taken by a Lieutenant-general and his Provost-marshal in the reign of Queen Elizabeth, under one of the commissions declared to be illegal by the Petition of Right. In 1569 the Earls of Northumberland and Westmoreland had risen and besieged and taken Barnard Castle, and committed other acts of open treasonable warfare. The rising took place, and was suppressed, in the course of the month of December. The Earl of Sussex received from the Queen a commission, evidently similar to the one already cited, and appointed Sir George Bower his Provost-marshal. Sir George Bower made a circuit through Durham and Yorkshire, between the 2nd and the 20th of January, 1569, and executed at various places 600 persons. (Sharpe's "Memorials of the Rebellion," No. 1569, pp. 99, 113, 121, 133, 140, 143, 153, 163.)

It appears from Governor Eyre's despatch, passing by earlier portions, which contain instances of acts done by the so-called courts-martial, susceptible perhaps of a construction different from those which follow, that at daybreak on Monday, the 16th of October (paragraph 41), the last definite act of violence mentioned having taken place on the 15th (see paragraph 33), a court-martial sat to try prisoners, and twenty-seven were found guilty and hung. By the 18th (paragraph 55), many rebels had been captured, and several courts-martial had been held and capital punishment inflicted. On the 19th (paragraph 57), all was going on well in camp, more rebels had been captured or shot. Afterwards, on the 23rd of October, Mr. Gordon was hung. As Governor Eyre mentioned no acts of violence subsequent to that above referred to, it would appear that these executions were punishments for past offences, and not acts required for the suppression of open insurrection. The measures adopted thus resemble those taken by Sir George Bower, in 1569, under the authority of the commission declared illegal by the Petition of Right. As to the legal character of such punishments, Lord Coke observes (3rd Inst., c. 7, p. 52): "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. (See too Hale, Hist. C. L. 34.)

These authorities appear to show that it is illegal for the Crown to resort to martial law as a special mode of punishing rebellion.

We now proceed to consider the authorities which look in the other direction. In 1799, an Act of the Irish Parliament (39 Geo. 3, c. 11) was passed, the effect of which was to put the parts of the country which were still in rebellion under military command, according to a system therein described. The preamble states that the rebellion had been already suppressed, and it sets forth that on the 24th of May, 1798, Lord Camden did, by and under the advice of the Privy Council, issue his orders to all general officers commanding his Majesty's forces, to punish all persons acting, ordering, or in any way assisting in the said rebellion, according to martial law, either by death or otherwise, as to them should seem expedient, and did by his proclamation of the same date ratify the same. It further goes on to recite, that "by the wise and salutary exercise of his Majesty's undoubted prerogative in executing martial law, for defeating and dispersing such armed and rebellious force, and in bringing divers rebels and traitors to punishment in the most speedy and summary manner, the peace of the kingdom has been so far restored as to permit the course of the common law partially to take place," &c. And in the body of the Act (section 6) there is contained a proviso that "nothing in this Act shall be construed to abridge or diminish the undoubted prerogative of his Majesty, for the public safety, to resort to the exercise of martial law against open enemies or traitors."

It is impossible to suppose that such a declaration as this should operate as a repeal of the Petition of Right as regarded Ireland, though the language of the two Acts appears to be conflicting. As, however, it merely declares an "undoubted prerogative of the Crown," it cannot refer to what the Petition of Right expressly denied to exist, and therefore it must probably be construed to mean only that the Crown has an undoubted prerogative to attack an army of rebels by regular forces under military law, conducting themselves as armies in the field usually do. This construction is strengthened by the fact that traitors are coupled with open enemies. Now, the force used against an invading army is used for the purpose, not of punishment, but of conquest, and thus the words in the Irish Act would mean only that the Crown has an undoubted prerogative to carry on war against an army of rebels,

as it would against an invading army, and to inflict upon them such punishment as might be necessary to suppress the rebellion, and to restore the peace, and to permit the common law to take effect.

As soon, however, as the actual conflict was at an end, it would be the duty of the military authorities to hand over their prisoners to the civil powers. This was affirmed by the case of Wolfe Tone, who, having been captured when the French surrendered, was sent up to Dublin Barracks, tried by a court-martial, and sentenced to death. The Court of King's Bench immediately granted a habeas corpus, and directed the sheriff to take into custody the Provostmarshal and officers in charge, and to see that Mr. Tone was not executed (27 St. Tr. 624-5). No doubt many military executions took place during the Irish rebellion, but an Act of Indemnity was passed in respect to them, and it must also be remembered that by the laws of war (which are a branch of morals rather than of law proper, and prevail not over soldiers, but as between contending armies), many severities may be justified, such as the refusal of quarter, and the putting to death of soldiers who surrender at discretion; and thus, in a war like that in 1798, much might be done which might pass under the name of martial law, but which in reality would be no more than incidents of ordinary warfare conducted with unusual rigour.

