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“In war time and in the field the prince hath also | case, which is a question, after the restoration of absolute power, so that his word is a law. He may peace, for the ordinary courts of justice; and, as in put to death, or to other bodily punishment, whom every common-law justification, the burden of proof he shall think so to deserve, without process of law is on the person justifying. Acts of this kind cannot or form of judgment. This hath been sometime used | be justified à priori, as matter of law, by any execuwithin the realm before any open war, in sudden tive order such as a proclamation of martial law, insurrections and rebellions, but that not allowed of save so far as special authority may have been conwise and grave men, who in that their judgment had ferred by legislation. Proclamation of martial law consideration of the consequence and example, as does show that the responsible executive officers of much as of the present necessity, especially when by the king thought a state of war existed, and accordany means the punishment might have been done by ingly it is evidence, and may be strong evidence, order of law. This absolute power is called martial though subject to be rebutted, that a state of war did law, and ever was, and necessarily must be, used in exist. But perhaps, the existence of a state of war all canıps and hosts of men, where the time nor place within the jurisdiction is a public fact of which the do suffer the tarriance of pleading and process, be court may take judicial notice. The court being it never so short, and the important (qu., importu- satisfied that there was, at the time in question, a nate) necessity requireth speedy execution, that with state of war, justification of extraordinary acts done more awe the soldier might be kept in more strait in public defense becomes possible. Whether the obedience, without which never captain can do any- justification is made out in any particular case is a thing vailable in the wars."— Commonwealth of question to be tried, if necessary, like any other disEngland, bk. 2, c. 4. (I cite from the reprint of 1640 puted question. It would be too long to consider and modernize the spelling. A Latin translation pub- here the form in which it should be put to a jury, lished at Leyden renders martial law by potestas though the point is interesting and of some castrensis.]
importance. This is exactly the law laid down in the Petition Two further practical questions of a general kind of Right two generations later, save that in the immediately suggest themselves. First, what is a Petition of Right nothing is in express terms either state of war? Must there be, then and there, actual affirmed or denied as to what the king may do in fighting or disorder? Must life and property be in time of war.
imminent danger? Must the enemy be visible in II.
force, or the sound of his guns audible? Then, are Military law is a special body of rules applicable to the kind of acts which may be necessary for public special classes of persons. It has nothing to do with defense limited to the use of physical force against the general right of citizens to defend their own per- ment? If not, what other kinds of acts may be re
persons, by way of restraint or summary punishsons and property, or the right — which is also a duty
quired and justified ? - to preserve the peace against rioters by the use of whatever force is reasonably necessary. Here there
The old books help us very little on these points. is no question of any special prerogative of the crown, There was certainly a prevalent opinion in the serthough the duty of lawful men in such case is gen. where the courts were open and the king's writ could
enteenth century that it was time of peace when and erally best performed by assisting some responsible officer. It is sufficient to refer to the leading case
be executed. This might be a very fair test in the of R. v. Pinney ([1832), 3 St. Tr. N. S. 11; 3 B. & reign of James I. The presence of the king's eneAd. 947; 37 R. R. 599, and preface).
