Charles Grant Robertson.

Select statutes, cases, and documents to illustrate English constitutional history, 1660-1832, with a supplement from 1832-1894 online

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Online LibraryCharles Grant RobertsonSelect statutes, cases, and documents to illustrate English constitutional history, 1660-1832, with a supplement from 1832-1894 → online text (page 37 of 54)
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to in the judgment are, for convenience, cited below, A and B. See Blaek-
stone's (H.) Rep. ii. 69, and autliorities cited in Dicey, L.C. app. xii. note.]

This leads me to an observation that martial law such as it is
described by Hale, and such also as it is marked by Mr. Justice
Blackstone, does not exist in England at aU. Where martial law
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 bears no afl&nity
to that which was formerly attempted to be exercised in this kingdom ;
which was contrary to the constitution, and which has been for
a century totally exploded. Where martial law prevails, the
authority under which it is exercised, claims a jurisdiction over aU
military persons, in aU circumstances. Even their debts are subject
to enquiry by a military authority: every species of offence, committed
by any person who appertains to the army, is tried, not by a civil
judicature, but by the judicature of the regiment or corps to which
he belongs. It extends also to a great variety of cases, not relating
to the discipline of the army, in those states which subsist by military
power. Plots against the Sovereign, intelligence to the enemy, and
the like, are all considered as cases within the cognizance of military

In the reign of King William, there was a conspiracy against his
person in Holland, and the persons guilty of that conspiracy were
tried by a council of officers. There was also a conspiracy against
him in England, but the conspirators were tried by the common law.
And within a very recent period, the incendiaries who attempted to
set fire to the Docks at Portsmouth, were tried by the common law.


In this country, all the delinquences of soldiers are not triable, as
in most countries of Europe, by martial law; but where they are
ordinary offences against the civil peace, they are tried by the common
law courts. Therefore it is totally inaccurate, to state martial law, as
having any place whatever within the realm of Great Britain. But
there is by the providence and wisdom of the Legislature, an army
established in this country, of which it is necessary to keep up the
establishment. The army being established by the authority of the
Legislature, it is an indispensable requisite of that establishment, that
there should be order and discipline kept up in it, and that the persons
who compose the army, for all offences in their military capacity,
should be subject to a trial by their officers. That has induced the
absolute necessity of a mutiny act, accompanying the army. . . .

This Court {i.e. a military court) being established in this country
by positive law, the proceedings of it, and the relation in which
it will stand to the Courts of Westminster Hall, must depend upon
the same rules, with aU other courts, which are instituted, and have
particular powers given them, and whose acts therefore, may become
the subject of application to the Courts of Westminster Hall, for
a prohibition. Naval Courts Martial, Military Courts Martial, Courts
of Admiralty, Courts of Prize are all liable to the controlling
authority, which the Courts of Westminster Hall have, from time
to time, exercised, for the purpose of preventing them from exceed-
ing the jurisdiction given to them : the general ground of prohibition,
being an excess of jurisdiction, when they assume a power to act in
matters not within their cognizance.

My brother Adair justly and correctly said, that a prohibition
to prevent the proceedings of a court martial, is not to be granted,
without very sufficient ground and due consideration. Not that it is
not to be granted, because it would be dangerous in all cases to grant
prohibitions ; for it would be undoubtedly dangerous, if there was a
facility in applying for prohibitions, and the sentence were to be
stopped, for asking it to be further enquired into. But in such cases
it is the duty of the court to consider the matter fully and deliberately,
upon the motion to prohibit, and the court not without great danger,
take the course in such a case which they have done in others, where
there is no danger in the delay, to put the matter in prohibition, and
determine it, upon the record.



But, secondly, as to matters of war. The constable and marshal had a
double power, viz.

