The Sun.
London, England, 1867-04-11 00:00:00

would be the shadow of the Queen he must neces-

only by the establishment of representative Govern
nient nearly two centuries ago, but, far more con
elusively, by an act passed in the i eign of George
111., which confirmed to the inhabitants of Jamaica
the privileges of British subjects. The validity of
martial Law in Jamaica, therefore, depends on the
same considerations as its validity in any part of the
United Kingdom. If it can be proclaimed there,
except under a local act, it may also be proclaimed
here ; and if its proclamation can be there autho-
rised by a local act without the consent of the Im-
perial Parliament, then an immunity from arbitrary
jurisdiction is not, as it has hitherto been held to be,
the birthright of English colonists no less than of
native Englishmen. The opinion of the Lord Chief
Justice is decisive against the existence of any pre-
rogative enabling the Sovereign to declare martial
law. He takes all the alleged precedents, one by
one, and shows elaborately that no such position can
be founded upon them. The earlier annals of Eng-
lish history are full of illegal proclamations and san-
guinary reprisals, but nothing like a judicial recog-
nition of martial law can be found in them. The
phrase does not appear to have been ever used until
the time of the Tudors, and then appears to h ive
been used rather to strike terror than with the deli-
berate purpose of establishing courts-martial for the
trial of civilians. The wholesale executions which
followed the insurrection of Wat Tyler were covered
by an act of indemnity ; the butchery of prisoners
after sonie of the battles in the Wars of the Roses
was a cruel exercise of warlike rights, as they
were understood in those days. At all events,
since the Petition of Right there is no instance of
martial law being proclaimed in England, though
many insurrections have severely tested the forbear-
ance of the Government. Even in Ireland, which
the advocates of prerogative have been wont to re-
gard as their chief stronghold, Acts of Indemnity
have generally, if not invariably, been passed to
cover the excesses of " Martial Law." Had Wolfe
Pone not anticipated the intervention of the civil
power by cutting his own throat, the issue which has
now arisen might have been decided 70 years ago ;
as it was, the Executive did not venture to proceed
further without statutory authority. In short, the
inference which the Chief Justice draws from the
whole course of Englisii jurisprudence and legisla-
tion is that martial law is not so much the suspen-
sion as the negation of all law, and warrants nothing
which could not be lawfully done without a recourse
to it. While he points out the popular error which
confounds it with military law as now administered
under the Mutiny Act, and formerly under Ordi-
nances and Articles of War, he defends military law
itself against the charge of being an arbitrary system,
governed by no fixed principles or rules of procedure.
Still more emphatically does he protest against the
notion that martial law differs from military law in
being more capricious, more shadowy, and more de-
pendent on the conscience and discretion of the
tribunals constituted under it. Upon the whole, he
arrives at the conclusion that martial law is a mere
figment, that no power but Parliament can suspend
the common law rights of civilians, and that even
soldiers are not amenable in time of peace to so
despotic a jurisdiction as that of courts-martial has
been described. The only plea which can avail a
military officer who has put a British subject to
death is a plea which would equally avail a police-
officer or even a private citizen. It is the plea, not
of martial law, but of necessity. There are cases
in which an individual may take the law into his
own hands in self-defence; there are cases in which,
for the protection of society, all loyal subjects, and
still more those who may be specially charged with
the maintenance cf order, may execute the higher
law of public safety ; but there is no case in which
a mockery of justice can be rendered valid uy a pro-
clamation of Martial Law. It would be superfluous
to enter upon the detailed application of these prin-
ciples to the act passed by the Jamaica Legislature
under colour of which Mr. Gordon was arrested and
tried. However elastic may be the prerogative of
declaring Martial Law--assuming the existence of
such a prerogative—it would be absurd to attribute
an equal elasticity to a statutable proclamation of
martial law in a certain district therein defined.
The illegality of Gordon's arrest has scarcely been
questioned among competent lawyers, and Mr.
Eyre himself confessed from the first that he relied
on an act of indemnity. There would, in fact, have
been more room for doubt had not proclamation of
martial law been issued, for the exclusion of King-
ston from the county of Surrey for this purpose
rather tended to negative any presumption of
necessity. His arrest, then, being illegal, it follows
that his trial must have been equally illegal, and the
Lord Chief Justice did not scruple to denounce the
policy which took him out of the jurisdiction of
lawful tribunals which might have acquitted him,
and sent him before an unlawful tribunal from
which a conviction was confidently expected. We
forbear to prejudice the case against Colonel Nelson
and Lieutenant Brand by adverting to any later
state of the proceedings. It is the duty
of a judge,
in directing the grand jury to discuss, by anticipa-
tion, many topics on which public comment would
be premature and improper. The law is one thing ;
the facts are another. We accept this authoritative
confirmation of Constitutional principles from the
bench with unqualified satisfaction. The facts are
for the grand jury ; and we have too much respect
for the safeguards of English law to encroach upon
their functions.
POST.—In a not very numerous house it has been
decided by nearly the smallest of majorities that the
office of Lord Lieutenant of Ireland shall not be
open to Roman Catholics. That this decision should
have been pronounced is, we think, a matter for re-
gret. The office of Viceroy of Ireland—an office, by
the way, which cannot possibly survive many years
—is of course in the nomination of the Crown, and
it would be always in the power of the Government
to appoint whom they pleased, notwithstanding the
removal of the existing disqualification. When the
champions of Protestantism spoke of the perils which
would arise if a Roman Catholic was appointed as
representative of the Sovereign, they overlooked the
fact that the person so appointed would be simply
the nominee of the Cabinet at IVhitehall, and liable
to removal at a moment's notice. The question
was one which was alone capable of being argued on
sentimental grounds, and it has unfortunately hap-
pened that in obedience to a sentimentallifring antipathy
pathoyf
to anything which appears to be an
the great principle of Protestant supremacy, an op-
portunity has been lost of placing Roman Catholics
and Protestants on the same footing asregards eligi-
bility for every office under the Crown in the sister
country. Her Majesty's Government evinced their
willingness to assent to that clause in Sir C. O'Logh-
len's bill which throwsopeu the office of Lord Chan-
cellor of Ireland to Roman Catholics, but declined
to pursue the same liberal course in reference to the
similar provision regarding the office of Viceroy.
For this apparent inconsistency we seek in vain for
o the n e in
an explanation, and assuredly do
not
findf
the laboured speech of the Chancellor
Ex-
chequer. If difference of religion ought in this
country to be a ground for incapacitating an indi-
vidual for office, then we ought to revert to fhe
laws which were in force before the passing of
the celebrated act for the relief of Roman Catholics.
If, however, it is expedient that all citizens should
be regarded with equal favour, independently of
differences of religious persuasion, it is obvious that
nothing short of paramount necessity can justify the
exclusion of persons on each grounds from particular

