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taken, and Wolfe Tone was found on board of it and arrested. There was no doubt of the active part he had taken in the attempted invasion, and he was brought before a court-martial. He did not at all deny his share in the rebellion, and he was sentenced to death. He was sentenced to be hanged; but he prayed that, as a gentleman and a soldier, having occupied a position. of military rank, the form of death should be changed, and that he should die the death of a soldier-namely, by being shot. That prayer, however, was refused, and he was to be hanged. An application was then made to the Court of King's Bench in Ireland on his behalf, for a writ of habeas corpus, on the ground that he had been sentenced to death by a court-martial, and that the court-martial was illegal, because the king's courts were sitting at the time, and that the ordinary legal jurisdiction was therefore not superseded. The court at once granted a writ of habeas corpus, directing that Mr. Wolfe Tone was to be brought before the court. Upon its being suggested that he had been sentenced to immediate death, and that that sentence would be immediately executed, the Court of King's Bench at once commanded the sheriff to proceed to the place where Wolfe Tone was under military arrest, to take him by force, if necessary, and to bring the military officers to the court, so as to interpose and vindicate the power of the law as against military or martial law. The sheriff proceeded on his mission, but unfortunately found Wolfe Tone dead. Unable to bear the ignominy of an execution at the hands of the hangman, he had cut his throat in prison. I was wrong in saying he was dead; he was dying, and he died a very short time afterwards, and consequently the question was never brought to an issue. It was thought right after that to supersede the proclamation of the Lord-Lieutenant appointing martial law, and to give Parliamentary authority for martial law. Had not Wolfe Tone committed suicide in the way in which he did, we should have had some precedent to guide us in the case now before the court. Nobody doubts for a single moment the authority of Parliament to proclaim martial law, because they can place upon it such conditions, such restrictions, as would enforce the performance of justice, and which would secure it from the irregular, unjust, and oppressive use which otherwise might be made of it. It was thought necessary to get an Act of Indemnity for all that was done under the proclamation of the Lord-Lieutenant, and this Act of Indemnity is to my mind a strong argument against the legality of the exercise of, martial law under such conditions; for if the exercise of martial law is sufficient to give authority to the acts done under it, why should it be necessary afterwards to go to Parliament and have an Act of Indemnity passed to shield those persons who acted under martial law when in existence ? There was an Indemnity Act passed for the purpose of protecting those who carried this martial law iuto execution under the Lord-Lieutenant, and when, after the Union, another Act was passed for continuing martial law in Ireland, that Act indemnified all those who should act under it there from criminal or civil process, and prevented their case from being brought within the jurisdiction of the ordinary tribunals at all. Therefore, while there can be no

doubt that Parliament has the power to make such a law a martial law, I cannot but think that, even after what has been done n Ireland, we have no instance in the history of this country in which, by the exercise of the prerogative of the Crown, martial law was carried into operation. Therefore, that is certainly a very strong reason to doubt the assertion so positively made by some people, who tell us that martial law can be resorted to without the consent of Parliament. I have now said what I intended to say on this part of the subject, and I come to the question-if martial law can be proclaimed on the authority of the Crown, and therefore of the representative of the Crown, what then is martial law? Here I must trace the history of martial law. Of course, everybody feels that when you bring large numbers of men together under arms for the purposes of war, or for any other purposes for which military forces are collected, you must have a special law to deal with them, as their efficiency entirely depends on the state of discipline in which they are kept. Of course, when you bring together a body of men in the prime of life, men probably of high and turbulent spirit, it is necessary to have a strict law to keep these persons in proper subjection. Such laws existed from the earliest times, and except during the short period of the civil war in the time of Charles I., it was always held that the military force was under the absolute power of the sovereign. Accordingly, from very early period we find, on the occasion of armies being collected, sovereigns of this colony make laws for the government of their soldiers. Lord Hale, in his history of the common law of England, states that always preparatory to actual war, the king composed a book of rules and orders for the due discipline of officers and soldiers, and this was called martial law; and we have this statement not only from Lord Hale, but I find a succession of these statutes and ordinances of the government of the army. Lord Hale refers to the statutes of Richard II., but there are earlier cases than this; they go as far back as King John. On the occasion of the departure of that monarch by sea for the Holy Land, a statute and ordinance was issued, which was very short and remarkable for the extraordinary severity with which the offences were to be visited. If a man commits murder by sea, he is to be tied to the body of the dead man and thrown into the sea; and if he commits murder on land, he is also to be tied to the dead body and buried alive. If he steals from a comrade, boiling pitch is to be poured upon him. Richard II., in his minute, enters into details which follow the soldier into every department of military life and service. He points out his duty towards the service, his duty to his comrades, and his duty with regard to an armed population with which he may be brought into contact; and he then goes on to state what will follow the infraction of those duties, mentioning the specific penalties. It is not necessary for me further to enter into these matters. I have entered into them sufficiently to show generally the characteristics of these ordinances. We find Henry V. issued several of these ordinances. They have come down to us, and are to be found in the College of Arms, or some other repository. Then we have the ordinances of Henry VII.,

