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a civil action for damages are a means of obtaining redress for an injury already committed; but the principal remedy for false imprisonment or illegal detention of the subject's person is the writ of Habeas Corpus, which, in a proper case, puts an end to the imprisonment or detention itself.

The Writ of Habeas Corpus.-This is an order issuing from the King's Bench upon affidavit, either of the prisoner himself or of some other person, showing probable grounds for supposing that a case of false imprisonment exists. The order is addressed to the person in charge of the prisoner, directing him to produce his body before the King's Bench in order that the court may inquire into the reason for his detention. If the cause of his detention is insufficient, the prisoner is entitled to be set at liberty, or released on bail in cases of misdemeanour. In cases of treason or felony, if not admitted to bail, which is at the discretion of the court, the prisoner is kept in custody; but he is entitled to be put on trial at the next sessions unless the delay is occasioned by the inability of witnesses for the prosecution to attend.

The right to the writ existed before 1679, the date of the Habeas Corpus Act, (c) by which the procedure is regulated in the case of persons accused of crime. In 1816 the procedure of the Act was extended to persons confined otherwise than on a criminal charge. (d) In cases of emergency, such as serious riot or rebellion, the Habeas Corpus Acts are sometimes suspended by Act of Parliament, as has been done on several occasions; (e) but it is usual for Parliament to pass an Act of indemnity for acts done during the suspension. (f) The Criminal Law and Procedure (Ireland) Act, 1887, (g) gives the Lord-Lieutenant power by proclamation to extend the summary jurisdiction of magistrates in any specified part of Ireland, and thus in effect abolish trial by jury in certain cases of criminal conspiracy, intimidation, riot, or unlawful assembly; and where a person has been committed for trial

(c) 31 Car. II. c. 2.

(d) 56 Geo. III. c. 100.

(e) See 34 Geo. III. c. 54; 57 Geo. III. c. 3; 11 & 12 Vict. c. 35 ; 29 & 30 Vict. c. 1; 44 & 45 Vict. c. 4.

(f) For an example of such an Act see 41 Geo. III. c. 66.

(g) 50 & 51 Vict. c. 20.

by a jury in a court other than a court of quarter sessions, the Act gives the High Court power, on the application of the Attorney-General, to order a special jury or to change the place of trial.

Martial Law.

Meaning of Term.-As the state of things prevailing under what is known as martial law forms an exception to the general rule that no man may be punished or imprisoned, except for a breach of the law proved in a legal manner before an ordinary tribunal, it becomes necessary to consider what martial law is, and how far it is admitted by the laws of England.

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Prior to the first Mutiny Act (h) the Crown could, by prerogative, exercise martial law in time of war, but not in time of peace; (i) and the term "martial law seems to have been applied alike to what is now known as military law, viz. that code of laws to which the soldier, as distinct from the civilian, is subject for the maintenance of discipline, and which now derives its authority from the Army Annual Acts; and also to the sense in which the term “martial law " is now understood, viz. that authority which is exercised by the military by virtue of the royal prerogative in time of war, insurrection, riot, or rebellion, to restore peace or preserve the public safety.

After the passing of the first Mutiny Act, however, and the establishment of a standing army in time of peace on a legal footing, the two terms martial law and military law became distinct, the former being always understood to apply to those exceptional methods which are adopted for the preservation of discipline and order during war or insurrection, and the latter to the code of laws by which discipline is maintained in the army at all times.

The term martial law itself, as opposed to military law, has been applied to two quite different things: (1) To the common

(h) 1 Will. & M. sess. 2, c. 4.

(i) Finlason's Comm. p. iii. n. "But the Mutiny Acts are only necessary to apply in time of peace, those regulations which the Crown may by prerogative apply in time of war, or rebellion which amounts

to war.

law right of the Crown and its servants, together with all citizens, not only to repel force by force, but to do all such acts as fall within their common law duty in order to restore peace or suppress insurrection, riot, or rebellion. (2) To that state of things which exists when, by virtue of the prerogative, the military authorities, in time of war, insurrection, riot, or rebellion, claim the cognizance of certain offences by means of military tribunals to the exclusion of the civil courts; such a state of affairs, namely, as is akin to the French état de siège, which is fully recognized by the Articles of the French Constitution, (k) and on the declaration of which, civil jurisdiction is handed over to military tribunals.