mies at York might well seem no cause whatever for Now it seems that on principle there must be an
holding that there was a state of war at Plymouth or
even at Westminster. There is also some authority analogous right and duty of defending the common
to show that not only acts done against enemies or wealth against the king's enemies whenever and wherever there is a state of war within the realm, disaffected persons, but invasions of innocent persons' and of doing, as incident to such defense, various property, may be justified by the necessity of war. acts which otherwise would be trespasses. The same
“In time of war one shall justify entry on another's law must apply to any other distinct jurisdiction in land to make a bulwark in defense of the king and the king's dominions where the constitutional rules the kingdom” (Y. B. 21 Hen. 7, 27, pl. 5, per Kingsof the common law prevail; I do not know, in fact, within the realm. The dictum is notable as showing
mill, J.). Here, of course, war means only war of any jurisdiction under the British flag where
that other things besides the direct use of force these rules are not assumed to have become part of the local law, subject to any special local legislation. justifiable and lawful for the maintenance of the
against force may be — as the judge continues Three things are pretty clear about this power or
commonwealth." duty, assuming it to exist. First, it is not a matter of prerogative, but appertains to all lawful men. Sec
III. ondly, it is not specially vested in military officers, Next, consider the application of the principles to though they may often be the most proper persons modern conditions. An enemy's army has landed in to exercise it. Thirdly, its exercise requires to be force in the north and is marching on York. The justified on every occasion by the necessity of the peace is kept in London and Bristol, and the courts are not closed. It is known that evil disposed per- that the range of those acts must extend to the presons have agreed to land at several ports for the pur- vention of aid and comfort to the enemy beyond the pose of joining the enemy and giving him valuable bounds of places where warlike operations are in aid and information. Bristol is one of the suspected sight. In many places there may outwardly be ports. What shall the mayor of Bristol do? I sub- peace, and yet modern means of communication may mit that it is his plain, moral duty as a good citizen admit of important aid being conveyed to the enemy (putting aside for a moment the question of strict in the shape of information, supplies and personal law) to prevent suspected persons from landing, or adherents. In this manner the effective radius of a to arrest and detain them if found on shore, to as- state of war has been multiplied tenfold or more. sume control of the railway traffic and forbid unde- By recognizing this fact we do not alter the law, but sirable passengers to proceed northward, and to exer- apply it to the facts as they exist; nor do we discise a strict censorship and inquisitorial power over parage the wisdom of our predecessors who declared letters and telegrams. All these things are in them- their opinion of the law in a form appropriate to the selves trespasses (except, probably, forbidding an facts as known to them. alien to land); some of them may perhaps be justi.
IV. fiable under the statutory powers of the postmaster
The results which are accordingly submitted are general, but summary restraint by way of preven- shortly these. tion must be justified by a common-law power aris
So-called “martial law," as distinct from military ing from necessity, if at all. Observe that I say law, is an unlucky name for the justification by the nothing about trial or punishment. The popular
common law of acts done by necessity for the de(and sometimes official) notion that martial law fense of the commonwealth when there is war within necessarily means trial by court-martial has caused the realm. Such acts are not necessarily acts of permuch confusion. Summary punishment may or may sonal force or constraint. They may be preventive as not be necessary. In that respect the mayor's well as punitive. authority would be like that of the master of a ship.
The justification of any particular act done in a Now, if the mayor of Bristol fails to do these state of war is ultimately examinable in the ordinary things, he will surely find himself in as much trouble courts, and the prior question whether there was a as his predecessor in the time of the Bristol riots. state of war at a given time and place is a question of And I do not think he will improve his defense by fact. pleading that the peace was still kept in Bristol and There may be a state of war at any place where aid the courts were open, and therefore he thought he and comfort can be effectually given to the enemy, had no power to do anything beyond the ordinary having regard to the modern conditions of warfare process of law. Nor yet will he mend matters if he and means of communication. says that he was waiting for an order in council It may be objected that, if the view now prowhich was never issued, or never came to his knowl-pounded is correct, acts of indemnity are superfluous. edge. At best it will be a topic of slight mitigation. But this is not so. An act of indemnity is a measure For an order in council, though it might be useful of prudence and grace. Its office is not to justify as evidence that the person acting under it was acting unlawful acts ex