1. A ministerial power, as they were two great ordinary officers,
anciently, in the king's army ; the constable being in effect the king's
general, and the marshal was employed in marshalling the king's army,
and keeping the list of the officers and soldiers therein, and his certificate
was the trial of those whose attendance was requisite. Videi Littleton,

Again, 2, the constable and marshal had also a judicial power, or a
court wherein several matters were determinable : as first, appeals of
death or murder committed beyond the sea, according to the course of
the civil law. Secondly, the right of prisoners taken in war. Thirdly,
the offences and miscarriages of soldiers contrary to the laws and rijles of
the army : for always preparatorily to an actual war, the kings of this
realm, by advice of the constable, and marshal, were used to compose a
book of rules and orders, for the due order and discipline of their officers
and soldiers, together with certain penalties on the offenders ; and this
was called martial law. We have extant in the black book of the
admiralty, and elsewhere, several exemplars of such military laws, and
especially that of the ninth of Eichard II. composed by the king, with
the advice of the duke of Lancaster, and others.

But touching the business of martial law, these things are to be
observed, viz.

First, that in truth and reality it is not a law, but something indulged,
rather than allowed, as a law ; the necessity of government, order and
discipline in an army, is that only which can give those laws a counten-
ance, quod enim necessitas cogit defendit.

Secondly, this 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 executed or exercised upon others ; for others who were
not listed under the army, had no colour or reason to be bound by military
constitutions, applicable only to the army, whereof they were not parts ;
but they were to be ordered and governed according to the laws to which
they were subject, though it were a time of war.

Thirdly, that the exercise of martial law, whereby any person should
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. This is in substance declared by the
petition of right, 3 Car. 1. whereby such commissions and martial law
were repealed, and declared to be contrary to law : and accordingly was
that famous case of Edmond earl of Kent ; who, being taken at Pomfret,
15 Edw. II. the king and divers lords proceeded to give sentence of death
against him, as in a kind of military court by a summary proceeding,
which judgement was afterwards, in 1 Edw. III. reversed in parliament.

And accordingly the judgement was reversed ; for martial law, which is


rather indulged than allowed, and that only in cases of necessity, in time
of open war, is not permitted in time of peace, when the ordinary courts
of justice are open.

In this military court, court of honour, or court martial, the civil law
has been used and allowed in such things as belong to their jurisdiction,
as the rule or direction of their proceedings and decisions ; so far forth as
the same is not controlled by the laws of this kingdom, and those
customs and usages which have obtained in England, which even in
matters of honour are in some points derogatory to the civil law. But
this court has long been disused upon great reasons.

{Hale, Hist, of the Common Law, pp. 34 and 36, )

For martial law, which is built upon no settled principles, but is
entirely arbitrary in its decisions, is, as sir Matthew Hale observes, in
truth and reality no law, but something indulged rather than allowed
as a law. The necessity of order and discipline in an army 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 laws of the land. Wherefore, Thomas
earl of Lancaster being condemned at Pontefract, 15 Edw. II. by martial
law, his attainder was reversed 1 Edw. III. because it was done in time
of peace. And it is laid down, that if a lieutenant, or other, that hath
commission of martial authority, doth in time of peace hang or otherwise
eiecute any man by colour of martial law, this is murder ; for it is against
Magna Carta. And the Petition of Eight enacts, that no soldier shall be
quartered on the subject without his own consent ; and that no commission
shall issue to proceed within this land according to martial law. And
whereas, after the restoration, king Charles the second kept up about five
thousand regular troops, by his own authority, for guards and garrisons ;
which king James the second by degrees increased to no less than thirty
thousand, all paid from his own civil list ; it was made one of the articles
of the BiU of Rights, that the raising or keeping a standing army within
the kingdom in time of peace, unless it be with consent of parliament, is
against law.

But, aa the fashion of keeping standing armies (which was first in-
troduced by Charles VII. in France, a.d. 1445) has of late years universally
prevailed over Europe (though some of its potentates, being themselves
unable to maintain them, are obliged to have recourse to richer powers,
and receive subsidiary pensions for that purpose) it has also for many
years past been annually judged necessary by our legislature, for the
safety of the kingdom, the defence of the possessions of the crown of
Great Britain, and the preservation of the balance of power in Europe,
to maintain even in time of peace a standing body of troops, under the
command of the crown ; who are, however ipso facto disbanded at the
expiration of every year, unless continued by parliament. And it was
2 A


enacted by statute 10 W. III. c. 1. that not more than twelve thousand
regular forces should be kept on foot in Ireland, though paid at the
charge of that kingdom : which permission is extended by statute 8 Geo.
III. c. 13. to 16,235 men, in time of peace.

