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3 PUBLIC RECORD OFFICE, LONDON

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No. 6.

Disturbances in Jamaica.

Corr of a LETTER from the Attorney- and Solicitor-General to the Right Hon. EDWARD CARDWELL, M.P.

SIR,

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. cap. 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 disturbance under the general or special direction of the Governor or "officer in command of the forces" and, in particular, are they competent to try persons concerned in these listurbances, 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 other- wise 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 Rights (3 Car. 1) and to the Magna Charta and other Acts of Parliament recited in the preamble to that Petition; and

Sir Frederick Rogers was also to direct our attention to the 4th clause of the recent Aet 28 & 29 Vict., cap. 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 unavoidably 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 Gornor 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 met by arms. Where Martial Law (in the sense above described) is justified no limit can be placed, à 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 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; and when the powers of Government are restored, it will

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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 to pass the 90th and 97th clauses of the Colonial Act 9 Viet., cap. 35. It is to be observed that there was nothing new in the substance of these clauses. Acts containing similar provisions (of which a long enumeration is contained in the preamble to this Act) had heen in force in the island almost from the time when it was first colonized by British subjects (see section 7 of 33 Car. II, cap. 21, "Laws of Jamaica." vol. 1, page 29). The suggestion that this uniform course of legislation in the island for two centuries was ultra vires cannot be accepted without cogent proof.

The Petition of Right and Magna Charta have, in our opinion, no bearing at all upon this question. Neither of those English statutes is made applicable by the express words or necessary intendment of any Act of Parliament to Jamaica, or to any other Colony. Even, therefore, if the substance of their provisions, or such of them as might be applicable to the circumstances of the Colony, had been introduced into Jamaica, otherwise than by Imperial legislation (and of Imperial legislation introducing them we find, as we have said, no trace), there would have been nothing to prevent the Colonial Legislature from repealing, or altering, or passing laws repugnant to that part of their local law (sec 28 and 29 Vict., cap. 63, sections 1, 2, 3). But it is impossible for us to infer, in the face of the Colonial Militia laws, from the 33rd Car. II, cap. 21 downwards, that any provisions of either of these statutes which might be inconsistent with the proclamation of Martial Law under the circumstances contemplated by the Colonial Act 9 Vict., cap. 35, sections 99 and 97, ever were introduced into, or ever formed part of, the law of Jamaica.

It has been treated by some authorities as a question open to doubt, whether Jamaica ought properly to be regarded as a conquered or ceded territory, or whether it ought not, for at least some purposes, to be reckoned among the Colonies originally settled from Great Britain; the ground suggested for the latter view being that it was substantially reoccupied by British colonists after the original Spanish settlers had, før the most part, left the island.* If it were necessary to express any opinion upon this point, we should say that the facts of the conquest of the island by Cromwell, and the cession of it to the Crown of England by Spain, being unquestionable, it is not easy to see how it could cease to be regarded by the law as a conquered and ceded country, because there were only about 1,500 Spaniards remaining in the island when the English took possession, or because the property passed into the hands of English settlers. But. be this as it may, it is on all hands admitted that those parts of the general common and statute law of England which at any time became, or were received as, part of the law of the island became so subject, like all the rest of the local law, to future Colonial legislation. (See "Clark on Colonial Law," 1st Edition, page 343.)

In 1680 the then Attorney-General gave his opinion to the Privy Council" that the people of Jamaica had no right to be governed by the laws of England, but by such laws as were made there, and established by His Majesty." The Judges were ordered to be consulted upon the same, and a further question, but what answers (if any) they gave, does not appear.

In 1683 the Royal Assent was refused to an Act of the Colonial Legislature (35 Car. II. cap. 13) for "Declaring the laws of England in force." In 1724, Sir Philip Yorke and Sir Clement Wearg (then Attorney and Solicitor-General) gave a very elaborate opinion upon the then condition of the Island, in which they said, "Such Acts of Parliament as have been made in England to bind the plantations in general, or Jamaica in particular, and also such parts of the common or statute law of England as have by long usage and general acquiescence been received and acted under there, though irithout any particular law of the country for that purpose, will (as we humbly conceive) continue of the same forer, after the 1st of October next, as they were before."

In 1728 certain differences between the Colonial Assemblies and the Crown, which had continued from the time of Charles II till the accession of George II, were finally accommodated, and the Colonial Act (1 Geo. II, cap. 1) was then passed, the last clause of which is in these words:-

That all the Acts and Laws of this Island which determined and expired on the 1st day of October, in the year of our Lord 1724, and not hereby or by any former Act

of the Governor, Council, and Assembly now in force, altered or repealed, shall be, and

'almer's Opinions, vol. 1, pp. 222, 223. Burge's " Colonial Laws," Preliminary Treaties, pp. 33, 34. ✦ Laws of Janisica," vol. i. Introductory Documents, p. 69.

* Thai, vol. i, n. ĐỀ.

Chalmer's" Opinions," vol. i, p. 220.

Jamaica Laws, vol, i, p. 180.

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