§ MR. O'REILLY
said, he rose to call attention to the law as laid down by the Lord Chief Justice of England in his Charge to the Grand Jury at the Central Criminal Court on the 10th of April, 1867, in which he declared it to be the unquestioned and unquestionable law of the land that no English subject can be subjected to martial law; and also to the statement made on the 11th of March by the then Secretary of State for the Home Department (Mr. Walpole) that the Government had not the intention of at that time proclaiming martial law, and hoped there would be no necessity to proclaim it; and to move a Resolution on the subject. To him, as an Irishman, the subject had a vital and a thrilling interest. It touched him and his countrymen more than it touched England and Englishmen. To them it was a vague tradition of the past; but to Irishmen, almost within the memory of living men, it had been a bloody and a cruel reality, and even within his lifetime it had been clamoured for by those who ought to have known better. When he heard the statement of the late Secretary of State, he at once determined to challenge the right of Government to proclaim martial law; but he postponed doing so, in order not to embarrass the Government, and knowing that a large part of the Session was still before them. More than 200 years had elapsed since the last attempt was made to enforce martial law in England, but judging from the statement of the late Secretary of State for the Home Department, in which he said it was not "at present" the intention of the Government to proclaim martial law in Ireland on the Fenian outbreak, it would seem there was still the danger of such a barbarous law being revived in that country. He had no idea when he first directed his attention to this matter with the view of bringing it before the House that he would find so powerful an ally in the Lord Chief Justice. 900 If the masterly Charge of the Lord Chief Justice had been an authoritative decision of the Court of Queen's Bench, it might have been considered to have set the question at rest, but the form in which it was promulgated did not give it the weight of such a decision. The whole case could not be better put than in the words of the Lord Chief Justice, who said the simple question was, whether the Sovereign, by virtue of the Prerogative of the Crown, in the event of rebellion, had the power of establishing and exercising martial law within the realm of England, and whether there was such a thing as martial law known to the law of England? It was quite clear that Parliament might enact martial law—that was, it might pass a law declaring that men should be tried by courts martial, and that they should be English tribunals. That, however, would not be martial law in the sense in which he was using the term, but it would be the law of England. There was first the law of war, then the law of necessity in war; again the law of necessity not in war, and further that branch of the law of necessity which would justify acts to prevent a crime when it could not be in any other way prevented. Any one would be justified in slaying a man in the act of attempting regicide, or about to blow up a magazine with the view of destroying barracks and their occupants, and such exceptions extended to the acts of bodies as well as individuals. The law of necessity would also justify the executive Government on its own responsibility in taking steps for the preservation of social order. It extended—as he had stated—not only to individuals, but to bodies. It was natural that in every application of the law of necessity, men should have recourse to the authority of superiors—soldiers to officers, officers to the Commander-in-Chief, the military authorities to the executive Government, and that to Parliament—for indemnity on proof of necessity sufficient to justify resort to the measures adopted. A person who acted under a proclamation of martial law might adduce it as a proof of the existence of a necessity which would justify him in asking for an Act of Indemnity. The question came simply to this—did the Royal Prerogative extend to the creation of a new law? It might, perhaps, be thought that this was an old and Constitutional question which had been set at rest long ago, but this was not the case, Magna Charta declared 901 that no freeman should be arrested or imprisoned but by the lawful judgment of his peers and according to the law of the land. That Charter had been ratified thirty-five times. The next statutory declaration was contained in the Act of 25 Edward III., and was to the same effect. It enacted that no person should be taken or imprisoned except by indictment or presentment in due manner or by legal process. It was true that Charles I. issued Commissions for trial by martial law; but when the King afterwards summoned a Parliament the first thing they did was to indicate the rights and liberties of Englishmen by the Petition of Right, to which the King was in the end compelled to assent. The words of that memorable document were of the same character as those contained in the Great Charter of 1215. The last of the Stuarts made an attempt to revive in some degree the claims of his predecessor, but the earliest Act of the first Parliament which assembled in the reign of William and Mary was to re-assert the liberties of England by passing the Bill of Rights. This was an old and celebrated contest, carried on for centuries between the Crown and Constitutional representatives of this nation. Chief Justice Hale laid down the maxim, quod enim necessitas cogit, defendit, and extended the maxim to bodies of armed men regularly embodied. This was also the doctrine of Coke. Lord Chief Baron Comyn laid down that martial law could not be used in England without the authority of Parliament. Cases might, perhaps, be adduced in which attempts had been made to establish martial law in this kingdom, but any number of such attempts could not prevail against the solemn declaration of the law. The principles enunciated in the Bill of Rights were repeated in the preamble to the first Mutiny Act, and had been retained in all the subsequent Mutiny Acts down to the present day. Notwithstanding all these assertions of the