However expedient the most strict regulations may be in time of
actual war, yet, in times of profound peace, a little relaxation of military
rigour would not, one should hope, be productive of much inconvenience.
And upon this principle, though by our standing laws (still remaining
in force, though not attended to) desertion in time of war is made felony,
without benefit of clergy, and the offence is triable by a jury and before
the judges of the common law ; yet, by our militia laws before-mentioned,
a much lighter punishment is inflicted for desertion in time of peace.
So, by the Eoman law also, desertion in time of war was punished by
death, but more mildly in time of tranquillity. But our Mutiny Act
makes no such distinction : for any of the faults above-mentioned are,
equally at all times, punishable with death itself, if a court martial shall
think proper. This discretionary power of the court martial is indeed
to be guided by the directions of the crown ; which, with regard to
military offences, has almost an absolute legislative power. "His majesty,
says the act, may form articles of war, and constitute courts martial,
with power to try any crime by such articles, and inflict such penalties
as the articles direct." A vast and most important truth ! an unlimited
power to create crimes, and annex to them any punishments, not extending
to life or limb ! These are indeed forbidden to be inflicted, except for
crimes declared to be so punishable by this act ; which crimes we have
just enumerated, and, among which, we may observe that any disobedience
to lawful commands is one. Perhaps in some future revision of this act,
which is in many respects hastily penned, it may be thought worthy the
wisdom of parliament to ascertain the limits of military subjection, and
to enact express articles of war for the government of the army, as is done
for the government of the navy.

{Blackstone, Commentaries, I. 414.)


Geo. III., 1798.

[Wolfe Tone, a subject of George III., who had taken part in a
French invasion of Ireland in 1798, was captured on a French man-of-
war and sentenced by a court-martial in Dublin to be hanged. The
points at issue are very clearly explained in the excerpt. "No more
splendid assertion of the supremacy of the law can be found than the pro-
tection of Wolfe Tone by the Irish Bench." Dicey, L.C. 290; see the
whole of ch. viii. and app. xii.]


In the interval a motion was made in the Court of King's Bench
by Mr. Curran, on an affidavit of Mr. Tone's father, stating that his
son had been brought before a bench of officers, calling itself a court
martial, and by them sentenced to death.

" I do not pretend to say," observed Mr. Curran, " that Mr. Tone is
not guilty of the charges of which he was accused ; — I presume the
officers were honourable men ; — but it is stated in the affidavit, as a
solemn fact, that Mr. Tone had no commission under His Majesty,
and therefore no court martial could have any cognizance of any
crime imputed to him, whUe the Court of King's-bench sat in the
capacity of the great criminal court of the land. In times when war
was raging, when man was opposed to man in the field, courts martial
might be endured ; but every law authority is with me, while I stand
upon this sacred and immutable principle of the constitution — that
martial law and civil law are incompatible; and that the former
must cease with the existence of the latter. This is not the time for
arguing this momentous question. My client must appear in this
court. He is cast for death this day. He may be ordered for execu-
tion whUe I address you. I caU on the Court to support the law. I
move for a Habeas Corpus to be directed to the provost marshal of
the barracks of Dublin, and Major Sandys to bring up the body of
Mr. Tone.

Lord Chief Justice [Kil warden]. — Have a writ instantly prepared.

Mr. Curran. — My client may die while this writ is preparing.

Lord Chief Justice. — Mr. Sheriff, proceed to the barracks, and
acquaint the provost marshal that a writ is preparing to suspend Mr.
Tone's execution ; and see that he be not executed.

[The Court awaited in a state of the utmost agitation, the return
of the Sheriff.]

Mr. Sheriff. — My lords, I have been at the barracks, in pursuance
of your order. The provost marshal says he must obey Major
Sandys. Major Sandys says he must obey lord Cornwalhs.

