before the Privy Council (an appeal from Newfoundland), in which the Judges present were Lord Lyndhurst, Lord Brougham, Lord Denman, Lord Abinger, Lord Campbell, Lord Cottenham, Mr. Baron Parke, and Dr. Lushington, and, although they differed from the former decision as to the power of the House of Assembly to commit for contempt, they laid down the same law as to its legislative power to make new laws:-" Newfoundland is a settled, not a conquered colony, and to such a colony there is no doubt that the settlers from the mother country carried with them such portion of its common and statute law as was applicable to their new situation, and also the rights and immunities of British subjects. Their descendants have, on the other hand, the same laws and the same rights, unless they have been altered by Parliament. And, on the other hand, the Crown possesses the same prerogatives and the same powers of Government that it does over its other subjects" ("Keeley v. Carson," 4 Moore's Privy Council Cases, 85). Now I have no doubt whatever that this is the law, and although in a civil case it may be open to a party to question it if he pleases and carry the question to the House of Lords, insisting that all these great authorities were in error, and maintaining that a governor or other person directing or acting in the execution of martial law under a colonial Act has no legal justification, yet in a criminal court it is impossible to say that you can ever treat a party as criminal and punishable who has merely acted in obedience to a local statute. It would be perfectly monstrous to say that he was to take upon himself to determine what law is or is not binding upon him, and to say that he would not obey this or that law because he deemed it unconstitutional. Such a power is given to the Supreme Court of America, but there is no such power known in our law or Constitution, and it is impossible to say that when a colonial governor carried out the law of the colony he should be criminally punishable for it. Therefore we must start on an inquiry into the law with this position that Mr. Eyre, as Governor, had not only those powers which in the reign of Charles II. the Crown had the prerogative to exercise (for he, as Governor, would have the same powers as the Crown), but also those powers which he might exercise by any Acts of the colonial Legislature. This is a position of immense importance in the present case, and I should be wrong in leaving you in any doubt that such is the law. Then we come to two questions which arise here:-1. What was the power of the Crown by its prerogative at common law in the time of Charles II. as to proclaiming martial law ? and 2, to what extent have the Acts or the colonial Legislature given this or any larger power? As to the second question, the construction of the colonial statutes must a good deal depend upon what in the time of Charles II. was supposed to be the law, and therefore to that extent it is necessary to inquire into the prerogative of the Crown in the time of Charles II. Further than that it is not necessary to inquire into that matter, except, indeed, so far as it might be necessary to consider whether the prerogative power as it then existed would have justified such extensive measures as were taken in the present case, as to which I do not think that it would; but into that it is not necessary to enter further here. Now you know that from Magna Charta to the Revolution it was laid down as the general law of the land that a subject could not be punished except in due course of law on trial by jury. That was the general law, but from the earliest times this also was laid down as law-that in time of invasion or insurrection it is the duty of good subjects, in obedience to the officers of the Crown, to resist the invaders or insurgents, and for the purpose of resisting them the Executive could call out

an army in order to resist the enemy. In modern times this is of little consequence, because we have under the Mutiny Acts and the Militia Acts an armed force raised and subject to the control of law;. but in old times, when there were often insurrections of the barons or of a tumultuous people-in those turbulent times there was no regular army, and when there was insurrection those officers who were entrusted with "commissions of array" had to raise an army and fight the enemies of the Crown. Now an armed force merely subject to the ordinary forms of law would not be endurable, and, accordingly, there was a prerogative of the Crown, to a certain extent recognized by law, that in time of war or rebellion, when an armed force was raised by the Crown, it should be kept in order by a more summary kind of justice than the slow process of the common law, and in that sense arose what was called "martial law," and of which Lord Hale said that it was rather indulged, as the absence of all law, and extended to the armed force either of the Crown or the enemy. To that extent the Crown had the power to exercise martial law in time of war; but, further, in such circumstances, there would be anarchy unless there was something to keep the people in order. Suppose, for instance, an invading army encamped at Dover, and an English army ranged on the other side, it is obvious that ordinary criminal justice could not go on, and that unless justice was administered in some other way there would be lawless anarchy. On that ground the Crown claimed the prerogative of exercising this martial law against the insurgents during the insurrection and for a short time afterwards-that is, claimed the power of summary punishment, even by execution of the insurgents, as examples to others, and in order to deter others from following their course, and thus to check the progress of the rebellion. To what extent the Crown could do that has never yet been decided. But the Crown did, in fact, exercise it, and it frequently came into operation. It was put in force a good deal under Elizabeth in time of insurrection, and a great many summary executions occurred, which, according to our modern notions, would be deemed terribly oppressive. Her successor was weaker and roused opposition, and at the beginning of the next reign, of Charles I., the Crown had issued commissions in time of peace, described in the Petition of Right, giving power to "proceed according to the summary justice of martial law," not only against soldiers, but "all other dissolute persons," not only for mutiny, but for any felony or other offence, "and by such summary order as is agreeable to martial law, and as is used in armies in time of war, to cause them to be executed according to martial law." That is, the power to proclaim martial law was claimed and exercised in time of peace. And this was opposed and protested against in the Petition of Right, reciting that such commission had been issued, and declaring that "such commissions as aforesaid " should no longer be issued, That is to say, commissions of martial law in time of peace. The Legislature, therefore, did not in terms say that there should not be martial law in time of war. It does not follow that it is to be deemed to have sanctioned it. Great statesmen as well as lawyers were then in power, and they had reasons of their own for not raising that question. They did not therefore say that martial law was illegal in time of war, because their having attacked the Crown on that point would have given the Crown an advantage. They therefore, as wise statesmen, did not raise that point. It would therefore be an error to say that, because the Petition of Right did not condemn martial law, therefore it sanctioned it. Still it is true that the Petition of Right did not condemn it. And there has never been since that time any case in

