Note X
MARTIAL LAW IN ENGLAND DURING
TIME OF WAR OR INSURRECTION
The question for our consideration is, on what principle, and within what limits, does armed resistance to the authority of the Crown, either on the part of an invading army, or on the part of rebels or rioters, afford a legal justification for acts done in England by the Crown, its servants, or loyal citizens, which, but for the existence of war or insurrection, would be breaches of law?
In considering this question two preliminary observations must be borne in mind.
The first is that this note does not treat of several topics which are often brought within the vague term, martial law. It does not refer to Military Law, i.e. the rules contained in the Army Act and the Articles of War for the government of the Army and of all persons included within the term “persons subject to military law”; it has no reference to the laws that govern the action of an English General and his soldiers when carrying on war in a foreign country, or in their treatment of foreign invaders of England; it has no reference to transactions taking place out of England, or to the law of any other country than England. It does not refer, e.g., to the law of Scotland or of Jersey.
The second observation is that, in regard to the subject of this note, we must constantly bear in mind the broad and fundamental principle of English law that a British subject must be presumed to possess at all times in England his ordinary common-law rights, and espedally his right to personal freedom, unless it can be conclusively shown, as it often may, that he is under given circumstances deprived of them, either by Act of Parliament or by some well-established principle of law. This presumption in favour of legality is an essential part of that rule of law which is the leading feature of English institutions. Hence, if any one contends that the existence of a war in England deprives Englishmen of any of their common-law rights, e.g. by establishing a state of martial law, or by exempting military officers from the jurisdiction of the civil Courts, the burden of proof falls distinctly upon the person putting forward this contention.
Our topic may be considered under three heads; first, the nature of martial law; secondly, the inferences which may be drawn from the nature of martial law; thirdly, certain doctrines with regard to martial law which are inconsistent with the view propounded in this note.
NATURE OF MARTIAL LAW
“Martial law,” in the sense in which the expression is here used, means the power, right, or duty of the Crown and its servants, or, in other words, of the Government, to maintain public order, or, in technical language, the King's peace, at whatever cost of blood or property may be in strictness necessary for that purpose. Hence martial law comes into existence in times of invasion or insurrection when, where, and in so far as the King's peace cannot be maintained by ordinary means, and owes its existence to urgent and paramount necessity. This power to maintain the peace by the exertion of any amount of force strictly necessary for the purpose is sometimes described as the prerogative of the Crown, but it may more correctly be considered, not only as a power necessarily possessed by the Crown, but also as the power, right, or duty possessed by, or incumbent upon, every loyal citizen of preserving or restoring the King's peace in the case, whether of invasion or of rebellion or generally of armed opposition to the law, by the use of any amount of force whatever necessary to preserve or restore the peace. This power or right arises from the very nature of things. No man, whatever his opinions as to the limits of the prerogative, can question the duty of loyal subjects to aid, subject to the command of the Crown, in resistance, by all necessary means, to an invading army. Nor can it be denied that acts, otherwise tortious, are lawful when necessary for the resistance of invaders.
When enemies come against the realm to the sea coast, it is lawful to come upon my land adjoining to the same coast, to make trenches or bulwarks for the defence of the realm, for every subject hath benefit by it. And, therefore, by the common law, every man may come upon my land for the defence of the realm, as appears 8 Ed. W. 23. And in such case or such extremity they may dig for gravel for the making of bulwarks: for this is for the public, and every one hath benefit by it. … And in this case the rule is true, Princeps et respublica ex justa causa possunt rem meam auferre.
So to the same effect counsel for the defence in the Case of Ship Money.
My Lords, in these times of war I shall admit not only His Majesty, but likewise every man that hath power in his hands, may take the goods of any within the realm, pull down their houses, or burn their corn, to cut off victuals from the enemy, and do all other things that conduce to the safety of the kingdom, without respect had to any man's property.
