CO885-(2-3) — Page 371

PUBLIC RECORD OFFICE

Reference :-

C.O.885

3 PUBLIC RECORD OFFICE, LONDON

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

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communicate with the Governor, through the accustomed channels, as to the state of affairs in their respective neighbourhoods. The reserve force would probably be with the Governor, at or near the seat of Government. The Governor would be unable to move detachments here or there by his own authority; but the Commander of the forces might be expected to leave instruc- tions with the officer in command at the seat of Government to attend to the recommendations of the Governor, and to the information he might receive through the Governor, respecting the need for troops in unproclaimed districts; or, if time should permit, he or the Governor might com- municate with the Commander of the forces, whose orders might be received before troops were moved. The arrangement might involve some hesitation, and possibly some delay; but collision of authorities would be avoided.

In smaller Colonies, St. Vincent's for instance, or Tobago, where the area of Martial Law would

not improbably cover the Colony, where the force

employed would not be likely to exceed one, two,

or three companies of Infantry, with a small Volunteer or Militia force, and where the officer in command would not be an officer of high rank

or of long experience, it may be a question whether,

in cases in which the officer commanding the troops

is below the rank of a Field Officer, the Governor or Lieutenant-Governor should not have authority

to direct the distribution of the troops even within the area of Martial Law.

A decision being arrived at as to the person by whom authority, partial or total, is to be exercised over the troops within the area of Martial Law, it remains to inquire what "clear and precise " instructions should be given by that person "for the regulation of the conduct of those engaged;" and perhaps it may even be a question worthy of some inquiry, whether imperative instructions of a clear and precise purport can safely be given at all. It is certain that whatever instructions be

given, the discretion, humanity, and moral sense

of the officers must be mainly relied upon; and any such formal and official rules as might lead them to refer themselves less to their consciences would have, so far forth, an injurious effect. Moreover,

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in devising instructions of a restraining tenour by which reckless or hard-hearted officers should be kept within bounds, it may be regarded as equally necessary not to perplex or intimidate officers of

a different character, who might be feeling that painful and dreadful duties had devolved upon them to which they might not be equal without a full assurance of support. The paramount object of public safety might be compromised by shaking the confidence of the officers.

It is not within the province of the Colonial Department, or even of that Department in concert with the military authorities, to determine whether any and what rules should be laid down for the guidance of officers conducting operations under Martial Law generally throughout the Empire; and if rules be laid down at all, it would seem desirable that they should have a general and not merely Colonial application, and that the Secre- taries of State for the Home Department* and for India should be consulted; and the advice of the Judge Advocate and the other Law Officers of the Crown in England and Ireland would probably be chiefly relied upon.

But, in deference to the desire expressed by

Sir Henry Storks, as Governor of Jamaica, and in consequence of the opinions expressed by the Jamaica Commission, a project of regulations was attempted, which Mr. Cardwell transmitted privately to Sir Henry Storks for his consideration and revision. It was not intended that these regula- tions, if adopted, should have the force of law, or that officers concerned should be under a rigorous obligation to observe them in all cases and under all circumstances. What was intended was, that officers should derive from them some guidance more or less determinate, but far from absolute; and that they should operate as some relief from responsibility to those by whom they might be observed, and some prima facie aggravation of responsibility to those by whom they might be dispensed with.

Before proceeding to set forth the project of regulations, it will be convenient to transcribe an opinion of the late Law Officers of the Crown

• Martial law can be proclaimed in Ireland, though not in

England or Scotland.