post facto, but to quiet doubts, to reasonably and in good faith, could not of itself make prevent vexatious and fruitless litigation, and, quite anything lawful which was not so before; nor, con- possibly, to provide compensation for innocent perversely, could any accident or default in higher places sons in respect of damage, inevitably caused by jusderogate from the power and duty of the magistrate tifiable acts, which would not have supported a legal on the spot. At one time it was a rather favored claim. doctrine that extraordinary but necessary acts in If anyone suggests a danger of this doctrine of time of war or rebellion, outside military law proper, necessity being extended without limit, the answer are all in the first instances illegal, and that it may almost too elementary to call for statement - is that be a political duty to commit unlawful acts and rely courts of justice must conclusively presume the ordion the legislature's grace for a subsequent act of nary process and remedies of law to be sufficient in indemnity. But this, it is submitted, imputes gratu- time of peace. itous folly to the common law, which cannot be so
V. perverse as to require a man in an office of trust to So far I have not mentioned the recent decision of choose between breaking the law and being an in- the judicial committee refusing the petition of D. F. competent officer and a bad citizen. In the absence Marais for special leave to appeal (85 L. T. Rep. 734; of positive authority (for there really is none) we (1902), A. C. 109), because, in my opinion, the only are entitled, and, indeed, bound, to suppose the law point it really decided was that the absence of visible to be reasonable. It seems, therefore, that the acts disorder and the continued sitting of the courts are which every courageous and prudent magistrate not conclusive evidence of a state of peace. This, would certainly do in the circumstances supposed are I venture to think, is right, for reasons already indinot a kind of splendid offense, but are (in the words cated. Mr. Marais had applied to the local court for of Justice Kingsmill) “justifiable and lawful for the summary release, on the ground that there was no maintenance of the commonwealth.” It also seems state of war at all at the time and place, and therefore no possible justification for an arrest otherwise who repeated his former observation. The process than in ordinary course of law. The only reason went one until nineteen pistols of all kinds and sizes assigned by his counsel for denying that there was and shapes lay upon the stand, together with nineteen a state of war was that the courts were open. What dollars by their side. The judge laughed as he comwas, in fact, the justification for arresting Mr. Marais plimented the nineteen delinquents upon being men in particular may be judicially considered hereafter of business, but added that the man whom he had without any kind of prejudice, so far as I can see, if seen with the pistol had not yet come up, and, glancMr. Marais should be advised to bring an action. ing at the far side of the court-room, he continued: That question was certainly not before the judicial “I'll give him one minute to accept my proposicommittee.
tion, and, if he fails, I will hand him over to the The judgment involves the further position that sheriff.” neither an application for summary release from ex- Immediately two men from the back of the courttraordinary arrest nor an action for anything done room arose and began to move toward the judge's as an extraordinary act of necessity will be enter- stand. Once they stopped to look at each other, and tained by the ordinary courts during the continuance then, coming slowly forward, laid down their pistols of a state of war in the jurisdiction, when the court and their dollars. As they turned their backs the is satisfied that a responsible officer acting in good judge said: faith is prepared to justify the act complained of. 1 “ This man with the black whiskers is the one that do not know that this is seriously objected to. I originally saw.”— New England Magazine.
The adjective "military" is used several times in the judgment. I am inclined to regret this, as being likely to keep alive the fallacious notion that the
INSANITY AMONG ASSASSINS. so-called “ martial law" justified by necessity is identical or logically connected with military law.
An investigation into the subject of political assasVarious questions of various degrees of interest are sinations as a medico-psychological study has been suggested by extra-judicial remarks in the course of made. It was based on fifteen historical cases of as. the judg
nt; but they are rather speculative, and I sassination, beginning with that of Henry III of purposely pass over them. It should be remem
France by Jacques Clement in 1589. Careful study bered that, whatever Ex parte D. F. Marais decides. of the medical and psychological data shows that be it what I suppose or more or less, the decision is the assassins fall into four classes, viz., sane assasnot binding on any English court, and probably not sins, insane assassins, assassins who were “ degenerbinding on the judicial committee itself on any future ates,” but not insane, and finally assassins who were occasion.
both degenerate and insane. Among sane murderLincoln's Inn.
ers are classed the members of the Orloff family, who FREDERICK POLLOCK.
in 1762 assassinated Peter III of Russia, and Jacob
Anckerstrom, a former captain of the army, who THE LAW IN GEORGIA.