And though these authorities refer, as is worth noticing, to interferences with rights of property and not to interferences with personal freedom, between which there exist considerable differences, it will not (it is submitted) be disputed that, in case of invasion, a general and his soldiers acting under the authority of the Crown may lawfully do acts which would otherwise be an interference with the personal liberty, or even, under conceivable circumstances, which may cause the death of British subjects, if these acts are a necessary part of military operations. The point to be borne in mind is that the power to exercise martial law, which is not ill-described by an expression known to the American Courts, viz. the “war power,” as it originates in, so it is limited by, the necessity of the case.
On this matter note the opinion of Sir J. Campbell and Sir R. M. Rolfe that “martial law is merely a cessation from necessity of all municipal law, and what necessity requires it justifies”; and this description of the circumstances which justify martial law also implies the limits within which it is justifiable; these have been stated with truth, if not with the precise accuracy of legal argument, by Sir James Mackintosh.
The only principle on which the law of England tolerates what is called Martial Law is necessity; its introduction can be justified only by necessity; its continuance requires precisely the same justification of necessity; and if it survives the necessity on which alone it rests for a single minute, it becomes instantly a mere exercise of lawless violence. When foreign invasion or Civil War renders it impossible for Courts of Law to sit, or to enforce the execution of their judgments, it becomes necessary to find some rude substitute for them, and to employ for that purpose the Military, which is the only remaining Force in the community. While the laws are silenced by the noise of arms, the rulers of the Armed Force must punish, as equitably as they can, those crimes which threaten their own safety and that of society; but no longer.
The existence of martial law thus understood, taken in combination with the rules of the common law as to the duty of loyal subjects, gives very wide authority in England to all persons, and of course above all to a general engaged in repelling an invasion. He holds the armed forces completely under his control; they are governed by military law; so too are all citizens who, though not in strictness soldiers, are persons subject to military law; and in this connection it must be remembered that the King and his servants have a right to call for the help of every loyal subject in resisting an invasion, whence it follows that the number of persons subject to military law may be greatly, indeed almost indefinitely, increased. A general again is dearly entitled to use or occupy any land which he requires for the purpose of military operations and may, if he see fit, erect fortifications thereon, and generally he has the right to use land or any other property which is required for the conduct of the war. It is again his fight, and indeed his duty, when the necessity arises, to inflict instant punishment upon, and even, if need be, put to death, persons aiding and abetting the enemy or refusing such aid to the English army as can fairly be required of them. It is indeed difficult to picture to one's self any legitimate warlike operation or measure which, while war is raging in England, a general cannot carry out without any breach of the law whatever. Let it too be noted that what is true of a general holds good of every loyal subject according to his situation and the authority which he derives from it, e.g. of a subordinate officer, of a magistrate, or even of a private citizen who is helping to resist an invader. Real obvious necessity in this case not only compels but justifies conduct which would otherwise be wrongful or criminal. To this add the consideration, which has been strongly insisted upon by several able writers, that the conditions of modern warfare, such as the existence of the telegraph, whereby acts done, e.g., in London may affect military operations, e.g., in Northumberland, greatly extend the area of necessity, and may, conceivably at least, make it legally allowable, when war or armed insurrection exists in the north of England, to interfere summarily and without waiting for legal process with the freedom of persons residing in London or Bristol. However this may be, it is clear that the existence of the necessity which justifies the use of so-called martial law must depend on the circumstances of each case.
