(3.) On Naval Courts Martial and Admiralty Jurisdiction (1).

The first statute that gave power to admirals to exercise martial law at sea is an Act of 15 Ric. 2, where the admiral is empowered to arrest flotes for the public service, and shall have jurisdiction upon the said flotes during the said voyage only.

I should suppose that in virtue of this statute, the admirals made and executed ordinances for the good government of the fleet, which probably was the original foundation of the Articles of War.

Afterwards these powers were given occasionally by patent under the great seal, which was only a temporary power; though in these patents all crimes whatsoever, including high treason, were allowed to be tried by courts martial under the admiral.

By an ordinance of Edward III., anno 1348, the King gives power to the captain or general of his galleys to try all crimes, felonies, and transgressions by sea and land.

By a special commission from Charles I., in 1627, the Duke of Buckingham, then Lord High Admiral, is vested with full power in the fleet and army, to call a martial court and proceed according to the justice of martial law against soldiers and marines and other dissolute persons.

In the same reign, anno 1637, there is a special commission to the Earl of Warwick, who was going with a fleet to the West Indies, by which he is empowered, during the service, "to punish all offenders for treason, murder, or any notable mutiny, with loss of life, or otherwise, after the form or order of martial law, in such sort and manner as is commonly used and accustomed in our armies by land, and in our fleets and navies by sea.

In the same reign, in the year 1639, the Earl of Northumberland has also a commission under the great seal to hold courts martial or military courts, or direct them to be held by his deputies, to hear, examine, and determine and punish, all capital and criminal offences whatever; and all lesser crimes are to be punished by him or his deputies, at their discretion, according to the usage in the King's armies at sea and land.

It would seem, however, that when these special commissions

(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.

were not in force, capital crimes committed at sea were tried at the common law courts.

In the instructions from the Duke of York, then Lord High Admiral, to Sir John Mennes, Commander-in-Chief in the narrow seas, he is directed, if any seaman or other shall commit murder or manslaughter, that he shall send him in safe custody to the next gaol, to be there kept until he shall have his trial according to law.

In the time of the Commonwealth, if any capital crime was committed on board a man-of-war, the offender was sent to the next gaol, to receive his trial according to common law, as abovementioned; but it is remarkable, that though, in the instructions given by the Committee of the Lords and Commons for the Admiralty in the year 1647, it is directed, as above, that criminals for murder or manslaughter should be sent to the next gaol till delivered by due course of law, in a subsequent order, in the year 1653, signed by Moncke and Penn, styling themselves Admirals and Generals of the fleet sent forth by the Parliament of the Commonwealth of England, that "the chief flag or commander of each squadron, with the assistance of his council of war, do fully determine, sentence, and punish all offences committed against any and every of the Articles of War and ordinances of the sea, provided that no execution or loss of life do proceed until we, the Generals, be made acquainted therewith."

In this state this matter seems to have remained till the 13th of Charles II., which brought the naval usages and ordinances into the form of a statute.

(4.) OPINION of the Attorney General, SIR JOHN S. COPLEY, on the authority of the Military to take away life in suppression of a Riot in the Island of Barbadoes.

Lincoln's Inn, January 18, 1824. MY LORD, I have had the honour to receive your Lordship's letter, dated the 6th instant, transmitting to me therewith a letter from Governor Sir Henry Warde, dated Barbadoes, the 4th of November last, together with a memorial from the Council of that island, requesting the opinion of the Law Officers of the Crown upon the question therein stated, viz.: "Whether there is any statute,

passed before the settlement of that island in the year 1625, which authorizes the military, acting under the magistrate for the suppression of a riot, to take the life of rioters, if such a measure should be necessary, and, if not, is such a proceeding sanctioned by the common law of England ?"

Your Lordship also enclosed despatches from the Governor, reporting the occurrences which had lately taken place in the island, and which had given rise to the present application. And your Lordship was pleased to state that you had received his Majesty's commands to desire that I would take the papers into consideration, and report to your Lordship as speedily as possible, for his Majesty's information, what instructions it might, in my opinion, be proper to transmit to the Governor upon the case stated.