Mr. Curran. — Mr. Tone's father, my lords, returns, after serving
the Habeas Corpus : he says General Craig wiU not obey it.

Lord Chief Justice. — Mr. Sheriff, take the body of Tone into
your custody : Take the provost marshal and Major Sandys into
custody : and show the order of this Court to General Craig.

Mr. Sheriff (who was understood to have been refused admittance
at the barracks) returns. — I have been at the barracks. Mr. Tone,
having cut his throat last night, is not in a condition to be removed.
As to the second part of your order, I could not meet the parties.


[A French Emigrant Surgeon, whom General Craig had sent along
with the Sheriff, was sworn.]

Surgeon.— I was sent to attend Mr. Tone this morning at four
o'clock, his windpipe was divided. I took instant measures to secure
his life, by closing the wound. There is no knowing, for four days,
whether it will be mortal. His head is now kept in one position.
A sentinel is over him, to prevent his speaking. His removal would
kill him.

Mr. Curran applied for further surgical aid, and for the admission
of Mr. Tone's friends to him. [Eefused.]

Lord Chief Justice. — Let a rule be made for suspending the execu-
tion of Theobald Wolfe Tone; and let it be served on the proper


51 Gfeo. IIL, 1811.

[Sir Francis Burdett, m.p., had published a letter in Gohbett's Weekly
Register which the House of Commons pronounced to be " a libellous and
scandalous paper, reflecting on the just privileges of the House," and
declared the author to be " guilty of a breach of privilege." The Speaker's
warrant for Burdett's arrest was executed with the assistance of soldiers,
and Burdett was carried oflf to, and confined in, the Tower of London.
He then brought an action against the Speaker for trespass, thus raising
the issues : (1) whether the House of Commons had power to commit for
contempt ; (2) whether in executing such a process for contempt it was
justifiable to break into a house. Lord Chief Justice Ellenborough's
elaborate judgment, many historical points of which are open to criticism,
but with which Bayley and Grove, JJ., concurred, was subsequently con-
firmed on a writ of error by the Court of Exchequer Chamber and the
House of Lords. See EasSs Rep. xiv. 1-163 ; Anson, L.C. i. 169 ; May,
P.P. 47-142 ; and cf. with the case of The Sheriff of Middlesex, p. 388.]

The only points which are immediately presented by the record for
our decision are, first, Whether the House of Commons has any
authority by law to commit in cases of contempt as a breach of
privilege? Secondly, Whether, supposing the House to have such
an authority in general, that authority has been well executed by
the warrant in question ; that is, whether the warrant stated in the
plea of the defendant discloses a sufficient ground of commitment in


this instance 1 And thirdly, Whether the means which have been used
for the execution of the Speaker's warrant are in law justifiable? The
subject, as it seems to me, cannot properly be branched out and
divided into more points. In argument it has indeed been dilated to
a much wider extent here, and has been considered in much greater
latitude as a question of controversy elsewhere, than is at all neces-
sary for the decision of these which are the only points with which
we have judicially any concern upon the present occasion. The
citations made upon the first argument from the judgement of Sir
Orlando Bridgeman rather tend to illustrate the character of that
most eminent judge, by exhibiting the profundity of his learning,
and the extent of his industry, than to throw any material light upon
the present question. A very moderate portion of the learning
there displayed by him is at all applicable to the present case. The
main point decided, and properly decided, in that case was, that the
privilege of Parliament, which exempted members from arrest, did
not wholly suspend the right of suit against them during the entire
continuance of the Parliament, at least so as to prevent the suing
by original. So a great part of the learning exhibited upon
Thorpe's case there cited, though properly adverted to as the case
itself was, bears very little on the question immediately before us.
That case, which is to be found in the rolls of Parliament, 31 H. 6.
No. 26, 27, 28, decides that a suit commenced against a member
might proceed to any extent in the time of the vacation of
Parliament, though not in parliament time, as it is called. Thorpe's
case appears to be the earliest applicable to parliamentary privilege ;
for the two other cases of an earlier date mentioned by Lord
Coke in his 4th Institute (24), that of John de Thoresby, 10.
Ed. 3. and of Bogo de Clare 18 Ed. 1., are shewn by Sir Orlando
Bridgeman in his judgement, in Benyon v. Evelyn, to have no
proper reference to the privileges of the members of the House of
Commons : and indeed, according to this case of Thorpe, as sup-
posed by Lord Coke, it appears that the exemption from arrest was
not claimed or considered as the peculiar privilege of a member
of one or of the other House of Parliament, properly as such ; but
as the privilege of a member of . the High Court of Parliament
generally : and the reason of such privilege, as given by the judges,
is one which applies equally to the members of both Houses, viz.
"that they may have their freedom and liberty freely to intende
upon Parliament." Other cases have been cited, in which the right
of the subject to sue in matters of parliamentary cognizance has
been in part recognized by the courts. The first mentioned of these


