et leve guerre, c'est treason in touts, cont si le pays l' alien fuit in guerre vers Angliterre, quar dovques lalieu poet este occide: p. martial ley" see title "Treason," 32.

In the case of Perkin Warbeck, referred to by Lord Coke in Calvin's Case (7 Rep. p. 6), it is said that he (Warbeck), being an alien, could not be tried by the common law, but before the constable and marshal who had special commission to hear and determine the same according to martial law. The judgment, however, was that he (Warbeck) should be hanged, drawn, and quartered, which is the judgment in treason; and Lord Bacon, in his "Life of Henry VII.," expressly says that Warbeck was executed for the treasons committed by him in this realm, so that the distinction seems to have been in the mode of trial, and not in the nature of the offence.

But the decisive authority in point is that of Shirley, a Frenchman, who was tried, convicted, and attainted of treason in 1557. The narrative of the facts is to be found in 3 Hollingshed, p. 1133, Stow, p. 630, and Godwin's Annals, p. 325. It appears from these writers that one of the sons of Lord Stafford collected in France a body of men, consisting partly of English fugitives, and partly of foreigners, and with this force invaded England, assuming the title of Protector, and succeeded in taking Scarborough Castle. This rebellion was soon put down, and several of the party (including Shirley) were taken; Shirley was thereupon indicted for high treason, and was tried and convicted, and had judgment of treason. A question arose as to the mode of trial in this case, which is to be found in the Reports of Chief Justice Dyer, p. 144, A., and towards the end of the report is this passage: "And note in the case above the indictment was against the duty of his allegiance, when he was not a subject of the realm, but that is of no signification. In this time of peace between England and France, to levy war with other English rebels was sufficient treason, and if it were in time of war he should not be arraigned, but ransomed."

This doctrine was recognized by the Parliament in the case of the Duke of Hamilton in 1649 (see State Trials, vol. iv. p. 1182), but, considering the state of things when that trial took place, we should not feel justified in placing much reliance on what was then done.

We are aware that Hawkins, in his "Pleas of the Crown," has a passage in his chapter on High Treason, which is opposed to the view we take of this subject. He says, in section 6 of that chapter: "But it seemeth that aliens who in a hostile manner invade the kingdom, whether their King were at war or peace with ours, and whether they come by themselves, or in company with English traitors, cannot be punished as traitors, but shall be dealt with by martial law;" and a similar doctrine is laid down in 5 Bacon's Abridgment," p. 112. The authority of Hawkins is certainly very high, but it must be observed he speaks with evident distrust of what he is stating, and he refers to no authorities, except those we have already mentioned, and a passage in the 3rd Institute, which clearly does not warrant him in the doctrine he lays down. We, for these reasons, cannot but adhere to the opinion we have already expressed. We feel, however, that the scruples of the legal authorities of Upper Canada are entitled to great respect, and would therefore suggest that any cases of foreigners coming within the recent local statute of that province, should be tried by a court-martial as thereby directed, rather than as for treason by common law. That statute authorizes the court to award the punishment of death, or any milder punishment, and therefore secures all which could be done on a conviction for treason.

To the Right Hon. the Lord Glenelg,

&c. &c. &c.

J. DODSON.

J. CAMPBELL.

R. M. ROLFE.

(8.) JOINT OPINION of the Attorney and Solicitor General, SIR JOHN CAMPBELL and SIR R. M. ROLFE, on the establishment of a Court in Canada for the trial of offences committed during an Insurrection in which Martial Law had been proclaimed.

Temple, January 22, 1839. MY LORD,-We have had the honour to receive your Lordship's letter of the 19th instant, transmitting to us the copy of a confidential despatch from Sir John Colborne respecting the measures which he had taken for the establishment of a court for the trial of offences committed during the late insurrection, the proceedings of that court, and his intention to allow the execution of two of the

persons who had been sentenced to death; and, with reference to the ordinance of the Governor and Special Council of Lower Canada, 2 Vict. c. 3, desiring us to take Sir John Colborne's despatch into consideration, and to report to your Lordship our opinion, whether the opinion entertained by the Solicitor General of Lower Canada, of the incompetency of the Court established under the ordinance in question to try prisoners under the charge of treason, rests on any valid foundation.

Unfortunately we are not informed of the reasons which have induced the Solicitor General of Lower Canada to come to this opinion; but we have given the subject the most deliberate consideration, and we have to report to your Lordship that in our opinion the Court established under the ordinance in question is competent to try prisoners under the charge of treason.

