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persons who had been sentenced to death; and, with reference to the ordinance of the Governor and Special Council of Lower Canada, 2 Vict. c. 3, desiring us to take Sir John Colborne's despatch into consideration, and to report to your Lordship our opinion, whether the opinion entertained by the Solicitor General of Lower Canada, of the incompetency of the Court established under the ordinance in question to try prisoners under the charge of treason, rests on any valid foundation.
Unfortunately we are not informed of the reasons which have induced the Solicitor General of Lower Canada to come to this opinion; but we have given the subject the most deliberate consideration, and we have to report to your Lordship that in our opinion the Court established under the ordinance in question is competent to try prisoners under the charge of treason.
We adhere to the opinion we have repeatedly expressed, that the Special Council established in Lower Canada by 1 Vict. c. 9 is not restrained from passing ordinances which may alter the criminal law in Canada, and make it different from the criminal law of England as it existed at the passing of the Canada Act, 14 Geo. 3. We conceive that the power of the Special Council to legislate respecting criminal law and the administration of it in Lower Canada is supreme, as was the power of the former Legislature of Lower Canada before it was suspended. If this be so, it is impossible to make any distinction in point of law between an ordinance altering the mode of trial of common assaults, and subjecting them to the summary jurisdiction of a magistrate instead of being referred to a jury, and an ordinance altering the mode of trial in cases of treason, and enacting that instead of a jury they shall be tried by a court-martial. In 1 Vict. c. 9 there is no exception with regard to treason, and the mode of trying it may be altered as much as of any other offence.
It has been said by Lord Denman that any ordinance of the Special Council contrary to the first principles of equity and justice is void; but this doctrine does not proceed upon any express restriction upon its powers, and must be equally applied to the acts of any supreme legislature. That the mode of trial prescribed by the ordinance 2 Vict. c. 3 is such as cannot lawfully be prescribed by a supreme legislature, it is impossible for anyone to contend in a British court of justice after the late Irish Coercion Act, and various other Acts to be found in the Statute Book of the United Kingdom.
If necessity will justify what is called martial law by proclamation (which is a cessation of all law), while the necessity endures, no objection can reasonably be made, where the same necessity exists, to a modification and mitigation of martial law by legislative enactment.
The Lord Glenelg, J. Campbell.
&c. &c. &c. R. M. Rolfe.
(9.) Opinion of the Attorney General, Sir Richard Bethell, on proclaiming Martial Law in Hong Kong.
Lincoln's Inn, April 17, 1857.
Sir,—I have had the honour to receive the draft of your proposed despatch to Sir John Bowring, in answer to the despatch of Sir John Bowring, No. 9, of the 13th of January last.
I have read and considered the aforesaid draft of your proposed despatch, which appears to me to be in every respect right and proper, except that I would humbly submit to you that, under the circumstances, the last paragraph (No. 7) had better be omitted.
It appears to me, with submission, that this paragraph No. 7 may be construed as expressing an opinion that, instead of the ordinance, martial law ought to have been proclaimed; and also as containing something like a recommendation that, in any future emergency, resort had better be had to the proclamation of martial law.
I do not think it desirable to express any such opinion, or convey any such recommendation. Exception also may be taken to the accuracy of the language of part of the paragraph, in the parts underscored. If any recommendation be given to Sir John Bowring, I think it should be to augment the civil force by eveiy means in his power (swearing in every resident, not being a Chinaman, as a special constable); during the day to have the military at hand to assist the civil power if necessary; and if these precautions be not sufficient for the protection of life and property, as a last resource, martial law might be proclaimed from sunset to sunrise in Hong Kong.
The Right Hon. H. Labouchere, M.P., Richard Bethell. &c. Ac &c.
NOTES TO CHAPTER VI.
Lord Chief Justice Hale says, in his "History of the Common Law," Martial law. p. 54, that martial law "is sometimes indulged, rather than allowed, as a law; the necessity of government, order, and discipline in an army being that which alone can give thoso laws a countenance—quod enim necessitas cogit, defendit. 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 bo executed or exercised upon others." It is plain that Hale is here speaking of military law exercised by courts martial, which is a totally different thing from martial law in the sense in which it is used in the opinions in the text, lie goes on to say, that "the exercise of martial law, whereby any person should lose his life, 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. 1, whereby such commissions and martial law were repealed and declared contrary to law." It thus appears that, according to Hale's opinion, even soldiers and sailors could not, so far as life or liberty was concerned, be tried by martial law in time of peace. And in this he agrees with Sir Edward Coke, who says (3 Inst. 32): " If a lieutenant, or other that hath commission of martial authority, in time of peace hang or otherwise execute any man by colour of martial law, this is murder; for this is against Magna Charta, c. 29, and is done with such power and strength that the party canriot defend himself, and here the law implieth malice;" and see Hale's "Pleas of the Crown," p. 500.