law, however, some persons had entertained doubts upon the subject, and it seemed that in the spring of the present year Her Majesty's Government themselves were not clear that the Sovereign had no power to proclaim martial law; and it was therefore necessary that the question should be raised, and that the House should give, as in former times it had never hesitated to give, a clear and distinct answer. In a work published by his right hon. and learned Friend the Member for 902 Newcastle (Mr. Headlam), there were some expressions which gave a certain countenance to the theory that such a power existed on the part of the Crown, although he doubted whether they were intended to have that effect. His right hon. Friend said that there was a broad distinction between "martial law called into existence and the ordinary law for the regulation of the army." He did not admit that there could be any such thing as martial law "called into existence," except by the authority of Parliament. But he entirely agreed with his right hon. Friend in his further statement that—Martial law is neither more nor less than the will of the general who commands an army; in fact, martial law means no law at all.Another writer, Mr. Denison, seemed to give some countenance to the theory that the Crown had the Prerogative of proclaiming martial law. He said—The term law cannot be applied to it. When martial law is proclaimed it is the will of the ruler, or rather the will of the ruler is law.Within a very recent period the exercise of martial law had been attempted in one of our colonies (Jamaica). In Ireland it was called into operation in 1798, under the circumstances stated in the Cornwallis Correspondence. He did not like to enlarge on so painful a subject, or to revive reminiscences of evil times over which he should prefer to draw a veil; but the question had been raised in regard to Ireland, and in regard to the colonies, and it demanded an answer. It might be a subject of abstract theory in England, but in Ireland and the colonies it was matter of vital importance that there should be no ambiguity. Martial law had been nothing but the rule of the soldier, nothing but violence and slaughter. He expected from the Government such a reply to his Resolution as had been given on many former occasions when the liberties of English subjects had been vindicated by the English Parliament. He could not doubt what the answer would be. It would be that which was given in 1215; again in 1350; again in the Petition of Rights drawn up in 1627, and again in the Bill of Rights in 1688, namely, "that none shall be for-judged of life and limb save by the judgment of their peers and the law of the land." He asked that the Government should tell them the rule under which they lived, and declare to them the law of the land.
Motion made, and Question proposed,
That whereas, by the Law of this Kingdom, no man may be forjudged of life or limb but by the lawful judgment of his Peers, or by the Law of the Land; and no commission for proceeding by Martial Law may issue forth to any person or persons whatever, by colour of which any of Her Majesty's subjects may be destroyed or put to death, contrary to the Laws and Franchise of this land, and the pretended power of suspending of Laws, or the execution of Laws by Regal authority without consent of Parliament is illegal; this House would regard as utterly void and illegal any commission or proclamation purporting or pretending to proclaim Martial Law in any part of this Kingdom."—(Mr. O'Reilly.)
§ MR. W. E. FORSTER
said, he did not rise to in any way controvert the statements of his hon. and gallant Friend the Member for Longford, but rather for the purpose of somewhat extending the scope of the discussion which he had opened. The Resolution which his hon. and gallant Friend had moved was confined to this kingdom, though his arguments and statements went somewhat beyond this kingdom. It was the wish of the hon. and gallant Gentleman that the House should declare the Crown had not the power to suspend the law without Parliamentary assistance. There could be little doubt of that fact. If his hon. and gallant Friend thought it necessary for the interest of that part of the United Kingdom with which he Was more immediately connected that some such declaration should be made, he would support him, but he himself did not think it could be necessary. He did not suppose that any Government of modern times, still less the present Government, could ever have thought of suspending the ordinary law in the United Kingdom and proclaiming martial law in its stead. But the rights of our fellow citizens in the colonies were involved in the questions raised on the present discussion. He held it to be the the duty of the House of Commons to consider the events in Jamaica, not as regarded the punishment of those concerned in those events, but to prevent a recurrence of what had been done in that colony. Were it not for the fact that legal steps had been taken, he should have ventured to call the attention of the House to those events. As a prosecution had been instituted, it would have been manifestly unfair to raise the question in a direct form; nor would he have alluded to it this evening only that the speech and the Motion of his hon. and gallant Friend rendered it necessary that the case of the colonies should be considered. He felt, 904 however, that the House were not at present in a position to enter thoroughly into the matter, because all the facts were not before them. He had asked his right hon. Friend the Under Secretary for the Colonies (Mr. Adderley) what steps had been taken as regarded the colonies, in consequence of the Charge of the Lord Chief Justice? In reply to a question which he had put to his right hon. Friend on a former occasion, he understood him to say that a Circular had been issued to the Governors of colonies some time ago on the subject of martial law, and that in consequence of the Charge of the Lord Chief Justice Instructions were to be issued to those Governors. He also understood his right hon. Friend to say that some legislation on the subject would be necessary. He could not express in terms sufficiently strong his warm approval of