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when he mustered his army to go against the rebel forces in the North, which ended in the battle of Stoke; and, lastly, we have a series of statutes and ordinances published by Henry VIII., when he meditated a French invasion. These point out the duties of the soldier and the penalties to which he will be subjected if he commits any of the offences named. From that time we have no further statutes and ordinances. I suppose it was thought that a succession of them had been thoroughly fixed, and had acquired the importance which the force of custom invariably gives them. In the civil wars we find these ordinances coming up again. When the Scotch army invaded England, the generals published ordinances and rules for the guidance of the soldier, which were very much of the same description to those I have already named. The Earl of Northumberland, who commanded the King's forces, issued an ordinance of a similar character, and when the civil war broke out, the Earl of Essex, compiled an elaborate 'Guide for the Forces.' King James II. did the same thing in the form and name of Articles of War,' and substantially these are the 'Articles of War' of the present time. Then again there were the Mutiny Acts which are periodically issued by the sovereign for the regulation of the forces of the realm. Any person who has taken the trouble to look at the Articles of War must do those who framed them the justice to say that they are most elaborate and precise, and that it is impossible for any one who looks into them with the view of ascertaining what his duty is, to fail in discovering it, or find out what the law is by which he is to be guided. So much, then, for military law. There is nothing arbitrary in it. It is precise, specific, and defined. Now let us look at the mode by which that law is carried into effect. From the earliest periods in our history it was administered by competent tribunals under an ascertained and regulated mode of procedure. As early as the time of William I., when the judicature of the country was less clearly defined than at the present time, a 'martial court' was appointed-a court of the High Constable and of the Earl Marshal-and by these great officers the military law was administered. These officers always attended the King's wars-the High Constable of England being the general who commanded next under the King, the EarlMarshal being his deputy and next to him in rank. These officers had to look after the army and regulate its internal economy, and they held courts for the trial of military offences. This court had a regulated procedure, and was certainly governed by the law of England in some of its most essential particulars. Its procedure was fixed and settled, and continued so to the present time; and even to this day the procedure of the military courts is perfectly settled and understood. The courts of the High Constable and the Earl-Marshal continued to administer justice in all military matters down to the time of Henry VIII. That monarch, jealous of authority, was dissatisfied at having so near the throne any officers of such distinction and authority, and when the Duke of Buckingham was executed-he having been the High Constable-the King took occasion of his death to abolish the office. The Earl-Marshal continued, however, to exer

