CO885-(2-3) — Page 372

PUBLIC RECORD OFFICE

C.O.8

Reference -

885

3 PUBLIC RECORD OFFICE, LONDON

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

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upon Martial Law, which is in some respects a starting point of the Project:--

"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 una- voidably 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 cir- cumstances (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 pro- claim 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 justiñed, no limit can be placed, a priori, to the powers exer- cisable 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 interruption of the established order of government by civil war, the justification of any measures taken under such circumstances must always depend upon their necessity.

The powers exercisable 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 command of the forces within a district proclaimed, are not susceptible of legal definition. If, in obedience to the orders of their military superiors and under their authority, such officers should have proceeded to try by military methods persons within the proclaimed district who may have been charged with partici- pation in any disturbance of the peace therein, and, upon being satisfied of their guilt, to inflict upon them capital or other punishment in accord- ance with the practice of such military tribunals,

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we are of opinion that those officers would not be civilly or criminally responsible for so doing."

Taking this opinion of the late Law Officers of the Crown as the legal basis of Martial Law, the following project was submitted, of rules for the guidance of those by whom it may be established, and of those by whom operations under it may be conducted :~~~

1st. Martial Law is not to be proclaimed unless there shall be reason to know or believe that there are men in arms against the authority of the Orown who cannot be subdued otherwise than by military force, and under such circumstances as shall seem to render the use of military force merely in aid and under direction of the Civil Magistrate insufficient.

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2nd. Martial Law is not to be extended to any district in which there is not reasonable ground for believing that such insurgents will be already

to be found, or into which there is not reasonable ground for believing that they will presently push their operations, or out of which there is not reasonable ground for believing that they will receive aid and cooperation.

3rd. Inasmuch as under Martial Law the opera- tions by naval and military officers in the field and

in the tribunals are to be governed by military usages and to conform to military methods, and it is only when so governed and conforming, and when the acts of the officers are done in obedience to their military superiors, that they will not involve civil or criminal responsibility, it follows that (except

as hereinafter excepted) the orders to be given to the naval and military officers employed within the area of Martial Law should be given by the Senior Naval Officer and the Commander of the Forces in

the Colony respectively, not by the Governor, especially in respect of all such proceedings as, without the proclamation of Martial Law, would be unlawful.

4th. But in the case of Martial Law being pro- claimed in a Colony in which the officer in com-

mand of the troops is under the rank of a field officer, the Governor shall be entitled, if he sees occasion, to give directions in regard to the conduct of such proceedings as aforesaid, advising