law can determine a thing, the martial law ought not. . . . To hang a man tempore pacis is dangerous. I speak not of prosecution against a rebel: he may be slain in rebellion, but if he be taken he cannot be put to death by martial law" (3 Rush. Appendix 79, 80).

In 1628 the Petition of Right (3 Car. I. 1) was passed, which, after reciting the issue of such commissions as that of 1625 above, declared that they shall be revoked and none such ever again issued. In 1639, however, on the occasion of the Northern rising, the Earl Marshal, who commanded the royal forces, was given by his commission authority to execute Martial Law upon mutineers of his own army and the rebels and enemies captured. But in 1640 the lawyers and judges of the Council expressed their opinion that "Martial Law cannot be executed here in England but when an enemy is really near to an army of the King," and the general's execution of a mutineer was illegal. The House of Commons declared the Earl Marshal's Court a grievance; and in order to maintain discipline in the army, proposed that the Crown should issue a commission of oyer and terminer to the officers in the field and some gentlemen of the country for the trial of members of the King's army in pay. Both Houses were invited by the Crown to confer upon such "a plan to settle the discipline of the army as might not weaken the Petition of Right,"—with what result is unknown. They, however, had a conference as to the disbandment of the army; and the Lords urged that the general should be given power to execute Martial Law for punishing the disorders of soldiers; but the Commons would only agree to ask the King to send down a proclamation that any disobeying the lord-general or their officers should be punished severely as in contempt of the power of King and Parliament (ibid. i. 24). However, during the Civil War the Parliamentary army was governed by Articles of War composed by the Earl of Essex, and issued by leave of both Houses in 1642. After the Restoration commissions were issued to generals commanding the forces sent to suppress rebellion (e.g. Monmouth's in 1685) empowering them to execute Martial Law on mutineers of their own army and the rebels or enemies captured; and Charles II.'s Articles of War purported to give authority to administer justice to soldiers by Courts-martial, even by sentences of life and limb; but they were only to be in force during the rebellion.

In 1689, the first Mutiny Act, after a recital that "the maintenance or a standing army in time of peace without consent of Parliament is against law, and that no man might be prejudged of life or limb, or subjected to any kind of punishment within this realm by martial law," legalised for the first time the maintenance and discipline of an army in time of peace; and the Mutiny Act of 1702 (1 Anne, 16), and all its successors which continue this state of things, add the words "in peace after "subjected" above. Thus neither the Petition of Right nor the Mutiny Acts prohibit the use of Martial Law except in time of peace (defined as above): "The particular grievances at which the Petition of Right was

levelled were only the trials under martial law of military persons or of individuals accompanying, or in some manner connected with them" (Lord Brougham, Demerara Debate, post).

Accordingly, until 1689 there was no difference between Martial and Military Law, both terms meaning the law applicable to soldiers in time of war; and it is in this sense that the definitions of Martial Law in the authorities of the seventeenth and eighteenth centuries must be taken. Thus Hale speaks of it as

"in truth and reality not a law, but something indulged rather than allowed as a law. The necessity of good order and discipline in an army is that only which can give these laws countenance, and the indulged law was only to extend to members of the army or to those of the opposite army, and never was so much indulged as intended to be exercised and executed upon others. For others who had not listed under the army had no claim or reason to be tried by military constitutions applicable only to the army wherein they were part. But they were to be ordered and governed according to the laws to which they were subject, though it were time of war, and the exercise of martial law, whereby any person shall lose his life or member or liberty, may not be permitted in time of peace, when the King's Courts are open for all persons to receive justice according to the laws of the land" (Hist. Com. Law, 34, 42).

Comyn, Abridgment :

"Martial Law cannot be used in England without consent of Parliament."

And so Blackstone (1765), i. 414:

"Martial Law is built on no settled principles, but is entirely arbitrary in its decisions, and is in truth no law but something indulged rather than allowed as law, a temporary excrescence bred out of the distemper of the state, and not any part of the permanent and perpetual law of the kingdom. The necessity of order and discipline is the only thing which can give it countenance, and therefore it ought not to be permitted in time of peace when the King's Courts are open for all persons to receive justice according to the law of the land."

