RYMER'S FEDERA, XVIII. 763.

Similar Commission "to proceed according to the Justice of Martiall Lawe against such Soldiers or Marriners, or other dissolute Persons joyneing with them or any of them, as within the said County [of Kent] or any Parte thereof, shall at any tyme after the Publication of this Our Commission committ any Robbery, Felony, Mutiny, or other Outrage or Misdemeanor, or which shall withdrawe themselves from their Places of Service or Charge as aforesaid, or shall be found within the said Countie or any Parte thereof, which by the Martial Lawe should or oughte to be punished with Death and by such summary Course," &c., ut supra.

"Witnes Our Selfe at Canbury the fourth day of October [1626]. Per ipsum Regem."

GEOFFROY'S CASE, IN FRANCE (1832).

Cour de Cassation, June 29, 1832 (24 Journal du Palais, p. 1218, seqq).

The laws and decrees in regard to creating a state of siege, must be carried into execution in all points not contrary to the Constitutional Charter.

But Art. 103, Decree of 24th December, 1811, being irreconcileable with Arts. 53 and 54 of the Charter of 1830, placing a city in a state of siege, cannot have the effect of conferring jurisdiction on military commissions (conseils de guerre) over persons who are not in the army, nor impressed with a military character. Law 22 Messidor, year IV., Art. 1.

GEOFFROY vs. LE MINISTÈRE PUBLIC.

A royal order, dated June 6, 1832, had put Paris in a state of siege; it was based on the necessity of repressing seditious assemblages which had appeared in arms in the capital, during the days of June 5th and 6th; on attacks upon public and private property; on assassinations of national guards, troops of the line, municipal guards, and officers in the public service; and on the necessity of prompt and energetic measures to protect public safety against the renewal of similar attacks.

The Cour Royale, called to meet in extra session by order of the First President, to pass by way of review (evocation) or otherwise, upon the political occurrences of the 5th and 6th of June, rendered the following judgment on the 7th of June, all the chambers being united: On hearing the Procureur General on his motion, deciding on the proposition of one of its members, to cause to be transmitted for review, the record relative to criminal acts committed on the 5th and 6th of the present month: Whereas, by the order dated yesterday, the city of Paris has been placed in a state of siege, and whereas, by the terms of Art. 101 of the Decree of December 24, 1811, passed to carry out the laws of July 8, 1791, and 10th Fructidor, year V., the effect thereof is to transfer to the military commandant the power vested in the civil judges for the maintenance of order and police:

"And whereas the occurrences which occasioned the placing of the city of Paris in a state of siege must be subjected to this rule of law, although anterior thereto :

"It is declared that no ground for a review exists."

The publicity encountered by this decision raised the question of the constitutionality of the order, and the no less weighty question of the jurisdiction of military commissions over acts done and ended before the order declaring the state of siege was inserted in the "Moniteur" and the "Bulletin des Lois."

As early as June 10, the Gazette des Tribunaux published a carefully-considered opinion on these points by M. Ledru Rollin, of the Paris bar. The ball thus being opened, the opposition press soon after collected the opinions of several notabilities of the Order of Advocates of the Court of Cassation, and the concurring opinions of a number of the bars of the kingdom. All these opinions increased the arguments against the constitutionality of the order, its retroactive force, and the jurisdiction of military commissions.

The military commissions having taken cognizance of the cases, the successive defendants at their bar excepted in vain to their jurisdiction. The exceptions were entered of record, saving the right to pass upon them in deciding upon the merits. But it must be noted that this answer to the exception, on the ground of want of jurisdiction, did not afford a decision on the exceptions. According to the law of the 13th Brumaire, year V., which prescribes

the procedure to be pursued before military commissions, the latter must give judgment without adjournment; military judges are both judges and juries; they have but one question to answer (Art. 30 of the law cited): "Is N., the accused, guilty?" Being thus bound under the law which created them, by the double duty of giving judgment without adjournment, and of answering a complex question, the question of their jurisdiction could not be explicitly decided by the military commissions themselves; judgments of "not guilty" left the point vaguely undecided; on the other hand, the counsel for the defence being unable, after discussing it, to avoid a discussion of the merits without putting the fate of the accused in jeopardy, relied upon the exercise of the discretionary power which might be adopted by military judges from the new law, permitting juries to put questions upon trials for the purpose of discovering extenuating circumstances.

However, more than one capital sentence was pronounced. Among the accused, Michael Augustus Geoffroy, designer, of Paris, was by a decision of the second military commission of Paris, on the 18th of June, by a majority of 6 to 1, declared guilty of an attack with intent to subvert the government and to excite civil war. He was consequently condemned to death, in accordance with Arts. 87, 89, and 91, of the Penal Code and the law of 18th Germinal, year VI.

