19. "In time of Peace the exercise of Martial Law in point of death is declared Murder," wrote Lord Hale, at the close of 1700: nor do his words need qualification in this century. A Military Officer having Prisoners taken in the Riot should hand them over to the Civil Power, if existing; but, if not existing, then his responsibility is to execute Justice in the best manner that the circumstances afford him the opportunity of doing, by Civil Tribunals, if they can be convened,2 or by Courts-martial, if those Courts only can be summoned. "When it is impossible," said the late Sir James Mackintosh 3" for Courts of Law to sit or to enforce the execution of their Judgments, then it becomes necessary to find some rude substitute for them, and to employ for that purpose the Military, which is the only remaining Force in the Community." 20. Such necessity arising for the trial of Civilians by Courtsmartial, the Commanding Officer will be careful to compose those Courts, of Men (Civil or Military) whose experience and character afford to the Criminal the best security for the exercise of a sound judgment and discretion in the most solemn function of Judicial Administration which they as Judges are thus unexpectedly called upon to discharge. The Court should be formed as near to the model of the highest Criminal Court as possible: it should proceed upon charges based on the known Criminal Law, and upon sworn evidence given in the presence of the Accused. What he has to say in his defence should be patiently heard, and a Record-complete so far as circumstances will permit—should be made of all the Proceedings. The analogy of the Military Code is to be followed (as we have seen) not as binding, but as directory; for the Jurisdiction of the Court is to be upheld, not by the authority of the Mutiny Act, but by the supreme power of the Executive Government to administer Justice at all times. 21. There is little fear that a British Officer, though he may be empowered to do so, will ever desire to invent either Crimes or Punishments against a Prisoner, but the reader may be reminded that both should usually accord with the known Pleas of the Crown, Vol. i. p. 500. 2 Vol. II. pp. 499, 502. Criminal Law. The method of trial cannot aggravate the guilt, nor ought it to increase the just Punishment of the Offender. Where, however, obedience to Military Orders is of vital importance to the Public Security, then disobedience is essentially a Criminal Act.1 3 22. If it should so happen that a part only of a country is under the ban of Martial Law, as was the case in Ceylon in 1848, and in Jamaica in 1865, then, as Crime is Local, care should be taken that the Offender should be arrested and tried, and the Offence should have been committed within the area where Martial Law prevails. 23. Neither can (it is said) a Proclamation of Martial Law have a retrospective operation. If this view be correct, then the offence must have been committed after the Proclamation was issued, and of course must be tried before the same is recalled. 24. The remedy here-as in the other cases of usurped power is an appeal to the Common Law Tribunals of the 1 In anticipation of the landing of an enemy in Ireland, the Duke of Wellington wrote thus, in December 1807: "The next thing to do is to proclaim Martial Law all over the country; the object of this proclamation will be not to subject the people to Military licentiousness, but to oblige them to obey, and to make it criminal to disobey the orders of the General, or other Superior Officers commanding in the different districts. "The orders must be: "1st. To prevent any man from leaving his house between sunset and sunrise without a pass, except Justices of the Peace and those attending them to enforce the obedience to the orders of the General. "2nd. To oblige every man to post upon his door the list of the names, and the description of the persons in his house. "3rd. To make this master responsible that those persons are in his house at night, unless lawfully absent. "4th. To prevent any number of persons beyond ten from assembling at any time in any place. "5th. To oblige all persons to give up their arms. "6th. To force the supply of provisions and transport for the service of the Army. "7th. To prevent their being supplied to the enemy. "The Commanding Officers must be held responsible for the conduct of their troops as well in the performance of this part of their duty as of all others." (Irish Desp. p. 209, and see p. 280.) 2 Vol. II. p. 501. 3 Ib. p. 492. 4 Ib. p. 495. * See the Opinions of Lord Abinger, Sir N. Tindal, and Lord Lyndhurst, given in the Debate of 1826, quoted Vol. II. p. 489. Realm, if they should be existent and to the Civil Government if sufficiently restored to enable their orders to be obeyed. In Wolfe Tone's Case, the appeal was not made in vain; and the Judgment of Mr. Justice Davis, delivered in the Supreme Court of the United States during the December term, 1865, in Re Lambdin P. Milligan, upheld the supremacy of the Civil Tribunals in all cases where they were open, and in "the unobstructive exercise of their Jurisdiction." 1 25. Nor is this the only appeal that can be made to those Courts; for there the Military Officer may be arraigned to answer with his life for the oppression or cruelty (if any) with which he may have carried out his extraordinary powers. In earlier cases, where the Crown had received honest service from Officers (Civil or Military) serving either at home or in distant Dependencies, their acts in support of the Crown against a rebellious Community were adopted as those of the State, and a Nolle prosequi was entered to protect them against legal prosecution from those whose name may be Legion.2 More recently, a different policy has been initiated.3 Those charged with wrong in the Civil or Criminal Courts here are to meet the Indictment or Suit upon their own responsibility, either alone, if Governors, or with the aid of a Public Department, if Military Officers; but, anyhow, they must either propitiate their adversaries or take the chance of what a Grand before, or a Petty Jury after, a public trial may determine. 26. How such an accusation is to be met is not at present within our legal experience to detail. An executive Officer, resting his authority upon "Martial Law," must (I presume) be prepared to show that it was declared not only de facto but also de jure; for otherwise, indeed, any usurpation might be tolerated.5 That done, his acts must be justified as coming within the limit of his authority, and, therefore, he must transfer by legal 1 No. 350, Certified Copy of Opinion, p. 9. 2 Vol. II. pp. 131-136, 615. 3 Vol. II. p. 177. Colonel Nelson, in the Jamaica Case, was arrested by a Bow Street Warrant granted under 11 & 12 Vic. c. 42, sec. 2, and 24 & 25 Vic. c. 110. sec. 9. See Reg. v. Vaughan, 9 B. and S. p. 340. Vol. II. pp. 152-155. evidence all the incidents of Rebellion from, it may be, a distant Colony to the arena of Westminster Hall. Whether all the links in the chain can be completed is the risk upon which his safety depends, unless, indeed (as in a recent case) his fellowcountrymen, who are sworn as a Grand Jury, afford him protection. CHAPTER XII. COURTS OF INQUIRY.1 1. IN entering upon this Chapter, it is essential to divide the subject of it into two Sections, and to consider 1st. Commissions or Courts of Inquiry held by order of the Crown or a Commanding Officer under Prerogative Authority only. 2ndly. Such Courts as are held by the like order, but under Statutory Authority given either by the Mutiny or some other Act, and exercised by Articles of War, or Regulations put forth (under Statute) by the Crown, treating of these according to the order in which they are thus presented to the reader. I. As to Courts of Inquiry held without Statutory Authority. 2. In a previous Chapter I have endeavoured to show that, after the Mutiny Act had sanctioned the infliction of Capital Punishment by Courts-martial for specific crimes, the same Tribunals continued (as theretofore) to exercise an inferior authority in other matters not embraced in the Act. That, in fact, Courts-martial exercised and were constituted under Statutory, for serious crimes, and under Prerogative Authority, for lesser ones, or for such acts of omission or commission as were scarcely crimes at all. In the progress of Legislation this Prerogative Authority became absorbed, by the provisions of the Mutiny Act being extended to mixed matters of adminis As to general authority of these Courts see Chief Baron Kelly's judgment in the Court of Error in Dawkins v. Rokeby, 8 L. R. (Q. B.) 262–272, and the mode of conducting them in the Army, App. E Sec. VII. post, and in the Navy, Ad. Reg. (1868), p. 50. |