that part of the Circular issued by Lord Carnarvon in January last, in which it was requested that the Governors of colonies should do their best to induce local legislatures to repeal those Acts which authorized the proclamation of martial law. He hoped his hon. Friend would inform the House what answers had been received to that Circular, He believed that in Antigua and Bermuda there had been an undoubted power of proclaiming martial law vested in the Executive, and that in Jamaica there had been some doubt as to whether such power existed. He should like to know whether the Acts which were relied on as conferring that power had been repealed in those colonies? He believed such Acts empowering the suspension of the common, and the proclamation of martial law were not only a disgrace to the statute book of those colonies, but were in themselves a source of very great evil. Whether the power existed in Jamaica or not, there was no doubt that the Governor believed that it did. Such Acts were a disgrace to the statute book, because they held out a temptation to the Governor to misuse his power, trusting to a subsequent Act of Indemnity. If the Governor of Jamaica had not believed that such power existed, no Commission would have been issued, and the Charge of the Lord Chief Justice would not have been delivered. At all events the exercise of that power by the Governor of Jamaica would have been very different, and his opinion was that there would have been no proclamation of martial law at all, because the whole responsibility in that case would have rested with the Governor for proclaiming it. While 905 approving with all his heart the first two paragraphs of the Circular from the Colonial Office, which contained positive directions for the repeal of these most mischievous laws, he could not endorse the concluding passage, which said—In giving these Instructions, Her Majesty's Government must not be supposed to convey an absolute prohibition of all recourse to martial law, under the stress of great emergencies and in anticipation of an Act of Indemnity.He was not surprised at the addition of this safeguard to the Instructions, especially as they were issued some months before the delivery of the Charge by the Lord Chief Justice. Nothing, however, could be stronger than the declaration by the Lord Chief Justice that no Government ought to suggest to a Colonial Governor to declare martial law, trusting to an Act of Indemnity. That was the opinion of the Lord Chief Justice, who was acknowledged to be one of the highest authorities in the law; and that was the reason why he recommended some legislation in order to settle the question. Possibly the fact of the Lord Chief Justice having made such a recommendation was the reason why the Government stated that it was their intention to propose some legislation. He did not agree with the Lord Chief Justice in that recommendation. He regarded any legislation having for its object to legalize martial law with the greatest fear. Any attempt to provide for the suspension of the ordinary laws for the protection of life and liberty by the substitution of military authority must be regarded as an abdication of legislative power. He had never believed that martial law, as it was understood in this country, in Ireland, or the Colonies, was necessary for the purposes of government in those places. In that opinion he should no doubt be in a minority; but having paid close attention to all that had happened in Jamaica, and having looked over all similar cases in recent history, he had seen no case in which the proclamation of martial law was necessary. It was a great, but not a necessary evil. He admitted that to the restoration of peace and the preservation of authority everything else must give way, and that whatever acts of military authority were absolutely necessary for that purpose must be sanctioned; but he had seen no case where what was embodied in the notion of martial law, the power of punishment after the suppression of the outbreak, was essential. The Lord Chief Justice had 906 pointed out that within twenty-four hours after the issue of the proclamation peace and order were restored in Jamaica. Nobody, therefore, could doubt that peace would have been equally restored by the action of the troops whether martial law had been proclaimed or not. He had stated last year that the lesson taught him by the events in Jamaica was that martial law ought never to be proclaimed unless the Executive Government had reason to believe that the troops could not act efficiently in restoring order without its proclamation. The Chief Justice stated, in the strongest terms, that the power of suppressing disturbances, without the necessity of proclaiming martial law, rests with the Executive Government. Nothing could be stronger. The Chief Justice said—The rebel in arms stands in the position of a public enemy, and you may kill him in battle as a foreign enemy. Being in the position of a public enemy, you may refuse him quarter, and deal with him as a foreign enemy. If it is necessary in putting down any insurrection for the troops not to be encumbered with any of the restraints of the criminal law so long as rebellion is in existence, and they have to meet illegal armed force, they are able to take these steps without the assistance of martial law.This showed that as long as actual rebellion was in existence martial law was not needed for the suppression of disturbance. As to the allegation that the proclamation of martial law was necessary for the punishment of those who had taken part in the rebellion, such an argument showed that no real necessity existed for martial law at all. Surely, after all the centuries in which we had been labouring to protect subjects of the Queen from any exercise of arbitrary power, argument ought not to be needed for the purpose of combating the opinion that it was necessary to suspend the common law, not for the restoration of peace and order, but merely for the purposes of punishment. He should have moved an Amendment applying the principle already laid down to the colonies, with the understanding that it applied to the Prerogative of the Crown and not to the Imperial Parliament or to the local