Geoffroy immediately appealed to the Council of Revision and the Court of Cassation.

[The latter court made an interlocutory order that the record should be brought into their clerk's office to await their further judgment. This having been done, and the reporting counsellor having stated the question raised, M. Odilon Barrot, of counsel for the appellant, stated and argued three propositions as the grounds of his appeal, as follows:]

"1st. Placing the city of Paris in a state of siege by a mere order, when the city has not been invested, and the communications have not been interrupted, is an illegal act, and deemed not to exist.-2nd. In case the state of siege be considered legal and constitutional, it is impossible that it should result in withdrawing citizens from their natural judges, and in obliterating, as regards them, the 53rd and 54th Articles of the Charter."

[The third point related to the retroactive effect of the order.] 1st. How is the question in this case to be stated? Can any one ask whether the government is authorized to despoil its citizens of the guaranties of a jury, not only for ordinary misdemeanors, but even for violations of the laws of the press? This would be doing violence to the Charter which establishes trial by jury. Will anyone put the question thus: Is the city of Paris besieged? This would be doing violence to common sense. Where, I ask, are the rebels investing the city and putting it in a state of siege? Are not the communications unobstructed? No, the city is not besieged; there is no state of siege; the siege is a fiction; this fiction is not lawful.

2nd. The laws of Prairial, year III., and Ventose, year IV., are those on which the pretended jurisdiction of military commissions is founded. A military commission, it is said, is not an extraordinary special tribunal. It is a permanent court. This assertion is refuted by the statutes and decisions. The laws of the years III. and IV. were re-cast and re-enacted by the law of Pluviose, year IX., which created special tribunals, and subsequently by that of 1815, which created provost's courts as a part of the ordinary administration of justice. This has been distinctly decided by the Court of Cassation in the cases of military emissaries and spies; of enticements to desert; of highway robbers; and of all persons brought within the scope of the laws conferring special jurisdiction. I add, that according to these laws, the decisions of this court did not bring within the jurisdiction of military courts such individuals as were prosecuted for having formed a part of an armed assemblage, except in those cases where they were taken in the assemblage itself.

Therefore, as regards the persons placed by the events of June in the hands of the Executive, some exceptional, extraordinary jurisdiction was required, and it is this very jurisdiction which the 53rd and 54th Articles of the Charter have banished never to return. Listen to M. Dupin commenting on these articles from the rostrum: "In order to prevent every possible abuse, we have added to the former text of the Charter, under what name or denomination soever;' for specious names have never been wanting for bad things, and without this precaution the title of ordinary tribunal'

might be conferred on the most irregular and extraordinary of courts." This is the principle which was applied in the Ordinance of 1830, relating to juries in Corsica. This ordinance declares that the acts of the government which had created in Corsica, not a military tribunal, but a supreme court, an ordinary jurisdiction, created by a senatus-consultum, confirmed by divers decrees, and sanctioned by a crowd of decisions, be and remain abrogated. Then, if the jurisdiction of judges for life, surrounded by guaranties, deciding with the solemnity of ordinary justice, has been considered extraordinary, what shall military commissions be called, which decide without adjournment, as soon as the case is before them, without any body similar to a grand jury having first declared the existence of the indictment-which decides without confronting witnesses, without a challenge, and whose judgments are executed within twenty-four hours? The most enormous of exceptions, the most monstrous of special jurisdictions, is a court which judges a non-military person by accidental authority. This tribunal, to use the epithet of the decree of the Convention of the 28th Thermidor, year III., can render nothing but revolutionary judgments-judgments which, by returning to true principles, were declared null and void by the Convention itself.

It is objected that the special laws concerning states of siege have survived the Charter, and that they compel the establishment of military justice. No; even putting aside the Charter of 1830, there is no law which, within the land, and excepting the case of an investment, permits a military chief to place a people beyond the pale of their constitutional guaranties. There are three laws which relate to a state of siege-that of 1791, that of the year V., and the Decree of December 24, 1811. The Law of 1791 provides what shall be done as regards places of strength, in the three situations in which they may be placed-peace, war, siege; it derogates in no respect from the Constitution of 1791, according to which no person can be accused or condemned except in virtue of a declaration of a jury on the facts, and of judges on the law. The law of the 17th Fructidor, year V., fills a void in the Law of 1791; it provides for the case where a place of strength in the interior should be in an analogous position to that of a place of strength, that is, invested by forces of the enemy, or by rebels. How is it