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which it was necessary judicially to consider the extent or the limits of that power or prerogative of the Crown in war. Thus much we may say, that in time of peace the Crown had no such power. Lord Hale touches upon the question wisely and cautiously in several of his works. The Crown, he says, in one work, has this prerogative "during rebellion, but not after." Then, in his History of the Common Law," he says that it is, as it were, the absence of law, indulged rather than allowed, and only to the King's army, or they of the opposite army-that is, the enemy. Then, in his "Pleas of the Crown,” he says that the prerogative of martial law exists in time of war, and that, regularly, this is when the courts of law are closed. Thus cautiously he expresses himself upon the subject, and I think it may be said that the extent of it is in doubt. But thus much is clear, that the prerogative in such case is not of that unbounded nature which some have supposed, and it is limited to cases of necessity. And it cannot be doubted that when Mr. Eyre, as Colonial Governor, kept it up for thirty days, when armed resistance had ceased in the first day or two, and it was quite possible to try the prisoners by the regular tribunals, he exceeded what would have been authorized by the most extended view of the prerogative of the Crown. Therefore, if it had stood solely on the power of the Governor by the common law prerogative of the Crown, I am afraid I should have been obliged to tell you that you were bound to find a true bill, whatever reason there may have been for a bill of indemnity. But then the law by no means remains in that state. It has been completely altered by the colonial statutes, which gave an immensely extended power to the Governor, beyond what was ever possessed by the Crown, except, as in Ireland, by statute. The first Jamaica statute on the subject was that of the 33rd of Charles II., when the Crown at common law had clearly no power to declare martial law in time of peace, but on the other hand claimed it in time of rebellion or war; and the Jamaica colonists were well aware of this, and of course had every disposition to protect themselves from arbitrary power; but on the other hand they knew that theirs was a slave colony liable to insurrection, and also a colony exposed to hostile attacks from the Spaniards; and therefore they passed an Act that on every appearance of danger the Governor in Council might proclaim the "articles of war." The Act goes on to declare that as soon as the common law revives and is in force, the negroes and servants so employed shall be discharged, and "to the end it may be known when the martial law ceaseth and the common law taketh its place," it was declared that "upon discharging the soldiers from their arms the martial law ceaseth, and the common law taketh its place" (33 Charles II. Jamaica Statutes, c. 21, s. 7.) Looking at these words, there can be no doubt what the Act meant. There can be no doubt that it did not mean merely providing a Mutiny Act (which had been done already), but that it meant to enact the power of declaring martial law in the sense in question-that is to say, that which the Petition of Right had declared should not be allowed in time of peace, and which was not condemned in time of war-viz. to supersede the common law and substitute the summary proceedings of military law; not, of course, a power arbitrarily to put men to death without cause, but to supersede the ordinary processes of law, and to try men by summary process, in order that they might be summarily tried and convicted and punished, with a view to check the progress of rebellion. After this statute many other Acts passed relating to the militia, and then came, so lately as the year 1845, the Act 9th of Victoria, which repeals the old statute, and enacts that the Council of War should consist of the Governor and all the chief functionaries in the island-the Chief Justice, the Commander-in-Chief,