legislatures, had it not been that he thought the House was not in a position to come to a resolution on the subject until they were aware of the Instructions issued by Her Majesty's Government. Nobody could have read the despatch of the noble Lord the late Secretary of State for the Colonies (the Earl of Carnarvon) without feeling that full confidence might 907 be placed in whatever was done under his authority; and there was no reason to suppose that the Duke of Buckingham and the present Under Secretary for the Colonies would not follow in his footsteps. He might however call attention to the fact that a variance existed between the Instructions issued by the Admiralty at the close of last year for the guidance of naval officers and the law as now laid down by the Lord Chief Justice. There were two theories as regarded martial law. One appeared to have been held by the principal lawyers in all stages of our history, from Chief Justice Hale to the present Lord Chief Justice. This was, that if, by any unfortunate circumstance, martial law were proclaimed in any part of Her Majesty's dominions, it meant military law, and the giving to military and naval officers similar powers with regard to civilians to those which they possessed with regard to members of their own services. The result would be a court martial constituted under the same regulations as a court martial for the trial of a naval or military officer. That was one theory spoken of by the Lord Chief Justice. The other was, that martial law applied to civilians is not military law, but the arbitrary will of the Executive. This latter theory the Lord Chief Justice regarded as a fallacy of recent growth, and it was no doubt the theory on which the Jamaica authorities acted, and also the theory on which the authorities in Ceylon and other places had acted where martial law had been proclaimed. This theory had high authority to back it. He did not blame those who had adopted this view, because it was supported by the authority which of all others they would think the highest. The Duke of Wellington had said that martial law was the will of the general—that in fact it was no law at all. There was the greatest possible difference between these two views, and he begged to call the attention of the House to the fact that the Instructions issued by the Admiralty did not agree with the dicta of the Lord Chief Justice, for they said that the arbitrary will of the officer in such cases as were contemplated superseded the ordinary law for the time being, in the same manner and degree as if the district where it was proclaimed were enemy's country, It seemed to him that either the statements of the Lord Chief Justice ought to be proved wrong, or that the Instructions of the Admiralty ought to be altered in conformity with them; or that if 908 the discrepancy were irreconcilable, there ought to be fresh legislation. In treating of this sorrowful subject he had endeavoured to make no allusion to the blame which many might believe ought to be cast upon the authorities in Jamaica. But from what had happened a lesson might be learned which, as Members of the House of Commons, they ought to lay deeply to heart; and he would prefer giving it in the words of the Lord Chief Justice. The learned Judge said that a man must be dead to every sentiment of humanity, and mercy must be banished from the category of human virtues, if he could read without a shudder the narrative of the rebellion, and of the steps taken after its suppression; adding that if martial law must be continued it ought at least to be restricted to the time the rebellion was actually flagrant. It seemed to him (Mr. Forster) that our honour, our position amongst civilized nations, our safety as a country, and, more than all, our duty, should lead us to say that such things must not happen again.
§ MR. GATHORNE HARDY
said, that while deploring the fact that necessity sometimes compelled the proclamation of martial law, the hon. Member had admitted the occasional occurrence of such a necessity, nor did the Lord Chief Justice ignore the necessity which might arise of setting aside the law of the land and securing with great vigour the military law, such as is enforced by a General in an enemy's country. The Lord Chief Justice in his Charge said,—I am quite ready to admit that if martial law could be lawfully put in force the circumstances attending the recent outbreak were such as would at first warrant its application.But he added that he did not think that it should have been continued. This was quite in accordance with the opinion of Lord Chief Justice Hale, that it was lawful to call out any force to put down an insurrection, and to put in force the military instead of the ordinary law until the insurrection should be suppressed. The Lord Chief Justice also admitted in the passage immediately following that referred to by the hon. Member that though an insurrection were suppressed it might be necessary to continue the enforcement of martial law, in order to strike terror into the minds of the people for their better order in the future. Everyone was agreed that in cases of insurrection and danger to the lives of peaceful citizens it was 909 the duty of those exercising the supreme power to put aside ordinary laws, and to proclaim military law until the insurrection was suppressed; and it did not need the existence of armed resistance to constitute insurrection. He knew of Mono who said that the Jamaica authorities who had been referred to were wrong in using in the first instance the most forcible means so put down the rising. Everybody was agreed that, assuming the facts to be as they were supposed to be by the Governor, he was justified in resorting to military law in putting down the rebellion. When there was an insurrection it was the imperative duty of those in authority to use the most rapid and forcible means to put it down. The hon. Member (Mr. Forster) said that he withdrew the qualification that military law never should be put in force unless the troops could not act without it, because the troops could at once act on that law; but the question was whether it was more straightforward to act on military law with or without proclaiming it.
