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jurisdiction over all military persons in all circumstances.' And because military men are triable for many offences, and have their personal rights for the most part regulated by the common law, 'therefore,' he says, 'it is totally inaccurate to state martial law as having any place whatever within the realm of Great Britain.'
"All that is 'totally inaccurate.' Military law, it is now perfectly
j understood in England, is a branch of the law of the land applicable only to certain acts of a particular class of persons, and administered
! by special tribunals; but neither in that, nor in, any other respect, essentially difforing, as to foundation in constitutional reason, from admiralty, ecclesiastical, or indeed chancery and common law.
'"It is not the absence of law supposed by Sir Matthew Hale, nor is it under any circumstances the martial law imagined by Lord Loughborough. It is the system of rules for the government of the army
and navy established by successive Acts of Parliament Martial
law, as exercised in any country by the commander of a foreign army, is an element of the jus belli. It is incidental to the state of solemn war, and appertains to the law of nations. The commander of the invading, occupying, or conquering army rules the invaded, occupied, or conquered foreign country with supreme power, limited only by international law and the orders of the Sovereign or Government he serves or represents. For by the law of nations the occupatio bellica in a just war transfers the sovereign power of the enemy's country to the conqueror. Such occupation by right of war, so long as it is military only—that is, flagrante hello—will be the case put by the Duke of Wellington, of all the powers of government resumed in the hands of the Commander-in-Chief. .... I say wo are without law on the subject. .... There may undoubtedly be, and have been, emergencies of necessity capable of themselves to produce, and therefore to justify, such suspension of all law, and involving for the time the omnipotence of military power. But such a necessity is not of tho range of mere legal questions. When martial law is proclaimed under circumstances of assumed necessity, the proclamation must be regarded as the statement of an existing fact, rather than the legal creation of that fact . . . . As to the present case, therefore, it suffices to say that the power to suspend the laws, and to substitute tho military authority in the place of the civil authority, is not a power within the legal attributes of a governor of one of the territories of the United States."
Hallam says (Const. Hist., i. 326, 3rd edit.) : " It has been usual for all governments, during an actual rebellion, to proclaim martial law, or the suspension of civil jurisdiction." It supersedes all civil proceedings which conflict with it, but does not necessarily supersede all such proceedings: Bouvier's Law Diet., Art. "Martial Law" (an American work, of which it is difficult to speak too highly). It is founded on paramount necessity, and proclaimed by a military chief: Kent's Com. i. 377, 10th edit.
"Usurpari quoque interdum ista suprema auctoritas solita est, antequam belli facies se aperuerit, in subitis nimirum rebellium motibus,
sed bonis et cordatis viris parum approbata Absoluta haic
potestas Catttretms appellatur, quia semper fuit oritque apud militum tnnnas oppido necessaria:" Smith de Rep. Ang. ii., c. 4.
The Duke of Wellington said, in the House of Lords, on the 1st of April, 1851, on the question of the Ceylon rebellion in 1849 : "Martial law is neither more nor less than the will of the general who commands the army; in fact, martial law is no law at all." And, on the same occasion, Earl Grey, after stating his agreement with the Duke, added: "I am sure I was not wrong in law, for 1 had the advice of Lord Cottenham, Lord Campbell, and the Attorney General (Sir John Jervis), and explained to my noble friend that what is called martial law is no law at all, but merely for the sake of public safety in circumstances of real emergency, sotting aside all law, and acting under the military power." And see "The Evidence before the Ceylon Committee, 1849-50."
The following is an extract from an Opinion given by the late Mr. Serjeant Spankie, which will be found at length in "Hough on Courts Martial":—
"The object of martial law, and the trial of offenders under it, is justly stated, in the Regulation X. of 1804 (i), to be immediate punishment 1 for the safety of the British possessions, and for the security of the lives and property of the inhabitants thereof.' It is, in fact, the law of social self-defence, superseding, under the pressure, and therefore under the justification, 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 6peedy justice in cases presumed to be clearly and indispensably of the highest species of guilt. The object is self-preservation by the terrorandthe example of speedy justice. Butcourts martial which condemn to imprisonment and hard labour belie the necessity under which alone the jurisdiction of courts martial can lawfully exist in civil society."