In obedience to the commands of his Majesty, I have taken the papers as speedily as possible into my consideration, and beg leave to report to your Lordship that there is no statute passed before the settlement of the island of Barbadoes in the year 1625, and now in force, of the nature above alluded to; but by the common law the military may effectively act under the direction of the civil power in the suppression of riots. The late Chief Justice. Mansfield, in the case of Burdett v. Abbott, in the Exchequer Chamber (4 Taunt. Rep. p. 449), in speaking upon this subject, observes that a "strange mistaken notion had got abroad, that because men were soldiers they ceased to be citizens. A soldier (he adds) is gifted with all the rights of other citizens, and is bound to all the duties of other citizens, and he is as much bound to prevent a breach of the peace or a felony as any other citizen. This notion is the more extraordinary, because formerly the posse comitatus, which was the strength to prevent felonies, must in a great proportion have consisted of military tenants who held lands by the tenure of military service. If it is necessary for the purpose of preventing mischief, or for the execution of the law, it is not only the right of soldiers, but it is their duty, to exert themselves in assisting the execution of a legal process, or to prevent any crime or mischief being committed. It is therefore highly important that the mistake should be corrected which supposes that an Englishman, by taking upon him the additional character

of a soldier, puts off any of the rights and duties of an Englishman." Soldiers, when called upon and required to aid the civil magistrate in apprehending or opposing persons engaged in a riot, will be justified in using the force necessary for that purpose; any excess will be illegal, and for such excess the soldier, as well as the mere citizen, will be responsible. In this respect the law as applicable to both classes is the same. If, in executing the commands of the magistrate, opposition is made by the rioters, force may be opposed to force; but the same rule still applies, viz., that the extent of the force used must be regulated by the necessity of the occasion. The excess only is illegal. If the military, in obeying the lawful commands of the magistrate, be so assailed that resistance cannot be effectually made without sacrificing the lives of the rioters, they would in law be justified in so doing. It is obvious, therefore, that each case must depend upon its own circumstances, and the only rule that can be given is that the force, to be legal and justifiable, must in every instance, as far as the infirmity of human passion will admit, be governed by what the necessity of the particular occasion may require.

I beg leave to suggest that it will be proper to direct the Governor to take especial care that a magistrate be present when the military are called out for the purpose of suppressing a riot, and that they act in his aid and by his command. Temper and coolness upon such occasions, and forbearance as far as it can be exercised consistently with the public safety, cannot be too strongly recommended.

To Earl Bathurst,

&c. &c. &c.

J. S. COPLEY.

(5.) OPINION of the Judge Advocate General, SIR JOHN BECKETT, on a trial by Court Martial during the existence of Martial Law in Demerara.

Downing Street, February 10, 1824. My LORD,-I have the honour to acknowledge the receipt of your Lordship's letter of the 5th instant, transmitting to me the report of certain proceedings against John Smith, of the London Missionary Society, at a General Court Martial recently held in Demerara, during the time that it was deemed necessary to place

that colony under martial law; and requesting that I would report to your Lordship, with all convenient despatch, for his Majesty's information, my opinion as to whether the proceedings referred to have been conducted with a due regard to every essential form of military law.

In compliance with your Lordship's request, I beg leave to report to your Lordship, for his Majesty's information, that the proceedings in question against John Smith appear to me to have been conducted, by the Court appointed to try him, with a due regard to every essential form of military law.

I think it right at the same time to make the following observation to your Lordship respecting two of the members of the Court.

On referring to the names of the several individuals who composed it, two of them are described as officers of the militia there— viz., the President, Lieutenant-Colonel Goodman, who is described as "half-pay 48th Regiment, and commandant of the Georgetown brigade of militia," and Lieutenant-Colonel Wray, who is described as "of the militia staff."

If these proceedings had taken place upon the trial of an officer or soldier of the King's forces in the ordinary way, under the provisions of the Mutiny Act and Articles of War, the forms required to be observed thereby would not appear to have been duly regarded, inasmuch as it is provided, by the 6th article of the 16th section of the Articles of War, that "no officer serving in the militia shall sit in any court martial upon the trial of any officer or soldier serving in any of our other forces; nor shall any officer in our other forces sit in any court martial upon the trial of any officer or soldier serving in the militia."

I am aware, of course, that martial law, as stated in your Lordship's letter of reference, was in force when the trial of John Smith took place in Demerara; nevertheless the terms of your Lordship's reference to me seem to require, that the circumstances above mentioned should be brought under your Lordship's notice.

The Earl Bathurst,

&c. &c. &c.

J. BECKETT.