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cise jurisdiction in the court as before, and this continued until the time of James I., when a question was raised as to whether the office of High Constable having ceased-the Earl-Marshal was competent to exercise jurisdiction in military matters in question of life and death; and the Privy Council of that date held that the EarlMarshal's jurisdiction was not put an end to by the non-existence of the High Constable. But in a subsequent reign, the question being raised, the judges were of opinion that the Earl-Marshal had no jurisdiction beyond the High Constable, and from that time the jurisdiction in criminal matters under the Earl-Marshal has been discontinued. Thereupon it was necessary that there should be some tribunal to exercise martial law who were judges of military matters, and the course pursued seems to have been that a council of war was appointed when the army was in the field; and the officer called General-Marshal was appointed to determine questions of military delinquencies. That tribunal, however, was soon superseded, and the courts-martial were introduced in the manner in which courtsmartial are appointed at the present day: and so the law remains. Now, as I have said, the procedure appears from the earliest times to have been carried on in a court, and when that court was superseded, and we got rid of the High Constable and the Earl-Marshal, appears that the courts-martial adopted the procedure of the tribunal of High Constable and Earl-Marshal, because it is to this day a mixed procedure, a procedure in which the technicalities of our law are dispensed with and a different mode of procedure adopted, but in which those principles and rules with regard to the admissibility of evidence are acted upon in the case of a party accused, as they appear to have been from the earliest period. Now, it cannot be doubted that the procedure of courts-martial is capable of considerable amendment. No one can doubt that the substance of justice is attended to; there is nothing arbitrary or capricious in them; the charge must be distinct; the evidence must be such as an ordinary court of justice would receive; the person who is accused has the fullest opportunity of defence; the witnesses must be confronted with him, and he has an opportunity of cross-examination, but the procedure is certainly somewhat impaired by the mode in which it is carried on. Still, however, he has an opportunity of asking such questions as he may think desirable. He has also the fullest opportunity of being heard. He has the right to call such witnesses as he may think proper; and if such is the law which is applied to the soldier, why should it not be applied to the civilian? Why are we to be told that when you come to deal with a civilian under martial law it is to be something different to the law administered to the soldier under martial law? I confess I am at a loss to conceive any reason for it. At all events, it is very important to see what is the law as applicable to the military portion of the community; and in considering this question we must eliminate from it all that which does not strictly belong to it. I have already adverted to the fact that the execution of persous taken in arms as rebels, or taken in pursuit, is not the question here. There are other things which have been

confounded with martial law which it is essential to separate from it. An eminent authority, dealing with this matter, uses the argument of martial law being founded upon necessity-being a law which was to be expanded to any extent required, commensurate with the necessity of the case. Surely, it is said, you do not mean to say that if a mutiny breaks out on board ship or in an army, you are to have recourse to the ordinary practice of the country? In such a case, certainly not. Where local force and violence are resorted to, you may defend yourself even if it causes the death of your assailant. If a man attacks you with murderous intention, stops you on the highway to rob you, invades the sanctity of your dwelling at night, you are not bound to submit to the injury that may be done, nor are you bound to wait until the wrong has been committed, because you may at once take the law, as it is called, into your own hands, and in selfprotection defend yourself. You may quell mutiny by killing a mutineer; and in like manner, if a company in a regiment breaks out in open mutiny you may put it down at once by immediate application to the law; but that is not martial law. This is part and parcel of the law of England, If you can prevent crime by the application of force, you need not wait till crime is perpetrated. You may quell it at once, and prevent it by the application of any force which may be necessary. But that is not what we are now to consider. What we have to consider is, whether in suppressing rebellion by persons not actually engaged in it, you may subject them to a law which in this sense is an anomalous and exceptional law. This is a very important question, and one upon which it is very desirable to see how the authorities stand. (His lordship then proceeded to refer to the opinions of Lord Hale, Lord Coke, and Sir William Blackstone upon the question: quoting the opinion of Lord Hale to the effect that in truth martial law was entirely arbitrary in its character, and was in truth really no law, and was something indulged rather than allowed.) I believe that these passages from Hale and Blackstone have led to a great deal of confusion as regards the use of the term martial law, and that thence sprang up the idea that there was such a thing as martial law as distinguished from military law. These passages have been adopted as showing that martial law is a thing subject to no rule whatever-that whereas in every other system of judicature you ought to have constant and settled rules for the guidance of those who are to administer the law, here you have nothing of the kind. But any one who takes the trouble to look and see what Blackstone and Hale were writing about will see that they were speaking of a law applicable to the soldier, and of military law as one of the powerful and recognised institutions of the country. I think they were both wrong in supposing that martial law, in the sense of military law, was the arbitrary and capricious system which they seem to denounce it as being. I will now call attention to the judgment in the case of Grant. In 1792, a man named Grant, who was a recruiting sergeant-that is to say, who had been led to take the character of sergeant in the army, although he was not actually in the service was in the pay of the government as a recruiting VOL. XXIII.-NO. XLV.

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