Year: 1867

/ the charge of murder in Jamaica against
Col Nelson and Lieut. Brand, arising out
of the execution of Mr.. Gordon. The
delivery extended over six hours, and is
regarded rs n masterpiece of legal ability
The charge was delivered to the Grand
Jury, and. although true bill was not
found, the opinions of the Lord Chief
Justice are regarded as laying down the
law of England in reference to the func
tons OF the military in times of martial
law, and the protection of citizens under
\ it.


SARTiAL LAW DEFINED.


The Chief Justice commenced with an
IN elaborate review of the facts of the
jamaica insurrection, the declaration OF
martial law and the execution of Gordon
and Others, the details of which have al
ready been published He then passed
to the question ofmartial law, and defined
what it is and what it is not. He said


1t was important to enquire what mar.
tal law was, for Of late doctrines had
been put forward, to his mind of the wild
est and most startling character-doc-
trines that established that British sub
iects not ordinarily subject to martial
law might be brought before tribunals
armed with the most arbitrary and des-
potic power, and in one which they had
to determine the guilt or innocence of
persons brought before them with n total
abandonment of all those rules and prin-
ciples which were the very essence of
Justice and law.


Such doctrine as this had been laid
down: Martial law is arbitrary and un-
certain in its nature, SO much so that the
term law cannot be properly applied to
it." Again "Whcn martial law is pro
claimed, the law is the will of the ruler,
or, rather, the will of the ruler is law
Martial law is, in short, the suspension of
all law" And he found in print this
startling proposition: "Whcn martial
law is proclaimed there is no rule or law
by which the officers executing martial
law are bound to carry on their proceed
mos. 1t oyerrides
all other law, 1t is entirely arbitrary"


These were the doctrines propounded
by persons of some authority. 1t was
high time such doctrines were brought
to the test of judicial determination.


At all events, of this he was sure, that,
if that were the system and law under
which British subjects could be tried for
their liberties or lives, it was time that
Parliament should interpose and put a
check upon a jurisdiction so purely arbi
trary and despotic We should never
forget that whatever might be the charge
upon which man was accused, were he
tie wora traitor ever brought to tie Uock,
until lie was convicted, and his life taken, he
was still a subject entitled to those scfeguards
that were the very source QtJustice. 1t was
impossible to deal properly with the qucs-
ton of martial law without tracing it to
its fountain head. .....


1t was time that Parliament should in
terferc and put some check upon a juris-
diction SO purely arbitrary, despotic, and
capricious. The difficulty in this case
was that, with the exception of these
statements, there was no authority at all
for any such doctrine; they were nm
founded and untenablc, they were mis-
chievous, and he might almost say dan
gcrous. Whatever the charge of which
a man was accused, though he might be
the greatest rebel till he was convicted,
he was still subject, and was entitled
when brought to justice to these safe
guards which were the essence of Justice,
and which had been found by experience
to be necessary to prevent rash and hasty
conclusions, to prevent irrevcrencc
which had the appearance Of guilt being
treated as though the guilt were establish
cd.


The Lord Chief Justice then entered
into a review of the gradual introduction
of martial law in England, and showed
that its adoption was generally regarded
as exceptional, and was followed by acts
cXonerating the officials rcsorting to it
from legal consequences. Martial law
was proclaimed in the reign of Henry
VII, but the whole of the proceedings
which took place in consequence were
utterly illegal, for if martial law could be
applied for the purpose of supprcssing
rebellion, it was perfectly certain that a
man could not be brought to trial for
treason after q rebellion had been sup
pressed.


From the earliest period OF English
history, when armies left the country for
foreign war, the strictcst ordinances and
statutes were framed for the guidance
and rnlc of the soldier, till, in James the
Second time, they assumed the form of
articles OF war, which were substantially
the articles Of war now in force. They
were most elaborate and precise, and no
one who took the trouble to study them
could fail to be aware of the law by which
he was bound. The High Constable and
Earl Marshal had, through the regular
procedures Of the courts Of law, exercised
jurisdiction in all military matters till
Henry VIII, jealous Of the power of the
high constable; abolished that Office and