3, 4. But it is as affecting the subjects of the crown in rebellion that the subject of martial law really obtains its chief importance; and it is in this sense that the term is generally used; i.e. the suspension of ordinary law and the temporary government of the country, or parts of it, or all of it, by military tribunals. It has often been laid down that martial law in this sense is unknown to the law of England. A. V. Dicey, for instance, restricts martial law to only another expression for “the common right of the crown and its servants to repel force by force, in the case of invasion, insurrection, or riot, or generally of any violent resistance.” But more than this is understood by the term martial law.
When the proposition was laid down that martial law in this sense is unknown to the law of England, it is to be remembered that fortunately in England there never had been a state at all similar to that prevailing in Cape Colony in 1900-1902, and it may perhaps be questioned whether the statement would have been made with such certainty if similar events had been present to the writers’ minds.
In the charge delivered by Mr Justice Blackburn in the Jamaica case the law as affecting the general question of martial law is well set out.
“By the laws of this country,” said Mr Justice Blackburn, “beginning at Magna Carta and getting more and more established, down to the time of the Revolution, when it was finally and completely established, the general rule was that a subject was not to be tried or punished except by due course of law; all crimes are to be determined by juries subject to the guidance of the judge; that is the general rule, and is established law. But from the earliest times there was this also which was the law, and is the law still, that when there was a foreign invasion or an insurrection, it was the duty of every good subject, in obedience to the officers and magistrates, to resist the rebels, ... in such a case as that of insurrection prevailing so far that the courts of law cannot sit, there must really be anarchy unless there is some power to keep the people in order, ... before that principle the crown claimed the prerogative to exercise summary proceedings by martial law ... in time of war when this disturbance was going on, over others than the army. And further than that, the crown made this further claim against the insurgents, that whilst it existed, pending the insurrection and for a short time afterwards, the crown had ... the power to proclaim martial law in the sense of using summary proceedings, to punish the insurgents and to check and stop the spread of the rebellion by summary proceedings against the insurgents, so as ... to stamp out the rebellion. Now no doubt the extent to which the crown had power to do that has never been yet decided. Our law has been declared from time to time and has always been a practical science, that is, the judges have decided so much as was necessary for the particular case, and that has become part of the law. But it never has come to be decided what this precise power is.”
So far as the United Kingdom is concerned the need has never arisen. It has always been found possible to employ the ordinary courts directly the rebels have been defeated in the field and have been made prisoners or surrendered. “Fortunately in England only three occasions have arisen since the Revolution when the authority of the civil power was for a time, and then only partially, suspended,” 1715, 1745 and 1780. Clode, Military Forces, ii. 163, says: “Upon the threat of invasion followed by rebellion in 1715, the first action of the government was to issue a proclamation authorizing all officers, civil and military, by force of arms (if necessary) to suppress the rebellion.” This, therefore, would only seem to fall within the limited sense in which Dicey understands martial law to be legal, “the right of the crown and its servants to repel force by force.” There was no attempt to bring persons before courts-martial who ought to be tried by the common law, and all the extraordinary acts of the crown were sanctioned by parliament. After the rebellion had been suppressed two statutes were passed, one for indemnity and the other for pardon. Before the revolution of 1745 similar action was adopted, a proclamation charging civil magistrates to do their utmost to prevent and suppress all riots, and acts of parliament suspending Habeas Corpus, providing for speedy trials; and of indemnity. In the Gordon Riots of 1780 a very similar course was pursued, and nothing was done which would not fall within Dicey’s limitation. No prisoners were tried by martial law.
In Ireland the ordinary law was suspended in 1798-1801 and in 1803. In 1798 an order in Council was issued to all general officers commanding H.M. forces to punish all persons acting in, aiding, or in any way assisting the rebellion, according to martial law, either by death or otherwise, as to them should seem expedient for the suppression and punishment of all rebels; but the order was communicated to the Irish houses of parliament, who expressed their approval by addresses to the viceroy. It was during the operation of this order that Wolfe Tone’s case arose. Tone, a subject of the king, was captured on board a French man-of-war, and condemned to death by a court-martial. Curran, his counsel, applied to the king’s bench at Dublin for a Habeas Corpus, on the grounds that only when war was raging could courts-martial be endured, not while the court of king’s bench sat. The court granted his application; but no ultimate decision was ever given, as Tone died before it could be arrived at.
In 1799 application was made to parliament for express sanction to martial law. The preamble of the act declared that “The Rebellion still continues ... and stopped the ordinary course of justice and of the common law; and that many persons ... who had been taken by H.M. forces ... have availed themselves of such partial restoration of the ordinary course of the common law to evade the punishment of their crimes, whereby it had become necessary for parliament to interfere.” The act declared that martial law should prevail and be put in force whether the ordinary courts were or were not open, &c. And nothing in the act could be held to take away, abridge or eliminate the acknowledged prerogative of war, for the public safety to resort to the exercise of martial law against open enemies or traitors, &c.
After the suppression of the rebellion an act of indemnity was passed in 1801.
In 1803 a similar act was passed by the parliament of the United Kingdom as it was after the Act of Union. In introducing it Mr Pitt stated: “The bill is not one to enable the government in Ireland to declare martial law in districts where insurrection exists, for that is a power which His Majesty already possesses—the object will be to enable the lord-lieutenant, when any persons shall be taken in rebellion, to order them to be tried immediately by a court-martial.”
During the 19th century martial law was proclaimed by the British government in the following places:—