1133.
PUBLIC RECORD OFFICE
•
SIB,
No. 392.
(JAMAICA.)
LAW OFFICERS to COLONIAL OFFICE.
Lincoln's Inn, February 1, 1866.
We are honoured with your commands, signified in Sir Frederic Rogers' letter of the 26th January ultimo, stating that with reference to his letter of the 18th, and our Report of the 24th January,* on the subject of martial law, he was directed by you to request that we would favour you with answers to the following questions:-
1. Can the Governor of Jamaica, having proclaimed a district under the Jamaica Act 9 Vict. o. 35. 88. 96 and 97, be proceeded against at law, on the alleged ground that there was, in fact, no necessity for such a proclamation?
2. If such a proclamation has been made in conformity with the Jamaica Act, are
the military officers acting under the proclamation liable to any legal process, on the
alleged ground that they have exceeded the necessity of the case, or on the ground that the proclamation itself was unnecessary?
3. Are persons other than military officers, acting under civil or military orders, within a proclaimed district, so liable?
In obedience to your commands, we have taken this matter into our consideration, and have the honour to
Report
1. That, in our opinion, the Governor of Jamaica, having proclaimed a district under the Jamaica Act 9 Vict. c. 35., 88. 96 and 97, cannot be proceeded against at law, on the alleged ground that there was no sufficient necessity for such a proclamation. The power itself can only be exercised under the conditions mentioned in the Act; viz., by and with the advice of a council of war, constituted according to the 94th section, and in the event of some kind of public emergency (such as contemplated by sections 96, 97, and 98), which the Governor and council of war consider to require its exercise. Of the nature and degree of the emergency which may be sufficient for this purpose, they (as long as they act bond fide) are the proper and only judges.
2. We are of opinion that military officers, acting under such a proclamation, are not liable to any legal process, on the alleged ground that they have exceeded the necessity of the case, or that the proclamation itself was unnecessary; provided they act bond fide within the scope of their military duty.
3. The third question is one to which we cannot undertake to give a satisfactory answer in the abstract, without reference to the facts of any particular case. Generally, we should be disposed to think, that persons, other than military officers within & proclaimed district, acting bona fide in aid of the military authorities, and under and in obedience to their orders (whether such persons may be soldiers, concerning whom there can be no doubt, or civilians) would not be liable to any legal proceedings, for so doing. But it may be open to more doubt how far persons acting under merely civil orders within such district could justify, by reason of the proclamation of martial law within it, any particular acts which would not otherwise be justifiable.
We have, &c. (Signed) ROUNDELL PALMER.
R. P. COLLIER.
The Right Hon. Edward Cardwell, M.P.,
&c.
&c.
o 16276.-819. 25.-5/86.
&c.
• No. 390.
6T
Reference :-
C.O. 885
ALLY WITHOUT PERMISSION OF THE | COPYRIGHT PHOTOGRAPH—NOT TO BE REPRODUCED PHOTOGRAPHIC-
PUBLIC RECORD OFFICE, LONDON