as you might kill a foreign enemy. If it be true that you can apply martial law for the purpose of suppressing rebellion, it is equally certain that you cannot bring men to trial for treason under martial law after a rebellion has been suppressed" (1): Lord Chief Justice Cockburn's Charge to the Grand Jury in R. v. Eyre, pp. 25, 29. See Wolfe Tone's Case, 27 State Tr. 615, where a habeas corpus was granted after the prisoner had been tried and sentenced to death by a court martial. While the rebellion exists, and martial law is in force, the trial may be by court-martial, but need not be so. In fact, there is no legal necessity for any form of trial at all when the rebel is met with arms in his hands, flagrante bello, for he may be killed on the spot. But if, instead of being killed in open resistance, he were to be arrested, the gravest responsibility would be incurred if he were to be put to death without some form of trial, and analogy would obviously suggest a trial by court-martial. Owing to the atrocities and excesses which were committed during the existence of martial law in Ireland, an Act of Indemnity was thought necessary, and this was accordingly passed, 37 Geo. 3, c. 11 (Irish Act). But notwithstanding the Act of Indemnity, where a sheriff had flogged a man against whom there was no charge or pretence that he was implicated in the rebellion, he was held liable in damages. The Court said: "The jury were not to imagine that the Legislature, by enabling magistrates to justify under the Indemnity Bill, had released them from the feelings of humanity, or permitted them wantonly to exercise power, even though it were to put down rebellion:" Wright v. Fitzgerald, 27 State Tr. 765; and see Luther v. Borden, 7 Howard (American Sup. Court Rep.) 46. In R. v. Pinney, 3 B. & Ad. 958 (quoted by Blackburn, J., in his Charge to the Grand Jury in the case of R. v. Eyre, 1868), Littledale, J., said that "a party intrusted with the duty of putting down a riot, whether by virtue of an office of his own seeking (as in the ordinary case of a magistrate), or imposed upon him (as that of a constable), is bound to hit the exact line between excess and failure of duty, and that the difficulty of so doing, though it might be some ground for a lenient consideration of his conduct on the part of the jury, was no legal defence to a charge like the present. Nor could a party so charged excuse himself on the mere ground of honest intention." And per Blackburn, J., in the above-mentioned charge: "I think the officer is bound under such circumstances to bring to the exercise of his duty ordinary firmness, judgment, and discretion. I think he is bound to do that, and I think in such a case the jury have to determine upon the evidence-first, whether the circumstances were in fact such that what was done really was in excess of the duty of the officer; and, secondly, whether a person placed in the position of that officer, having (1) See Geoffroy's Case in France, 1832; and the argument of Mr. David Dudley Field, In the Matter of M'Cardle, Supreme Court of the United States, 1868; both in the Appendix. Proceeding by courts martial. Duty of the information that he had, believing what he did believe, and knowing what he did know, if exercising ordinary judgment, firmness, and moderation, would have perceived it was an excess.' The law, in fact, requires and exacts from every man in such a responsible situation that he shall fulfil the character described by Horace : "Justum et tenacem propositi virum Non civium ardor, prava jubentium, Mente quatit solidâ." The right conclusion upon the whole matter seems to be this: Martial law may be justifiably imposed as a terrible necessity, and an act of self-defence; under it there is a suspension of civil rights, and the ordinary forms of trial are in abeyance. Under it a man in actual armed resistance may be put to death on the spot by anyone acting under the orders of competent authority; or, if arrested, may be tried in any manner which such authority shall direct. But if there be an abuse of the power so given, and acts are done under it, not bonâ fide to suppress rebellion and in self-defence, but to gratify malice or in the caprice of tyranny, then for such acts the party doing them is responsible (1). By the Jamaica statute, 9 & 10 Vict. c. 35, it was enacted that martial law should not be declared except by the advice and opinion of a council of war, composed as therein directed. In a circular despatch addressed by Lord Carnarvon, the Secretary of State for the Colonies, to the Colonial Governors, January 30, 1867, and containing the copy of a despatch which he had sent to the Governor of Antigua, requiring him to submit to the local legislature a bill for the repeal of an Act which authorized the proclamation of martial law, he said: "In giving you these instructions, Her Majesty's Government must not be supposed to convey an absolute prohibition of all recourse to martial law under the stress of great emergencies, and in anticipation of an Act of Indemnity. The justification, however, of such a step must rest on the pressure of the moment, and the Governor cannot by any instructions be relieved from the obligation of deciding for himself, under that pressure, whether the responsibility of proclaiming martial law is or is not greater than that of refraining from doing so." As to proceedings by courts martial, see Grant v. Gould, 2 H. Bl. 69; R. v. Suddis, 1 East, 306; Wall's Case, 28 State Tr. 51; Harden v. Bailey, 4 Taunt. 