Lord Loughborough said in 1792:

"Martial Law, as described by Hale and Blackstone, does not exist in England at all. Where it is established and prevails in any country, it is of a totally different nature from that which is inaccurately called martial law merely because the decision is by a court-martial, but which has no affinity to that which was formerly attempted to be exercised here, which was contrary to the constitution, and has been for a century totally exploded," and goes on to describe Martial Law as meaning a law which claims jurisdiction over all military persons for all offences exercised by military officers (Grant v. Gould, 2 H. Bl. 69).

Modern Sense.-Since, however, the separation of Military Law from Martial Law took place, the latter term has been applied to something quite different-namely, the law of necessity promulgated by the Crown in case of domestic danger arising from foreign invasion or native insurrection. to which both civilians and soldiers are equally subject, and which is enforced by military authority. The possible existence of such a state of things in

British dominions has been repeatedly recognised by statute; but it has been stoutly contested between writers on constitutional law and military law whether it is a part of our ordinary law or not.

Thus Sir James Stephen distinguishes four classes of Martial Law: "(1) the law marshal executed by the constable and marshal upon troops in actual service, and especially in foreign service; (2) the law marshal extended to times of peace upon emergencies, and for the punishment of breaches of the peace; (3) military law as stated in the annual Army Acts; (4) the common law right of the Crown and its representatives to repel force by force in case of invasion or insurrection, and to act against rebels as against invaders ;" and he adds that (1) is obsolete, superseded by courts martial, (2) is illegal by the Petition of Right, but has been applied to a very different thing, namely (4). Professor Dicey says: "Martial Law, if it means the power of the Government or loyal citizens to maintain public order at whatever cost of blood or property may be necessary, is part of English law; but it is more often used for the name for the government of a country or district by military tribunals, which more or less supersede the jurisdiction of the Courts, and this, its proper sense (i.e. suspension of the ordinary law and the temporary government of the country or part of it by military tribunals), is unknown to English law" (Law of Const. 273). Lord Thring similarly says: "The proclamation of Martial Law is no more than an authoritative announcement of the existence of a state of things in which force will be used against wrongdoers for the purpose of protecting the public peace. In modern writers it is used to mean the laws of war or the exercise of force in case of rebellion" (Official Manual of Military Law 19). Hargrave, in an opinion given as to the legality of the trial of a civilian in Ireland by Martial Law previous to the statute allowing it of 1799, says that "before the passing of the Act it had been open to doubt whether the prerogative of claiming and exercising martial law in time of actual invasion by a foreign enemy, or in time of actual rebellion, was not merely referable to the law for governing the royal army and all connected with it (i.e. for governing those employed in defending the country against invasion and suppressing rebellion), and whether under martial law to try persons seized in rebellion or upon suspicion of being rebels before a court-martial constituted by the King's authority and punish them by death, or otherwise at the discretion of such a Court, was not an extension of martial law beyond its real object, and an infringement of the law of England, in a point of most serious character. ." and adds in a note his conviction that "apart from statute this illegal right to try by martial law rebels taken in' open insurrection was irreconcilable with the Petition of Right and the opinions then expressed of Coke, Rolls, Noy, Banks, and Hale" (Forsyth, Opinions 188-92).

On the other hand, historians such as Hume and Hallam say that there may be a Martial Law in time of insurrection or public disorder, exercised

sometimes by the Court of the Constable and Marshal (Hume, History v., App. 3; Hallam, Const. History i. 326 ante). Lawyers such as Finlason and Forsyth, and military lawyers such as McArthur, Clode, Hough, and Simmons, take the view that the Crown has a prerogative right to declare Martial Law and execute it in British dominions in times of necessity, such as insurrection or invasion, unaffected by the Petition of Right, which was only aimed at the suppression of Martial or Military Law in time of peace, on the ground that rebellion is war within the realm, and that therefore, in the words of Mr. Stuart Wortley in the House of Commons Committee on the Ceylon revolt in 1849, "the proclamation of Martial Law is the declaration of a state of war."

The best way of testing these two theories is to review the historical occasions on which Martial Law has been called into existence in British dominions, and the opinions then expressed by statesmen and lawyers.

