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Finally, sir, may I say that I have shown: —
1. That there is no reason whatever for the proposition that Mississippi is not now a State of the American Union:
2. That not only is she a State of the Union, but her people have the rights of citizens of a State:
3. That whether she be or be not a State, or her people have or have not the rights of citizens of a State, that people cannot be subjected to military government by the Congress of the United States: and
4. That therefore the petitioner, McCardle, is entitled to his release from the military commission which presumed to sit in judgment upon him.
And when your judgment is pronounced, as I hope and pray it may be, in the petitioner's favour, it will, I trust, be the endeavour of all good men to promote by their counsel and example the acquiescence of the other departments of the Government. As it is your right in the last resort, upon all cases that come before you, to give final interpretation to the Constitution, so it is the duty of all citizens to respect and accept your interpretation. There is no need to strain the authority of the Government. The constitutional amendment not only abolishes slavery, and makes freedom the rule throughout the country, but it gives Congress the power to enforce that article by appropriate legislation, and to see that the freedom of every man of every race and condition is maintained.
It was the boast of an English orator and statesman, on a memorable occasion, when he delivered a message from the King to his faithful Commons respecting the expedition to Portugal, that "wherever the standard of England is planted, there foreign domination shall not come." If we will firmly maintain the Constitution of our fathers, as modified by the great amendment, we shall be able to make it our higher boast, that where the standard of America is planted there shall be neither foreign domination nor domestic oppression.
Case and Joint Opinion of Mr. Edward James, Q.O., and Mr. Fitzjames Stephen, Q.C., on Martial Law, with reference to the Jamaica Insurrection. 18G6.
Case submitted by the Jamaica Committee.—The Committee desires to be advised what steps are open to them to assist their fellowsubjects in Jamaica to obtain the protection of the law; and, if the law has been broken, to bring the guilty parties to justice; and also what steps are open to them, as Englishmen, to vindicate constitutional law and order, if constitutional law and order have been illegally set aside by the local Government in Jamaica.
With this are sent copies of the despatch from Governor Eyre to Mr. Secretary Cardwell, on the 20th of October, 1865, and also of the Address of the Governor to the Jamaica House of Legislature, at the annual meeting which took place on the 7th of November. Copies are also sent of such reports of the military officers as have appeared in the papers.
Considering for the present nothing but these official documents, and taking for granted that the statements they contain are all true, counsel is requested to advise:
1. What is the meaning of the term "martial law," and what is the legal effect of a proclamation of martial law?
2. Are there grounds for concluding that Governor Eyre has acted illegally and criminally in the mode in which he states that he has proclaimed and enforced martial law, and especially in removing the Hon. G. W. Gordon from Kingston to Morant Bay, and there handing him over to Brigadier-General Nelson, to be tried by court-martial?
3. Could Mr. Gordon be legally convicted and punished by courtmartial for any act done prior to the proclamation of martial law, or for any act done beyond the boundaries of the proclaimed district?
4. Are officers acting in enforcing martial law exempt from all control beyond the instructions they receive from their superior officers? If not, are there any principles acknowledged by martial law, or by the British Constitution, which would render it illegal— (a) to continue for several days shooting down men, and flogging men, women, and children, and burning their habitations, in the absence of any appearance of organized resistance; (b) to inflict punishment without or before trial; (c) to inflict punishment for the purpose of obtaining evidence; (d) to inflict death for or on the evidence of looks or gestures?
5. In case Governor Eyre or his subordinate officers have been guilty of illegal acts in the course of the late proceedings in Jamaica, what are the proper modes of bringing them to trial for such illegal acts?
6. Are any, and (if any) what, proceedings for the above purpose open to private persons in this country?
7. The last question has reference to a bill of indemnity, if one should be passed by the Jamaica Legislature.
Opinion.—The questions asked in this Case all depend more or less upon the general question, " What is the nature of martial law, and what power does it confer?" We will, therefore, state our view of this subject before answering the specific questions asked, and we must do so at some length, on account both of the importance and the obscurity of the subject. The expression " martial law " has been used at different times in four different senses, each of which must be carefully distinguished from the others:—
1. In very early times various systems of law co-existed in this country—as the common law, the ecclesiastical law, the law of the Court of Admiralty, &c. One of these was the law martial, exercised by the constable and marshal over troops in actual service, and especially on foreign service. As to this, see an essay on the "Laws of War," by Professor Montague Bernard, in the " Oxford Essays "for 1856.
