loyal States. We have seen an Act pass through one House of Congress, which proposes to vest in the General of the army unlimited control over all these eleven States; and we have also seen introduced into the Lower House an amendment to an appropriation bill, proposing to make your hall a place guarded by soldiers! Here is the proposition, which I will read: "Provided that from and after the close of the current fiscal year the police and protection of the Capitol building and grounds shall be under the direction of the engineer department of the army, and the Secretary of War shall detail for that service from the garrison at Washington such number of non-commissioned officers and privates, not exceeding forty, as may be deemed necessary for the purpose by the Chief Engineer; and soldiers, when so employed, shall have an extra allowance of twenty-five cents per day for privates, and thirty cents per day for non-commissioned officers." If we go on as we thus begin, instead of these guardians at your door you will find soldiers with bayonets, and there will be soldiers with bayonets before the Houses of Congress. We must resist now! We will not have military government; it is against the Constitution, and we stand upon the Constitution of our country. We will not have it for an instant, for an instant's voluntary submission to unlawful power is dishonour. An instant may expand into a day, a day into a month, a month may lapse into years, and years into a generation. If we submit for a moment, we forget the lessons of our fathers, and despoil our inheritance.

We were threatened by the counsel that if in New York we did not conform ourselves a little more diligently to what was required of us we should have the General of the army there. One of them called it "that infernal city of New York!" Pardon me if I repel the calumny. My city is misgoverned, I admit; but that misgovernment, be it remembered, comes chiefly from the premature admission to the suffrage of those not here accustomed to exercise it. Among her people are as much virtue, as much patriotism, as much honour as exist anywhere. You, sir, when you came to a discredited treasury, know how your hand leaned upon her, and how her merchants came forward with the most lavish offers to sustain this Government; how, at the first summons of the President, the flag of the country floated out from window and tower, and her

people called with one voice, bidding loyal men to rise everywhere throughout the land. For social culture, for intellectual activity, for the magnificence of her commerce, for the grandeur of her enterprises, and, not least, for her abounding charities, she stands unapproached on this Continent, and unapproachable even by that younger sister of the Pacific through whose golden gate lies the highway to India. New York sits upon her island rock, and there is no American who, returning to his country, sees her spires above the waters, but rejoices in her prosperity and is proud of her.

But we are told that this is a political question, which is beyond the competency of the Courts to determine. A fortnight ago this objection would have come with more force than it comes now. The experience of a few days has taught many, what was understood by thoughtful observers before, that this Court is the great peacemaker, and that nothing but its peaceful interposition can prevent collisions of force.

Is it one which affects the

What is a political question? policy of parties, or is decided by partisan views? Such a question is the very one that is most likely to lead the legislative department into excesses, which it needs the judicial to correct. If Congress were to pass an act of attainder, with a purely political motive, or for a purely political end, does any one suppose that this Court is not competent to pronounce it unconstitutional and void? A political question, I apprehend, is one which the political department of the Government has exclusive authority to decide.

Is it a political question whether McCardle can be imprisoned by military order and tried by a military commission? There are political questions undoubtedly-that is, questions which the political department of the Government has a right to decide, and, being decided there, the Courts will follow. But whether or not a man can be imprisoned and tried by a particular tribunal is always a judicial question which the Judges will determine for themselves. The question, however, has received its final answer in the opinion of this Court, delivered by Mr. Justice Nelson, upon the Bill exhibited by Georgia against the Secretary of War and others; and it would be presumptuous in me to debate now what is there decided so satisfactorily to all friends of constitutional government, and so authoritatively for us all.

Finally, sir, may I say that I have shown:

1. That there is no reason whatever for the proposition that Mississippi is not now a State of the American Union:

2. That not only is she a State of the Union, but her people have the rights of citizens of a State:

3. That whether she be or be not a State, or her people have or have not the rights of citizens of a State, that people cannot be subjected to military government by the Congress of the United States: and

4. That therefore the petitioner, McCardle, is entitled to his release from the military commission which presumed to sit in judgment upon him.

