« PreviousContinue »
right, but favour only, and may bo refused by the ecclesiastical Judge; for it is a power lodged with the Ordinary and Metropolitan, for their advantage only, to dispense with the forms required by the rubric, whereby the marriage, as well as by the canonical law, ought to be publicly celebrated after a due publication of banns. Therefore, neither the party nor the public can be interested in the refusal, because the proper and truly legal method is still left free, viz., to marry by banns.
February 5, 1760. C. Pratt.
(6.) Letter from the Lord Chancellor, Lord Thurlow, to Sir James Marriott, King's Advocate (i).
Dear Doctor,—I have read over your observations many times with great attention, and I agree to many particulars; yet, upon the whole, I cannot help remaining persuaded that the King in Parliament gives as full a commission as under the Great Seal. The necessity of applying to Parliament at all upon the subject I do not maintain, unless it was to vest the prizes in the captor clear of the Admiralty rights. As to the expediency, I am no judge of it. Your thinking it necessary will be enough to make it expedient.
(i) From the same M. S. No date.
COMMISSIONS OF MARTIAL LAW ISSUED BY KING CHARLES I.
Rymer's Fcedera, XVIIL 254.
"Charles, by the Grace of God, &c., to our right trusty and right wellbeloved cousin Edward, Viscount Wimbleton, Lord Marshall of our Army, and to our trustie wellbeloved Sir William St. Leger, Knight, Serjeant Major of our Army [and 23 others]:
"Whereas upon the Retourne of our Fleete, Wee have alreadie directed that non of the Soldiers imployed in that Service, and which shall retourne in any of those Shipps, shall be disbanded or departe from their Colours, but shall continue under the Commaund of those under whom they then served, Wee having present occasion to use their Services again, and yet Wee shall be inforced for a time to lodge and billett the said Soldiers in severall Places in and about Our Towne of Plymouth and in Our Counties of Devon and Cornwall, where with most Conveniencie for the Soldiers and least Trouble to the Countrey itt may best be performed, untill Wee shall have Opportunitie to ymploye them, which We intend to doe with all Expedition; And to the end that all Disorders and Outrages, to the Disturbance of our Peace and the Prejudice of our loveing Subjects, may be tymely prevented, Wee, being more desireous to keepe our People from doeing Mischiefe than to have Cause to punish them for doeing the same:
"Have, of the speciall Trust and Confidence We have reposed in your approved Wisdomes and Fidelities, appointed you to be our Commissioners', and by theis Presents doe give unto you, or any three or more of you, full Power and Authoritie in all Places within our said Counties of Devon and Cornwall and either of them, as well within the said Town of Plymouth or anie other Towne Libertie or Place as without, within our said Counties of Devon and Cornwall or either of them, to proceede according to the Justice of Marshall Lawe against such Soldiers or other dissolute Persons joyneing with them or anie of them, as dureing such Time that anie of our said Troopes or Companies of Soldiers shall remayne or abide thereabouts, and not be transported thence, shall within any the Places or Precincts aforesaid att anie time after the Publication of this Our Commission, committ any Robberies, Felonyes, or Mutynies, or other Outrages or Misdemeanors, which by Marshall Lawe should or ought to be punished with Death, and by such summarie Course and Order as is agreeable to Marshall Lawe, and is used in Armies in tyme of Warres, to proceed to the Triall and Condempnation of such Delinquents and Offendors, and them to cause to be executed and putt to Death according to the Lawe Marshall for an Example of Terror to others, and to keepe the rest in due Awe and Obedience.
"To which Purpose Our Will and Pleasure is that you cause to be erected such Gallowes and Gibbetts, and in such Places within the said Counties or either of them, as you shall think fitt, and thereupon to cause the same Offenders to be executed in open View, that others may take warning thereby to demeane themselves in such due Order and Obedience as good Subjects ought to do, straightlie chargeing and commanding all Mayors, Sherrifl's, Justices of Peace, Constables, Bayliffs and other Officers, and all other Our loveing Subjects whatsoever, upon their Allegiance to Us and Our Crowne, to be ayding and assisting to you, or such three or more of you as aforesaid, in the due Execution of this Our Royal Commaundment; and theis Presents shal be unto you and everie of you a sufficient Warrant and Discharge for the doeing and executing, and causing to be done and executed, all and everie such Act and Acts, Thing and Things, as anie three or more of you as aforesaid shall find requisite to be done concerning the Premisses.
