31
No. 5.
PUBLIC RECORD OFFICE
Reference
C.O.88
885
3 PUBLIC RECORD OFFICE, LONDON
Martial Law was proclaimed in Jamaica on the 13th of October, 1865, and remained in force for thirty days. The following is a copy of the Proclamation :-
Jamaica S. S.
Victoria, by the grace of God of the United Kingdom of Great Britain and Ireland
Queen, and of Jamaica Supreme Lady, Defender of the Faith.
To all Our loving subjects.
Whereas We are certified of the committal of grievous trespasses and felonies within the parish of St. Thomas-in-the-East of this Our Island of Jamaica, and have reason for expecting that the same may be extended to the neighbouring parishes of the county of Surrey of Our said Island: We do hereby, by the authority to Us committed by the laws of this Our Island, declare and announce to all whom it may concern that Martial Law shall prevail throughout the said county of Surrey, except in the city and parish of Kingston; and that Our military forces shall have all power of exercising the rights of belligerents against such of the inhabitants of the said county, except as afore- said, as Our military forces may consider opposed to Our Government, and the well-being of Our loving subjects.
Given at Head-Quarter House, Kingston, on the thirteenth day of October, in the year of our Lord one thousand eight hundred and sixty-five, and in the twenty- ninth year of Our reign. Witness, his Excellency Edward John Eyre, Esq., Captain-General and Governor-in- chief in and over Our said Island of Jamaica, and other the territories thercon depending in America, Governor and Commander-in-chief of the Colony of British Honduras, Chancellor of Our said Island of Jamaica, and Vice-Admiral of the same.
E. EYRE.
(Signed)
By his Excellency's command.
(Signed) EDWARD JORDON,
Governor's Secretary.
The number of persons put to death " by those engaged in the suppression" is stated by the Royal Commission to have been 439, and the number of dwellings burned is stated to have been 1,000, and the number of persons flogged is estimated at 600.
Cory of a LETTER from the Law Officers of the Crown to Lord GLENELG.
MY LORD,
Temple, January 16, 1888. WE have to acknowledge the receipt of a letter from your Lordship of yesterday's date, together with the copy of a letter addressed by the Earl of Gosford to the Attorney- and Solicitor-General of Lower Canada, and their reply on the subject of the power vested in the Governor of that Province to proclaim Martial Law. Your Lordship desires that we should take these papers into our consideration, and report to your Lordship our joint opinion, whether the views expressed by the Law Officers of the Crown in Lower Canada are correct in point of law.
We have now the honour of reporting to your Lordship that in our opinion the Governor of Lower Canada has the power of proclaiming, in any district in which large bodies of the inhabitants are in open rebellion, that the Executive Government will proceed to enforce Martial Law. We must, however, add that in our opinion such proclamation confers no power on the Governor which he would have not possessed without it. The object of it can only be to give notice to the inhabitants of the course which the Government is obliged to adopt for the purpose of restoring tranquillity. In any district in which by reason of armed bodies of the inhabitants being engaged in insurrec- tion, the ordinary course of law cannot be maintained, we are of opinion that the Governor may even without any proclamation proceed to put down the rebellion by force of arms, as in case of foreign invasion, and for that purpose may lawfully put to death all persons engaged in the work of resistance; and this, as we conceive is all that is meant by the language of the Statutes referred to in the report of the Attorney- and Solicitor-General for Lower Canada, when they allude to the " undoubted prerogative of His Majesty for the public safety to resort to the exercise of Martial Law against open enemies or traitors." The right of resorting to such an extremity is a right arising from and limited by the necessity of the case-Quod necessitas cogit defendit. For this reason we are of opinion that the prerogative does not extend beyond the case of persons taken in open resistance, und with whom, by reason of the suspension of the ordinary Tribunals, it is impossible to deal according to the regular course of justice. When the regular Courts are open so that criminals might be delivered over to them to be dealt with according to law, there is not, as we conceive, any right in the Crown to adopt any other course of proceeding. Such power can only be conferred by the Legislature, as was done by the Acts passed in consequence of the Irish Rebellions of 1798 and 1803, and also by the Irish Coercion Act of 1833.
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From the foregoing observations your Lordship will perceive that the question how far Martial Law, when in force, supersedes the ordinary tribunals, can never in our view of the case arise. Martial Law is stated by Lord Hale to be in truth no law, but some- thing rather indulged than allowed as a law, and it can only be tolerated because by reason of open rebellion the enforcing of any other law has become impossible. It cannot be said in strictness to supersede the ordinary tribunals, inasmuch as it only exists by reason of those tribunals having been already practically superseded. It is hardly necessary for us to add that in our view of the case Martial Law can never be enforced for the ordinary purposes of civil or even criminal justice, except in the latter so far as the necessity arising from actual resistance compels its adoption.
I have, &c. (Signed) J. CAMPBELL.
The Lord Glenelg,
&c. &c.
&c.
R. M. ROLFE.
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