resistance is suppressed and after the ordinary courts of justice can be reopened. The courts-martial by which this Martial Law is administered are not courts at all, or courts-martial properly speaking; they are merely committees formed for the purpose of carrying into execution the discretionary power issued by the Government. On the one hand they are not obliged to proceed in the manner pointed out by the Mutiny Act and Articles of War; on the other hand, if they do so proceed, they are not protected by them as the members of a real court-martial might be, except so far as such proceedings are evidence of good faith. They are justified in doing with any forms and in any manner whatever is necessary to suppress insurrection and restore peace and the authority of law. They are personally liable for any acts which they may commit in excess of that power, even if they act in strict accordance with the Mutiny Act and Articles of War."

The opinion of Sir D. Dundas in this part of the subject may also be quoted. He expressed his opinion that "Martial Law is a lex non scripta-a law of necessity: there is no practice laid down for it, but it must be exercised by those who have to exercise it firmly, truthfully, and with as much humanity as occasion allows, according to the conscience and good sense of those who have to exercise it: the military tribunals administering it need not be presided over by military officers, and they are not necessarily guided by the Mutiny Act or Articles of War; but any officer forming part of them could not go very far wrong if he adhered as closely as possible to the mode of administering law under the Army Act, and the oath under that Act would be a very safe and honest guide in such critical cases; no difference is made between soldiers and civilians in punishing offences." Other military lawyers agree that the military code prevails, and not the civil law; the mode of trial is summary and speedy, and the strict rules of evidence followed in Civil Courts are not adhered to.

In Ceylon in 1817 and 1818 the Governor issued his warrant to certain officers of rank, commanding them to hold Courts-martial in their districts, together with letters of instructions detailing the mode of trial so as to ensure a fair trial; and the courts were conducted with the forms laid down by the Articles of War. In 1848 a British commanding officer in one of the proclaimed districts of Ceylon instructed his subordinate officer "not to bring to trial any person you are not certain of convicting your power is unlimited, but at the same time it will be well to adhere to the Articles of War as far as possible, appointing a judge advocate and provost marshal : and after disposal of each culprit, you will forward the proceedings to me."

In India, as already pointed out, the Governor-General is empowered by statute to declare and establish Martial Law. Advocate-General Spankie, in advising concerning sentences of Courts-martial passed in the Cuttack rising in 1817-18, said that "the statute meant that none but cases of the simplest and most obvious criminal nature should be subject to such trial, and that in the cases under review there seemed to be no

reason why the criminals should not have been set before the ordinary court, agreeably to the express directions and instructions of the Government"; and he described Martial Law as "in fact the law of social selfdefence superseding under the pressure and therefore the justification of extreme necessity the ordinary forms of justice. Courts-martial under martial law, or rather during the suspension of law, are invested with the power of administering that prompt and speedy justice in cases presumed to be clearly and indispensably of the highest species of guilt. Its object is self-preservation by terror and the example of speedy justice. But courtsmartial which condemn to imprisonment and hard labour belie the necessity under which alone the jurisdiction of courts-martial can lawfully exist in civil society." (Hough, 1855, Military Law 548).

In the Demerara case (11 Hansard N.S. 961, 1206) the question was raised which law was to be applied by the Court-martial sitting under Martial Law, the law of the country (Dutch), or the law of England by which alone soldiers would be governed; Mr. Smith having been sentenced to death, which was justifiable by the Dutch law as punishment of suspicion of treason, but not by English law. The Attorney-General (Gifford) inclined to the former view; others who took part in the debate did not; but the view of Simmons and Finlason is that, if civilians are amenable like soldiers to Martial Law, and the latter are undoubtedly governed by the law of England, the former must be so too. On the principle of necessity, however, the fact of applying one kind of law and not another is only important as evidence of the bad or good faith of the Court-martial on the question whether its members shall be indemnified for their acts.

