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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.)

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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 execute any man by colour of martial law, this is murder; for it is against Magna Carta. And the Petition of Right 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 Bill 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, as the fashion of keeping standing armies (which was first introduced 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

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 Roman 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.)

XXIII

THE CASE OF WOLFE TONE

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-ofwar 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 protection 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, while 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 execution while I address you. I call 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 [Kilwarden].-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 Cornwallis.

Mr. Curran. Mr. Tone's father, my lords, returns, after serving the Habeas Corpus: he says General Craig will 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. [Refused.]

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

XXIV

BURDETT v. ABBOT

51 Geo. III., 1811.

[Sir Francis Burdett, M.P., had published a letter in Cobbett'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 off 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 confirmed on a writ of error by the Court of Exchequer Chamber and the House of Lords. See East's 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? 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 necessary 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 supposed 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

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