CO885(2-3) — Page 363

PUBLIC RECORD OFFICE

Reference :-

C.O.885

3 PUBLIC RECORD OFFICE, LONDON

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command of the troops must in every case both hold and exercise very large discretionary power over the whole population of the district. Operations of war cannot be otherwise conducted at all, and we consider it of the utmost consequence both that Martial Law should not be proclaimed except in extreme necessity, and that when it is proclaimed, the military measures should be prompt and effectual. Cases, however, will vary greatly in their circumstances. In some the operations will resemble those of an army in an enemy's country, and will therefore be almost purely military. In other instances there may be a large body of loyal and well-conducted inha- bitants, and yet it may be considered necessary to maintain Martial Law in order to afford them protection against predatory bands of insurgents and marauders. There may also be cases of every degree between these extremes. Notwithstand- ing, therefore, the general importance of giving free scope to the military officer in command, we think that in other than military operations the Governor should have power to give, if he

so think fit, authoritative instructions on some

points to the officer commanding the troops, as

well during the continuance of Martial Law as upon its first proclamation. Among such matters we may mention the punishment of offenders, proclamations of pardon and amnesty, levies on

the inhabitants, arming Magistrates with special powers, the continuance, resumption, or sus- pension of the ordinary tribunals.

We then proceed to consider the important question, whether, supposing that the Civil tribu- nals are able to exercise any of their usual functions (which it is evident will often be impossible), it is

expedient to leave them to do so during Martial Law. We find it impossible to give u general answer to this question, for the reason to which we have already alluded, namely, the variety of the cases which may arise. In some countries insur- gents, owing to fear, or to general sympathy with them, would be sure to be treated by the Local Magistrates with undue lenity. In other countries where there are differences of race and possibly differences of colour, they would be equally sure to be treated with undue severity. Cases have not

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been wanting in the Colonies within the last twenty years in which both of these opposite results might confidently have been anticipated

if recourse had been had, during insurrection, to the Local Magistrates.

On the other hand, cases may occur in which

the affairs of civil life may take their usual course in places not actually occupied by the insurgents. Thus in Canada, Martial Law was proclaimed on the 5th of December, 1837, over the great district of Montreal, a large, populous, and wealthy territory, comprising the important city of Montreal, and remained in force for nearly five months. It is needless to say that the ordinary tribunals of that great district were not superseded for that long period. But we observe that the Governor, the Earl of Gosford, in announcing Martial Law to Lieu- tenant-General Sir John Colborne left it to the discretion of that officer to maintain the authority of the Courts. The expressions used in the official letter were as follows: "I have

it therefore in command from his Excellency to instruct you that in all cases wherein the unlimited power with which you are now invested can be exercised in co-operation with or

in subordination to the ordinary laws of the land, and that in all cases where, from local circum- stances or from a prompt return to their alle- giance, the deluded inhabitants of any part of that district display an honest contrition for their past offences, you will revert at once to the assistance of the civil authorities."

Seeing, then, that in many instances any use of the ordinary tribunals will be impracticable, that in some it may be inexpedient, whilst in others

it may be highly proper and desirable, it appears

to us that this does not admit of being made the subject of any standing order, but that it must be left to the discretion of the officer in command

of the troops, subject to instructions from the Governor.

On one point, however, connected with Magistrates we have thought it necessary to provide an express Rule. Great abuses have arisen from Civil Magistrates imagining them. selves clothed with extraordinary powers by

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