Martial Law in the United Kingdom.-Instances of Martial Law up to 1689, when Military Law was finally distinguished from it, have been given above. Since that date the only time at which Martial Law has been proclaimed was in 1798 in Ireland; and it is noteworthy that no attempt was made to set it up either in the risings of 1715 and 1745 or the Gordon riots of 1780. In 1715 the King in Council issued a proclamation authorising all officers, civil and military, by force of arms if necessary, to suppress the rebellion. In 1745 all civil magistrates were charged by proclamation to do their utmost to prevent and suppress all riots, and put in execution all laws made for preventing the same. In 1780, during the Gordon riots, authority was given to the military to put down the riot without the intervention of the civil powers, but all persons arrested were, as had been publicly intimated, tried by ordinary law. In none of these was Martial Law proclaimed, although in the last at least the civil power was superseded. In 1798, on the outbreak of rebellion in the south of Ireland, proclamation was made by Order in Council to officers commanding the forces to employ them with the utmost vigour and decision for the immediate suppression of the rebellion; and this was followed by another to all general officers commanding the forces to punish all persons acting, aiding, or in any manner assisting the rebellion according to Martial Law, whether by death or otherwise, as to them should seem expedient for the suppression and punishment of rebels.

One of the Irish leaders, Wolfe Tone, was taken prisoner on board a French ship, tried by Court-martial in Dublin, and sentenced to death. The Civil Courts were still sitting there, and application was made to them for a writ of habeas corpus: his counsel urged that he was not a soldier in the King's service, and therefore no Court-martial could take cognisance of any crime imputed to him while the Court of King's Bench sat in the capacity of the great Criminal Court of the land. The Court granted the writ, though Tone died in prison from the effects of a self-inflicted wound; but it may be noticed that the rising had been crushed when Tone was taken.

A special statute was accordingly passed by the Irish Parliament to enable Martial Law to be in force whether the ordinary Civil Courts were open or not, which recited "the Crown's undoubted prerogative in executing Martial Law, which had so far restored the peace of the kingdom as to allow the course of the Common Law partially to take place," and contained a proviso that it did not abridge the acknowledged prerogative of the Crown for the public safety to revert to the exercise of Martial Law against open enemies or traitors (1799, 39 Geo. III. 3). But, presumably for greater security, an Act of Indemnity was afterwards passed in Ireland in respect of all acts done in enforcing the above-mentioned statute. In 1803 coercive measures again became necessary in Ireland, and the Parliament of the United Kingdom passed an Act in similar terms to the previous Irish one (43 Geo. III. 117). Mr. Pitt in introducing the Bill stated that the Bill was not to enable the Government in Ireland to declare Martial Law in districts where insurrection existed, for that power the Crown already possessed, but to ... enable the Lord Lieutenant to order any persons taken in rebellion to be tried immediately by Court-martial, but not to supersede the Civil Courts in Ireland and to deprive subjects in civil causes of the ordinary law of the land; and that if accepted it would be followed by a Bill to suspend the Habeas Corpus Act in Ireland. Mr. Hargrave, in speaking of this Act, in the opinion quoted above, says that "it makes a vast difference, for it contains recitals which recognise a royal prerogative of authorising trial and punishment of rebels by Martial Law, and that he was forced to resist any contrary impressions he previously had as to the real boundary of Martial Law."

Again, in 1833 (3 & 4 Will. IV. 4), a similar Act was passed; and it has therefore been said that the Crown has now, by admission of Parliament, the undoubted right of executing Martial Law for the defeat or dispersion of armed rebels.

In the Colonies. Whatever power the Crown possesses in this respect in the United Kingdom it possesses equally in the Colonies, whether settled or conquered; for it seems that the Petition of Right applies to both as being merely declaratory of the Common Law of England regarding the limits of the sovereign's prerogative and the subject rights (Cockburn, L.C.J., in R. v. Nelson, post). Vice versâ, whatever power in this respect the Crown has in the Colonies, except by colonial enactment, it also has in the United Kingdom.

Martial Law has been proclaimed in the Colonies in times of invasion or insurrection in the following cases in Barbadoes in 1805 and 1816, in the latter case many rebels being sentenced to death by Court-martial; in Demerara in 1823, where the rebellion began August 18th, Martial Law was proclaimed August 19th, an amnesty was proclaimed August 22nd, and on October 13th a missionary, John Smith, was tried by a Court-martial, of which the chief justice of the colony was a member, and was sentenced