North American. [volume] (Swanton, Vt.) 1839-1841, 1839-11-27

10 prevent a law being SO construed. as 20
deprive person Of the rights and liberties
10 which he was entitled previous 10 the
passing ai the law; Ne would also re-
mind your Excclleney Of the words used
hy Sir William Follett, who introduced
the restrictive precise into the ael LIST Vic.
c. @: /" As to the power OF setting aside
the courts of Justice and the ordinary ad-
minsiration of the criminal law, il cannot
be supposed that any such monslrous
power was conferred BY any part of the
act. Vet, If the ordinance be declared or
considered TO affect the prisoners, they viii
have been deprived Of the trial, by jury,
and Of the mode Of trial granted 10 them
| by The statute to which they were entitled,
ipreyioUs TO the passing OF The ordinance. Z"
See also Lord Reynolds Reports, %
vol. 1859, 10 East. Wilkinson VS.. Meyer.
! Your Exceency's attention must be
directed to the words in the preamble Of
| the ordinance, which induces the necessity
of providing a speedy trial of persons Of
! tending, as therein set forth, after stating
the fact, thai your Exceency had pro-
INDICATED a proclamation OF martial law,
which shows that the intention had in
view, in passing the ordinance 2d Vic. C.
| 8, was merely to facilitate the action OF
/ that law already proclaimed. Ii would,
| therefore, be monstrous 10 suppose for a
moment, that any persons could be affected
| by that act, who were not contemplated
| by the proclamation which forms its basis.
Before concluding our enquiry into the
| important questions which engage our at
tention, we would beg 10 submit, in refer
! a 81 40, Ia,
an ordnance passed 10 define the period
when the rebellion shall be taken aud held
To cease, whether it be competent for the
administrator 81 the government in time OF
peace, and when the ordinary courts Of
Justice are open, to take from them that
Jurisdiction conferred upon them by statute.
| Ihe recognition Of such principle would
at'once place in the hands Of the adminstra~
| tor, a plenitude Of authority unknown, and
repugnant To he spirit of the English con-
srtution. Yet, strange To say, such is the
effect Of the enactment lastly referred 10.
The two supposed ordinances OF I'd VIC. C.
3 and 3, have been drawn out in mode
somewhat similar TO the Irish statute oil
1898 but were they, (although, in some
parts, evidently copied from that acD, ST.
milarlv enacted or as legal III their intent
effect, or oprration?-By no means: the
statute Of 1898 was passed by competent
legislature, and is drawn up in such q
manner as most leaously to preserve the
rights OF the subject inviolate. 1t states
distinctly the cause OF enacling the statute
the great necessity Of comforting the ex
4 Extraordinary powers therein bestowed, the
} urgent demand for instant and the mos
summary and speedy proceedings. 1t is II
no way To be construed as retroactive 4
regards merely what shall be done during
) the continuance of such rebellion, from ant
after the passing Of that act, with any
persons acting, aiding, or assisting in tn
rebellion, and permits the taking and de
: tanning, &c. Ii concerns the future, no
: hlhe past. The act of 1898 was tile of
spring OF the most urgent necessity, AM
was passed (though reluctantly by tn
: Lords spiritual and temporal, and Com
: mons then in Parliament assembled. But
notwithstanding the then actually existin
rebellion, we do not find that the IRIS
= Parliament cnacteds any statute, EN-
towering the Viceroy to define al wha
E time the rebellion should he deemed I
q have ceased, and we will conclude by ask
+, ling: Have the courts OF justice been sus
!, pended lis The province now in state
D insurreclioD?-Ha not peace been so ia
| restored, that the courts oil justice NIGH
5 without interruption, take cognzance {
5 the Offences with which the prisoners stan
o charged?
Il The Irregularities which may be real
;, gued 10 the proceedings preparatory Il
: and during the trial, tending, as they die
D so materially to impair, if not wholly
II DESTROY, the means OF defence which I'll
prisoners, even before a court martha
n were by law entitled 10 avail themselves o
!, should alone, we humbly conceive, eve
:, though all other objections were overlook
: ed, have sulhcient weight 10 induce yot
{ Excelency to refuse your Excellency
= sanction to any Judgment which may ha.
o been, or hereafter may be gwen by Il
y said court, in reference 10 this trlal.
n few of the many legal objections to Il
'e proceedings in question, we beg leave
n submit to your Excellency:-
a Istly. The jurisdiction Of the membe
?. Of court martial is confined 10 sing
II mailer and a single prisoner. his Pm
ID ciple, founded on the articles oil war ar
10 the oath Of the members, is supported I
g the highest Authorities amongst other
s. Hale, in his history Of the common lay
10 and hy the practice generally observed
"A. AsmrVs