§ MR. W. E. FORSTER
said, that what he meant was that the Executive could act with military power, and, therefore, that it was not necessary for them to attempt to act with military law.
§ MR. GATHORNE HARDY
said, if an Executive were to act by military power it would proceed in accordance with the ordinary law of the ease, and military power or force would involve military law. If military force were adopted, it was surely fairer to announce to those against whom it was proposed to act that the ordinary course of law would be superseded? He agreed, with respect to the law upon this subject in the colonies, that they were not in a position to come to a definite conclusion upon the subject; nor did he think that it was advisable that the House should proceed to act by a Resolution in such a case as this. It struck him that the former part of the Resolution consisted of truisms, whilst the latter part would, if passed, hang in terrorem over the heads of those who were charged with Executive Government. Was the law so clear that the House of Commons could deal with it in the way proposed? He could not but sympathize with the Lord Chief Justice—of whom he desired to speak with all the respect due to his high position, the more so as he was evidently animated by feelings so warm and heartfelt for the due administration of justice to the meanest of Her Majesty's subjects — to some extent 910 in the views which he had expressed; but it was evident that the Lord Chief Justice himself—viewing the facts from a distance—had, he would not say vacillated, but apparently gone from one side to another, admitting that the necessity had arisen for acting with peculiar rigour, or, in other words, with military law, yet at the same time doubting whether the insurrection had not been suppressed at a sufficiently early date—a matter about which the authorities in Jamaica held a different opinion—to render the continuance of that military law unnecessary. He did not deny that if the insurrection had been in existence, as it really was in the opinion of those in the colony, the employment of military law would have been necessary. The learned Judge laboured under great disadvantage. In page 127 of his Charge he stated that he felt deeply sensible of the exceeding difficulty of his task. He had for the most part been travelling over untrodden ground, and could find no judicial decisions by which he could in any way be guided. Not only was he without the advantage of having had the matter discussed by members of the Bar—a course by which the researches of able and learned men would have been brought to his assistance — but until the previous day he had had no opportunity even of consulting with the learned and excellent Judge who sat at his side. Now, if any one circumstance tended to add weight to the judicial decisions given in this country, it was the discussions by which they were preceded. Not only did the arguments employed by the advocates on both sides strengthen the conclusion arrived at by the learned Judges, but the learning, the skill, and the care which were evoked led to a ready obedience on the part of the people to decisions which they believed to be founded upon wise and thoughtful considerations. Would it, then, be right that the House of Commons—in consequence, not of a judicial decision, but simply of a Charge to a Grand Jury, qualified, however able and learned, by those admissions—should rush hastily to the final and conclusive judgment embodied in the Resolution moved by the hon. Member? The hon. Gentleman was evidently anxious to provide against an event that was not likely to happen. The hon. Gentleman was afraid that measures might be resorted to in his own country which would lead not only to bloodshed, but to the recurrence of the scenes of former years. But did the 911 hon. Member bear in mind what had actually taken place in that country? Had any attempt been made to override the ordinary tribunals, or had the establishment of military law been employed, although it had been suggested in that House? No such thing had been done. He therefore said that the time had not arrived in which the House should be called on prematurely to condemn that which had not taken place nor was likely to take place. The learned Lord Chief Justice had evidently been shocked by the accounts of what had taken place in Jamaica with reference to the particular case under the decision of the Grand Jury, and he placed before the Grand Jury not only the facts of the case, but also his opinion, with a view to the after submission of the facts to the Petit Jury. Had the case been submitted to the Petit Jury the law which the learned Lord Chief Justice had laid down would have been subject to the revision of the Judges trying the case, of the Criminal Court of Appeal, and finally by a Writ of Error might have been brought before the highest tribunal in the kingdom. The learned Judge therefore was not prejudging the case; and supposing he was wrong in his law, that law would be subject to be reversed on a Writ of Error before the highest Court of Appeal. The Charge should therefore be taken with those qualifications, and surely, upon a direction to a Grand Jury made with a view to getting certain points afterwards decided by the law of the land, the House of Commons would not consent to place upon their books a Resolution which would unjustly hamper those who might hereafter be placed in the position of executive officers, and whose duty it might be boldly to employ the powers at their disposal in order to put an end to what might otherwise prove of serious danger to the State. The right hon. Gentleman the Judge Advocate of the late Government (Mr. Headlam) had, he knew, given great consideration to cases of this kind, and the opinion not only of the right hon. Gentleman but also of