a warning, "That those remaining in arms after 48 hours must be dealt with as rebels, and place little hope in mercy."1

The Rev. John Smith was put on his trial before a Court-martial on the 13th October. The acts upon which he was charged were alleged to have been done on the 17th to the 20th August, and those of latest date in defiance of the Proclamation. Documentary evidence of and from the 2nd November, 1817, was also laid before the Court, and, on the 24th November, 1823, he was sentenced to death; but the sentence was not executed, and he died in the Colonial gaol, on the 11th February, 1824.2

The legality of these proceedings gave rise to a celebrated debate in the Commons, upon the motion of Lord then Mr. Brougham, that an Address be presented to the Crown, setting forth, "That the House deem it their duty to declare that they contemplate with serious alarm and deep sorrow the violation of law and justice which is manifest in these unexampled proceedings,""&c.

In opening the discussion, Lord Brougham stated his view of the circumstances that would justify the Crown in declaring Martial Law: "It is very true, that formerly the Crown sometimes issued Proclamations, by virtue of which Civil offences were tried before Military tribunals. The most remarkable instance of that description, and the nearest precedent to the case under our consideration, was the well-known Proclamation of the august, pious, and humane Philip and Mary, stigmatising as rebellion, and as an act which should subject the offender to be tried by a Court-martial, the having heretical, that is to say, Protestant, books in one's possession, and not giving them up without previously reading them. Similar Proclamations, although not so extravagant in their character, were issued by Elizabeth, by James I., and (of a less violent nature) by Charles I.; until at length the evil became so unbearable that there arose from it the celebrated Petition of Right.

"Since that time no such thing as Martial Law has been recognised in this country; and Courts founded on Proclamations of Martial Law have been wholly unknown. And here I beg to observe, that the particular grievances at which the Petition of Right was levelled, were only the trials under Martial Law of military persons, or of individuals accompanying, or in some manner connected, with Military persons. On the abolition of Martial Law, what was substituted? In those days, a Standing Army in time of peace was considered a solecism in the Constitution. Accordingly, the whole

123 Sess. Papers (1824), p. 461.

2 Ib., p. 517.

3 So few readers are possessed of Hansard's Debates, that I have felt it better to print these full extracts. 4 11 H. D. (2), p. 968.

course of our legislation proceeded on the principle that no such establishment was recognised. Afterwards came the Annual Mutiny Acts, and Courts-martial, which were held only under those Acts. These Courts were restricted to the trial of Soldiers for Military offences; and the extent of their powers was pointed out and limited by law.

"One word more, before I advert to the proceedings of the Court, on the nature of its jurisdiction.' Suppose I were ready to admit that, on the pressure of a great emergency, such as invasion or rebellion, when there is no time for the slow and cumbrous proceedings of the Civil law, a Proclamation may justifiably be issued for excluding the ordinary tribunals, and directing that offences should be tried by a Military court: such a proceeding might be justified by necessity; but it could rest on that alone. Created by necessity, necessity must limit its continuance. It would be the worst of all conceivable grievances-it would be a calamity unspeakable-if the whole law and constitution of England were suspended one hour longer than the most imperious necessity demanded. I know that the Proclamation of Martial Law renders every man liable to be treated as a Soldier. But the instant the necessity ceases, that instant the state of soldiership ought to cease, and the rights, with the relations, of civil life to be restored."

But admitting, for the sake of argument, the power to declare Martial Law, and that its effect was to render every man liable to be treated as a Soldier, yet, in the instance before the House, Lord Brougham insisted on its needless duration :

"When Mr. Smith was about to be seized, he was first approached with the hollow demand of the Officer who apprehended him," commanding him to join the Militia of the district. To this he pleaded his inability to serve in that capacity, as well as an exemption founded on the rights of his clerical character. Under the pretext of this refusal his person was arrested, and his papers were demanded and taken possession of. Amongst them was his private journal, a part of which was with the intention of being communicated to his employers alone, while the remaining part was intended for no human eye but his own. In this state of imprisonment he was detained, although the revolt was then entirely quelled. That it was so quelled is ascertained from the despatches of General Murray to Earl Bathurst, dated the 26th of August. At least the despatch of that date admits that public tranquillity was nearly restored; and at all events, by subsequent despatches of the 30th and 31st, it appears that no further disturbance had taken

1 11 H. D. (2), p. 976.

2 Ib., pp. 967, 968.

place, nor was there from that time any insurrectionary movement whatever. At that period the Colony was in the enjoyment of its accustomed tranquillity, barring always those chances of relapse which in such a state of public feeling, and in such a structure of society, must be supposed always to exist, and to make the recurrence of irritation and tumult more or less probable. Martial Law, it will be recollected, was proclaimed on the 19th of August, and was continued to the 15th January following-five calendar months -although there is the most unquestionable proof that the revolt had subsided, and indeed that all appearance of it had vanished."

