land could, and did, subsist in many cases, and the Mohammedan law afforded no warrant for its confiscation; but the land that could be reduced to private ownership and the means of acquiring it were very limited. Thus, too, it was that the crown lands in Turkey, at the meridian of Ottoman splendour, yielded about three-fourths of the whole revenue of the State (see Von Hammer, Bk. xxxv., vol. 6, pp. 260, 267). The soil had in most cases become forfeit by conquest, and had not been distinctly restored to private ownership subject to Kharáj. It had become domain of the State, with usufructuary rights in the occupants ripening, according to time and place, into a possessory title, subject to variable taxes, and to a free exercise of the eminent domain of government.

The general narrowness and inflexibility of the Mohammedan Law in refusing recognition to any rights and relations except such as are based on its own provisions, and therefore on the Mohammedan religion, is qualified, in practice, by the rule that questions of personal status, and those relating to the clergy of a tolerated religion, are to be governed by the religious laws of the particular community. The analogy of the Mohammedan Law itself is followed as to principle, while its particular rules are dropped. Mohammed himself directed that protected subjects should be conceded what belonged to their religion; and the law of personal status, as viewed by Moslems, falls peculiarly within this category. So, too, do the regulation of worship, and the relations between clergy and laity. Hence it was that the Sultan and the Great Moghul readily allowed the Christian bodies in their dominions their own laws as to marriage and inheritance. They went further, and allowed them to settle all civil disputes amongst themselves by their own laws and their own tribunals.1 A similar indulgence was allowed to the Hindus in India. But once a case fell within the scope of the public law, or had to be adjudged by a Mohammedan tribunal, as always where a Mohammedan was a party, no other law was applied, or could be applied, than that which alone the Mohammedan holds binding and superior to all merely rational considerations.

In order to avoid injustice arising from this source, the several Christian Powers obtained from the Sultan of Turkey concessions called Capitulations, under which the Consular jurisdiction over their own subjects was recognised, and a right was secured of presence on the part of a Consular official at every trial by an indigenous court of a case in which a subject of the Christian State was sued or prosecuted. In recent years the Mixed Tribunals in Egypt have been set up, with cognisance of all suits between Europeans

The Sultans from the time of the capture of Constantinople always used the Patriarch as an instrument of government. In the earlier times of their dominion they left much of the local administration to the Christian villagers. In India the village institutions were hardly touched by them until fiscal derangement there, as in Turkey, led to encroachments and oppressions, especially through the farming system, which caused a general disintegration.

and natives, and between Europeans of different nationalities. Codes of law have at the same time been promulgated in Turkey and Egypt based chiefly on the Code Napoléon, for the purpose of assimilating the penal law and the commercial law to those of Christian countries. These are quite different from the Kanun-name of Orkhan, Mohammed II. or Suleiman the Legislator, which was a system of administrative ordinances supplemented by penal regulations. They purport to place all subjects of the Sultan on a footing of equality as to civil rights, enforced by a set of secular tribunals (mehkemes). As the Kazis of the old school, bound to administer the Sharaa as interpreted by the Ulama, could not be entrusted with jurisdiction under these new laws, a separate set of Courts has been set up in cach country, the procedure of which is regulated by codes likewise derived chiefly from the French. Such Mohammedans as recognise the Prophet's suggestion that new laws should be made by meditative effort, to meet new exigencies, accept the new Courts, and the modern law they administer, as having a moral as well as a legislative claim to their obedience. The Ulama look askance on these innovations. The circle of the law, they hold, was completely drawn by Mohammed he declared that his precepts and example were enough for human guidance; any contradiction of these involves sacrilege, and no supplement can be necessary. They admit only that many principles merely indicated are susceptible of development on truly Islamic lines. Such development, they say, they would welcome. Mere interpolations from alien systems deserve in their view only the respect due to a rule of force.

MARTIAL LAW IN REBELLION.

[Contributed by G. G. PHILLIMORE, ESQ.]

THE fact of the proclamation of Martial Law in certain districts of Cape Colony and Natal in connection with the present war in South Africa may be thought enough to justify a brief consideration of the nature, meaning, and effect of Martial Law when proclaimed in any part of the British dominions.

Original Meaning.-The term Martial Law originally was spelt "Marshal Law," and meant the law administered in the Court of the Marshal and the Constable of England, described as "the fountain of martial law" by Coke, which was recognised by statute as early as the reign of Richard II. (end of fourteenth century), and practically ceased to exist under Henry VIII., when the office of Constable fell vacant, and was never afterwards except temporarily filled. The Act 13 Ric. II. 2 (A.D. 1389) thus describes the Court's jurisdiction:

"To the Constable it appertaineth to have conusance of contracts and deeds of arms and of war out of the realm, and also of things that touch war within the realm which cannot be determined or discussed by the Common Law, with other usages and customs to the same matters pertaining which the other Constables have heretofore duly and reasonably used in their time, joining to the same that every plaintiff shall declare plainly in his petition afore that any man be sent for to answer thereto. And if any will complain that any plea be commenced before the Constable and Marshal that might be tried by the law of the land, the same complainant shall have a privy seal of the King without difficulty directed to the said Constable and Marshal to surcease in that plea till it be discussed by the King's Council if that matter ought and of right pertaineth to that Court, or otherwise to be tried by the Common Law of the realm of England, and also that they surcease in the meantime.”