killed Gustavus III of Sweden. In the same class
is included Booth, the assasssin of President Lincoln. Georgia has a stringent law forbidding its citizens
Among insane assassins are included Ravaillac, to carry pistols on pain of forfeiting the weapons who in 1610 stabbed Henry IV of France; Louvel, and paying a fine of fifty dollars or being imprisoned who in 1820 assassinated the Duc de Berry, son of for thirty days. Shortly after the passage of this Charles X of France, and Guiteau, who assassinated enactment Judge Lester was holding court in a little President Garfield in 1881. Ravaillac was the subtown, when suddenly he suspended the trial of a case ject of visual hallucinations and delusions, Louvel by ordering the sheriff to lock the doors of the court was a monomaniac, with fixed delusions, and Guiteau house.
a paranoiac, with hallucinations and political 'Gentlemen," said the judge, when the doors ere delusions, complicated with incipient symptoms of closed, “I have just seen a pistol on a man in this general paralysis. room, and I cannot reconcile it to my sense of duty The degenerates” of the assassin type include to let such a violation of the law pass unnoticed. I Clement (degenerate fanatic and mentally unbalought, perhaps, to go before the grand jury and in- | anced), who murdered Henry III of France; Chardict him, but if that man will walk up to this stand lotte Corday, who stabbed Marat in the times of the and lay his pistol and a fine of one dollar down French revolution; Cesario Santo, the assassin of the here, I will let him off this time."
late President Carnot of France, and Michael Golli, The judge paused, and, a lawyer sitting just before anarchist and fanatic, who assassinated Senor Canohim, got up, slipped his hand into a hip pocket, drew vas, the premier of Spain, in 1897. The three most out a neat, ivcry-handled six-shooter and laid it, recent assassinations include those of the Empress with one dollar, down upon the stand.
of Austria, King Humbert of Italy, and President “This is, all right,” said the judge, “but you are McKinley. Luigi Luchini, it is determined, who not the man I saw with the pistol.”
assassinated the Empress of Austria, was a degeneUpon this another lawyer arose and laid down rate with criminal instincts.” Gaetano Bresci, the a Colt's revolver and a dollar bill before the judge, I murderer of King Humbert, was a degenerate of
moody temperament - a man whose criminal ten- duty of the appellant to pay the charges and accept dencies were diagnosed and foretold by Lombroso. the same. He also contends that appellant never As regards Czolgosz, the murderer of President asked him to be allowed to examine the package McKinley, he was a degenerate, but sane.
sent, while appellant's contention is the reverse. It Many of these degenerates were youthful, and is contended for appellee that the universal custom probably had they lived longer would have developed and law is that the purchaser must pay for the goods insanity, their earlier records showing that they were on delivery, unless by agreement time is to be given. " borderland" cases on the margin of sanity and in- This contention may be true, but it does not follow sanity. Thus, Jacques Clement was twenty-five that a party in New York may, when a party in years, Charlotte Corday twenty-five years, Booth Louisville has purchased a particular article, send twenty-seven years, Luchini twenty-five years of age, the same so concealed that it cannot be examined, Czolgosz twenty-eight years. Louvel had reached marked 'C. O. D.,' thus requiring the purchaser to thirty-seven years and Guiteau forty-two.
pay for an article which he has not had any opportunity to examine and determine whether it is the
article purchased by him or not. Under all of the WHAT IS MEANT BY “C. O. D.?”
facts and circumstances proven in this case we do An interesting question came up before the Court not think that appellant was necessarily bound to of Appeals of Kentucky in the case of the Louisville accept the express package and pay for the same, Lithographic Co. v. Scheder (May, 1901, 60 S. w. and the question as to whether he should have done 8), on refusal to permit the buyer of goods ordered
so or not should have been submitted to the jury." “C. O. D.” to examine same, and the point at issue Bank (47 N. E. 588), it was held by the Supreme
In People's National Bank v. Freeman's National was, what was meant by C. O. D.