We adhere to the opinion we have repeatedly expressed, that the Special Council established in Lower Canada by 1 Vict. c. 9 is not restrained from passing ordinances which may alter the criminal law in Canada, and make it different from the criminal law of England as it existed at the passing of the Canada Act, 14 Geo. 3. We conceive that the power of the Special Council to legislate respecting criminal law and the administration of it in Lower Canada is supreme, as was the power of the former Legislature of Lower Canada before it was suspended. If this be so, it is impossible to make any distinction in point of law between an ordinance altering the mode of trial of common assaults, and subjecting them to the summary jurisdiction of a magistrate instead of being referred to a jury, and an ordinance altering the mode of trial in cases of treason, and enacting that instead of a jury they shall be tried by a court-martial. In 1 Vict. c. 9 there is no exception with regard to treason, and the mode of trying it may be altered as much as of any other offence.

It has been said by Lord Denman that any ordinance of the Special Council contrary to the first principles of equity and justice is void; but this doctrine does not proceed upon any express restriction upon its powers, and must be equally applied to the acts of any supreme legislature. That the mode of trial prescribed by the ordinance 2 Vict. c. 3 is such as cannot lawfully be prescribed by a supreme legislature, it is impossible for anyone to contend in

a British court of justice after the late Irish Coercion Act, and various other Acts to be found in the Statute Book of the United Kingdom.

If necessity will justify what is called martial law by proclamation (which is a cessation of all law), while the necessity endures, no objection can reasonably be made, where the same necessity exists, to a modification and mitigation of martial law by legislative enactment.

The Lord Glenelg,

&c. &c. &c.

J. CAMPBELL.

R. M. ROLFE.

(9.) OPINION of the Attorney General, SIR RICHARD BETHELL, on proclaiming Martial Law in Hong Kong.

Lincoln's Inn, April 17, 1857.

SIR, I have had the honour to receive the draft of your proposed despatch to Sir John Bowring, in answer to the despatch of Sir John Bowring, No. 9, of the 13th of January last.

I have read and considered the aforesaid draft of your proposed despatch, which appears to me to be in every respect right and proper, except that I would humbly submit to you that, under the circumstances, the last paragraph (No. 7) had better be omitted.

It appears to me, with submission, that this paragraph No. 7 may be construed as expressing an opinion that, instead of the ordinance, martial law ought to have been proclaimed; and also as containing something like a recommendation that, in any future emergency, resort had better be had to the proclamation of martial law.

I do not think it desirable to express any such opinion, or convey any such recommendation. Exception also may be taken to the accuracy of the language of part of the paragraph, in the parts underscored. If any recommendation be given to Sir John Bowring, I think it should be to augment the civil force by every means in his power (swearing in every resident, not being a Chinaman, as a special constable); during the day to have the military at hand to assist the civil power if necessary; and if these precautions be not sufficient for the protection of life and property, as a last resource, martial law might be proclaimed from sunset to sunrise in Hong Kong. The Right Hon. H. Labouchere, M.P., RICHARD BETHELL. &c. &c. &c.

NOTES TO CHAPTER VI.

Lord Chief Justice Hale says, in his "History of the Common Law," Martial law. p. 54, that martial law "is sometimes indulged, rather than allowed, as a law; the necessity of government, order, and discipline in an army being that which alone can give those laws a countenance-quod enim necessitas cogit, defendit. Secondly, this indulged law was only to extend to members of the army, or to those of the opposite army, and never was so much indulged as intended to be executed or exercised upon others." It is plain that Hale is here speaking of military law exercised by courts martial, which is a totally different thing from martial law in the sense in which it is used in the opinions in the text. He goes on to say, that "the exercise of martial law, whereby any person should lose his life, member, or liberty, may not be permitted in time of peace, when the King's courts are open for all persons to receive justice according to the laws of the land. This is, in substance, declared by the Petition of Right, 3 Car. 1, whereby such commissions and martial law were repealed and declared contrary to law." It thus appears that, according to Hale's opinion, even soldiers and sailors could not, so far as life or liberty was concerned, be tried by martial law in time of peace. And in this he agrees with Sir Edward Coke, who says (3 Inst. 32): "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, and is done with such power and strength that the party cannot defend himself, and here the law implieth malice;" and see Hale's "Pleas of the Crown," p. 500.

But it must be remembered-and that is the explanation of the apparent discrepancy between the law as laid down by these eminent authorities, and the law as it is exercised at the present day-that there was then no Mutiny Act in existence; and therefore military law, or martial law, as it was called, could only be enforced at common law, and the common law did not sanction its application in time of peace, even to those who were enlisted in the military or naval service of the Crown. And this is what Chief Baron Comyn means when he says, "Martial law cannot be used in England without authority of Parliament:" Dig. Parliament, H. 23. There was, moreover, then no standing army at least none sanctioned by law; for the Declaration of Rights, 1 Will. & M. s. 2, c. 2, declared that the raising or keeping a standing army in the kingdom in time of peace, unless it be with the consent of Parliament, is against law. Charles II. and James II. did, in fact, maintain standing armies in time of peace, but this is what the Declaration of Rights denounced as illegal. And so it was declared by the first Mutiny Act, 1 Will. & M. s. 2, c. 4, which Act first gave Parliamentary authority to punish soldiers by martial law. The Mutiny