The fact that necessity is the sole justification for martial law or, in other words, for a temporary suspension of the ordinary rights of English citizens during a period of war or insurrection, does however place a very real limit of the lawful exercise of force by the Crown or by its servants. The presence of a foreign army or the outbreak of an insurrection in the north of England, may conceivably so affect the state of the whole country as to justify measures of extra-legal force in every part of England, but neither war nor insurrection in one part of the country prirmâ facie suspends the action of the law in other parts thereof. The fact that the Pretender's army had advanced with unbroken success to Derby did not deprive the citizens of London of the ordinary fights of British subjects. No one has ever suggested that it would have justified the summary execution at Tyburn of an Englishman there found guilty of treason by a court-martial. It is not easy to believe that, without a breach of the law of England, an Englishman imprisoned in London on a charge of high treason could have been taken to a part of the country where in 1745 war was raging, in order that he might there be tried and executed under the authority of a court-martial. Nor does the consideration that the summary execution of rebels, whose crimes could be punished by the ordinary course of law, may check the spread of treason, show that their execution is necessary or legal. We need not, moreover, confine our observation to cases of punishment. It is easy to imagine circumstances under which the arrest and imprisonment on suspicion of persons who are not guilty, or cannot be proved guilty of crime, may be salutary and expedient, but such arrest or imprisonment cannot be legally justified unless it be a matter of necessity. If it be urged, that the respect due in England to the ordinary law of the land places restrictions which may be inconvenient or even noxious on the exercise of the authority of the Crown and its servants, the truth of the observation may be admitted. The reply to it is twofold: first, that the maintenance of the legal rights of citizens is itself a matter of the highest expediency; secondly, that whenever at a period of national danger a breach of law is demanded, if not by absolute necessity, yet by considerations of political expediency, the lawbreaker, whether he be a general, or any other servant of the Crown, who acts bonâ fide and solely with a view to the public interest, may confidently count on the protection of an Act of Indemnity.
Nor is it irrelevant at this point to note the striking analogy between the right of an individual to exercise force, even to the extent of causing death, in self-defence, and the right of a general or other loyal citizen to exercise any force whatever necessary for the defence of the realm. In either case the right arises from necessity. An individual may use any amount of force necessary to avert death or grievous bodily harm at the hands of a wrongdoer, but, if he kills a ruffian, he must to justify his conduct show the necessity for the force employed in self-protection. So a general, who under martial law imprisons or kills British subjects in England, must, if he is to escape punishment, justify his conduct by proving its necessity. The analogy between the two cases is not absolutely complete, but it is suggestive and full of instruction.
Observe, further, that the principle which determines the limits of martial law is the principle which also determines the rights and duties of magistrates, of constables, and of loyal citizens generally when called upon to disperse or prevent unlawful assemblies or to suppress a riot. No doubt the degree and the area of the authority exercised by a general when resisting an invading army is far greater than the degree and the area of the authority exercised by a mayor, a magistrate, or a constable when called upon to restore the peace of a town disturbed by riot, but the authority though differing in degree has the same object and has the same source. It is exercised for the maintenance of the King's peace; it is justified by necessity. So true is this, that, when you need to fix the limits of martial law, you are compelled to study the case of Rex v. Pinney, which refers not to the power and authority of a general in command of soldiers, but to the duty of the Mayor of Bristol to suppress a riot.
In every case in which the legal right or duty arises to maintain the King's peace by the use of force, there will be found to exist two common features. The legal right, e.g. of a general or of a mayor, to override the ordinary law of the land is, in the first place, always correlative to his legal duty to do so. Such legal right or duty, in the second place, always lasts so long, and so long only, as the circumstances exist which necessitate the use of force. Martial law exists only during time of war; the right of a mayor to use force in putting an end to a riot ceases when order is restored, just as it only begins when a breach of the peace is threatened or has actually taken place. The justification and the source of the exercise in England of extraordinary or, as it may be termed, extra-legal power, is always the necessity for the preservation or restoration of the King's peace.
CONCLUSIONS
From the nature of martial law follow four conclusions:—
First, martial law cannot exist in time of peace.
This is on all hands admitted.
What, then, is the test for determining whether a state of peace exists at a given time, in a given part of England, say London?
The answer is that no unfailing test is to be found; the existence of a state of peace is a question of fact to be determined in any case before the Courts in the same way as any other such question.