And when your judgment is pronounced, as I hope and pray it may be, in the petitioner's favour, it will, I trust, be the endeavour of all good men to promote by their counsel and example the acquiescence of the other departments of the Government. As it is your right in the last resort, upon all cases that come before you, to give final interpretation to the Constitution, so it is the duty of all citizens to respect and accept your interpretation. There is no need to strain the authority of the Government. The constitutional amendment not only abolishes slavery, and makes freedom the rule throughout the country, but it gives Congress the power to enforce that article by appropriate legislation, and to see that the freedom of every man of every race and condition is maintained.

It was the boast of an English orator and statesman, on a memorable occasion, when he delivered a message from the King to his faithful Commons respecting the expedition to Portugal, that "wherever the standard of England is planted, there foreign domination shall not come." If we will firmly maintain the Constitution of our fathers, as modified by the great amendment, we shall be able to make it our higher boast, that where the standard of America is planted there shall be neither foreign domination nor domestic oppression.

551

MARTIAL LAW.

CASE and JOINT OPINION of MR. EDWARD JAMES, Q.C., and MR. FITZJAMES STEPHEN, Q.C., on Martial Law, with reference to the Jamaica Insurrection. 1866.

Case submitted by the Jamaica Committee.-The Committee desires to be advised what steps are open to them to assist their fellowsubjects in Jamaica to obtain the protection of the law; and, if the law has been broken, to bring the guilty parties to justice; and also what steps are open to them, as Englishmen, to vindicate constitutional law and order, if constitutional law and order have been illegally set aside by the local Government in Jamaica.

With this are sent copies of the despatch from Governor Eyre to Mr. Secretary Cardwell, on the 20th of October, 1865, and also of the Address of the Governor to the Jamaica House of Legislature, at the annual meeting which took place on the 7th of November. Copies are also sent of such reports of the military officers as have appeared in the papers.

Considering for the present nothing but these official documents, and taking for granted that the statements they contain are all true, counsel is requested to advise :

1. What is the meaning of the term "martial law," and what is the legal effect of a proclamation of martial law?

2. Are there grounds for concluding that Governor Eyre has acted illegally and criminally in the mode in which he states that he has proclaimed and enforced martial law, and especially in removing the Hon. G. W. Gordon from Kingston to Morant Bay, and there handing him over to Brigadier-General Nelson, to be tried by court-martial?

3. Could Mr. Gordon be legally convicted and punished by courtmartial for any act done prior to the proclamation of martial law, or for any act done beyond the boundaries of the proclaimed district?

4. Are officers acting in enforcing martial law exempt from all control beyond the instructions they receive from their superior officers? If not, are there any principles acknowledged by martial law, or by the British Constitution, which would render it illegal(a) to continue for several days shooting down men, and flogging

men, women, and children, and burning their habitations, in the absence of any appearance of organized resistance; (b) to inflict punishment without or before trial; (c) to inflict punishment for the purpose of obtaining evidence; (d) to inflict death for or on the evidence of looks or gestures?

5. In case Governor Eyre or his subordinate officers have been guilty of illegal acts in the course of the late proceedings in Jamaica, what are the proper modes of bringing them to trial for such illegal acts?

6. Are any, and (if any) what, proceedings for the above purpose open to private persons in this country?

7. The last question has reference to a bill of indemnity, if one should be passed by the Jamaica Legislature.

Opinion. The questions asked in this Case all depend more or less upon the general question, "What is the nature of martial law, and what power does it confer?" We will, therefore, state our view of this subject before answering the specific questions asked, and we must do so at some length, on account both of the importance and the obscurity of the subject. The expression " martial law" has been used at different times in four different senses, each of which must be carefully distinguished from the others:

1. In very early times various systems of law co-existed in this country-as the common law, the ecclesiastical law, the law of the Court of Admiralty, &c. One of these was the law martial, exercised by the constable and marshal over troops in actual service, and especially on foreign service. As to this, see an essay on the "Laws of War," by Professor Montague Bernard, in the " Oxford Essays" for 1856.

2. The existence of this system in cases of foreign service or actual warfare, appears to have led to attempts on the parts of various sovereigns to introduce the same system in times of peace on emergencies, and especially for the punishment of breaches of the peace. This was declared to be illegal by the Petition of Right, as we shall show more fully immediately. (See Hallam's "Constitutional History," vol. i. p. 240, 7th edition, ch. v., near the beginning.)

3. When standing armies were introduced, the powers of the constable and marshal fell into disuse, and the discipline of the