the Attorney-General, &c.—and then it proceeds to provide that as on appearance of public danger it may be necessary to proclaim martial law, but that it is the greatest of evils-that therefore it should not be proclaimed without the assent of the Council, nor should it be in force for more than thirty days, unless extended with the same assent. Now what was the Act in force when Mr. Eyre acted; and what power did it give him? There can be no doubt that the original Act was intended to give the power of declaring martial law in the fullest sense-that is, in the sense of superseding or suspending the common law. There is nothing in any of the intermediate Acts to affect this, and there have been insurrections when things were done which could not have been justified unless martial law to that extent existed. It has been suggested that such measures were justified upon the notion that the negro was a slave and not a freeman, and had no legal rights. But there was an occasion within our own memory when such things were done-the insurrection of 1830. The Anti-Slavery Society was then in full vitality, and its most illustrious champions were then in full vigour-such men as Brougham and Lushington and Buxton-and if they had understood that these things were justified on any such notion we should surely have heard of it; but it was never supposed, and I think that looking at the terms of these Acts, and especially the words describing martial law as the greatest of evils, it cannot be doubted, that the Legislature meant to allow martial law in the sense of suspending the common law, and substituting the summary proceedings of military law. They put two checks upon it-first, that it should not be proclaimed but with the assent of the Council; next, that it should not be in force beyond thirty days without that assent. Gentleman, I have now nearly concluded what I have to say to you on the law of the case; and it comes to this:-Under the Colonial Act Mr. Eyre had power, in case of apprehended danger, to proclaim martial law in the sense of suspending the common law, and enabling matters to be tried by summary procedure" such as in armies in time of war." That is not an arbitrary power, but a power, without technical or formal rules, to do substantial justice in a summary way. That power he had to exercise on a proper occasion. Consequently, if there was such a state of things that a man of reasonable firmness would have felt that he ought to have done it, then he had the power to do it; and if he had not, under such circumstances, done it, and mischief had ensued, he would have been punishable for not doing it. Then comes the questionputting yourselves into the position in which he then was-knowing what he did, and believing what he did-was he culpable in continuing it for thirty days ? That is to say, in allowing it to run on, for he might have put a stop to it before the end of that period. That he could proclaim martial law there is no doubt; in such a case he would have been blamable if he had not done so. Was he culpable in not stopping it? That depends upon the facts as they would appear to him at the time. When we look at the terms of the Colonial Act, we see that it was plainly intended that the summary power and jurisdiction should be continued as long as necessary to prevent insurrection, but no longer. When there is such danger that if martial law is not exercised in this way the rebellion may spread, and the colony may be destroyed-then it might be so exercised. Then comes the great question-had he, in fact, reasonable grounds for continuing it ? That is, to make it right to continue it. Or did he in fact continue it to such an extent, and with such an excess, as that a man of reasonable moderation and firmness would have known that he should not have done it? That is a question of fact for you. The law has been stated to you. There is, however, a

further question. It arises thus :-When martial law was in force in a particular district Mr. Eyre caused five or six persons to be seized out of that district and to be carried into it to be tried for alleged offences there, and of these one (Gordon) was so tried, and convicted and executed. Two others (Phillips and Morris) were, with or without trial, flogged. The others were not so tried, but were detained in custody after the expiration of martial law, and then prosecuted before the ordinary tribunal, and one convicted and the others acquitted. Then arises the question whether, looking at these acts, this could be justifiable. I have considered that point carefully, and have come to the conclusion that, looking at what martial law was, it might under proper circumstances be justifiable. It is a great principle that the "trial of crime is local," and that offences are to be tried where they are alleged to have been committed. The exceptions to this rule are by particular statutes; as, for instance, the statute under which you are trying here matters which occurred in Jamaica. But the general case is that the trial of crime is local, and that therefore a party is sent for trial to the place where the offence is charged to have been committed. No doubt, in the case of martial law, one of the reasons for it, the impracticability of trial by ordinary law, would not apply when the arrest was out of the district where the rebellion was going on. But then the Legislature contended that there should be the power of summary trial, in order that parties might thus be more quickly tried, with a view to the effect of this in stopping the progress of insurrection. And so, if that was really the object, it might be justifiable, or, at all events, not criminal, though it might be otherwise if the motive was indirect. There can be no doubt, I think, as to Gordon, that he had been a pestilent firebrand, using the most violent language, which probably conduced to cause the insurrection. But, on the other hand, I think there was no evidence beyond that—that is to say, no evidence that he was party to an organized conspiracy to cause a rising throughout the island. But again, I cannot doubt, looking at the evidence, that it was generally believed in the island that he was so; and that Mr. Eyre and all those about him so believed. If you believe that Mr. Eyre sent him to be tried merely to get rid of him as a troublesome fellow, that was oppression, and you should find the Bill. But if you believe, putting yourselves in Mr. Eyre's position, seeing, so to speak, with his eyes, hearing with his ears, and having the state of things before you which were before him-if you believe that he bona fide thought that there was this conspiracy through the island, and that it was likely to break out into insurrection unless suppressed, and that it was really necessary and proper for the purpose of checking it that Gordon, whom he had believed was at the head of it, should be summarily tried, and that it was of importance that he, as the head of the insurrection, should be made an example of at once, in order to stop the insurrection-then I think that under the circumstances it cannot be said that the act was not justifiable; on the contrary, I think he would have been excused in so acting under the powers conferred by the local Legislature. That is, again, a question of fact for you to decide, putting yourselves as far as possible in his position at the time, and assuming those matters which he then believed. It may be that he was mistaken (though, as to that, you may come to a different conclusion; that is a matter of fact for you), but there is no ground for charging him criminally if you believe he honestly so thought. You must consider whether, looking at all the circumstances, putting yourselves as far as possible in his position, making due allowances for his responsibility and his position

an act of