According, indeed, to a number of old and respectable authorities, a state of war cannot exist, or, in other words, a state of peace always does exist when and where the ordinary Courts are open. But this rule cannot, it would seem, be laid down as anything like an absolute principle of law, for the fact that for some purposes some tribunals have been permitted to pursue their ordinary course in a district in which martial law has been proclaimed, is not conclusive proof that war is not there raging. Yet the old maxim, though not to be accepted as a rigid rule, suggests, it is submitted, a sound principle. At a time and place where the ordinary civil Courts are open, and fully and freely exercise their ordinary jurisdiction, there exists, presumably, a state of peace, and where there is peace there cannot be martial law.
If, in foreign invasion or civil war, the Courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the Courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the Courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war.
Secondly, the existence of martial law does not in any way depend upon the proclamation of martial law.
The proclamation of martial law does not, unless under some statutory provision, add to the power or right inherent in the Government to use force for the repression of disorder, or for resistance to invasion. It does not confer upon the Government any power which the Government would not have possessed without it. The object and the effect of the proclamation can only be to give notice, to the inhabitants of the place with regard to which martial law is proclaimed, of the course which the Government is obliged to adopt for the purpose of defending the country, or of restoring tranquillity.
Thirdly, the Courts have, at any rate in time of peace, jurisdiction inrespect of acts which have been done by military authorities and others duringa state of war.
“The justification of any particular act done in a state of war is ultimately examinable in the ordinary Courts, and the prior question, whether there was a state of war at a given time and place, is a question of fact.”
The truth of this statement of the law is almost self-evident. A sues X in the High Court for assault and for false imprisonment; X justifies the alleged assault on the ground that X was at the time of the act complained of the colonel of a regiment, and that the alleged assault was the arrest and imprisonment of A by X under the orders, say, of the Commander-in-Chief, during a time of war and after the proclamation of martial law. The defence may or may not be good, but it is certain that the Courts have, at any rate after the restoration of peace, jurisdiction to inquire into the facts of the case, and that one of the necessary inquiries is whether a state of war did exist at the time when A was arrested, though it is quite possible that the existence of a state of war may be a fact of which the Courts take judicial notice. Expressions, indeed, have been used in a recent case which, if taken alone, might seem to assert that the ordinary Courts have no jurisdiction in respect of acts which have been done by military authorities in time of war. But the very width of the language used by the Privy Council in Ex parte D. F. Marais warns us that it must be limited to the circumstances of the particular case. It does not necessarily assert more, and as regards transactions taking place in England, cannot be taken to mean more than that the Courts will not, as indeed they in strictness cannot, interfere with actual military operations, or, whilst war is actually raging, entertain proceedings against military men and others for acts done under so-called martial law. The judgment of the Privy Council, in short, whatever the application of its principles to England, asserts nothing as to the jurisdiction of the Courts when peace is restored in respect of acts done during time of war, and eminent lawyers have held that even in time of war the exercise of jurisdiction by the ordinary Courts is rather rendered impossible than superseded.
The question, how far martial law, when in force, supersedes the ordinary tribunals, can never … arise. Martial law is stated by Lord Hale to be in truth no law, but something rather indulged than allowed as a law, and it can only be tolerated because, by reason of open rebellion, the enforcing of any other law has become impossible. It cannot be said in strictness to supersede the ordinary tribunals, inasmuch as it only exists by reason of those tribunals having been already practically superseded.
Fourthly, the protection of military men and others against actions or persecutions in respect of unlawful acts done during a time of war, bond fide, and in the service of the country, is an Act of Indemnity.