Relation of Civil Courts to Martial Law.-In old days prohibition lay to the court of the marshal and that of the constable and marshal from the Court of King's Bench, if it exceeded its jurisdiction (2 Hawkins, P.C., ch. iv., p. 17); and the High Court of Justice in England, and similarly the Supreme Court in any colony, have the right of supervising proceedings by Court-martial. But owing to the careful provisions of the Army Act in this respect, confining the sphere of the ordinary Court-martial under military law to purely military offences in most places, and taking care to secure a preponderating jurisdiction to the Civil Courts for serious civil offences, this very rarely can take place. Thus the Court of Queen's Bench has refused to prohibit a Court-martial which has passed sentence on a soldier after a trial conducted with substantial justice, though not according to the strict procedure of Civil Courts (Grant v. Gould, 1792, 2 H. Bl. 69); and it has refused a writ of habeas corpus in the case of soldiers detained in custody for trial by Court-martial where there is no oppressive delay shown. Under Martial Law the considerations are different. If it is in force throughout a colony, no Courts can sit which can interfere with the Courts-martial; but Martial Law may only be put in force for certain purposes or in certain places e.g., in Jamaica, in 1867, only certain districts of the

island were put under Martial Law, and in the same colony, in 1757, the British Law Officers advised that the proclamation of Martial Law did not suspend the ordinary course of law and justice any further than was absolutely necessary to answer the exigencies of the public and military service, nor did it suspend the exercise of legislative authority (Forsyth, Opinions, 288; Chalmers, i. 267). In such a case the questions suggested in the opinion of the Attorney-General of Cape Colony in 1851, quoted above, may arise: e.g., persons arrested by the military authorities in districts under Martial Law, and kept in military custody there before or after sentence, or brought to districts where Martial Law does not prevail to undergo their sentence, may apply to the Civil Courts for a habeas corpus. English Courts have decided that the privilege of this writ is not available for alien enemies or persons consorting with enemies made prisoners of war; and in one case, that of the Canadian prisoners in 1838, have refused it to rebel subjects brought within the realm of England, who on indictment in a Colonial Civil Court had confessed their guilt, and had thereupon, under the provisions of a special colonial statute, received a pardon from the Governor conditional on their engaging to leave the colony, on the ground that although they had not been tried or sentenced on a criminal charge by a Civil Court, and the effect of the statute was confined to Canada, still they were on their own admission guilty of treason, and any good subject was therefore bound to keep them in custody for trial and punishment (R. v. Batcheldor, Fry's Special Report, and 5 M. and W. 32); and the Courts have held that they, having only civil jurisdiction, could not grant a habeas corpus to bring up a defendant to be charged in execution who is under military arrest under circumstances which might or might not lead to a Court-martial unless he is in the custody of a civil gaol-keeper (Jones v. Danvers, 1839; ibid. 234). But where a Civil Court has jurisdiction over the whole of a colony in districts of which Martial Law has been proclaimed and Civil Courts are not sitting, an application for a writ of habeas corpus before the Supreme Court in the case of a civilian rebel subject in military custody in a proclaimed district must, it would seem, be successful, although the moment he was set free he could be re-arrested and tried civilly, unless that military custody can be justified by statute or common law (Allen's case, 1860, 3 E. and E. 338), or by the sentence of a duly constituted Military Court in a place where no civil judicature prevails (R. v. Suddis, 1801, 1 East, 306).

Where a person arrested by military authority in a district where Martial Law does not prevail is taken to another where it does, and put on trial there, it seems that that is an illegal act and unjustifiable, except perhaps if the executive officer reasonably comes to the conclusion that a dangerous insurrection and conspiracy is spreading throughout the land, likely to break into insurrection all over it if not suppressed, and that it was really proper in order to suppress it that the particular person should be summarily tried because there is no time to wait (Blackburn J., R. v. Eyre, above). Lord

Chief Justice Cockburn and the majority of the judges were, however, of opinion that the procedure made use of in this respect against Gordon was altogether unjustifiable, and he laid down the following rule for the guidance of executive officers who set Martial Law in force: "The officer, so far as his criminal responsibility is concerned in judging of the necessity which it is admitted on all sides is the sole justification for reverting to martial law, should not only act with an honest intention to discharge his public duty, but should bring to the consideration of the course to be pursued the careful, conscientious, and considerate judgment to be expected from one invested with authority; and having done this he would not be liable for an error in judgment or excesses by subordinates if advised that the law of the colony justify him."