It appeared that plaintiff shipped the goods Judicial Court of Massachusetts that a written inC. 0. D., so concealed that defendant could not
struction “papers to be delivered only upon payexamine them, and refused to permit an examina- ment of draft,” sent to a collecting bank with a tion without payment. It was held that it was a
draft in a sealed package of papers, is not invaliquestion for the jury, under all the facts and circum- dated by the collecting bank allowing the drawee stances, whether the defendant was bound to accept
to open the package and examine the papers before and pay for the articles without an opportunity to payment of the draft, as such temporary surrender examine them. The court said in part:
for examination is not a delivery."— The Express
Gazette. " It appears from the testimony in this case, and from the letters passing between the parties, filed, that the appellant is a lithographic company in
ORATORY NOT A LOST ART. Louisville, the business of which is to obtain what is called 'lithographic stones,' so prepared that it Since the Hon. William Jennings Bryan brought may print or make a certain design, and that it the Chicago convention to his feet by his famous had a Contract with a certain company to furnish cross of gold” speech, this country has had no to it a large number of cigar labels of the kind more convincing proof of the power of oratory than mentioned in the pleadings, which had to be of a the speech of Attorney-General Isidor Rayner, of proper stamp, color, etc., and for which appellant Maryland, in summing up before the Schley court had prepared a sketch. It appears that appellant of inquiry, says the Albany Argus. Even in cold had condemned several proofs furnished to it by type the tingling sentences of Mr. Rayner's peroraappellee, who resided in New York or New Jersey, tion create an impression that leaves no surprise at but finally a proof was sent that was, in substance, their effect upon those who received them from the 'O. K'd.' by appellant, but in the '0. K.' letter speaker's lips. When grizzled naval officers and it was stated in effect that appellee should remember robed judges are moved to tears by the spoken word, that the same should be . A. No. 1,' as mentioned in who shall say that its influence is waning with the former letter. It further appears that some corre- increasing culture and education of the times? spondence had taken place between the parties, in In the law court, the rostrum and the pulpit, the which plaintiff had demanded that a payment should human voice still works its spell, and yet one selbe forwarded to him for the work, which defendant dom hears nowadays of great orators. There was a declined to do, and pretty soon thereafter plaintiff time when the world thought of Wendell Phillips expressed the stone. From the letter it appears or Henry Ward Beecher, first as the orator, and that plaintiff was directed to forward the stone by then as the reformer and preacher; but modern opinexpress, but there was nothing in the letter indi- ion regards with a certain suspicion any appeal to cating that it was to be forwarded ‘C. 0. D.,' feeling before intellect. We are half ashamed to although about the time of the writing of the letter own that the heart leads the brain, and yet no in question by the appellant, the plaintiff had writ- amount of modern scientific training will ever make ten that he would ship it ‘C. O. D.' The conten- it otherwise. The tendency is to overrate logic and tion of appellee is that he was entitled to ship the belittle sentiment. Attorneys and clergymen are stone in question 'C. O. D.' and that it was the taught to argue, to marshal facts in solid array until, by their very weight, they crush opposition. All particular defect that induced this bequest was canvery well, if the intellect which they address will not say. The high table at an Oxford or Cambridge give heed; but there is a subtler voice in every college is not usually the place where dinner is human heart which will not be silenced by mere lacking, either in quality or quantity. And the proargument, an ear which listens only when the tones vision for a vast number of Colonial, American and of appeal are something finer than those of cold German scholarships is interesting on the ground of logic. The slightest touch of human interest moves the magnificence of the conception and the novelty a human audience more surely than the greatest of the means by which it is carried out, rather than weight of reason.
from any legal points that can arise. Here, again, The speaker who does not despise the so-called the gift is charitable, and in English law is not "flowers of rhetoric” and “tricks of expression ” is open to criticism. The same, however, cannot be the one who, other things being equal, gains his said of the devise of Mr. Rhodes' residence in Cape point. If he himself does not feel the sympathy he Colony — De Groot Schuur as a residence for the strives to convey to his hearers, his appeal is in vain. preinier of the federal government of South Africa, But the true orator is a genius, an artist who, when such an official shall come into existence, and while he is on his feet, experiences every emotion the gift of £1,000 a year for providing an equipage that his speech portrays. He speaks from the heart and other purposes. It would not be feasible by and his words go straight to the heart.