An Act of Indemnity is a statute the object of which is to make legal transactions which, when they took place, were illegal, or to free individuals to whom the statute applies from liability for having broken the law. Statutes of tl-ds description have been invariably, or almost invariably, passed after the determination of a period of civil war or disturbance, e.g. after the Rebellions of 1715 and of 1745, and their very object has been to protect officials and others who, in the interest of the country, have in a time of danger pursued an illegal course of conduct, e.g. have imprisoned citizens whom they had no legal authority to imprison. For our present purpose it is absolutely essential to appreciate the true character of an Act of Indemnity. Such a statute has no application to conduct Such however severe, is strictly lawful. A magistrate who, under proper circumstances, causes an unlawful assembly to be dispersed by force, or an officer who, under proper circumstances, orders his troops to fire on a mob and thereby, in dispersing the mob, wounds or kills some of the crowd, neither of them require to be indemnified. They are sufficiently protected by the common-law justification that in discharge of their duty they used the force, and no more than the force necessary to maintain the King's peace. A general, an officer, a magistrate, or a constable, on the other hand, who, whether in time of war or in time of peace, does without distinct legal justification, any act which injures the property or interferes with the liberty of an Englishman, incurs the penalties to which every man is liable who commits a breach of the law. The law-breaker's motives may be in the highest degree patriotic, his conduct may be politically sagacious, and may confer great benefit on the public, but all this will not, in the absence of legal justification, save him from liability to an action, or, it may be, to a prosecution; he needs for his protection an Act of Indemnity. On this point note the words of a judge of the highest reputation, who was by no means inclined to minimise the authority of the Crown and its servants.
Where the inquiry is, whether an officer is guilty of misdemeanour from an excess beyond his duty, the principle is very much the same, or rather it is the complement of that laid down in the case of Rex v. Pinney. If the officer does some act altogether beyond the power conferred upon him by law, so that it could never under any state of circumstances have been his duty to do it, he is responsible according to the quality of that act; and even if the doing of that illegal act was the salvation of the country, that, though it might be a good ground for the Legislature afterwards passing an Act of Indemnity, would be no bar in law to a criminal prosecution; that is, if he has done something clearly beyond his power. But if the act which he has done is one which, in a proper state of circumstances, the officer was authorised to do, so that in an extreme case, on the principle laid down in R. v. Pinney, he might be criminally punished for failure of duty for not doing it, then the case becomes very different.
This passage from Blackburn's charge suggests further the proper answer to an objection which is sometimes raised against the view of martial law maintained in this treatise.
How, it is urged, can it be reasonable that a man should be liable to punishment, and therefore need an indemnity for having done an act (e.g. having by the use of force dispersed the mob) which it was his duty to do, and for the omission to do which he might have incurred severe punishment?
The answer is, that the supposed difficulty or dilemma cannot in reality arise. The apparent or alleged unreasonableness of the law is created by the ambiguity of the word duty, and by confusing a man's “legal duty” with his “moral duty.” Now, for the non-performance of a man's legal duty, he may, of course, be punished, but for the performance of a legal duty he needs no Act of Indemnity. For the performance, on the other hand, of any moral duty, which is not a legal duty, a man may undoubtedly, if he thereby infringes upon the rights of his fellow-citizens, expose himself to punishment of one kind or another, and may therefore need an Act of Indemnity to protect him from the consequences of having done what is legally wrong, though, under the peculiar circumstances of the case, morally right. But then, for the non-performance of a merely moral duty, he will not incur the risk of punishment. If the Mayor of Bristol omits, by the use of the necessary force, to put down a riot, this omission undoubtedly exposes him to punishment, since he neglects to perform a legal duty; but if he does perform his duty, and by the use of a proper amount of force puts down the riot, he incurs no legal liability to punishment, and needs no Act of Indemnity for his protection. If, on the other hand, at a period of threatened invasion or rebellion, a magistrate, without any legal authority, arrests and imprisons on suspicion a number of persons whom he holds to be disloyal, he may be performing a moral duty, and, if his view of the state of things turns out right, may have rendered a great service to the country; but he assuredly needs an Act of Indemnity to protect him from actions for false imprisonment. But, and this is the point to note, if our magistrate be a man of more prudence than energy, and omits to arrest men whom ex hypothesi he has no legal right to arrest, his conduct may incur the blame of patriots, but cannot bring him before the Courts. A man, in short, may be punished for having omitted to do an act which it is his legal duty to perform, but needs no Act of Indemnity for having done his legal duty. A man, on the other hand, who does a legal wrong, whilst performing a moral which is not a legal duty does require an Act of Indemnity for his protection, but then a man will never incur punishment for the simple omission to perform a merely moral duty.
OTHER DOCTRINES WITH REGARD TO
MARTIAL LAW
In opposition to the view of martial law upheld in this treatise, which may conveniently be termed the “doctrine of immediate necessity,” three other doctrines are, or have been maintained. Of these the first bases the use of martial law on the royal prerogative; the second on the immunity of soldiers from liability to proceedings in the civil Courts as contrasted with the military Courts for any act bonâ fide done in the carrying out of military operations; and the third (which extends very widely the meaning of the term necessity) on political necessity or expediency.
The Doctrine of the Prerogative
It is sometimes alleged, or implied, that the Crown may, by virtue of the prerogative, in time of war proclaim martial law, and suspend or override the ordinary law of the land, and this view is supposed to derive support from the consideration that the Petition of Right does not condemn martial law in time of war.
The fatal objection to this doctrine, in so far as it means anything more than the admitted right of the Crown and its servants to use any amount of force necessary for the maintenance of the peace or for repelling invasion, is that it utterly lacks legal authority, whilst to the inference suggested from the language of the Petition of Right no better reply can be given than that supplied by the words of Blackburn, namely, “It would be an exceedingly wrong presumption to say that the Petition of Right, by not condemning martial law in time of war, sanctioned it,” though, as he cautiously adds, “it did not in terms condemn it.”
The Doctrine of Immunity
This doctrine, it is conceived, may be thus stated. An officer in command of an army must of necessity, in carrying out military operations against an invader, override ordinary rights whether of property or of personal liberty. Decisive authorities may be produced in support of the proposition that he may lawfully violate rights of property, e.g. can, without incurring any legal liability, do acts which amount to trespass. But all legal rights stand on the same level; and if an officer can lawfully occupy an Englishman's land, or destroy his property, he can also lawfully, whilst bonâ fide carrying on war against a public enemy, imprison Englishmen, inflict punishment upon them, or even deprive them of life, and, in short, interfere with any of the rights of Englishmen in so far as is required for the carrying out of military operations. The soundness of this view is, it is urged, confirmed by the admitted inability of a civil Court to judge of the due discharge of military duties, and by the consideration that no Court would, or in fact could, during a period of warfare interfere with a general's mode of conducting the war, or with any act done by him or by soldiers acting under his orders, whence, as it is alleged, it follows that acts bonâ fide done in the course of military operations fall outside the jurisdiction of the ordinary Courts, not only during war time, but also after the restoration of peace. To put this doctrine of immunity in what appears to me to be its most plausible form, the outbreak of war is to be regarded as a suspension of the ordinary law of the land, as regards, at any rate, officers in command of troops and engaged in resisting invaders. On this view a general would occupy, during the conduct of war, a position analogous to that of a judge when engaged in the discharge of his judicial functions, and no action or other proceeding in the Courts of Common Law would lie against an officer for acts bonâ fide done as a part of a military operation, just as no action lies against a judge for acts done in discharge of his official duties.
This doctrine of immunity is, however, open, it is submitted, to the very strongest objections. Most of the undoubted facts on which it rests, e.g. the right of a general when resisting an invasion to use freely the land or other property of Englishmen, are merely applications of the principle that a loyal citizen may do any act necessary for the maintenance of the King's peace, and especially for the defeat of an invading army. But for the broad inferences based on this fact and similar facts there appears to exist no sufficient ground.
In support of the doctrine of immunity there can be produced no direct authority, whilst it appears to be absolutely inconsistent, not only with the charge of Cockburn, C.J., in Rex v. Nelson, but also with the principles or assumptions which are laid down or made in the charge of Blackburn, J., in Rex v. Eyre. The doctrine, further, is really inconsistent with the constant passing of Acts of Indemnity with a view to covering deeds done in the course of civil war or of rebellion. Nor is it easy to follow the line of reasoning by which it is assumed that if the Courts have no power to interfere with the acts of a general or his soldiers whilst war is raging, the Courts have no jurisdiction to entertain during peace proceedings in respect of acts done by a general and his soldiers during a time of war. Here, at any rate, we apparently come into contradiction with some of the best known facts of legal history. The Courts, not only of England, but also of the United States, have never entertained the least doubt of their jurisdiction to inquire into the character of any act done during war time which was primâl facie a breach of law.
The Doctrine of Political Necessity or Expediency
The existence of war or invasion justifies—it is maintained by eminent lawyers, whose opinion is entitled to the highest respect—the use of what is called martial law to this extent, namely, that, e.g. during an invasion, a general, a mayor, a magistrate, or indeed any loyal citizen, is legally justified in doing any act, even though primâfacie a tort or a crime, as to which he can prove to the satisfaction of a jury that he did it for the public service in good faith, and for reasonable and probable cause. This doctrine, which for the sake of convenience I term the doctrine of political expediency, manifestly justifies from a legal point of view many acts not dictated by immediate necessity. The scope thereof may be best understood from an example which I give in the words of its ablest and very learned advocate, Sir Frederick Pollock:
An enemy's army has landed in force in the north, and is marching on York. The peace is kept in London and Bristol, and the Courts are not dosed. It is known that evil-disposed persons have agreed to land at several ports for the purpose of joining the enemy, and giving him valuable aid and information. Bristol is one of the suspected ports. What shall the Lord Mayor of Bristol do? I submit that it is his plain moral duty as a good citizen (putting aside for a moment the question of strict law) to prevent suspected persons from landing, or to arrest and detain them if found on shore; to assume control of the railway traffic, and forbid undesirable passengers to proceed northward, and to exerdse a strict censorship and inquisitorial power over letters and telegrams. All these things are in themselves trespasses (except, probably, forbidding an alien to land); some of them may perhaps be justifiable under the statutory powers of the Postmaster-General, but summary restraint by way of prevention must be justified by a common law power arising from necessity, if at all. Observe that I say nothing for the present about trial or punishment. The popular (and sometimes official) notion that martial law necessarily means trial by court-martial has caused much confusion. Summary punishment may or may not be necessary. In that respect the Mayor's authority would be like that of the master of a ship.
Now, if the Lord Mayor of Bristol fails to do these things, he will surely find himself in as much trouble as his predecessor [Mr. Pinney] in the time of the Bristol riots. And I do not think he will improve his defence by pleading that the peace was still kept in Bristol, and the Courts were open, and therefore he thought he had no power to do anything beyond the ordinary process of law. Nor yet will he mend matters if he says that he was waiting for an Order in Council which was never issued, or never came to his knowledge. At best it will be a topic of slight mitigation,
The objections to a view which at bottom differs essentially from what I have termed “the doctrine of immediate necessity” are these: The theory under consideration rests on little legal authority, except the case of Rex v. Pinney; but that case, when its circumstances are examined, does not justify the inferences apparently grounded upon it. The charge against Mr. Pinney was in substance that, being the magistrate specially responsible for the maintenance of order in the town of Bristol, he neglected to take the proper steps to prevent the outbreak of a riot, and after the King's peace had been openly violated by rioters, the prison broken open, and the Bishop's Palace and other houses burned down, he did not take adequate steps to arrest offenders or to restore order. It is impossible to imagine a case under which there could exist a more urgent and stringent necessity for the use of force in the restoration of order. If the charges brought by the Crown could have been made out, Mr. Pinney would have been guilty of as patent a neglect of duty as could have been committed by any public official placed in a position of high authority. That he acted feebly can hardly be doubted; yet, in spite of this, he was, with the apparent approval of the Judge, held innocent of any crime. The point, however, specially to be noted is that, in Pinney's Case, no question whatever was raised as to the possible justification for acts which were primâ facie tortious, but were done by a magistrate on reasonable grounds of public expediency, though lying quite outside the scope of his ordinary authority. How, in short, the case of Mr. Pinney, which at most establishes only that a magistrate who fails to make due efforts to maintain the peace is guilty of a crime, can be supposed to justify the action of the imaginary Mayor of Bristol, who because an invasion is taking place feels it to be his right or his duty to override, in a town where peace prevails, all the ordinary rules of the common law, many lawyers will find it difficult to explain. Still harder will they find it to point out why a mayor, under the circumstances so graphically described by Sir Frederick Pollock, should fear that his failùre to show despotic energy should expose him to the legal charges brought against Mr. Pinney. But if Pinney's case does not go far enough to sustain the doctrine of political expediency, I know of no other case which can be produced in its support.
