Bl. 69; 1 Hale's P. C. 346; Hale's Com. Law, ch. 2, p. 36; 1 MacArthur, 55.) This is broad enough, and is correct as to the community generally in both war and peace. No question can exist as to the correctness of this doctrine in time of peace. The Mutiny Act itself, for the government of the army, in 36 Geo. III., ch. 24, sec. 1, begins by reciting, 'Whereas, no man can be forejudged of life and limb, or subjected in time of peace to any punishment within the realm by martial law.' (Simmons's Pract. of Courts Martial, 38.)

"Lord Coke says, in 3 Inst. 52: If a lieutenant, or any other that hath commission of martial authority in time of peace, hang or otherwise execute any man by color of martial law, this is murder.' 'Thom. Count de Lancaster, being taken in open insurrection, was by judgment of martial law put to death,' and this, though during an insurrection, was adjudged to be murder, because done in time of peace, and while the courts of law were open. (1 Hallam's Const. Hist. 260.) The very first Mutiny Act, therefore, under William the Third, was cautious to exonerate all subjects except the military from any punishment by martial law. (Tytler on Military Law, 19, note.) In this manner it has become gradually established in England, that in peace the occurrence of civil strife does not justify individuals or the military or the king in using martial law over the people.

"It appears, also, that nobody has dared to exercise it, in war or peace, on the community at large, in England, for the last century and a half, unless specially enacted by Parliament, in some great exigency and under various restrictions, and then under the theory, not that it is consistent with bills of rights and constitutions, but that Parliament is omnipotent, and for sufficient cause may override and trample on them all, temporarily.

"After the civil authorities have become prostrated in particular places, and the din of arms has reached the most advanced stages of intestine commotions, a Parliament which alone furnishes the means of war—a Parliament unlimited in its powers-has, in extremis, on two or three occasions, ventured on martial law beyond the military; but it has usually confined it to the particular places thus situated, limited it to the continuance of such resistance, and

embraced in its scope only those actually in arms. Thus the 'Insurrection Act' of November, 1796, for Ireland, passed by the Parliament of England, extended only to let magistrates put people 'out of the king's peace,' and subject to military arrest, under certain circumstances. Even then, though authorized by Parliament, like the General Government here, and not a State, it is through the means of the civil magistrate, and a clause of indemnity goes. with it against prosecutions in the king's ordinary courts of law.' (Annual Register, p. 173, for A. D. 1798; 1 MacArthur, Courts Martial, 34.) See also the cases of the invasions by the Pretender in 1715 and 1745, and of the Irish rebellion in 1798. (Tytler on Military Law, 48, 49, 369, 370, App. No. 6, p. 402, the act passed by the Irish Parl.; Simmons's Practice of Courts Martial, App. 633.)"

In the case of Grant vs. Sir Charles Gould, 1792, Lord Loughborough rendered the following opinion touching the status of martial law in England;

statutes of the

"The suggestion begins, by stating the laws and realm, respecting the protection of personal liberty. It goes on to state, that no person ought to be tried by a court martial, for any offence not cognizable by martial law, and so on. In the preliminary observations upon the case, my brother Marshall went at length into the history of those abuses of martial law which prevailed in ancient times. This leads me to an observation, that martial law, such as it is described by Hale, and such also as it is marked by Mr. Justice Blackstone, does not exist in England at all. Where martial law is established and prevails in any country, it is of a totally different nature from that which is inaccurately called martial law, merely because the decision is by a court martial, but which bears no affinity to that which was formerly attempted to be exercised in this kingdom; which was contrary to the constitution, and which has been for a century totally exploded. Where martial law prevails, the authority under which it is exercised claims a jurisdiction over all military persons, in all circumstances. Even their debts are subject to inquiry by a military authority; every species of offence, committed by any person who appertains to the army, is tried, not by a civil judicature, but by the judicature of the regiment or corps to which he belongs. It extends also to a

great variety of cases not relating to the discipline of the army, in those states which subsist by military power. Plots against the sovereign, intelligence to the enemy, and the like, are all considered as cases within the cognizance of military authority.

"In the reign of King William there was a conspiracy against his person in Holland, and the persons guilty of that conspiracy were tried by a council of officers. There was also a conspiracy against him in England, but the conspirators were tried by the common law. And within a very recent period, the incendiaries who attempted to set fire to the docks at Portsmouth were tried by the common law. In this country, all the delinquencies of soldiers are not triable, as in most countries in Europe, by martial law; but where they are ordinary offences against the civil peace, they are tried by the common law courts. Therefore it is totally inaccurate to state martial law as having any place whatever within the realm of Great Britain. But there is, by the providence and wisdom of the legislature, an army established in this country, of which it is necessary to keep up the establishment. The army being established by the authority of the legislature, it is an indispensable requisite of that establishment, that there should be order and discipline kept up in it, and that the persons who compose the army, for all offences in their military capacity, should be subject to a trial by their officers. That has induced the absolute necessity of a mutiny act, accompanying the army. It has happened, indeed, at different periods of the government, that there has been a strong opposition to the establishment of the army. But the army being established and voted, that led to the establishment of a mutiny act. A remarkable circumstance happened in the reign of George the First, when there was a division of parties on the vote of the army. The vote passed, and the army was established, but from some political incidents which had happened, the party who opposed the establishment of the army would have thrown out the mutiny bill. Sir Robert Walpole was at the head of that opposition, and when some of their most sanguine friends proposed it to them, they said, as there was an army established, and even if the army was to be disbanded, there must be a mutiny act, for the safety of the country. It is one object of that act to provide for the army; but there is a much greater cause for

the existence of a mutiny act, and that is the preservation of the peace and safety of the kingdom; for there is nothing so dangerous to the civil establishment of a state as a licentious and undisciplined army; and every country which has a standing army in it is guarded and protected by a mutiny act. An undisciplined soldiery are apt to be too many for the civil power; but under the command of officers, those officers are answerable to the civil power that they are kept in good order and discipline. All history and all experience, particularly the experience of the present moment, give the strongest testimony to this. The object of the mutiny act, therefore, is to create a court invested with authority to try those who are a part of the army, in all their different descriptions of officers and soldiers; and the object of the trial is limited to breaches of military duty. Even by that extensive power granted by the legislature to his majesty, to make articles of war, those articles are to be for the better government of his forces, and can extend no farther than they are thought necessary to the regularity and due discipline of the army. Breaches of military duty are in many instances strictly defined; they are so in all cases where capital punishment is to be inflicted; and in other instances where the degree of offence may vary, it may be necessary to give a discretion with regard to the punishment, and in some cases it is impossible more strictly to mark the crime than to call it a neglect of discipline.

"This court being established in this country by positive law, the proceedings of it, and the relation in which it will stand to the courts of Westminster Hall, must depend upon the same rules with all other courts which are instituted and have particular powers given them, and whose acts, therefore, may become the subject of application to the courts of Westminster Hall for a prohibition. Naval courts martial, military courts martial, courts of admiralty, courts of prize, are all liable to the controlling authority which the courts of Westminster Hall have from time to time exercised, for the purpose of preventing them from exceeding the jurisdiction given to them; the general ground of prohibition being an excess of juris. diction, when they assume a power to act in matters not within their cognizance."

PART SECOND.