a right hon. Friend of his — Sir David Dundas, a former Judge Advocate, whose absence from the House he sincerely regretted—was contrary to that held by the learned Lord Chief Justice. The learned Lord Chief Justice, referring to these right hon. Gentlemen, said it was not their peculiar business to enter upon questions of this nature. But, with all due deference, the attention of the learned 912 Lord Chief Justice himself did not appear to have been previously employed in this direction. As it was, it could not be asserted that the doctrine embodied in the Resolution moved by the hon. Member was laid down by judicial decisions, or by the Common or Statute Law of the land. It would therefore, he thought, be unwise in the House of Commons to commit itself to a pledge upon a matter so important. He trusted that neither in Ireland, nor in the United Kingdom, nor in any of the colonies would the occasion ever again occur for the employment of those powers which were necessary to the Executive in times of great emergency. At the same time he implored the House of Commons not to place an impediment in the way of those who were acting in distant spheres, and to whom, with great responsibilities, was committed the duty of upholding the authority of the Crown and the rights of the country.
§ MR. J. STUART MILL
There appears to be, as far as the discussion has gone on both sides of the House, a real dispostion to consider this question with reference to the future rather than the past. Certainly it is most desirable that when we are considering what is essentially a question of legislation, we should not allow ourselves to be diverted to the consideration of past transactions any further than they throw light upon questions which may exist or arise in the future. At the same time it appears to me that certain considerations of great importance have not yet been touched upon, and which I think it is particularly necessary should not remain unstated when we see an obvious desire to explain away and get rid of the effect of the Charge of the Lord Chief Justice of England. I do not mean to say that what has been stated by the right hon. Gentleman the Home Secretary in diminution of the validity, in a legal point of view, of this Charge is unfounded. We know, on the contrary, that it is well founded. We know that the Charge to the Grand Jury is not law, because it has not undergone the preliminary processes necessary to make it law. At the same time there can be no doubt that such a declaration as this Charge contains, supported by such a catena of authorities, and coming from a Judge of such high character and reputation, so elaborately produced and bearing the marks it does of most diligent and careful study, is, at all events, an exceedingly strong corroboration of that view 913 of this subject which some of us have taken from the beginning, and which I will briefly state. Our opinion has been that the law is what I shall now venture to stale, and that if it has not been so, it ought to be made so. Our opinion was, that there is not, properly speaking, as regards nonmilitary persons, such a thing as martial law, and that it has no existence except for military purposes. Of course, Parliament can give it existence, because Parliament can make any law, however inexpedient or unjust. But the Crown, being only one branch of Legislature, cannot do this. We have thought that, although there was no such thing as martial law, except for military purposes, there was a law of necessity. There may be a public necessity in case of rebellion, requiring that certain acts not justified by the ordinary law of the country should be done; but these acts should be acts of suppression and not of punishment. Now, a point which has not been noticed, and to which I attach the highest importance, is this—that in a case of public necessity, as in any analogous case of private necessity, those who act upon it, and do under the supposed necessity that which they would not ordinarily be justified in doing, should be amenable to the laws of their country for so doing. As in the case of killing any person in self-defence, so in the case of putting any person to death in defence of the country, the person who does it ought to have the onus thrown upon him of satisfying the ordinary tribunals of the country that this necessity existed. What, therefore, we say does not exist, and ought not to exist, and which if it does exist we should do our utmost to put an end to, is, the idea that any proceeding, such as a declaration of martial law, can or ought to exempt those who act upon it from amenability to the laws of their country. We contend that the law of necessity, of which nobody denies the existence, would justify the Executive in doing those things if no such thing as martial law had ever been heard of, and that by using the term martial law you ought not to be able to get rid of all responsibility. We demand that the officers of the Government of this country should not be able to escape or get out of the region and jurisdiction of the law; but, that whatever they do, if it be against the law, they should be compelled to justify. They must show the necessity which existed, not to the satisfaction of a court martial merely, but of the regular 914 tribunals of the country. When it is said by the right hon. Gentleman the Home Secretary that it is much hotter that the officers who intend to assume this power, and act on this supposed necessity, should declare beforehand their intention of doing so, by all means let them do so; but do not let them, or any one else, think that by using the term martial law, or by announcing that they mean to make a military tribunal one of the instruments by which they will exercise their power of superseding the law, they will clear themselves from all responsibility.