cases, however, that of Thorpe, respects merely the privileges of
individual members, and the means of their individual protection,
not the vindictive privileges of the House for offences done generally
against the body of the House, in breach of the rights and privileges
of the whole House collectively considered. The other cases next
mentioned, that of Bogo de Clare, and John de Thoresby, do not
apply to this question ; which is, what acts the House of Commons
may justifiably do ; not where, or how, such acts shall be alone
brought into question. As to the first point which arises in this case ;
has the House of Commons a right to commit for breach of privi-
lege ? It has been argued, that they are prohibited from imprisoning
persons by the statute of Magna Charta, and the 28 Ed. 3. c. 3. :
but the provision in Magna Charta directed against acts of unauthor-
ized force, "that no man shall be imprisoned but by the lawful
judgement of his peers, or by the law of the land;" and that of
the stat. 28 Ed. 3. " that no man shall be put out of land or tene-
ment, nor taken or imprisoned, nor disinherited, nor put to death,
without being brought in to answer by due process of the law ; " are
satisfied as far as they relate to this subject, if the lex et consue-
tudo parliamenti be, as Lord Coke and aU the writers on the law
have held that it is, part of the law of the land in its large and
extended sense : At what time the two Houses of Parliament, as at
present constituted and distinguished, that is, as Lords and Commons,
first ceased to sit together, as originally they did, and began to have
a separate existence, is a matter more of antiquarian curiosity than
of legal importance. The separation of the two Houses seems to
have taken place as early as the 49 H. 3. about the time of the battle
of Evesham ; for I think it is at that period that the fijst return of
of "knights, citizens, and burgesses " is to be found; and that separa-
tion was probably effected and previously sanctioned by a formal
act for that purpose by the King and Parliament as originally con-
stituted. At any rate the very first subsequent act of the parliament,
acting in the two Houses conjointly with the King, operated as a
formal recognition of an antecedently authorized separation of parlia-
ment into the two Houses in which they then and have since sat.
The privileges which have been since enjoyed, and the functions
which have been since uniformly exercised, by each branch of the
legislature, with the knowledge and acquiescence of the other House
and of the King, must be presumed to be the privileges and functions
which then, that is, at the very period of their original separation,
were statutably assigned to each. The privileges which belong to
them seem at all times to have been, and necessarily must be.


inherent in them, independent of any precedent: it was necessary
that they should have the most complete personal security, to enable
them freely to meet for the purpose of discharging their important
functions, and also that they should have the right of self-protection :
I do not mean merely against acts of individual wrong ; for poor and
impotent indeed would be the privileges of Parliament, if they
could not also protect themselves against injuries and affronts offered
to the aggregate body, which might prevent or impede the fuU. and
effectual exercise of their parliamentary functions. 'Tis an essential
right necessarily inherent in the supreme legislature of the kingdom,
and of course as necessarily inherent in the parliament assembled in
two houses as in one. The right of self-protection implies, as a
consequence, a right to use the necessary means for rendering such
self-protection effectual. Independently, therefore, of any precedents
or recognized practice on the subject, such a body must a priori be

Online LibraryCharles Grant RobertsonSelect statutes, cases, and documents to illustrate English constitutional history, 1660-1832, with a supplement from 1832-1894 → online text (page 37 of 54)