CO885-(10-11) — Page 502

873.

PUBLIC RECORD OFFICE

Reference :-

mwimmimC.O. 885

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PUBLIC RECORD OFFICE, LONDON

|ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

SIR,

No. 390.

(JAMAICA.)

LAW OFFICERS to COLONIAL OFFICE.

Lincoln's Inn, January 24, 1866. We are honoured with your commands, signified in Sir Frederic Rogers' letter of the 18th instant, stating that he was directed by you, Sir, to request that we would favour you with our opinion on the following questions:-

1. Has the Governor of a Colony, in case of insurrection, or other pressing danger, and independently of legislation, the right to proclaim martial law; and, if so, what are the rights or powers exercisable by him. or persons acting under his orders under such proclamation?

2. Was the Legislature of Jamaica competent to pass the 96th and 97th clauses of the Colonial Act 9 Vict. c. 35. ("An Act to consolidate and amend the militia laws") which provide that, in the event of disturbance or emergency of any kind, the Governor of the Colony may, with the advice of a council of war, declare any district of the island to be under martial law?

3. Martial law being declared in pursuance of this Act, what are the powers, exer- cisable by the naval and military officers concerned in the suppression of any dis- turbance, under the general or special direction of the Governor or "officer in com- mand of the forces; and in particular are they competent to try persons concerned in these disturbances, and on being satisfied of their guilt, to inflict upon them capital or other punishment?

4. If the Legislature of Jamaica had not the power of authorising the Governor or other persons to act in the suppression of disturbances, or punishment of criminals, otherwise than by ordinary process of law, has the Legislature the power to pass a law indemnifying persons who have so acted?

Sir Frederic Rogers was pleased to add that in considering these questions our attention would doubtless be directed to the 10th article of the Petition of Right (3 Car. 1.), and to the Magna Charta and other Acts of Parliament, recited in the preamble to that petition; and-

Sir Frederic Rogers was also to direct our attention to the 4th clause of the recent Act 28 & 29 Vict. c. 63., which defines, in some respects, the powers of Colonial Legislatures.

In obedience to your commands we have taken this matter into consideration, and

have the honour to

Report

1. That the Crown has throughout its dominions an unquestionable right to meet war by war, in case of any armed insurrection against its authority; and, inasmuch as the exercise of summary military authority (commonly called martial law) is unavoid- ably necessary, flagrante bello, within the actual theatre of war, we conceive it would be to this extent justified in law, independently of any special legislation. But, except under these circumstances (and allowing a reasonable latitude for determining what ought to be regarded in such circumstances as the duration in point of time, and the extent in point of locality, of a civil war), we are of opinion that the Governor of a Colony has no right, independently of legislation, to proclaim martial law, on the ground of any pressing danger short of an actual armed insurrection requiring to be met by arms.

Where martial law (in the sense above described) is justified, no limit can be placed, a priori, to the powers exercisable, within the district to which it extends, by the military authorities; the term "law" (when so used), being, in truth, inappropriate and arbitrary military power, in accordance with the methods and usages of armies in the field, being the thing really intended. For this reason, and because the laws of nations do not provide for or regulate the consequences of a violent interrup- tion of the established order of Government by civil war, the justification any measures taken under such circumstances must always depend upon their necessity; and when the powers of Government are restored, it will generally (if not always) be found necessary that they should receive confirmation, or that those concerned in them should be indemnified by the proper legislative authority.

2. We entertain no doubt that the Legislature of Jamaica was fully competent It is to be to pass the 96th and 97th clauses of the Colonial Act 9 Vict. c. 35.

0 16978-310. 25.-5,86.