2. The existence of this system in cases of foreign service or actual warfare, appears to have led to attempts on the parts of various sovereigns to introduce the same system in times of peace on emergencies, and especially for the punishment of breaches of the peace. This was ■ leclared to be illegal by the Petition of Right, as we shall show more fully immediately. (See Hallam's " Constitutional History," vol. i. p. 240, 7th edition, ch. v., near the beginning.)
3. When standing armies were introduce !, the powers of the constable and marshal fell into disuse, and the discipline of the army was provided for by annual Mutiny Acts, which provide express regulations for the purpose. These regulations form a code, which is sometimes called martial, but more properly military law. (Grant and Gould, 2 H. Blackstone, 69.)
4. Although martial law in sense (1) is obsolete, being superseded by military law, and in sense (2) is declared by the Petition of Right to be illegal, the expression has survived, and has been applied (as we think, inaccurately and improperly) to a very different thing—namely, to the common-law right of the Crown and its representatives to repel force by force in the case of invasion or insurrection. We shall proceed to develope and illustrate this view of the subject.
The provisions of the Petition of Right on Martial Law (3 Car. 1, c. 1), are contained in ss. 7, 8, 9,10. These sections recite that commissions under the Great Seal had lately been issued to certain persons to proceed in particular cases "according to the justice of martial law;" and that thereby persons had been put to death who, if deserving of death, ought to have been tried in the ordinary way, whilst others, pleading privilege, had escaped. Such commissions are then declared to be illegal; and it is provided that henceforth no commissions of like nature may issue forth to any person or persons whatsoever.
The commissions themselves explain the nature of the system which the Petition of Right prohibited. Three, which were issued shortly before it passed, are given in 17 " Rymer's Foedera" (pp. 43, 246, 647). They are dated respectively 24th November, 1617; 20th July, 1620; 30th December, 1624. The first is a commission to certain persons for the government of Wales, and the counties of Worcester, Hereford, and Shropshire. It directs them to call out the array of the county, and then proceeds to direct them to lead the array—
"As well against all and singular our enemies, as also against all and singular rebells, traytors, and other offenders and their adherents, against us our Crowne and dignitie, within the said principalitie and dominions of North Wales and South Wales, the marches of the same, and counties and places aforesaid, and with the said traytors and rebells from tyme to tyme to fight, and them to invade, resist, suppresse, subdue, sluy, kill, and put to execution »
of death, by all ways and means, from tyme to tyme by your discretion.
"And further to doe, execute, and use against the said enemies, traytors, rebells, and such other like offenders and their adherents afore-mentioned, from tyme to tyme as necessitie shall require, by your discretion, the law called the martiall lawe according to the law martiall, and of such offenders apprehended or being brought in subjection, to save whom you shall think good to be saved, and to slay, destroie, and put to execution of death, such and as many of them as you shall think mecte, by your good discretion, to be put to death."
The second empowers Sir Robert Maunsel to govern the crews of certain ships intended for the suppression of piracy, and gives him "full powers to execute and take away their life, or any member, in form and order of martial law."
The third is a commission to the Mayor of Dover, and others, reciting that certain troops, then at Dover, were licentious, and empowering them—
"To proceed according to the justice of martial law against such soldiers with any of our lists aforesaid, and other dissolute persons joining with them, or any of them, as during such time as any of our said troops or companies of soldiers shall remain or abide there, and not be transported thence, shall, within any of the places or precincts aforesaid, at any time after the publication of this our commission, commit any robberies, felonies, mutinies, or other outrages or misdemeanors, which by the martial law should or ought to be punished with death, and by such summary course and order as is agreeable to martial law, and as is used in armies in time of war, to proceed to the trial and condemnation of such delinquents and offenders, and them cause to be executed and put to death according to the law martial, for an example of terror to others, and to keep the rest in due awe and obedience."
The distinctive feature of all these commissions is, that they authorise not merely the suppression of revolts by military force, which is undoubtedly legal, but the subsequent punishment of offenders by illegal tribunals, which is the practice forbidden by the Petition of Right. In illustration of this we may compare the proceedings described in Governor Eyre's despatch with the course