said, he was some years ago asked for his opinion by the Defence Commissioners on the subject of martial law, with a view to putting this country in a state of safety against the perils of a probable invasion, The question was whether the Executive Government had sufficient authority to deal with persons and property, and whether it was desirable that statutory powers should be given to the Crown for taking possession of railways and other properly in districts where an enemy's troops might land, and in other respects for superseding the common law of the country. He considered the subject very carefully, and the conclusion he came to was that it was not expedient to make any alteration in the law, for the reason that statutory laws on the subject would rather fetter than assist the action of the Executive. He thought that the Law and Constitution of the country was not only expansive enough to enable the Crown to take sufficient measures for the defence of the realm; but that the Minister of the Crown would be liable to the gravest censure—would be liable to impeachment—who, on an emergency, from any fear of overriding the law applicable to ordinary times, neglected to take sufficient precautions for the defence of the country. That was his answer to the questions of the Defence Commissioners, which were adverted to by the Lord Chief Justice in his Charge. That case was, however, totally different from the present. The idea on the part of the Defence Commissioners was to strengthen the power of the Crown for the defence of the realm. In the present case a rebellion had taken place, and it was alleged that the power of the Governor had been exceeded. He was, however, of opinion in the present case also, that it was not desirable to alter the existing law; and that it was better to leave it in the state in which it had always been, the duty of 915 the Government being to take care, in the words of the old maxim, ne quid detrimenti respublica capiat. The objections to the Motion of the hon. Member were insuperable. Having laid down the law, the hon. Member asked the House to affirm thatThis House would regard as utterly void and illegal any commission or proclamation purporting or pretending to proclaim Martial Law in any part of this Kingdom.Either such a proclamation would be legal or it would not. If it were legal, what power had the House, being only one part of the Legislature, to make it illegal? If it were illegal, what advantage would there be in the Resolution? The House in passing such a Resolution would be doing something beyond its functions, and to which no Court of Law would pay the least attention. If the proposition in question embodied the true law of the land, the House would only be throwing doubt upon it by bolstering it up by a weak resolution on the part of one of the Houses of Parliament. If the hon. Member proposed to alter the law, let him come forward and propose a Bill, which he, for one, should be glad to consider with the greatest care. Whether they called it martial law or the law of necessity it was the same thing. The difference was merely verbal. If the Executive authority superseded the ordinary law of the country when a sufficient case of necessity arose, they were all agreed that it should be supported in that, and also that it should be covered by an Act of Indemnity afterwards. He was not prepared to say that they ought to fetter and control any such authority by declarations of that description. There were two dangers before them. If they made precise declarations of that description they might fetter and control public men, and render them so timid in case of emergency that they would fail in their duty. On the other hand, they might pass enactments which would tempt weak men to exercise powers which ought not to be exercised unless absolutely necessary. Those were two dangers of a different description, against both of which the House should guard. The best way of doing that was by leaving the law as it was, and by making it perfectly clear to persons in authority that they must act in case of emergency, and take responsibility upon their own shoulders, looking to an Act of Indemnity to exonerate them if they had acted honestly and in good faith. It was, perhaps, too much to expect men to act with 916 perfect wisdom in every case; but if they acted in strict good faith and for the best, they could not be fairly refused protection by that Constitution for the preservation of which they had acted.