By Statutes of 1700 (11 & 12 Will. III. & Mary 7) and 1802 (42 Geo. III., 85) no executive officers of the government of British colonies are liable to criminal proceedings in the courts of the colonies, but only to the Queen's Bench in England: but they are liable civilly (Hill v. Bigge, 1841, 3 Moore P.C. 466). A Colonial Act of Indemnity will, however, relieve them from any liability to criminal or civil proceedings in the Colonial or British Courts, though Blackburn J. doubted whether it would do so as regards criminal proceedings in England if a true bill had been found previously to the passing of the Act. In Phillips v. Eyre above, Willes J., in giving the judgment of the Court that the Colonial Act of Indemnity was a good defence to any civil action in respect of proceedings under Martial Law, said that it must not be understood that the Court thereby intended to express any opinion that the plea might not be sustained upon more general grounds, as showing that the acts complained of were incident to the enforcement of Martial Law, a question which it was unnecessary to discuss (31).

It is difficult to see in what respect the principle which we have adopted of deliberately refraining from giving shape or substance to this law of necessity, by requiring that its application shall be justified by the Legislature, and that its application shall only interfere with ordinary law to the extent of the necessity demanded by the particular emergency, has any advantage from a legal point of view over the plan of giving previous legal sanction to whatever measures are necessary for the safety of the country in emergency, under the same conditions as are now applied in case of statutes of indemnity. Lord Chief Justice Cockburn was in favour of some such plan being adopted. It may be worth while to supplement the consideration of our own system with a short statement of the views taken on this subject in the United States and France.

United States. In the United States there has been some considerable discussion of the subject, chiefly due to the state of circumstances brought about by their Civil War, 1861-1865; and such discussion has been more

comprehensive and discriminating, owing to its recent date, than it has been in England.

Kent (1896 [10th ed.] Comm. i. 341 note) says, "Martial Law is quite a distinct thing from ordinary Military Law, and is founded on paramount necessity, and proclaimed by a military chief": Bishop (Crim. Law, 1882, ss. 43--68) says, "Military Law is distinct from Martial Law, which in fact is, as Blackstone says, no law, but an expedient resorted to in times of public danger similar in its effect to the appointment of a dictator"; and the United States' Instructions to their Armies in the Field define martial law as "simply military authority exercised in accordance with the laws and usages of war; it may be totally suspensive of civil authority, or it may be light, and the Courts may go on in their ordinary course (as in Kentucky, in the Civil War, where martial law was not allowed to interfere with suits or proceedings which did not affect the military operations or the constituted United States authorities): there is no martial law in peace, and necessity only justifies it." Chief Justice Chase, of the United States Supreme Court, in the case of Ex parte Milligan (1866, 4 Wall. 2), thus classified the various legal. aspects of military and martial rule. "There are three kinds of military jurisdiction, one to be executed in both peace and war; another in foreign war outside the limits of the United States, or in time of rebellion and civil war in states or districts occupied by rebels treated as belligerents; and a third to be executed in case of invasion or insurrection in the United States, or during a rebellion in States maintaining an adhesion to the National Government when public danger requires its exercise. The first is Military Law, and is found in Acts of Congress prescribing rules and articles of war, or otherwise providing for the government of the national forces; the second is Military Government, superseding as far as may be deemed expedient local law, and executed by military commanders, under direction of the President, with the express or implied sanction of Congress; the third is Martial Law proper, and is called into action by Congress, or temporarily, when the action of Congress cannot be invited in case of justifying or excusing peril, by the President, in times of insurrection or invasion, or civil or foreign war within districts or localities where the ordinary law no longer adequately secures public safety and private right" (141-2).

The question has usually been raised in the form of a habeas corpus writ directed to military authorities having custody of a prisoner in districts subject to Martial Law. This subject has been dealt with generally by Attorney-General Cushing in 1857, in advising the Executive that the Governor of a territory of the United States had not among his legal attributes the power to suspend law and substitute Martial Law in place of Civil Law, when this was admitted to be the object of preventing the use of a writ of habeas corpus in behalf of certain persons held in confinement by military authority on a charge of treasonable intercourse with the enemy. After remarking that Hale and Lord Loughborough confound Martial Law with