the procedure to be pursued before military commissions, the latter must give judgment without adjournment; military judges are both judges and juries; they have but one question to answer (Art. 30 of the law cited): "Is N., the accused, guilty ?" Being thus bound under the law which created them, by the double duty of giving judgment without adjournment, and of answering a complex question, the question of their jurisdiction could not be explicitly decided by the military commissions themselves; judgments of "not guilty" left the point vaguely undecided; on the other hand, the counsel for the defence being unable, after discussing it, to avoid a discussion of the merits without putting the fate of the accused in jeopardy, relied upon the exercise of the discretionary power which might be adopted by military judges from the new law, permitting juries to put questions upon trials for the purpose of discovering extenuating circumstances.

However, more than one capital sentence was pronounced. Among the accused, Michael Augustus Geoffroy, designer, of Paris, was by a decision of the second military commission of Paris, on the 18th of June, by a majority of 6 to 1, declared guilty of an attack with intent to subvert the government and to excite civil war. He was consequently condemned to death, in accordance with Arts. 87, 89, and 91, of the Penal Code and the law of 18th Germinal, year VI.

Geoffroy immediately appealed to the Council of Revision and

the Court of Cassation.

[The latter court made an interlocutory order that the record should be brought into their clerk's office to await their further judgment. This having been done, and the reporting counsellor having stated the question raised, M. Odilon Barrot, of counsel for the appellant, stated and argued three propositions as the grounds of his appeal, as follows:]

"1st. Placing the city of Paris in a state of siege by a mere order, when the city has not been invested, and the communications have not been interrupted, is an illegal act, and deemed not to exist.-2nd. In case the state of siege be considered legal and constitutional, it is impossible that it should result in withdrawing citizens from their natural judges, and in obliterating, as regards them, the 53rd and 54th Articles of the Charter."

[The third point related to the retroactive effect of the order.] 1st. How is the question in this case to be stated? Can any one ask whether the government is authorized to despoil its citizens of the guaranties of a jury, not only for ordinary misdemeanors, but even for violations of the laws of the press? This would be doing violence to the Charter which establishes trial by jury. Will anyone put the question thus: Is the city of Paris besieged? This would be doing violence to common sense. Where, I ask, are the rebels investing the city and putting it in a state of siege? Are not the communications unobstructed? No, the city is not besieged; there is no state of siege; the siege is a fiction; this fiction is not lawful.

2nd. The laws of Prairial, year III., and Ventose, year IV., are those on which the pretended jurisdiction of military commissions is founded. A military commission, it is said, is not an extraordinary special tribunal. It is a permanent court. This assertion is refuted by the statutes and decisions. The laws of the years III. and IV. were re-cast and re-enacted by the law of Pluviose, year IX., which created special tribunals, and subsequently by that of 1815, which created provost's courts as a part of the ordinary administration of justice. This has been distinctly decided by the Court of Cassation in the cases of military emissaries and spies; of enticements to desert; of highway robbers; and of all persons brought within the scope of the laws conferring special jurisdiction. I add, that according to these laws, the decisions of this court did not bring within the jurisdiction of military courts such individuals as were prosecuted for having formed a part of an armed assemblage, except in those cases where they were taken in the assemblage itself.

Therefore, as regards the persons placed by the events of June in the hands of the Executive, some exceptional, extraordinary jurisdiction was required, and it is this very jurisdiction which the 53rd and 54th Articles of the Charter have banished never to return. Listen to M. Dupin commenting on these articles from the rostrum: "In order to prevent every possible abuse, we have added to the former text of the Charter, 'under what name or denomination soever;' for specious names have never been wanting for bad things, and without this precaution the title of ordinary tribunal'

might be conferred on the most irregular and extraordinary of courts." This is the principle which was applied in the Ordinance of 1830, relating to juries in Corsica. This ordinance declares that the acts of the government which had created in Corsica, not a military tribunal, but a supreme court, an ordinary jurisdiction, created by a senatus-consultum, confirmed by divers decrees, and sanctioned by a crowd of decisions, be and remain abrogated. Then, if the jurisdiction of judges for life, surrounded by guaranties, deciding with the solemnity of ordinary justice, has been considered extraordinary, what shall military commissions be called, which decide without adjournment, as soon as the case is before them, without any body similar to a grand jury having first declared the existence of the indictment-which decides without confronting witnesses, without a challenge, and whose judgments are executed within twenty-four hours? The most enormous of exceptions, the most monstrous of special jurisdictions, is a court which judges a non-military person by accidental authority. This tribunal, to use the epithet of the decree of the Convention of the 28th Thermidor, year III., can render nothing but revolutionary judgments-judgments which, by returning to true principles, were declared null and void by the Convention itself.

