CHAPTER VI.

ON MARTIAL LAW AND COURTS MARTIAL.

(1.) JOINT OPINION of the Attorney and Solicitor General, SIR ROBERT HENLEY and HON. CHARLES YORKE, as to how far the proclamation of Martial Law suspends the functions of the Council. 1757.

To the Right Honourable the Lords Commissioners for Trade and Plantations.

MAY IT PLEASE YOUR LORDSHIPS,-In pursuance of your Lordships' commands, signified to us by Mr. Pownall, in his letter of the 22nd instant, acquainting us that your Lordships had received two letters from Henry Moore, Esq., Lieutenant-Governor of Jamaica, informing your Lordships that he had, in consequence of advices which he had received of an intended invasion of that island, caused martial law to be proclaimed; and that his Majesty's Council, upon being summoned to meet in their legislative capacity, had refused to do any business, alleging that neither they nor the Assembly had any right to sit or transact business after the publication of martial law; and also transmitting to us copies of the LieutenantGovernor's letters and two other papers, containing the reasons assigned by the Council for their opinion, and their answers to several questions propounded to them by the Lieutenant-Governor, and desiring us to take the same into our consideration, and report to your Lordships our opinion thereon: we have taken the same into our consideration, and are of opinion that there is no foundation for the notion of the Council, that the proclaiming of martial law suspends the execution of the legislative authority, which may and ought to continue to act as long as the public exigencies require.

Nor do we apprehend that by such proclamation of martial law,

the ordinary course of law and justice is suspended or stopped, any further than is absolutely necessary to answer the then military service of the public and the exigencies of the province.

January 28, 1757.

ROBT. HENLEY.
C. YORKE.

(2.) OPINION of MR. HARGRAVE on an Irish case involving the question of Martial Law (1).

I have perused the several papers laid before me in the case of the high treason attainder of Mr. Cornelius Grogan after his death, by the Irish Act of October 6, 1798, which included Lord Edward Fitzgerald and Mr. Beauchamp Bagnel Harvey.

But previously to attempting the draft of a reversal bill, it is necessary that it should be fixed upon what principle the bill should be framed.

There are two ways of putting the case in the proposed bill of reversal.

One is, representing that Mr. Cornelius Grogan was under compulsion from the rebels, and so was free from all crime; and that the Irish Parliament was in great measure misled into a supposition of his guilt by his having been put to death on the judgment of a court of officers acting under what was conceived to be martial law. Looking to the case in this point of view, the minutes of the evidence before the Committee of the House of Commons in Ireland, appear to me to present a very strong case in favour of considering Mr. Cornelius Grogan as having acted under compulsion. I am impressed also that his having been tried and put to death, under a proceeding called martial law, so far from being ground for inducing an Act for attainting him after his death, should have operated in preventing such an extraordinary rigour. I so express myself because that extremity was resorted to against him previously to the Irish statute, made in the 39th of his present Majesty, for suppression of the rebellion in Ireland; and so, as I conceive, was applied when the doctrine, attributing to the Crown in time of rebellion a prerogative right of authorizing the trial of arrested rebels before a court-martial and by martial law, and the punish

(1) Jurisconsult Exercitations, i. 401.

ment of them, by death or otherwise, as to the members of such court-martial should seem meet, had not, as I apprehend, received legislative sanction even in Ireland. Had I been consulted before the passing of that Act, I should have deemed it fully open to me, to express at least a doubt whether the prerogative of claiming and exercising martial law in time of actual invasion by a foreign enemy, or in time of actual rebellion, was not merely referable to the law for governing the royal army and all connected with it— that is, for governing those employed in defending the country against invasion, and in suppressing rebellion. I should have

deemed it fully open to me to express at least a doubt—whether, under martial law, to try persons seized in rebellion, or seized upon suspicion of being rebels, before a court-martial constituted by the King's authority, and to punish them by death or otherwise, at the discretion of the members of such a court, was not an extension of martial law beyond its real object; and being so, was not an infringement of the law of England in a point of the most serious kind. But the Irish Act of the 39th of the present King, for suppression of the Irish rebellion, makes a vast difference; for in effect it contains recitals which not only recognized a royal prerogative of authorizing the trial and punishment of rebels by martial law, in the very harsh latitude I have already mentioned, but expressly authorized such application of martial law by new provisions for that purpose; and this Act, which was temporary, was afterwards continued for a further time by a subsequent Irish Act, and since the Union of Great Britain and Ireland, has been further continued with some amendments by Acts of the Parliament of the United Kingdom, the first of which is the 41st of the present King, chapter 15. With these statutes before me, I am forced to resist any contrary impressions I may have as to the real boundary of martial law. However, too, from previously settled notions, I may see these statutes as amounting to a melancholy change, first most unhappily generated in the code of Irish legislation by the heated atmosphere of civil convulsions in Ireland, and then insensibly, as it seems, insinuated into a code of English law through statutes of the United Kingdom of Great Britain and Ireland, not so much as stating the terrible prerogative I point at, but engrafting it by continuing Irish statutes, which, being mentioned by the