§ MR. CARDWELL
said, he concurred in the suggestion that his hon. Friend would do well not to force a division on a subject on which they appeared to be unanimous. He agreed with the hon. Member for Westminster that in regard to the question before them martial law had no existence, except indeed, in certain possible cases of legislation, which it was not necessary to discuss at present. There was the law of the land, and in certain painful and melancholy cases, another law, which might be called the law of necessity. Nobody acted upon the latter except under a great responsibility and the liability to render a future account to the ordinary tribunals of the country. Persons who, called upon by no act of their own, but for the protection of the public safety took a responsibility of that kind upon themselves, were placed in a position of extreme difficulty, and it often happened that, in order to protect them in a way which Parliament afterwards deemed just, a Bill of Indemnity was passed. That, however, was an act not of Prerogative, but of Parliament, and until Parliament passed such a Bill of Indemnity in their favour, such persons acted, and ought to act, subject to a liability to account to the ordinary tribunals of their country. Believing that to be the law, and to be a wholesome state of the law, he did not think any alteration of it was necessary. But if the law did require to be altered, a Bill should be brought in for the purpose, when the matter could be considered with the gravity with which a Bill was always treated in that House. The law of necessity to which he had referred was, in his opinion, strictly limited in time, and operative for repression, not for punishment. A man was justified in taking the law into his own hands for the the purpose of protecting his life when threatened by any extraordinary or sudden violence. So with regard to martial law. The principle equally applied. Necessity was the true test. In the memorable words of Sir James Mackintosh, to continue to act upon a supposed necessity after the necessity had expired, was an enormous crime. The right hon. Gentleman the Home Secretary (Mr. Gathorne Hardy) had spoken on that subject in a very proper spirit, and in one 917 of which they had no reason to complain; and, as they were all agreed, the question was whether the hon. Member for Longford should not rest satisfied with the useful discussion he had raised, and not press his Resolution further. The chief and most fertile source of abuse, when the deplorable emergencies to which the Motion pointed to occurred, was the fact that the inferior agents, over whom the higher authorities were called upon in circumstances of extreme difficulty to exercise control, were guilty of excesses which their superiors would, if they could, have been glad to restrain. The adoption of a vague abstract Resolution like the present one, instead of strengthening the bonds of discipline and increasing the control of the superior authority over its subordinates, might rather have a contrary effect. Moreover, when a Resolution of that kind, levelled against a supposed invasion of the rights of the Legislature by the Prerogative of the Grown, was proposed, they ought to be careful not to expose themselves to the charge of assuming to the House of Commons a greater power than the law assigned to it. For these reasons, he hoped the Motion would not be pressed.
said, he could not understand the statement of the right hon. Member for the city of Oxford (Mr. Cardwell) that martial law was no part of the recognized law of the land. In 1833 an Act was passed for the more effectual Suppression of local Disturbances in Ireland, by which it was enacted that various offences should be tried by courts martial; and the 40th section of the Act ran thus—Provided always, and be it declared and enacted, That nothing in this Act contained shall be construed to take away, abridge, or diminish the acknowledged prerogative of His Majesty in respect of appointing and convening Courts martial according to the provisions of the Act for punishing Mutiny and Desertion, or the undoubted prerogative of His Majesty, for the Public Safety, to resort to the Exercise of Martial Law against open Enemies or Traitors.Martial law was the law of the strongest, and if it was carried out by any Governor of a colony, that House would stand by him if he was in the right. The Duke of Wellington, when in the Peninsula, finding that his men were being murdered right and left, stated that if the civil law was not sufficient to prevent it, he should have recourse to martial law. He remembered some years ago that Sir Henry Ward, one of the leading Liberals of that House, and the conductor of a journal of very advanced 918 principles, was sent out as Governor of one of our dependencies—the Ionian Islands. He had not been there a week before he proclaimed martial law, and undertook to carry it out himself. After that martial law was proclaimed in Ceylon. He hoped, therefore, that when men in authority, under a heavy weight of responsibility, deemed it necessary to proclaim martial law, those in this country who sought to bring public odium on them for doing so, would reflect upon that which they themselves might deem it expedient to do should a sudden emergency arise.
§ MR. THOMAS HUGHES
said, the cases put by the hon. and gallant Member opposite did not apply to this case. If, as the hon. and gallant Gentleman said, the House every year passed martial law in the Mutiny Act, he must on reflection remember that the Mutiny Act applied only to soldiers. The only real point which it was necessary to press upon the House and upon the country was that whoever did these acts was responsible to the ordinary tribunals of the country for whatever was done under so-called martial law. With respect to the so-called unanimity of the House on this subject, he should be glad to know that such unanimity really existed as was supposed. He should like especially to know whether the Chancellor of the Exchequer held the opinions which he expressed last year.
§ MR. O'REILLY
said, that after the appeal which had been made to him by the right hon. Gentleman the Member for Oxford he should not press his Motion to a division. He had attained the object he had in view, for he believed that no Government in this country, in the face of the opinions which had been expressed, and in the face of the clear statement of the law which they had had, would venture to assume the power of proclaiming any law which was not the law of the land.
§ Motion, by leave, withdrawn.