Another Act, 1 Hen. IV. 14 (1399), provides that all appeals made of things done out of the realm shall be tried and determined before the Constable and Marshal of England for the time being, and that no appeals shall be pursued in Parliament. Hale (who died in 1676), in his account of the Court's jurisdiction, says that these officers had, as regards matters of war, a judicial power over

"(1) appeals of death or murder committed beyond the sea according to the course of the civil law.

"(2) the right of prisoners taken in war; and

"(3) the offences and miscarriages of soldiers contrary to law or the rules of the army, for always preparatory to actual war the kings of this realm by the advice of the Constable and Marshal, were used to compose a book of rules and orders for the due discipline of their officers and soldiers, together with certain penalties on offenders, and this was called martial law (Hist. Common Law, 41).

But it must be a time of war to give exercise to their jurisdiction, for if in time of peace a commission issue to exercise Martial Law, and such commissioners condemn any of the King's subjects not being listed under the military power, this is a great misprision and an erroneous proceeding, and accordingly adjudged in the case of the Earl of Lancaster (Pleas of Crown i. 500). The Court proceeded according to its customs and usages, and in cases omitted, according to the Civil Law, secundum legem armorum (Coke, Inst., Pt. iv. ch. 17). It sometimes also tried offenders by Martial Law, but only either during or not long after serious rebellion; and as regards aliens this was not disputed. Thus, when Perkin Warbeck, an alien born in Flanders, was taken prisoner in his invasion of England, it was resolved by the Justices that he could not be punished by the Common Law, but before the Constable and Marshal, who had a special commission to hear and determine the same according to Martial Law, and the sentence of that Court, that he should be drawn, hanged, and quartered, was executed upon him (7 Co. Rep. 6 a); and in Mary's reign some of those taken in Wyatt's insurrection were tried without regular process, though their leader had his trial by a jury (Hallam, Const. Hist. i. 326). When the Constableship fell into disuse, the jurisdiction of the Court of the Marshal was disputed, but its disciplinary power over the army in time of war was exercised by the Marshal or the general commanding, in virtue of royal commission; for the Court could be held by commission, and this was not touched by the Petition of Right (Hawkins, Pleas of Crown ii. 17). The Crown also claimed the right of executing Martial Law against rebels, but this was only allowed flagrante bello. Thus in the case of the Earl of Lancaster, who took part in a rising against Edward II., and on being taken prisoner was tried by Martial Law after the rising was suppressed, and executed at Pontefract, the proceedings were afterwards, on the petition of his son, solemnly reversed by Parliament in the first year of Edward III. as illegal ; and a similar course was taken in the similar case of the Earl of Kent. Under the Tudors the claim to exercise Martial Law was, no doubt illegally, extended by the Crown in various ways. Thus Henry VII. applied it against rebels after the suppression of rebellion; Edward VI. declared that offences which were Common Law misdemeanours should be punished by it; and Mary and Elizabeth respectively proclaimed that bringing heretical books into the country, or introducing Roman bulls or traitorous works from abroad, would be dealt with by it. Elizabeth, on the petition of the City of London

during the riots there in 1596, gave a commission to Sir T. Wilford to execute Martial Law on the rioters; but no executions took place under it, and the persons arrested were tried by the ordinary courts; and probably all these proclamations were only in terrorem. The Stuarts claimed the exercise of Martial Law for the purposes of putting down rebellion and maintaining discipline in the army: e.g., under James I., in 1624, on the occasion of the return of the army from Spain, a commission was issued to various persons, including the Lord Marshal of the army, military officers, local gentry, and townspeople at Dover, to "proceed within an assigned district according to the justice of martial law against soldiers or other dissolute persons going with them. . . committing any robberies, felonies, mutinies, or other outrages and misdemeanours, which by martial law should be punished by death in such summary course and order as is agreeable to martial law and as is usual in armies in time of war." Articles of War issued in 1625 by the Crown for the discipline of the army till it should be disbanded (which was not till 1628) made specified offences punishable by the commanding officers or the Marshal's Court, and authority was given "to any three or more of the commissioners to call a Marshal Court, and sit in commission to hear, judge, and determine any fact done by soldiers, but to have no power to put to death till they have advertised the general that shall have power of life and death for such troops as he shall command" (Clode, Mil. Forces of Crown i. 18); and similar commissions to the above were issued while the army was kept together, the object of which was not merely to support the discipline of the army or navy, but for the more speedy punishment of any crimes committed by offenders in the pay of the Crown and civilians associated with them. In the arguments in Parliament on the right to proclaim Martial Law, which preceded the passing of the Petition of Right, Mr. Rolls said:

The law of

of it, and we The common

"I will not trench upon this power, but upon the abuse of it. the marshal is the king's law, and the common law takes notice acknowledge it to be, but now the question is when it is to be used. law is the highest for the subject; every liege man inherits the law; it is the inheritance of the king and is not to be taken from him, and martial law is merely for necessity where the common law cannot take place. If the Chancery Courts and Courts of Westminster be shut up, that are the officina justitiæ, it is time of war, but if the Courts be open it is otherwise; yet if war be in any part of the kingdom that the sheriff cannot execute the king's writ there, there is tempus belli. If an enemy come into any part where the common law cannot be executed, there may martial law be executed. If a subject be taken in rebellion, if he be not slain at the time of his rebellion he is to be tried after by common law; but if an alien enemy come into the realm he cannot be executed by the common law, for he is not a liege of the king's and so is to be tried by martial.”

And Coke said:

"It is time of peace when the Courts of Westminster are open, for when they are open you may have a commission of oyer and terminer. Where the common