In his Charge to the Grand Jury in B. v. Eyre, in 1868, after quoting Hale's " Pleas of the Crown," i. 347, where that writer says, with reference to the case of the Earl of Lancaster, "From this record it will appear that in time of peace the Crown cannot enforce martial law;" and, further, that "regularly when the King's courts are open it is a time of peace in judgment of laws " (2), Blackburn, J., said: "Ho is very cautious, you will observe, and puts it there in this way; and certainly that is the opinion I have come to myself, that it has not yet been quite settled what is the Crown's prerogative in such cases, and what not. But I think this much is settled, that it is by no means that unbounded,
(1) By Regulation X. of 1804, tho Governor-General of India in Council was empowered to establish martial law in time of war, or during open rebellion, in nny part of British territory subject to the Government of the Presidency of Fort William.
(1) "And therefore, when the courts of justice be open, and the judges and ministers of the same may, by law, protect men from wrong and violence, and dittribute justice to all, it is said to be time of peace ": Co. Litt . bk. iii., s. 412.
wild, and tyrannical prerogative which some persons have been lately saying that it is. It must, if it exist at all, be strictly limited to necessity."
In his celebrated Charge to the Grand Jury in 22. v. Eyre, in 1867, Lord Chief Justice Cockburn said: "So far as I have been able to discover, no such thing as martial law has ever been put in force in this country against civilians, for the purpose of putting down rebellion." But martial law has been several times proclaimed in Ireland. It was proclaimed there in 1798 by the Lord-Lieutenant, and tho proclamation was signed by the Lord Chancellor, the Lord Chief Justice, and tho Law Officers of the Crown: Flowden's Historical Review of the State of Ireland, ii. 690.
The Act of Indemnity, 37 Geo. 3, c. 11 (Irish Act), speaks of "the use and salutary exercise of his Majesty's undoubted prerogative in executing martial law." And the Irish Robellion Act, 43 Geo. 3, c. 117, (1803), declares that " nothing in this Act contained shall take away, abridge, or diminish tho acknowledged prerogative of his Majesty for the public safety to resort to tho exercise of martial law against open enemies or traitors." That Act authorized the Lord-Lientenant during the continuance of the rebellion, "whether the ordinary courts of justice shall or shall not at such time bo open," to punish offenders according to martial law, and to cause persons arrested to be tried by courts martial. Tho same declaratory statement of the "undoubted prerogative" of tho Crown to resort to the exercise of martial law is repeated in the statute 3 & 4 Will. 4, c. 4 (1833). After these distinct assertions by Parliament of tho existence of the prerogative, it would seem to be difficult to deny it; but it is right to notice the weighty opinion of Lord Chief Justice Cockburn, who has expressed grave doubts on the question in his Charge to the Grand Jury in B. v. Eyre, p. 74, where he said: "So emphatic an expression of the opinion of Parliament is certainly entitled to great and respectful consideration; but in my opinion it cannot and ought not to prevail against fact and truth, if a thorough investigation of the subject should lead xis to an opposite conclusion, and satisfy us that Parliament has formed an unsound opinion upon it. Against it may be set the fact that Parliament has passed Acts to indemnify persons who assisted in carrying martial law into execution, and took care to shut the doors of courts of law to those who could question its legality—enactments which would appear to have been wholly uncalled for, if the power to put martial law in force were as undoubted as it is thus described to be."
Coke said, in the debate on the Petition of Right, that a rebel may be slain, in rebellion, but if he be taken he cannot be put to death by martial law; and Rolle (afterwards Lord Chief Justice) on the same occasion, that if a subject be not taken in rebellion, and be not slain at the time of his rebellion, he is to be tried by the common law: Rushworth's Collection, iii. App. 79, 81. "A rebel in arms stands in the position of a public enemy, and therefore you may kill him in battle, as you might kill a foreign enemy If it be true that you can
apply martial law for the purpose of suppressing rebellion, it is equally certain that you cannot bring men to trial for treason under martial law after a rebellion has been suppressed" (i): Lord Chief Justice Cockburn's Charge to the Grand Jury in B. v. Eyre, pp. 25, 29. See Wolfe Tone's Case, 27 State Tr. 615, where a habeas corpus was granted after the prisoner had been tried and sentenced to death by a court martial. While the rebellion exists, and martial law is in force, the trial may be by court-martial, but need not be so. In fact, there is no legal necessity for any form of trial at all when the rebel is met with arms in his hands, Jlagranlebello, for he may be killed on the spot. But if, instead of being killed in open resistance, he were to bo arrested, the gravest responsibility would be incurred if he wore to be put to death without some form of trial, and analogy would obviously suggest a trial by court-martial.