He then dwelt upon the fact that all danger from rebellion was over when the Court-martial commenced its sittings :---

"The only justification of the Court-martial was this Proclamation.' Had that Court sat at the moment of danger there would have been less ground for complaint against it. But it did not assemble until the emergency had ceased; and it then sat for eightand-twenty days. Suppose a necessity had existed at the commencement of the trial, but that in the course of the eight-and-twenty days it had ceased;-suppose a necessity had existed in the first week, who could predict that it would not cease before the second? If it had ceased with the first week of the trial, what would have been the situation of the Governor? The sitting of the Courtmartial at all could be justified only by the Proclamation of Martial Law, yet it became the duty of the Governor to revoke that Proclamation. Either, therefore, the Court-martial must be continued without any warrant or colour of law, or the Proclamation of Martial Law must be continued only to legalise the prolonged existence of the Court martial. If, at any moment before its proceedings were brought to a close, the urgent pressure had ceased which alone justified their being instituted, according to the assumption I am making in favour of the Court, and for argument's sake; then to continue Martial Law an hour longer would have been the most grievous oppression, the plainest violation of all law; and to abrogate Martial Law would have been fatal to the continuance of the trial. But the truth is, that the Court has no right even to this assumption, little beneficial as it proves; for long before the proceedings commenced all the pressure, if it ever existed, was entirely at an end."

Waiving these objections, he urged that the Court martial had no authority to try the prisoner for any act done prior to the date of the Proclamation.

The charges against Mr. Smith are four. The first states that,

1 9 H. D. (2), p. 976.

2 Ib., p. 990.

long before the 18th of August he had promoted discontent and dissatisfaction amongst the slaves against their lawful masters. This charge was clearly beyond the jurisdiction of the Court; for it refers to matters before Martial Law was proclaimed, and consequently before Mr. Smith could be amenable to that law. Supposing that, as a Court-martial, they had a right to try a clergyman for a Civil offence, which I utterly deny, it could only be on the principle of Martial Law having been proclaimed that they were entitled to do so. The Proclamation might place him, and every other man in the Colony, in the situation of a Soldier; but if he was to be considered as a Soldier, it could only be after the 19th of August. Admitting, then, that the Rev. Mr. Smith was a Soldier under the Proclamation, he was not such on the 18th, on the 17th, nor at any time before the transactions which are called the Revolt of Demerara; and yet it was upon such a charge that the Court-martial thought proper, and indeed was obliged to try him, if it tried him at all. But they had no more right, I contend, to try him for things done before the 19th in the character of a Soldier liable to Martial Law, than they would have to try a man who had enlisted to-day for acts which he had committed the day before yesterday, according to the same code of Military justice."

The speech of Sir James Mackintosh,' in support of the motion, is of greater value. Referring to Martial Law, he said :—

"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: every moment beyond is usurpation; as soon as the laws can act, every other mode of punishing supposed crimes is itself an enormous crime. If argument be not enough on this subject; if, indeed, the mere statement be not the evidence of its own truth, I appeal to the highest and most venerable authority known to our law. Martial Law,' says Sir Matthew Hale, 'is not a law, but

1 9 H. D. (2), pp. 1046-9, and vol. iii. of Works, p. 407.

something indulged, rather than allowed, as a law. The necessity of government, order, and discipline in an army is that only which can give it countenance. Necessitas, enim quod cogit defendit. Secondly, this indulged law is only to extend to members of the Army, or to those of the opposite Army, and never may be so much indulged as to be exercised or executed upon others. Thirdly, the exercise of Martial Law may not be permitted in time of peace, when the King's Courts are (or may be) open." The illustrious Judge on this occasion appeals to the Petition of Right, which, fifty years before, had declared all proceedings by Martial Law, in time of peace, to be illegal. He carries the principle back to the cradle of English liberty, and quotes the famous reversal of the attainder of the Earl of Kent, in the first year of Edward III., as decisive of the principle, that nothing but the necessity arising from the absolute interruption of Civil Judicatures by arms can warrant the exercise of what is called Martial Law. Wherever and whenever they are so interrupted, and as long as the interruption continues, necessity justifies it. No other doctrine has ever been maintained in this country since the solemn Parliamentary condemnation of the usurpations of Charles I., which he was himself compelled to sanction in the Petition of Right. In none of the revolutions or rebellions which have since occurred has Martial Law been exercised, however much, in some of them, the necessity might seem to exist. Even in those most deplorable of all commotions which tore Ireland in pieces in the last years of the eighteenth century, in the midst of ferocious revolt and cruel punishment; at the very moment of legalising these martial jurisdictions, in 1799, the very Irish statute which was passed for that purpose did homage to the ancient and fundamental principles of the law, in the very act of departing from them. The Irish Statute 39 Geo. III., c. 2, after reciting that Martial Law had been successfully exercised to the restoration of peace so far as to permit the course of the Common Law partially to take place, but that the Rebellion continued to rage in considerable parts of the Kingdom, whereby it has become necessary for Parliament to interpose, goes on to enable the Lord-Lieutenant to punish rebels by Courts-martial.' This Statute is the most positive declaration that, where the Common Law can be exercised in some parts of the country, Martial Law cannot be established in others, though rebellion actually prevails in these others, without an extraordinary interposition of the supreme Legislative authority itself.

"I have already quoted from Sir Matthew Hale his position respecting the twofold operation of Martial Law, as it affects the

Hale's Hist. Com. Law, c. 11.