Another argument is drawn from the annual Mutiny Acts. They contain a declaration that "no man can be forejudged of life or limb, or subjected to any punishment within this realm by martial law, in time of peace." This has been construed to imply that in times of war or disturbance martial law is legal. As to this, however, it must be remembered that in its original meaning, the phrase "martial law" included what we now understand by military law, and that one principal object of the commissions declared to be illegal by the Petition of Right, was the creation of military tribunals without Parliamentary authority. Hence the words "in peace," which were not in the first Mutiny Act, probably mean that standing armies and military courts were, in time of peace, illegal, except in so far as they were expressly authorised by Parliament.

The whole doctrine of martial law was discussed at great length

before a committee of the House of Commons, which sat in the year 1849, to inquire into certain transactions which had taken place at Ceylon. Sir David Dundas, then Judge Advocate General, explained his view upon the subject at length, and was closely examined upon it by Sir Robert Peel, Mr. Gladstone, and others. The following answers, amongst others, throw much light on the subject:

"5437. The proclamation of martial law is a notice, to all those to whom the proclamation is addressed, that there is now another measure of law and another mode of proceeding than there was before that proclamation."

"5459. If a Governor fairly and truly believes that the civil and military power which is with him, and such assistance as he might derive from the sound-hearted part of the Queen's subjects, is not enough to save the life of the community, and to suppress the disorder, it is his duty to suppress by this (i.e., by martial law) or any other means.

"5476. (Sir Robert Peel.) A wise and courageous man, responsible for the safety of a colony, would take the law into his own hands, and make a law for the occasion rather than submit to anarchy?—A. I think that a wise and courageous man would, if necessary, make a law to his own hands, but he would much rather take a law which is already made; and I believe the law of England is, that a Governor, like the Crown, has vested in him the right, where the necessity arises, of judging of it, and being responsible for his work afterwards, so to deal with the laws as to supersede them all, and to proclaim martial law for the safety of the colony.

"5477. (In answer to Mr. Gladstone.) I say he is responsible, just as I am responsible for shooting a man on the King's highway who comes to rob me. If I mistake my man, and have not, in the opinion of the judge and jury who try me, an answer to give, I am responsible.

"5506. My notion is, that martial law is a rule of necessity, and that when it is executed by men empowered to do so, and they act honestly, rigorously, and vigorously, and with as much humanity as the case will permit, in discharge of their duty, they have done that which every good citizen is bound to do.”

Martial law has, accordingly, been proclaimed in several colonies -viz., at the Cape of Good Hope, in Ceylon, in Jamaica, and in Demerara.

The views thus expressed by Sir David Dundas appear to us to be substantially correct. According to them the words "martial law," as used in the expression "proclaiming martial law,” might be defined as the assumption for a certain time, by the officers of the Crown, of absolute power, exercised by military force, for the purpose of suppressing an insurrection or resisting an invasion. The "proclamation" of martial law, in this sense, would be only a notice to all whom it might concern that such a course was about to be taken. We do not think it is possible to distinguish martial law, thus described and explained, from the common-law duty which is incumbent on every man, and especially on every magistrate, to use any degree of physical force that may be required for the suppression of a violent insurrection, and which is incumbent as well on soldiers as on civilians, the soldiers retaining during such service their special military obligations. (On this subject see Lord Chief Justice Tindal's Charge to the Grand Jury of Bristol, in 1832, quoted in 1 Russ. on Cr. 286 n.) Thus, for instance, we apprehend that if martial law had been proclaimed in London in 1780, such a proclamation would have made no difference whatever in the duties of the troops or the liabilities of the rioters. Without any such proclamation the troops were entitled, and bound, to destroy life and property to any extent which might be necessary to restore order. It is difficult to see what further authority they could have had, except that of punishing the offenders afterwards, and this is expressly forbidden by the Petition of Right.

We may sum up our view of martial law in general in the following propositions:

1. Martial law is the assumption by the officers of the Crown of absolute power, exercised by military force, for the suppression of an insurrection, and the restoration of order and lawful authority.

2. The officers of the Crown are justified in any exertion of physical force, extending to the destruction of life and property to any extent, and in any manner that may be required for this purpose. They are not justified in the use of excessive or cruel means, but are liable civilly or criminally for such excess. They are not