"In Witnes whereof, &c. Witnes, &c.
Teste Rege Apud Hampton Court vicesimo octavo Die Decembris.
Per Breve de Privato Sipillo, &c.
A. D. 1625."
Rymer's Fcedera, XVIII. 763.
Similar Commission "to proceed according to the Justice of Martiall La we against such Soldiers or Marriners, or other dissolute Persons joyneing with them or any of them, as within the said County [of Kent] or any Parte thereof, shall at any tyme after the Publication of this Our Commission committ any Robbery, Felony, Mutiny, or other Outrage or Misdemeanor, or which shall withdrawe themselves from their Places of Service or Charge as aforesaid, or shall be found within the said Countie or any Parte thereof, which by the Martiall Lawe should or oughte to be punished with Death and by such summary Course," &c., ut supra.
"Witnes Our Selfe at Canbury the fourth day of October . Per ipsum Regem."
GEOFFROY'S CASE, IN FRANCE (1832).
Cour de Cassation, June 29, 1832 (24 Journal du Palais, p. 1218, seqq).
The laws and decrees in regard to creating a state of siege, must be carried into execution in all points not contrary to the Constitutional Charter.
But Art. 103, Decree of 24th December, 1811, being irreconcUeable with Arts. 53 and 54 of the Charter of 1830, placing a city in a state of siege, cannot have the effect of conferring jurisdiction on military commissions (conseih de guerre) over persons who are not in the army, nor impressed with a military character. Law 22 Messidor, year IV., Art. 1.
Geoffhoy Vs. Le Ministere Public. A royal order, dated June 6, 1832, had put Paris in a state of siege; it was based on the necessity of repressing seditious assemblages which had appeared in arms in the capital, during the days of June 5th and 6th; on attacks upon public and private property; on assassinations of national guards, troops of the line, municipal guards, and officers in the public service; and on the necessity of prompt and energetic measures to protect public safety against the renewal of similar attacks.
The Cour Boyale, called to meet in extra session by order of the First President, to pass by way of review (evocation) or otherwise, upon the political occurrences of the 5th and 6th of June, rendered the following judgment on the 7th of June, all the chambers being united: On hearing the Procureur General on his motion, deciding on the proposition of one of its members, to cause to be transmitted for review, the record relative to criminal acts committed on the 5th and 6th of the present month: Whereas, by the order dated yesterday, the city of Paris has been placed in a state of siege, and whereas, by the terms of Art. 101 of the Decree of December 24, 1811, passed to carry out the laws of July 8, 1791, and 10th Fructidor, year V., the effect thereof is to transfer to the military commandant the power vested in the civil judges for the maintenance of order and police:
"And whereas the occurrences which occasioned the placing of the city of Paris in a state of siege must be subjected to this rule of law, although anterior thereto:
"It is declared that no ground for a review exists."
The publicity encountered by this decision raised the question of the constitutionality of the order, and the no less weighty question of the jurisdiction of military commissions over acts done and ended before the order declaring the state of siege was inserted in the " Moniteur" and the " Bulletin des Lois."
As early as June 10, the Gazette des Tribunaux published a carefully-considered opinion on these points by M. Ledru Rollin, of the Paris bar. The ball thus being opened, the opposition press soon after collected the opinions of several notabilities of the Order of Advocates of the Court of Cassation, and the concurring opinions of a number of the bars of the kingdom. All these opinions increased the arguments against the constitutionality of the order, its retroactive force, and the jurisdiction of military commissions.
The military commissions having taken cognizance of the cases, the successive defendants at their bar excepted in vain to their jurisdiction. The exceptions were entered of record, saving the right to pass upon them in deciding upon the merits. But it must be noted that this answer to the exception, on the ground of want of jurisdiction, did not afford a decision on the exceptions. According to the law of the 13th Brumaire, year V., which prescribes