sarily profess the same creed, had weight with a
majority of the house of Commons, and the Roman
Catholic subjects of her Majesty were in effect told
that not one of their number could be entrusted to
fill one of the most honourable though not the most
responsible offices in the State. Mr. Gladstone
Effectually disposed of Mr. Disraeli's feeble justifica-
tion for drawing a dystinction between the office of
Lord Lieutenant and every other office under the
Crown in Ireland, by pointing out that the Chancel-
lor of the Exchequer never ventured to contend that
any peril would accrue to the constitution by the pro-
posed change. Mr. Whalley, Mr. Newdegate, and
Mr. Vance naturally saw in a removal of the existing
disability the first step towards the repeal of the Act
of Settlement, by which the Throne is limited exclu-
sively to Protestants. But then it must be recol-
lected that those gentlemen would willingly exclude
Roman Catholics from all great offices of trust and
power, and would doubtless see with pleas.tre the
repeal of the Act of 1829. In every indulgence
afforded to their Roman Catholic fellow-subjects
they see a covert attack on the Protestant Establish-
ment of this country. They would have negatived
every clause in Sir Colman O'Loghlen's bill if they
believed that a majority would have followed them
into the lobby. With their opposition, which may
be said to be rather instinctive than rational, we
have no fault ,to find. They are at least consistent.
But what we fail to comprehend is the process of
reasoning by which the chief of the Conservative
party and many Liberal members came to the con-
clusion that it was advisable to afford a Roman
Catholic an opportunity or becoming Lord High
Chancellor of Ireland but not Lord Lieutenant. To
our minds the former, having inter alia the power of
appointinr, justices of the peace, mero motu can exer-
cise much greater personal influence in Ireland than
the latter, who acts under the advice of his Privy
Council, and is obliged to obey the orders of the
Home Secretary. The various Secretaries of State
may be Roman Catholics ; why, therefore, it may
be asked, should not also an official who is obliged to
act in conformity with their wishes ? The truth is
that Mr. Disraeli could not reply to this argument ;
as Mr. Gladstone remarked, " his wheels drave
heavily" whilst endeavouring to maintain a position
which his reason disavowed, and he was obliged in
effect to justify the course he recommended to the
house on sentimental grounds, which, if sentiment
was allowed to have any weight in such a discus-
sion, should have turned the balance the other way.
It has often been urged, and with much truth, that
Roman Catholics have no substantial grievance
in the circumstance of being excluded from the
office of Lord Lieutenant of Ireland. They have
been reproached with converting a molehill into a
mountain, and of appealing to sentiment and not to
reason when they have demanded the repeal of an
almost unsubstantial disqualification. It reduces
itself, therefore, to a question of sentiment on both
sides. The Irish Roman Catholics protest that their
feelings are outraged by a law which declares
that none of their creed are worthy to occupy Dub-
lin Castle, to hold levees and drawing rooms, give
balls, and to execute the behests of the English
Cabinet. On the other hand, the Protestants re-
gard with alarm the prospect of the personal repre-
sentative of a Protestant Sovereign going to mass.
What, said Mr. Vance, would become of the eccle-
siastical staff of the Lord Lieutenaat, which it seems
includes a dean, sub-dean, and 36 chaplains, if he
were a Roman Catholic ? Would the Castle chapel
be converted into a Roman Catholic place of wor-
ship ? These arguments, if they are worth anything.
would Equally apply to the office of Lord Mayor of
London. The fact that the chief magistrate of the
City must have his chaplain, and must attend on
certain occasions at St. Paul's, did not prevent the
corporation electing a Hebrew gentleman last year.
A canny Scotch member suggested that the Vice-
roy, with his whole bitch of deans and chaplains,
ought to be swept away on economical grounds, and
this was the only suggestion which seemed to re-
commend itself to both parties in the house. The
real point at issue was, as Mr. Gladstone forcibly
observed, whether different principles should be air
plied in Ireland from those which rule in England
and Scotland. We think not ; and we agree with
him in considering that " we should apply the same
principles—namely, that in as far as may be con'
sistent with the unity of the empire we should con-
sult, in framing our laws for each country, the cha-
racter, dispositions, and convictions of the people of
that country."