But it must be remembered—and that is the explanation of the apparent discrepancy between the law as laid down by these eminent authorities, and the law as it is exercised at the present day—that there was then no Mutiny Act in existence; and therefore military law, or martial law, as it was called, could only be enforced at common law, and the common law did not sanction its application in time of peace, even to those who were enlisted in the military or naval service of the Crown. And this is what Chief Baron Comyn means when he says, "Martial law cannot be used in England without authority of Parliament:" Dig. Parliament, H. 23. There was, moreover, then no standing army—at least none sanctioned by law; for the Declaration of Rights, I Will. & M. s. 2, c. 2, declared that the raising or keeping a standing army in the kingdom in time of peace, unless it be with the consent of Parliament, is against law. Charles II. and James II. did, in fact, maintain standing armies in time of peace, but this is what the Declaration of Rights denounced as illegal. And so it was declared by the first Mutiny Act, 1 Will. & M. s. 2, c. 4, which Act first gave Parliamentary authority to punish soldiers by martial law. The Mutiny Act, 2 & 3 Anne, c. 20, s. 37, first expressly reserved to the Queen the power of making Articles of War; but this Act also is confined to soldiers, being made for the government Hof er Majesty's land forces.
The complaint in the Petition of Right (3 Car. 1, o. 1) was, that commissioners had been appointed with authority to proceed " according to the justice of martial law against such soldiers or mariners, or other dissolute persons joining with them, as should commit any murder, robbery, felony, mutiny, or other outrage or misdemeanor whatsoever." Such commissions were thereby revoked and annulled; and it was further provided, that no commissions of like nature might issue, "lest by colour of them any of your Majesty's subjects be destroyed or put to death, contrary to the laws and practices of the land." It seems quite clear that this does not touch the question of martial law in the case of rebellion. It was directed against the illegal substitution of it for the ordinary course of law in time of peace to suppress crime. The nature of the cemmissions which exasperated the Commons, and against which they resolutely protested, may be seen in Bymer's Feed, xviii. 254, 763, cited by Hallam, Const. Hist. i. 531, 3rd edit(i). The terms of these commissions were, "to proceed according to the justice of martial law against such soldiers, or other dissolute persons joining with them, as shall commit any robberies, felonies or mutinies, or other outrages or misdemeanors, which, by martial law, should or ought to be punished with death; and by such summary course and order as is agreeable to martial law, and 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." By the Petition of Right such commissions are declared to be wholly and directly contrary to the laws and statutes of the realm. In a charge delivered to the grand jury by Blackburn, J., in B. v. Eyre in 1868, the learned Judge said: "I think it would be an exceedingly wrong presumption to say, that the Petition of Right, by not condemning martial law in time of war, sanctioned it; still it did not in terms condemn it."
Proceeding by courts martial is something very different from martial law. "Martial law is quite a distinct thing (from ordinary military law), and is founded on paramount necessity, and proclaimed by a military chief:" Kent's Com. i. 377, 10th edit. Courts martial are part of the recognized judicatures of the realm, whose jurisdiction is confined to the military and naval forces of the Crown. In Wolton v. Oavin, 16 Q. B. 61, Lord Campbell, C.J., said: "None are bound by the Mutiny Acts or the Articles of War, except Her Majesty's forces; and
1 am most anxious, as a constitutional judge, that this should be fully understood to be my opinion:" see Wolfe Tone's Case, 27 State Tr. 615. Under martial law the trial may be by court martial, but it is not necessarily so. A want of attention to this distinction has produced some confusion, even in the minds of judges. Thus, in Grant v. Gould,
2 H. Bl. 99, Lord Loughborough, C.J., said: "This leads me to an
(i) See these Commissions, given in extenso in the Appendix.
observation that martial law, such as it is described by Hale, 'and snch, also, as it is marked by Mr. Justico Blackstone, does not exist in England at all. . . . Where martial law prevails, the authority tinder which it is exercised, claims a jurisdiction over all military persons in all circumstances. Even their debts are subject to inquiry by a military authority." Here it is obvious that the word "martial law" is used in two different senses. Hale and Blackstone were speaking of martial law during insurrection or rebellion; and Hale says (Analysis of the Law, p. 13): ''The King may punish his subjects by martial law during such insurrection or rebellion, but not after it is suppressed." He further enumerates, strangely enough, "Commissions by Martial Law" amongst the "common heads of those liberties and rights that the people are to enjoy under the magistrate "! —Ibid. p. 37. But Lord Loughborough, in the latter part of the passage I have quoted from his judgment, is speaking of military law as administered by courts martial. And yet he was aware of the distinction, for he says also : " Where martial law is established and provails in any country, it is of a totally different nature from that which is inaccurately 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." That which was exploded, as contrary to the Constitution, was the issuing of commissions to try men in time of peace for ordinary felonies by martial law, which was declared illegal by the Petition of Right, and yet which Hale described as part of the liberties and rights which the people are to enjoy.
The distinction is pointed out in the following extract from an Opinion given by Mr. Gushing, Attorney General of the United States, February 7, 1857 (8 Attorney Generals' Opinions, 365):—
"Sir Matthew Hale observes that martial law is not, in truth and reality, 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 gives these laws a countenance. This proposition is a mere composite blunder, a total misapprehension of the matter. It' confounds martial law and law military; it ascribes to the former the uses of tho latter, it erroneously assumes that the government of a | body of troops is a necessity more than that of a body of civilians or citizens. It confounds and confuses all the relations of the subject, and is an apt illustration of the incompleteness of the notions of the common law jurists of England in regard to matters not comprehended in that limited branch of legal science.
"Even at a later day in England, when some glimmerings of light on the subject had begun to appear, the nature of martial law remained without accurate appreciation in Westminster Hall.
"Thus, in the great case of Grant v. Sir Charles Gould, Lord Loughborough said that 'the essence of martial law consists in its being a