Rights at Common Law.-Martial law, in the first of these senses, is fully recognized by English law. All public officers and citizens are entitled to use so much force as is necessary for self-protection or for the suppression of insurrection, riot, or rebellion, even to the extent of taking human life; but this right is strictly limited by necessity. Further, not only are public officers and citizens entitled in such cases to use force, but it is their duty to use all the powers which the law allows in order to maintain the king's peace, and for a breach of this duty they will be criminally liable. This is clearly shown in the case of Rex v. Pinney, (l) (1832), in which Mr. Pinney, the Mayor of Bristol, was prosecuted for not having done all in his power to suppress the riots which occurred in that city in October, 1831. A person will be criminally liable if, as was said by Littledale, J., in that case, "he has not done all that could reasonably be expected from a man of ordinary prudence, firmness, and activity, under the circumstances in which he was placed." (m) In such circumstances the measure of a man's right to use force is correlative to his duty; he will be criminally liable for acts done in excess of his duty, and, on the other hand, he will be liable for omissions of duty amounting to criminal negligence.

The commands of a superior are no justification for unnecessary or excessive violence, unless the command is not

(k) Roger et Sorel, Codes et Lois, p. 436.

(1) (1832) 3 B. & Ad. 947.

(m) And see the comments of Blackburn, J., thereon in Reg. v. Eyre (Finlason's Rep., p. 57).

necessarily or manifestly illegal, though in time of actual war the command of a superior officer might be held an absolute justification for all acts done, whether manifestly illegal or not. (n)

The nature of martial law used in this sense is well expressed in an opinion of Edward James, Q.C., and Fitzjames Stephen, Q.C., with reference to the Jamaica insurrection of 1866. Their views are thus summed up: (0)

(1) Martial law is the assumption by the officers of the Crown of absolute power exercised by military force for the suppression of an insurrection and the restoration of order and lawful authority.

(2) The officers of the Crown (scil. all citizens also) are justified in any exertion of physical force, extending to the destruction of life and property to any extent, and in any manner that may be required for this purpose. They are not justified in the use of excessive or cruel means, but are liable civilly and criminally for such excess. They are not justified in inflicting punishment after resistance is suppressed and after the ordinary courts of justice can be reopened. (p) Though martial law is in full force, they will be liable (even though an Act of Indemnity has been passed) if they use their power wantonly or without due regard to humanity. (q)

(3) The courts martial by which martial law is adminis

tered are not, properly speaking, courts martial or courts at all. . . . They are justified with any forms and in any manner, to do whatever is necessary to suppress insurrection, and to restore peace and the authority of the law. They are personally liable for any acts which they may commit in excess of that power, even if they act in strict accordance with the Mutiny Act and Articles of War. We may add that martial law in this sense is fully recognized by

(n) Per Willes, J., in Keighley v. Bell (1866), 4 F. & F. at p. 790; and see Forsyth, p. 216.

(0) Forsyth, p. 551.

(p) See Wolfe Tone's case, where a Habeas Corpus was granted, Wolfe Tone having been sentenced to death by court-martial after the Irish rebellion was over. (1798) 27 St. Tri. 613.

(a) See Wright v. Fitzgerald (1799), 27 St. Tri., p. 765.

English law, both in England and elsewhere; but whether under it prisoners could be sentenced to long terms of imprisonment, unless such sentences are confirmed by Act of Parliament, seems doubtful. (r)

Martial Law by Virtue of the Prerogative.-With regard to the second sense in which martial law is used, namely, that state of things which corresponds to the French état de siège, where the military authorities arrogate to themselves, by virtue of the prerogative, jurisdiction in the case of civilians and soldiers alike over certain offences to the exclusion of the civil courts, it has been laid down by many authorities that such a state of things is utterly unknown to English law. (s)

It must indeed be admitted that martial law in this sense has not been put in force in England by virtue of the prerogative, at least since the time of Charles I. (t) It has, however, been proclaimed in Ireland by statutory authority in 1799 (u), and without statutory authority in 1796, in Jamaica by statutory authority in 1865, in Ceylon by statutory authority in 1849, and recently during the South African war in Cape Colony without statutory authority.

In those cases where martial law has been proclaimed by statutory authority, little or no difficulty presents itself; but in those cases where martial law has been proclaimed by the officers of the Crown without statutory authority, and the military tribunals acting under the authority of such proclamations have exercised jurisdiction over certain offences, in some cases, even where the civil courts were still sitting, and have sentenced civilians to death, fines, or terms of imprisonment, it becomes necessary to consider how far the prerogative of the Crown (if it exists at all) to issue such proclamations extends.

(r) See opinion of Mr Serjeant Spankie quoted by Forsyth at p. 211. "Courts-martial which condemn to imprisonment and hard labour belie the necessity under which alone the jurisdiction of courts-martial can lawfully exist in civil society."

(8) Dicey, p. 289; per Cockburn, C.J., in Reg v. Nelson & Brand (Fred. Cockburn's Rep., p. 59); Grant v. Gould (1792), 2 H. Bl. 69. And see Bl. Comm., i. 381.

(1) Reg. v. Nelson & Brand (Fred. Cockburn's Rep., p. 45). (u) 39 Geo. III. c. 11 (Irish Act).

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