Parliament, and other public courts of justice, and by all whose reputation for knowledge of English Jurisprudence is highest.

Thus in the first year of Edward the Third, Parliament reversed the judgment. which had been pronounced against Edmond Earl of Kent. He had been taken. at Pomfret in the fifteenth year of Edward the Second. The King and divers lords proceeded to give sentence of death against him as in a kind of military court by a summary proceeding; which judgment was afterwards in the first year of Edward the Third reversed in parliament; the reason of the reversal being that every man is entitled to be tried by the law of the land, and that during the whole time of the proceedings, the ordinary courts were open.

In the reign of Richard the Second great numbers of the villeins and the peasantry rose in rebellion: there was a wide-spread insurrection. These risings of the peasantry were not confined to England, for we find the rising of the Jacquerie in France about the same time. There can be no doubt that the insurrection of the villeins was of fearful proportions. Many of the peasantry were put to death without due process of law, and those who had put them to death sought and obtained an indemnity. Prynne says, "Many of the King's lords, gentlemen, and other subjects in the general insurrection of the villeins and other rebels against the King, in the fifth year of Richard the Second, having inflicted divers punishments upon the said villeins and traitors without due process of law and otherwise than the laws and usages of the realm required: though they did it out of no malice prepensed but out of mere loyalty to the King and to appease and cease the present mischief, and out of ignorance of the said laws and usages in which if they had been learned, yet at that time they ought not to have tarried the process of the laws in those punishments of their good discretion: yet those punishments and executions of them in a summary way being contrary to, and not warranted by the laws and usages of the realm, they were enforced for their future indemnity against the king and his heirs, and the heirs, wives, and friends of those they punished, to petition the king and parliament for a general pardon by act of parliament, to secure and indemnify themselves; which was granted them in 5. Rich. 2, c. 5 else they might have been impeached for the same as well as king Richard the Second himself; who as the parliament in first year of Henry the Fourth, rot Parl. n. 44, (wherein he was enforced to resign his crown and then deposed for his misgovernment) was amongst other articles impeached, for that against the great charter and his coronation oath, he suffered many of his liege subjects to be maliciously accused, apprehended, and imprisoned and tried before the constable and marshal in their military court."

In 1487 Henry the Seventh, after the battle of Stoke, ordered certain persons, accused of holding intelligence with the enemy, to be tried by commissioners of his own appointing, or by courts martial according to martial law instead of the usual courts of justice. This," says Tomlin in his Law Dictionary, "was an arbitrary and illegal exercise of power not authorized by any law of the land.”

In the thirteenth year of Elizabeth, one Peter Burchell stabbed the famous sea-captain Hawkins. The Queen, being much incensed against Burchell, commanded him to be tried forthwith by martial law. But her judges and council resisted this illegal proposition with spirit and success, stating, that he could not be so tried by law, it being done not in an army but in time of peace, when her courts of law and justice were open.

In the thirty-seventh year of Elizabeth, some riotous apprentices having committed a few disorders, a commission was directed to Sir Thomas Wilford, appointing him provost-marshal, with authority, on notice by the magistrates, to attack and seize such notable rebellious and incorrigible offenders, and in the presence of the magistrates to execute them upon the gallows. "This peremptory style," says Mr. Hallam, "of suspending the common law was a stretch of prerogative without a parallel, and no other measure of her reign can be compared to it in point of violence and illegality."

The rebellion of Essex, at the close of Elizabeth's reign, is well known to ordinary students of history. He was tried by due process of law before his peers at Westminster. Hume, citing lord Bacon as his authority, has said that the trial at common law, which was granted to the Earl of Essex and his fellow conspirators, was a favour shown them by the Crown: and that the case would have borne and required the severity of martial law. On this, Mr. Phillips, in his edition of the State Trials, remarks, "there is no ground whatever for such a statement. On the contrary, it appears from the most approved authority, that if he had been executed by martial law for this rebellion which broke out in time of peace, he had been murdered."

In the beginning of his reign, Charles the First, to suppress the insolence of soldiers and mariners then billetted in sundry parts of the realm, granted commissions to sundry persons of quality, in time of peace, to execute martial law upon those soldiers and mariners and other dissolute persons only joining with them, for murder, robbery, felony, mutiny and other outrages committed by them; by pretext whereof some of the said soldiers and subjcets were put to death by some of the said commissioners; when and where, if by the laws and statutes of the land they had deserved death, by the same laws and statutes also they might, and by no others ought, to have been judged (before the King's justices) and executed. Upon complaint of those commissions, as illegal, in the parliament of the third year of Charles the First, they were after full debate by both houses voted to be against law. And in the petition of right itself it was then prayed by the lords and commons and assented to by the King, that hereafter no commissions of the like nature may issue forth to any person or persons whatsoever, to be executed as aforesaid, lest by color of them, any of his Majesty's subjects be destroyed, or put to death, contrary to the laws and franchises of the land. This act stands yet in its full force, and until the rebellion of 1688, when the first mutiny bill was passed, it was illegal even to try soldiers by martial law in time of peace. Prynne tells us that upon due consideration

of this provision of the petition of right, the long parliament, of which he was a member, in the cases of the lord Connor Maguire and Mac-Mohun, and the court of King's bench wherein they were tried by their special order, in Michaelmas and Hilary terms, 20th of Charles the First, were so just, punctual, and honourable in conforming themselves to the rule of law and justice, that though they were principal conspirators in the late most horrid, barbarous, bloody treason, rebellion and massacre in Ireland, and taken in its prosecution, yet they were so far from trying them by martial law in a council of war, even in a time of open war both in England and Ireland, that they assigned the said Maguire counsel to argue against the very jurisdiction of the King's bench itself; whether he, being a peer of Ireland, could in point of law or justice by statute 35 Hen. 8, cap. 2, or any other act, be outed of his trial by his peers, and tried by a jury of good and lawful men in the county of Middlesex, for a treason committed in Ireland, being sent a prisoner from thence against his will; which was then publicly argued at the bar by counsel pro et con, and then by the judges, and overruled at last against him, before he was put to plead guilty or not guilty to his indictment; after which they were admitted to take their peremptory and legal challenges to the juries returned, and all just exceptions to the witnesses produced, and had a most free and fair trial; being found guilty by the jury before any judgment passed against them."

