PUBLIC RECORD OFFICE
Referere
C.O.885
3 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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foregoing, for every twenty-four hours that such defaulter shall continue absent or remain in default in respect of arms or accoutrements at every special meeting on alarm, as herein mentioned, until the Militia shall be discharged from further duty on such alarm, besides being subject to all and every the provisions, pains, and penalties, rules and regulations to which the Militia force is under, and by this Act declared to be subject and liable whilst on such duty as aforesaid, and after Martial Law proclaimed, all persons in this Colony are hereby declared, so long as the same shall remain in force, to be subject thereto.'
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The clause was objected to by the Secretary of State for the reasons stated in the following despatch, and its amendment was required.
"So far as this law relates to its proper subject, Despatch of 7th of
the discipline and conduct of the Militia, it
September, 1863;
appears P. 170 of Parlia-
to me free from objection. I am unable, however, to advise Her Majesty to sanction the provisions of the 60th clause. That clause authorises the Governor, under certain circumstances, to proclaim Martial Law, and enacts that, 'after Martial Law proclaimed, all persons in this Colony are hereby declared, so long as the same shall remain in force, to be subject thereto."
"I do not exactly understand what the framers
of this clause intended and supposed it to effect. Martial Law, in the strict sense of the word, means, I apprehend, that law of discipline to which Her Majesty's military and naval forces are subject, including the liability to be tried a military or naval Court, called a Court-martial, for offences against the military or naval code, resting on the Mutiny Act and Articles of War. In this sense, Martial Law has no relation to civilians; and a law declaring civilians to be subject to it would be either unmeaning or improper. But there is a more general sense in which the Government is sometimes said to proclaim Martial Law. Such
a proclamation is equivalent to a notice to all whom it may concern, that under certain extraordinary circumstances, and in defence of the public safety, the Government is prepared to employ military force in a manner not authorised by the letter of the law, and, if necessary, to promulgate and compel obedience to regulations not so authorised.
mentary Paper
No. 509 of 1863.
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Such arbitrary power is, of course, only justified by absolute necessity, and should be limited in its exercise by that necessity. The security that it shall be so limited is to be found in the fact that it is unlawful that the acts of the Government, and of those acting under the Government, require to be covered by a subsequent legislative indemnity, and that if those acts are plainly unjustified by the circumstances of the case, such an indemnity is liable to be refused. And, though I am far from wishing to judge with severity the acts done in the heat of self-defence, I must add the observation that the history of the recent St. Vincent riots shows that persons engaged in such acts cannot safely be relieved from the check of an effective personal responsibility.
"The provision, therefore, which I have quoted from the 60th Section of the Act is objectionable, first, because it is to say what is really the power which it confers upon the Governor, and what the obligations or liabilities which it imposes on the inhabitants of the Colony; and next, because it is calculated to produce the impression that, under its authority, the Governor may, by proclamation, relieve himself and others from the consequences of violating the known rules of law.
"The three last lines of the 60th Clause should therefore be repealed; and the 60th and four following sections should be so amended as to omit all mention of Martial Law. So far as respects the duties of the Militia in times of commotion, or when (to use the language of the Act) an alarm is sounded,' these clauses seem to me unobjectionable. When the Act is altered in the manner which 1 have indicated, I shall readily submit it for Her Majesty's approval.
"I have, &c. (Signed) "NEWCASTLE."
The Legislature of St. Vincent, however, were unwilling to alter the clause, and cited Acts of Antigua and St. Kitts, containing somewhat similar provisions which had been allowed to remain in operation. But the Duke of Newcastle insisted on its alteration, and observed in a despatch to the Governor, dated 11th January,
1864: