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agreeable to the direction of Mr. Justice Buller. It is difficult to cite cases; the trials are not printed. . . . We must in all cases of tradition trace backwards, and presume, from the usage which is remembered, that the precedent usage was the same. . . I by accident (from memory only I speak now) recollect one where the Craftsman was acquitted; and I recollect it from a famous, witty, and ingenious ballad that was made at the time by Mr. Pulteney; and though it is a ballad, I will cite the stanza from it, because it will show you the idea of the able men in opposition, and the leaders of the popular party in those days. They had not an idea of assuming that the jury had a right to determine upon a question of law, but they put it upon another and much better ground. The stanza I allude to is this:

For Sir Philip well knows,

That his innuendos
Will serve him no longer

In verse or in prose;

For twelve honest men have decided the cause,
Who are judges of fact, though not judges of laws.

Such a judicial practice in the precise point from the Revolution, as I think, down to the present day, is not to be shaken by arguments of general theory or popular declamation. Every species of criminal prosecution has something peculiar in the mode of prosecution; therefore general propositions, applied to all, tend only to complicate and embarrass the question. No deduction or conclusion can be drawn from what a jury may do, from the form of procedure, to what they ought to do upon the fundamental principles of the constitution and the reason of the thing, if they will act with integrity and good conscience. The fundamental definition of trial by jury depends upon a universal maxim that is without an exception. Though a definition or maxim in law, without an exception, it is said, is hardly to be found, yet I take this to be a maxim without an exception: Ad quaestionem juris non respondent juratores; ad quaestionem facti non respondent judices. . . . The constitution trusts that, under the direction of a judge, they will not usurp a jurisdiction which is not in their province. They do not know and are not presumed to know the law; they are not sworn to decide the law; they are not required to decide the law. . . . But further, upon the reason of the thing, and the eternal principles of justice, the jury ought not to assume the jurisdiction of the law. As I said before, they do not know, and are not presumed to know anything of the matter; they do not understand the language in which it is conceived,

...

or the meaning of the terms. They have no rule to go by but their affections and wishes . . . so the jury who usurp the judicature of the law, though they happen to be right, are themselves wrong, because they are right by chance only, and have not taken the constitutional way of deciding the question. It is the duty of the judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their consciences. To be free, is to live under a government by law. The liberty of the press consists in printing without any previous license, subject to the consequences of law. The licentiousness of the press is Pandora's box, the source of every evil. . . . Jealousy of leaving the law to the Court, as in other cases, so in the case of libels, is now, in the present state of things, puerile rant and declamation. The judges are totally independent of the minister that may happen to be, and of the king himself. Their temptation is rather to the popularity of the day. But I agree with the observation cited by Mr. Cowper from Mr. J. Foster, "that a popular judge is an odious and pernicious character." . . . In opposition to this, what is contended for? That the law shall be in every particular cause what any twelve men, who shall happen to be the jury, shall be inclined to think, liable to no review, and subject to no control, under all the prejudices of the popular cry of the day, and under all the bias of interest in this town, where thousands, more or less are concerned in the publication of newspapers, paragraphs, and pamphlets. Under such an administration of law, no man may counsel or advise, whether a paper was or was not punishable. I am glad I am not bound to subscribe to such an absurdity, such a solecism in politics. Agreeable to the uniform judicial practice since the Revolution warranted by the fundamental principles of the constitution, of the trial by jury, and upon the reason and fitness of the thing, we are all of opinion that this motion should be rejected, and this rule discharged.

(From Mansfield's judgment, S.T. xxi. 1034–1041.)

XXII

GRANT v. GOULD

32 Geo. III., 1792.

[The issue in this case was the power of the court at Westminster to grant a prohibition to prevent a sentence passed by a court-martial being executed. The plaintiff, having been so sentenced, pleaded that he was not liable to "martial law," and accordingly applied for a prohibition. Lord Loughborough, in a judgment frequently quoted, distinguished "martial" from "military" law, and, while pointing out that the court at Westminster claimed the right to issue such prohibitions, refused to grant it in this case on the ground that the military court had not exceeded its jurisdiction. The passages from Hale and Blackstone alluded to in the judgment are, for convenience, cited below, A and B. See Blackstone's (H.) Rep. ii. 69, and authorities 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 all. 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 affinity 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 all military persons, in all 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 authority.

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 all 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 exceeding 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.

A

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. Vide Littleton, § 102.

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 rules 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 Richard 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 countenance, 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

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