English law to tie up land in this way to await That the gift of oratory, once possessed, can be a contingency which may happen, if at all, at a cultivated, there is no doubt; and the man who owns
remote period, nor is it easy to see how the gift and is not too self-conscious to use it, is armed would be effectual in law, even if the premier were with a power which has worked and is still ready to in office. But this would be a matter to be settled, work, among the foremost in the world's
so far as the house is concerned, by Cape law. development.
The only part of the will which is necessarily governed by English law, is the devise of the Dalham
Hall estate in strict settlement, with conditions reVALIDITY OF THE PROVISIONS OF THE quiring every tenant for life or tenant-in-tail to WILL OF THE LATE CECIL RHODES. have been, or to be, engaged for ten consecutive
years in business, and these conditions could, of It is safe to predict that should the provisions of course, only be effective, if at all, for a limited time. the late Mr. Rhodes' will ever come before a court The will, as a whole, is full of legal points, but of law, they will afford plenty of matter for discus- whether any of them will be ever raised is very sion. In the main, no doubt they will be con- doubtful, especially having regard to the nature of strued according to the law of Rhodesia, whatever the residuary gift.— Solicitor's Journal. that may be; and, if the Roman-Dutch law of the Cape is in operation there, it may be that the gift for keeping the grave in order in perpetuity is THE IRISH JUDICIARY AND DUELLING. valid, although prima facie not so according to English law. It is hardly necessary to point out An amusing story of the charge given by Judge that a gist for maintaining a tomb is not charitable Fletcher, at the Sligo Assizes in 1812, on a duel in so as to escape the rule against perpetuity. A de- which Major Hillas had been killed, was told by a vise of land for a park, such as the devise of land contemporary á propos of recent cases of duelling near Bulawayo, which is to be “planted with every on the Continent. • The law," said the learned 'possible tree,” could, doubtless, be now effectually judge to the jury, " says the killing of a man in a made here under the Mortmain and Charitable duel is murder, and, therefore, in the discharge of Uses Act, 1891, since an order of the court could my duty, I am bound to tell you it is murder. But be obtained for the retention of the land in lieu of I tell you at the same time a fairer duel than this sale. But this, again, would depend on Rhodesian I never heard of in the whole course of my life.” law. The provision for constructing “a short rail- | And so the jury were left to discriminate! Mr. Jusway line from Bulawayo to Westacre, so that tice Fletcher, who was one of the justices of the people of Bulawayo may enjoy the glory of Court of Common Pleas from 1807 till 1823, was the Matoppos from Saturday to Monday” is novel, sitting on the bench with judges who had been but not apparently open to criticism on legal notorious duellists. He had practiced at the bar grounds. If the provision extended to maintaining and been a member of the Irish house of commons the railway, it would be a question in this country during the last decade of the eighteenth century, whether the encouragement of week-end holidays when duelling was stringently enforced by public was a charity. The gift of £100,000 to Oriel College opinion. for the purpose of extending and repairing the The late Right Hon. John Edward Walsh, who college buildings and augmenting the stipends of was master of the Rolls in Ireland from 1866 till the resident fellows is, of course, a good charitable his death, in 1869, and was called to the Irish bar gift, and none the less that £10,000 is to go towards in 1837, in a little book published in the late forties improving the fellows' dinners. What was the of the last century, entitled Ireland Sixty Years