Owing to the atrocities and excesses which were committed during the existence of martial law in Ireland, an Act of Indemnity was thought necessary, and this was accordingly passed, 37 Geo. 3, o. 11 (Irish Act). But notwithstanding the Act of Indemnity, where a sheriff had flogged a man against whom there was no charge or pretence that he was implicated in the rebellion, he was held liable in damages. The Court said: "The jury were not to imagine that the Legislature, by enabling magistrates to justify under the Indemnity Bill, had released them from the feelings of humanity, or permitted them wantonly to exercise power, even though it were to put down rebellion:" Wright v. Fitzgerald, 27 State Tr. 765; and see Luther v. Borden, 7 Howard (American Sup. Court Rep.) 46.
In B. v. Pinney, 3 B. & Ad. 958 (quoted by Blackburn, J., in his Charge to the Grand Jury in the case of B. v. Eyre, 1868), Littledale, J., said that "a party intrusted with the duty of putting down a riot, whether by virtue of an office of his own seeking (as in the ordinary case of a magistrate), or imposed upon him (as that of a constable), is bound to hit the exact line between excess and failure of duty, and that the difficulty of so doing, though it might be some ground for a lenient consideration of his conduct on the part of the jury, was no legal defence to a charge like the present. Nor could a party so charged excuse himself on the mere ground of honest intention." And per Blackburn, J., in the above-mentioned charge: "I think the officer is bound under such circumstances to bring to the exercise of his duty ordinary firmness, judgment, and discretion. I think he is bound to do that, and I think in such a case the jury have to determine upon the evidence—first, whether the circumstances were in fact such that what was done really was in excess of the duty of the officer; and, secondly, whether a person placed in the position of that officer, having
(i) See Geoffroy's Case in France, 1832; and the argument of Mr. David Dudley Field, In the Matter of M'Cardlc, Supreme Court of the United States, 1808; both in the Appendix.
Proceeding by courts martini.
tho information that he had, believing what he did believe, and know-
"Justum et tenacem propositi virum
The right conclusion upon the whole matter seems to be this: Martial law may be justifiably imposed as a terrible necessity, and an act of self-defence; under it there is a suspension of civil rights, and the ordinary forms of trial are in abeyance. Under it a man in actual armed resistance may be put to death on the spot by anyone acting under the orders of competent authority; or, if arrested, may be tried in any manner which such authority shall direct. But if there be an abuse of the power so given, and acts are done under it, not bond fide to suppress rebellion and in self-defence, but to gratify malice or in the caprice of tyranny, then for such nets the party doing them is responsible (i).
By the Jamaica statute, 9 & 10 Vict. c. 35, it was enacted that martial law should not be declared except by the advice and opinion of a council of war, composed as therein directed.
In a circular despatch addressed by Lord Carnarvon, the Secretary of State for the Colonies, to the Colonial Governors, January 30, 1867, and containing the copy of a despatch which he had sent to the Governor of Antigua, requiring him to submit to the local legislature a bill for the repeal of an Act which authorized the proclamation of martial law, he said: "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 of an Act of Indemnity. Tho justification, however, of such a step must rest on the pressure of the moment, and the Governor cannot by any instructions bo relieved from tho obligation of deciding for himself, under that pressure, whether the responsibility of proclaiming martial law is or is not greater than that of refraining from doing so."
As to proceedings by courts martial, see Chant v. Gould, 2 H. Bl. 69; B. v. Suddis, 1 East, 306; WaWs Case, 28 State Tr. 51; Harden v. Bailey, 4 Taunt. 67; 4 M. & S. 400 (S.C. in Error). In time of war the Crown acts out of the limits of its dominions as regards the army by virtue of its prerogative: Barwise v. Keppel, 2 Wils. 314.
As to the powers and duties of magistrates in case of riots and un
mngwtrates in lawful assemblies, see B. v. Pinncy, 3 B. & Ad. 947; JB. v. Longford, and lawful 1 Car'& Marsh- 602' K v- 9 C. & P. 431, which shows tliat con
assemblies. (t) gee BU ubie view of the subject in Finlason's Commentaries upon Martial Law (London, 1867).