This doctrine, however, is open to the further objection, of which its able advocate recognises the force, that it is inconsistent with the existence of Acts of Indemnity. Sir Frederick Pollock writes:
It may be objected that, if the view now propounded is correct, Acts of Indemnity are superfluous. But this is not so. An Act of Indemnity is a measure of prudence and grace. Its office is not to justify unlawful acts ex post facto, but to quiet doubts, to provide compensation for innocent persons in respect of damage inevitably caused by justifiable acts which would not have supported a legal claim.
The attempt to meet this objection is ingenious, but the endeavour rests on a very inadequate description of an Act of Indemnity. Such a statute may no doubt be in part a measure of prudence and grace, but it is usually far more than this. The Indemnity Acts, whatever their formal language, which for a century or so protected Nonconformists from penalties incurred year by year through the deliberate breach of the Test and Corporation Acts, the Acts of Indemnity passed after the Rebellions of 1715 and of 1745, the Act of Indemnity passed by the Irish Parliament after the Rebellion of 1798 which was not wide enough to protect Mr. T. Judkin Fitzgerald from actions for acts of cruelty done by him in the suppression of the Rebellion, the further Act finally passed which apparently was wide enough to place him beyond the reach of punishment, and the Act of the legislature of Jamaica which was successfully pleaded by the defendent in Phillips v. Eyre, were, it is submitted, all of them enactments intended to protect men from the consequences of a breach of the law. An Act of Indemnity in short is, as is insisted uponof the treatise, the legalisation of illegality, and is constantly intended to protect from legal penalties men who, though they have acted in the supposed, or even real discharge of a political duty, have broken the law of the land. This is a point on which it is necessary to insist strongly, for the determination of the question at issue between the supporters of the “doctrine of immediate necessity” and the advocates of the “doctrine of political necessity,” turns upon the answer to the inquiry, What is the true nature of an Act of Indemnity? If such an Act is essentially the legalisation of illegality, the doctrine of political necessity or expediency falls, it is submitted, to the ground.
Two circumstances give an apparent but merely apparent impressiveness to the doctrine of political expediency. The first is the paradox involved in the contention that action on behalf of the State which is morally right may be legally wrong, and, therefore, be the proper object of an Act of Indemnity. This paradox however is, as already pointed out, apparent only, and after all amount merely to the assertion that a man's ordinary duty is to keep with in the limits of the law, and that, if he is at any moment compelled, on grounds of public interest, to transgress these limits, he must obtain the condonation of the sovereign power, i.e. the King in Parliament. The second is the current idea that, at a great crisis, you cannot have much energy. But this notion is a popular delusion. The fussy activity of a hundred mayors playing the part of public-spirited despots. would increase tenfold the miseries and the dangers imposed upon the country by an invasion.
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