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C.O.885
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but capital offences, the effect may be to prolong the period of disorder and of Martial Law and of military executions, and to aggravate the sufferings of all, The safest course may be, therefore, to refrain from absolutely prohibiting the flogging of women, and to trust to the natural feelings of those in authority to regulate their conduct.
Before closing this Memorandum it may be well to repeat that, as originally written, it was meant merely as a facility for bringing the subject under the notice of the proper civil, military, and legal authorities, and that Mr. Cardwell adopted it only as a first step towards obtaining a competent con- sideration of the subject. It is no doubt in a preliminary way only that the subject can be dealt with by any but those who have experience of armies in the field and of military usages, assisted by civil and military lawyers. Nor should any decision be taken without the concurrence of the Secretary of State for India and the Secretary of State for the Home Department, after consulta- tion with the Lord Lieutenant of Ireland.
November 20, 1866.
H. T.
No. 2.
Memorandum by Sir William Power, Commissary General-in- chief.
November 27, 1866.
MARTIAL Law exists in a district or country in which it is proclaimed under due authority; it exists while a country is occupied by an enemy's force; and it exists, to a limited extent and for a particular purpose, when the Riot Act is read.
Martial Law has been defined to be-
1. A suspension of Civil Law;
2. A virtual abdication of Civil authority;
3. The will of the military authorities, for the exercise of which they are responsible solely to a military tribunal;
4. In truth and reality, no law, but something indulged, rather than allowed
as law."
K
The last is an American definition, and is understood to invoke simply suspension of habeas corpus; it further explains that it" (Martial Law) "enables à Commander to incarcerate all dangerous citizens; but when brought to trial, the citizen would necessarily come before the ordinary Civil Courts of the land.'
Martial Law necessarily involves the supercession of the Civil authorities (Governors, Judges, and others), and consequently includes a practical suspension of habeas corpus, a Civil warrant having no force against military authority. It is usual, however, to permit the Civil Government to carry on its ordinary functions concurrently with Martial Law, for all purposes in which it would not come into collision with military authority; and the military are sole and absolute judges of what constitutes collision: hence the proverb, "inter arma, silent leges."
""
The democratic character of our Colonies which have legislative powers points to a reading of Martial Law similar to the American, the more so since there is a practical difficulty in the Colonies regarding the "due authority which could not arise at home, or in a foreign country the scene of war. In the latter cases there could be no question regarding the authority under which Martial Law would be proclaimed or revoked; but in a Colony, Martial Law proclaimed by a Governor alone, or assisted by the Legislature, would be executed by an army which owes no allegiance to the latter, and to the former only as Her Majesty's Representative, and independently of the Local Government of which he is also the Representative, and independently of which he possesses no legal status whatever. There would appear, therefore, on one hand, to be no power (in the Civil Government) to moderate or even to revoke Martial Law; and, on the other hand, there is no power or authority to protect military officers against legal proceedings for acts performed during the action of Martial Law. There is no Colonial Mutiny Act, no Supreme Executive, and no legal recognition of military authority, such as would be valid, so that an Indemnity Act would be indispensable. The American view is the safest one for our Colonies, and perhaps is the only one which could work in Canada. It would also have saved our officers from much obloquy in Jamaica, and would probably have answered every necessary purpose.
E