tried as traitors. Even were the alien amy in the ranks of the insurgents, he would be dealt with as a native-born subject.
But let us put the case of Her Majesty being at Brighton, and a Frenchman landing from the opposite coast, instantly firing, or preparing to fire, a pistol at her. Were he tried for treason in compassing the Queen's death, contra ligeantise sus e debitum, would it be any defence to him that he had loaded the pistol at Calais, that he had cocked it a league from the shore, and that he came to England for the express purpose of putting the Queen to death?
The conviction of an alien amy for treason, under such circumstances, would, we conceive, be in no respect contrary to the law of nations, and could afford no ground of complaint to his own Government. Any State might pass a law enacting that if a foreigner, the native of a friendly country, should within its territories attempt the life of the Sovereign, or levy war against him within his dominions, the foreigner should be deemed guilty of a capital offence, although he came for the express purpose of committing it. Therefore if the Canadian Courts should hold the associates of Sheller, who are American citizens, guilty of treason, the Government of the United States could not complain or interfere.
The reasons for holding that an alien amy is liable to be tried for treason, though entering the British territory with a hostile intent, appear to us so strong that they must prevail, unless there be some decisive authorities in the books to the contrary. But the authorities when properly considered appear to us strongly to support the view we have taken.
In Brooke's "Abridgment," a work of great authority, is the following passage :—" Nota q si alien nee de pays q est in amitie et peace ove cest realme veigue en le realme ove traitors Anglois et leve guerre, c'est treason in touts, cont si le pays l' alien fait in guerre vers Angliterre, quar dovques lalieu poet este occide: p. martial ley:" see title "Treason," 32.
In the case of Perkin Warbeck, referred to by Lord Coke in Calvin s Case (7 Rep. p. 6), it is said that he (Warbeck), being an alien, could not be tried by the common law, but before the constable and marshal who had special commission to hear and determine the same according to martial law. The judgment, however, was that he (Warbeck) should be hanged, drawn, and quartered, which is the judgment in treason; and Lord Bacon, in his "Life of Henry VII.," expressly says that Warbeck was executed for the treasons committed by him in this realm, so that the distinction seems to have been in the mode of trial, and not in the nature of the offence.
But the decisive authority in point is that of Shirley, a Frenchman, who was tried, convicted, and attainted of treason in 1557. The narrative of the facts is to be found in 3 Hollingshed, p. 1133, Stow, p. 630, and Godwin's Annals, p. 325. It appears from these writers that one of the sons of Lord Stafford collected in France a body of men, consisting partly of English fugitives, and partly of foreigners, and with this force invaded England, assuming the title of Protector, and succeeded in taking Scarborough Castle. This rebellion was soon put down, and several of the party (including Shirley) were taken; Shirley was thereupon indicted for high treason, and was tried and convicted, and had judgment of treason. A question arose as to the mode of trial in this case, which is to be found in the Reports of Chief Justice Dyer, p. 141, A., and towards the end of the report is this passage: "And note in the case above the indictment was against the duty of his allegiance, when he was not a subject of the realm, but that is of no signification. In this time of peace between England and France, to levy war with other English rebels was sufficient treason, and if it were in time of war he should not be arraigned, but ransomed."
This doctrine was recognized by the Parliament in the case of the Duke of Hamilton in 16-19 (see State Trials, vol. iv. p. 1182), but, considering the state of things when that trial took place, we should not feel justified in placing much reliance on what was theu done.
We are aware that Hawkins, in his "Pleas of the Crown," has a passage in his chapter on High Treason, which is opposed to the view we take of this subject. He says, in section 6 of that chapter: "But it seemeth that aliens who in a hostile manner invade the kingdom, whether their King were at war or peace with ours, and whether they come by themselves, or in company with English traitors, cannot be punished as traitors, but shall be dealt with by martial law;" and a similar doctrine is laid down in 5 Bacon's "Abridgment," p. 112. The authority of Hawkins is certainly very high, but it must be observed he speaks with evident distrust of what he is stating, and he refers to no authorities, except those we have already mentioned, and a passage in the 3rd Institute, which clearly does not warrant him in the doctrine he lays down.
We, for these reasons, cannot but adhere to the opinion we have already expressed. We feel, however, that the scruples of the legal authorities of Upper Canada are entitled to great respect, and would therefore suggest that any cases of foreigners coming within the recent local statute of that province, should be tried by a court-martial as thereby directed, rather than as for treason by common law. That statute authorizes the court to award the punishment of death, or any milder punishment, and therefore secures all which could be done on a conviction for treason.
To the Right Hon. the Lord Glenelg, J. Campbell.
&c. &c. &c. R. M. Holfe.
(8.) Joint Opinion of the Attorney and Solicitor General, Sir John Campbell and Sir E. M. Rolfe, on the establishment of a Court in Canada for the trial of offences committed during an Insurrection in which Martial Law had been proclaimed.
Temple, January 22, 1839. My Lord,—We have had the honour to receive your Lordship's letter of the 19th instant, transmitting to us the copy of a confidential despatch from Sir John Colborne respecting the measures which he had taken for the establishment of a court for the trial of offences committed during the late insurrection, the proceedings of that court, and his intention to allow the execution of two of the