Sir Mathew Hale, in his History of the Common Law, speaking of martial law, says, "first, that in truth and reality it is not a law, but something indulged, rather than allowed, as a law. The necessity of government, order and discipline, in an army, is that only which can give those laws a countenance. Secondly, this indulged law was only to extend to members of the army or to those of the opposite army, and never was so much indulged as intended to be executed or exercised upon others." He then refers, in support of his opinion, to the reversal of the judgment against Edmond, Earl of Kent, and to the petition of right.

It is worthy to be remarked that neither in the Monmouth rebellion in 1685, nor in the rebellion of 1715, nor that of 1745, did the executive proclaim martial law. In Grant v. Sir Charles Gould, 2 H. Bl. 98, Lord Loughborough says, "Martial law 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, it extends to a great variety of cases not relating to the discipline of the army. Plots against the sovereign, intelligence to the army, and the like, are all considered as cases within the cognizance of military authority." His lordship then refers to the fact that the persons charged with conspiring to take the life of King William the Third, and the incendiaries who attempted to set fire to

"Therefore," says

the docks at Portsmouth, were tried by the common law. his lordship, "it is totally inaccurate to state martial law, except so far as it is given by the mutiny act, as having any place whatever within the realm of Great Britain."

The Irish statute 39 Geo. 3, 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 court martial." Sir James McIntosh says "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 legalizing these martial jurisdictions, in 1799, the very statute that was passed for that purpose, did homage to the ancient and fundamental principles of the law, in the very act of departing from them. 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 actively prevails in those others, without an extraordinary interposition of the supreme legislative authority itself."

Sir James M'Intosh, in his speech on the case of the missionary Smith, says, "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 in which it alone 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. As soon as the laws can act, every other mode of punishing supposed crimes is itself an enormous crime."

From the foregoing authorities, it is beyond dispute, that the executive authority cannot create anomalous tribunals except in the one instance of necessity. Unless therefore it can be affirmed, that this necessity existed on the day on which Gordon was tried, or some authority for martial law can be dug out of the law peculiar to Jamaica, Governor Eyre and his subordinates, were guilty of murder-all the more malignant because masked under the forms of justice.

It is worthy to be held in everlasting remembrance, that there is scarcely a protection which the subject can need, against the misrule and oppression of the executive, which our ancestors did not struggle for, and obtain. Let it be our duty to know our rights and in the spirit of our ancestors, maintain them. let this case of Jamaica pass without retribution, is to establish a precedent that the executive may, on its own allegation of public danger, take the lives of

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subjects, at its will and pleasure. No time is to be lost. The whole British nation should be suppliants for justice.

It is impossible to discuss any portion of the Jamaica tragedy, without referring to the death of Gordon. The whole range of English history scarcely supplies such an instance of cruel and heartless murder. The cases of Russel, Sidney, Alice Lisle and Armstrong, cannot be compared to Gordon's in intensity of darkness. Their trials and condemnation were righteous compared with the flagrant injustice of Gordon's trial. Admitting the jurisdiction of the court, there seems not a particle of reliable testimony, and the clear assertion of his innocence in immediate prospect of death, is in a just man's eye, worth all the evidence a government, in a reign of terror, could collect. A month ago Gordon was unknown except to a few, and now his virtues and his martyr's death "have become the argument of all tongues." The serenity of his last moments was the true expression of a virtuous life. "May the like happy serenity in such dreadful circumstances and a death equally glorious, be the lot of all whom tyranny of whatever denomination, or description, shall in any age or in any country, call to expiate their virtues on the scaffold."

WHAT "FREED-MEN'S AID" MEANS.

BY J. M. LUDLOW, ESQ.

THE establishment of the proposed "National Freed-men's Aid Union of Great Britain and Ireland" is seriously threatened by a difference which has arisen between the London Freed-men's Aid Society on the one hand and the Birmingham and Midland Freed-men's Aid Association and Friends' Central Committee on the other, as to the very meaning of its title. On the occurrence of the late deplorable events in Jamaica, among a people kindred in race to the coloured men of the United States, the original objects of the three Societies' sympathies and exertions-only so far differing from them in condition, that their freedom reckons its age by years and not by months-and who, as being our own fellow-subjects, have a right to claim our first attention over any inhabitants of a foreign country, the Freed-men's Aid Society of London felt it to be its duty to take cognizance of those events, and to associate itself with the Anti-Slavery Society in the monster deputation to the Secretary of State for the Colonies, on December 9th. The course thus taken appeared so natural and reasonable, that at the meeting at Radley's Hotel at which the "Jamaica Committee" was definitively constituted, it was taken for granted that the work of that Committee would be confined to the purely political one of enforcing justice for the Jamaica Freed-man, and that the purely social one of providing for his necessities was to be left to the Freed-men's Aid Societies.

Under these circumstances, when the scheme for the "National Freed-men's Aid Union of Great Britain and Ireland" came under discussion, the Freedmen's Aid Society of London felt that the object of the proposed Union, as set forth in Article II of that scheme, was too narrow for the existing state of