title only, are probably at this moment little known even to practising lawyers in England; yet to such high authority I must succumb! [The rest of the opinion is not material.]

The foregoing Opinion, as published by Mr. Hargrave, in his “Jurisconsult Exercitations," is prefaced by the following remarks:

The following small article includes, in some degree, matter of very high importance, which, though of great notoriety in Ireland, where the transaction occurred, is not so generally known amongst us in England. It relates to the case of Mr. Cornelius Grogan, an Irish gentleman of large fortune in the county of Wexford, who, during the horrid rebellion in that part of Ireland in the year 1798, was taken up for high treason, under the circumstance of there having been a previous proclamation authorizing martial law, in aiding the rebels, and was tried by a court of officers, and being found guilty, was put to death on the judgment of that court; and was, shortly after his death, attainted of high treason by Act of the Irish Parliament. Upon the case thus generally stated, with a view to the trial of rebels by martial law, it is proper to add that in 1799 an Irish Act of Parliament was passed, which in effect appears to recognize that it is a part of the royal prerogative during the time of rebellion to authorize the King's general and other commanding officers to punish REBELS according to martial law, by death or otherwise, as to them shall seem expedient. That an Act of Parliament may, for more effectually suppressing rebellion, so extend trial by martial law, and so also give to generals and other commanding officers a discretion of punishing rebels found guilty upon such trial, either with death, or indefinitely in any other way, is not to be doubted; for when such an Act is passed, though judges or others should ever so strongly feel either its incongruity with the principles of our law, or its harsh latitude otherwise, the Act must operate till it shall be revoked by the same high authority as engrafts it upon the law of England. But the question which forced itself, in a great degree, upon the author's mind, when he was called upon professionally to write opinions in answer to those who consulted him for the purpose of seeking a repeal of the Grogan attainder, was whether, independently of the express warrant of an Act of Parliament, and on the mere ground of prerogative power, authority could be given against

persons taken into custody for high treason during the heat of rebellion, to try them by martial law for their offence, and to punish them, either by death or in any other way, at the discretion of the court-martial so trying them. Looking at that question, he could not forbear avowing how his mind was affected. But he so avowed himself under a conviction that martial law to such an extent was not the law of England without an express Act of Parliament. He saw the right of putting rebels to death in battle while the battle lasted. He also saw the right to arrest those found in actual rebellion or duly charged with being traitors, and to have them imprisoned for trial and punishment, according to the law of treason. But he could not see that trying and punishing rebels according to martial law was, when Mr. Grogan was tried and put to death, part of the English law as it was administrable in England, or even as it was administrable in Ireland. On the contrary, he saw such a prerogative doctrine to be unconsonant with several recitals and one enactment in that grand Act of Parliament, the Petition of Right in the 16th of Charles I. He saw it also to be irreconcileable with the opinions declared by some of the greatest lawyers of that time to a committee of the whole House of Commons sitting on martial law: namely, Sir Edward Coke, Mr. Noy (afterwards Attorney General), Mr. Rolle (afterwards Serjeant-atLaw, and author of the "Abridgement"), Mr. Banks (afterwards successively Attorney General and Lord Chief Justice of the Common Pleas), and Mr. Mason, distinguished both as a lawyer and member of Parliament; for which opinions the author begs leave to refer to the preservation of them in the Appendix to Rushworth's third volume. Further, the author found such a latitude of martial law equally crossed by the doctrines of Lord Chief Justice Hale, as expressed in his manuscripts and unprinted collections on the prerogative. This the author trusts will, without for the present looking further, sufficiently at least apologize for the strong terms used in those parts of his following Opinion on the Grogan case which relate to martial law, even though volumes of cruel and irregular practice during the sad extremities of civil war should be laboriously collected, to overcome the passing of the Petition of Right, and of the high, grave legal authorities the author inclusively relies upon as speaking the same language.