67; 4 M. & S. 400 (S.C. in Error). In time of war the Crown acts out of the limits of its dominions as regards the army by virtue of its prerogative: Barwise v. Keppel, 2 Wils. 314. As to the powers and duties of magistrates in case of riots and unmagistrates in lawful assemblies, see R. v. Pinney, 3 B. & Ad. 947; R. v. Langford, 1 Car. & Marsh. 602; R. v. Furzey, 9 C. & P. 431, which shows that con case of riots and unlawful assemblies. (1) See an able view of the subject in Finlason's Commentaries upon Martial Law (London, 1867). stables and even private individuals are justified in using force to disperse an unlawful assembly; R. v. Neale, 9 C. & P. 431. Levying war against the Crown is where there is an armed force seeking to supersede the law, and gain some public object. There must be an insurrection, and a force accompanying it: R. v. Frost, 9 C. & P. 141. soldiers. In the Annual Register for 1768, vol. xi. p. 227, there is an account of a trial of a magistrate named Gilham, who was tried for his life for having given orders to the military to fire on the mob during the riots in St. George's Fields, after the Riot Act had been read. He was acquitted. Serjeant Glynn, who was counsel for the prosecution, said at the close of his evidence: "I am not now pressing this gentleman's conviction; I opened the law that where it was absolutely necessary for suppressing a riotous mob, there the magistrate is justified.” What is the law with regard to a soldier firing upon a crowd and The duty of causing death? There can be no doubt that if the occasion justifies the command to fire, he is bound to obey it, and is not liable for the consequences. To disobey it would subject him to severe punishment, perhaps death, by court-martial. But suppose that the occasion does not justify the command-in other words, that the order to fire is improperly given, and unlawful-what then? A soldier is here placed in a most difficult dilemma. On the one hand, it is his military duty to obey the orders of his commanding officer; on the other, he has by becoming a soldier not ceased to be a citizen, and is subject to the duties of a civilian. It is clear that he would not be justified in obeying every command of his superior; as, for instance-to put an extreme case- -supposing he were ordered to fire upon the Sovereign, or to desert to the enemy, or to commit a rape. There he must instantly recognize the form of a paramount obligation, and see that disobedience is a duty. But suppose that the command is such that, although in the eye of the law illegal, it is not obviously so. In such a case he surely ought to be held harmless for obeying it. Suppose now that he conscientiously believes the order to be illegal, although in fact it is not. If he disobeys it he would be tried and punished by a court-martial, and properly so; for it would be very dangerous to allow a soldier to shelter himself against the charge of disobedience on the plea that he mistakingly believed the order of his commanding officer to be contrary to law. But there is yet a third case. Suppose he disobeys an order which is illegal, but not obviously so, as in the case of a command to fire where there is a riot, but not such violence as to justify the use of military weapons. Here he would only have done that which as a citizen he was bound to do, namely, to abstain from murder; for, as was said by Bayley, J., in R. v. Burdett, 4 B. & Al. 323: "The libel in question imports that the troops had killed men unarmed, unresisting, and had disfigured, maimed, cut down, and trampled on women. If that were done, if unresisting men were cut down, whether by troops or not, it is murder, for which the parties are liable to be tried by the law of the country." But would he have committed an offence against the Articles of War? Those Articles provide that any officer or soldier who shall disobey the lawful command of his superior officer shall, if an officer, suffer death, or such other punishment as by a general court martial shall be awarded; and if a soldier, shall suffer death, transportation (now penal servitude), or