It is objected that the special laws concerning states of siege have survived the Charter, and that they compel the establishment of military justice. No; even putting aside the Charter of 1830, there is no law which, within the land, and excepting the case of an investment, permits a military chief to place a people beyond the pale of their constitutional guaranties. There are three laws which relate to a state of siege—that of 1791, that of the year V., and the Decree of December 24, 1811. The Law of 1791 provides what shall be done as regards places of strength, in the three situations in which they may be placed-peace, war, siege; it derogates in no respect from the Constitution of 1791, according to which no person can be accused or condemned except in virtue of a declaration of a jury on the facts, and of judges on the law. The law of the 17th Fructidor, year V., fills a void in the Law of 1791; it provides for the case where a place of strength in the interior should be in an analogous position to that of a place of strength, that is, invested by forces of the enemy, or by rebels. How is it

possible to make out of a war measure, a measure of public safety; a measure of suspending the constitution, and of creating a dictatorship towering above the institutions of the country? Can any one at this day give the name of law to an act which sanctioned the 18th of Fructidor, and the establishment of renewed proscriptions? As to the Decree of 1811, that, in its letter and in its spirit, was no measure of public safety, but an act of military police prescribing a rule in regard to places of strength; this decree has perished like all exceptional measures, by which the Head of the Government had arrogated to himself the power of modifying the Constitution; it was one of the causes of his downfall.

[The public prosecutor replied to the first ground taken by the defence, as follows:]

*

The right to declare a state of siege is confided exclusively to the chief magistrate, or the executive power: to the King, under the responsibility of his ministers, by the Law of 1791; to the Executive Directory by the laws of the year V., under the duty of informing the legislative body, which, at that time, was to be in permanent session; to the Emperor by the Decree of 1811; in a word, always to the executive power, as governed by the necessities of the case and the law of public safety, and solely capable of appreciating the demand for the measure.

[To the second ground:]

What is the character and nature of the Charter? It is the usual and ordinary constitution of the country, the basis of our public law. What is a state of siege? A violent, extraordinary state of things, based upon the necessity of defence, and of providing for the common safety, attacked or threatened to be attacked by a war, or aggression of some kind. At such a time ordinary misdemeanors and crimes may become military misdemeanors and crimes, subject to the laws of war, and triable by its courts. The authority of military commissions is therefore necessarily connected with a state of siege. Without it a state of siege would be nothing but an abstraction; the laws which govern it belong to a state of things entirely outside of ordinary law. The 53rd and 54th Articles of the Charter are cited against us. Art. 53 merely reproduces Art. 62 of the Charter of 1814, and it has always been held that the "natural judges" of a person accused,

.

are those fixed by the law for the case or person to be judged. Art. 54 strengthens the prohibition contained in Art. 53. But, in the first place, permanent military commissions are not extraordinary commissions, newly and specially created for specific cases; they are recognised by a course of legislation; they are not abolished by the Charter. This has been held several times by this court under the Charter of 1830, as well as that of 1814. These tribunals are not an exception to the usual order of thingsthey are the usual rule of a different order of things. The Charter did not, and could not, provide for a state of siege; and never intended that the Government should stand disarmed, where circumstances have once showed the necessity of this exceptional state, outside of ordinary law. It follows that military commissions do not take cognizance by force of the Order of the 6th of June, but as a consequence of the state of siege, and because military tribunals belong to a state of siege, and are the usual judges, recognized as such by law, in cases by which this state is created and constituted, which is not the normal state provided for by the Charter.

[On the 29th of June the Court gave judgment as follows:]

Per cur. (After advisement in the council-chamber.) Whereas neither the Charter nor any subsequent law treats of the laws and decrees which govern a state of siege, and whereas these laws and decrees must therefore be carried into execution in all points not contrary to the Charter; having considered the Art. 77, L. 27 Ventose, year VIII., in these words: "No appeal can be taken against final judgments of juges de paix, except for want of jurisdiction or for exceeding the same, nor against the judgments of military tribunals of land and sea, except for the said causes, taken by a citizen not in the army and not impressed by law with a military character by reason of his duties;" Art. 1, L. 22 Messidor, year IV., as follows: "No crime is military, unless committed by a person forming a part of the army; no other person can be brought, as a defendant before judges appointed by military law;" Arts. 53, 54, and 56 of the Charter: "No person can be withdrawn from his natural judges." "Consequently, extraordinary commissions and tribunals cannot be created under what title or name soever." "The institution of juries is continued;" Art. 69, which extends the cognizance of juries to crimes of the press, and political crimes,