such other punishment as by a general court martial shall be awarded. It seems, therefore, that a court martial could not find him guilty of disobedience if the command was not lawful. Perhaps, upon the whole, the right conclusion is this: a soldier may disobey an unlawful command, but he is justified in obeying all orders of his commanding officer, unless they are obviously, and in a manner patent to common sense, illegal. The habit of discipline and obedience in a soldier is, I believe, more essential to the wellbeing of the State, than the possibility of his now and then executing an illegal order is injurious to it. In Keighley v. Bell, 4 Fost. & Fin. 790, Willes, J., said: "I hope I may never have to determine that difficult question, how far the orders of a superior officer are a justification. Were I compelled to determine that question, I should probably hold that the orders are an absolute justification in time of actual war-at all events as regards enemies or foreigners-and, I should think, even with regard to English-born subjects of the Crown, unless the orders were such as could not legally be given. I believe that the better opinion is that an officer or soldier, acting under the orders of his superior, not being necessarily or manifestly illegal, would be justified by his orders." Under what circumstances is a sentry justified in firing upon persons approaching him? It seems to me that this is a question of discretion, in which much must be left to the judgment of the soldier. If he fires wantonly and unnecessarily, and thereby takes away life, he is guilty of manslaughter, if not of murder. If, on the other hand, he allows himself to be assaulted and disarmed, or the property which he is stationed to defend to be plundered, he is guilty of a grave military offence, for which he might suffer death. But between these two extremes there is a wide interval, in which his conduct must be regulated by circumstances. If a sentry is attacked or threatened by an armed force, he certainly may use his firearms, if necessary to repel the attack and prevent the commission of crime. On the approach of an unarmed body of men in a hostile attitude, more caution would be requisite; and it would be, I conceive, necessary to give the most distinct challenge and warning before firing, and then only provided the party continue to advance, and could not otherwise be prevented from carrying out his or their unlawful design. That an attempt to deprive a sentry of his arms might be repelled by force, even to the extent of taking away life, provided the force cannot be otherwise successfully resisted, is, I think, clear from the circumstance that a sentry who improperly allows himself to be disarmed, is by the Articles of War punishable by death; so that in defending his arms he is in effect defending his own life. 217 CHAPTER VII. ON EXTRA-TERRITORIAL JURISDICTION. (1.) REPORT by SIR JAMES MARRIOTT, King's Advocate, on the reference of the Letter of SIR JAMES WRIGHT, his Majesty's Minister at Venice, by the EARL OF SHELBURNE (1). MY LORD,-In humble obedience to his Majesty's pleasure, signified to me by your Lordship's letter of the 25th instant, referring to me an extract of a letter from Sir James Wright, and the case of felony, or murder, "which may eventually be committed by his Majesty's subjects on board English ships, or in the house or privileged circuit of his Majesty's accredited minister," for me to consider, in point of law, what directions are proper to be given thereupon, I have the honour to report to your Lordship, that in the case of murders or felonies committed upon the high seas, the parties charged therewith are proper objects of the jurisdiction of the High Court of Admiralty in England, and are to be sent home, to be delivered up to the proper magistrate here, and take their trials accordingly. But that when murders or felonies are committed in any port, river, creek, or haven of the territory of any foreign Power, those crimes do then fall under that particular local and territorial jurisdiction, which jurisdiction is always understood to reach as far as the power of protection reaches-that is to say, within the command of gunshot from the shore, for the power of punishment is always equal to and coincident with and inseparable from the power of protection. With respect to such crimes or violences as may be committed within the house of a public minister, if he can give an asylum to foreigners (a privilege of which I doubt the justice and reciprocal utility, though some have asserted it), he might à fortiori protect persons of his own suite against a foreign jurisdiction, but certainly (1) From a M.S. in the possession of Sir Travers Twiss, Queen's Advocate, which formerly belonged to Sir James Marriott, King's Advocate. No date. |