THE LAW OFFICERS ON CONSTITUTIONAL LAW.* Mn. FORSYTH has here
collected a number of opinions on the various points which most affect the legal relations of England to her Colonies, and has appended careful and exhaustive notes upon each branch of his subject. Some of his chapters will be found to possess a decided value and much general interest. The calm discussion of such a question as Martial Law must recommend itself to us after the recent events which brought it into such prominence, and which led at the time to so much heat and excite- ment. The questions of ecclesiastical law which were raised by the proceedings of the Bishop of Capetown are also important. Naturalization and allegiance have been brought into much notice by the Report of the Commission and the work of the Lord Chief Justice. Other matters which are touched on by Mr. Forsyth's volume have only the interest of curiosity. Yet the main defect of the book is that the opinions themselves are disappointing. We look with curiosity for some communication from the Law Officers of the Crown having a direct bearing on the Natal controversy. Bat there is only one opinion that even mentions the jurisdiction of a colonial bishop, and that merely states in the most general terms some propositions which would not hold their ground after the judgment of the Privy Council. Mr. Forsyth himself enters into the Natal question, but it is hardly fair to make a set of opinions which have no distinct reference to that subject a peg for -discussing it in explanatory notes. Another objection is that the opinions are often cursory. A few words, without either reasons or references, are all that the Law Officers of the Crown think it right to bestow. Such a mode of treating difficult subjects may be satisfactoryto a Government which only wants to know how it should act, and can shift the responsibility on its advisers. But it would not suit private persons, and if the law is to be taken from such opinions they ought to be more explicit. In this respect the English opinions do not bear comparison with those of the American Attorney-Generals, which are published regularly, and some of which are quoted in Mr. Forsyth's volume. After alluding to this American practice of making such opinions public with but little loss of time, Mr. Forsyth says, "Surely no possible harm can ensue, but, on the contrary, much good may result, from knowing what the opinions have been upon questions of constitutional law and public interest of some of the greatest lawyers who have ever lived." Yet unless these great lawyers give us the means of testing their -quality, we cannot always tell whether such a reputation was deserved. We can gauge the merits of our judges as we watch the mental process by which they come to their conclusions. But in the rare cases where no reasons are given, where judges say they are of opinion that something was done or that something else might be done, our confidence is shaken. The critical miud prefers reasons about which there may be a doubt to the most infallible-looking dogmas.
Of course, if there are differences of opinion and neither side gives reasons, the greater authority must prevail. But the result is unsatisfactory. It seems to us incumbent on those who establish any new principle, or who decide any case presenting new features, to state as fully as possible the grounds of their decision. If those are erroneous, there is some chance of the error being corrected
• Cases and Opinions on Constitutional Law and Various Points of English Juris- prudence, Collet-fed and Digested from Official Documents and other Sources. With Notes.
By William Forsyth, Q.C. London : Stevens and Haynes. 1669.
before the case becomes a precedent. When it has once attained that position, and a superstructure has been raised upon it, no one can detect the flaw which underlies the foundation. Parts of our law rest on an unsound basis, but it is too late for that to be con- sidered. Everybody must yield to the current of decision so long as it is uniform. It is here that the successive opinions of the Law Officers of the Crown have a singular value. They show the gradual growth of law even when they do not contribute to it. They state, too shortly indeed, results which have been arrived at by laborious arguments in the Courts and by judicial reasoning. If it appears to us that they are too often contented with embody- ing the head-note of a single case, and with putting forward elementary propositions rather baldly, we must remember that they are intended only for the information of the Government, and not for the instruction of lawyers or the public. An instance of this occurs in the chapter on "Allegiance." Mr. Forsyth publishes two very long papers on the legal effects resulting from the acknow- ledgment of the independence of the United States. The question to which these papers are devoted is whether citizens of the United States, born in America before the War of Independence, and therefore British subjects down to that time, forfeited those rights and became aliens by the separation of the two countries. Mr. Reeves, the author of the History of the English Law, argues through a great many pages that a man may be at once a British subject and a citizen of the United States. No doubt this is a logical deduction from the English theory of allegiance, though like the instances given by Sir Alexander Cockburn, it is a reduetio ad absurdum. Mr. Reeves seems to have been pressed with the objection that if the citizens of the United States remained British subjects, any one of them might be summoned to England by the King's writ, and failing to come, might be treated as a recusant. " I have heard it asked," he says, " if the King was to send his writ to command the attendance of Mr. Jefferson in this kingdom? I agree he would not come, but that would be no test of the law upon the subject ; it is an inconvenience in point of fact. The law in the execution of it is liable to many obstructions which pre- vail, and yet the judgment of the law is not deemed thereby invalidated. If the King had sent such a writ to General Washing- ton at the head of his army, I suppose he would not have obeyed it, yet no one would have deemed it a demonstration that he was not amenable to our law. Why, then, should a pacific refusal from Mr. Jefferson have in it more of the force of a legal argument ? And yet, I think, Mr. Jefferson might decline obedience to such a command, admit himself to be a British subject, and have the law on his side too." We quote this pas- sage as a curiosity rather than as a sample of Mr. Reeves's argu- ment, but it shows that he looked at the subject in all its bearings. What immediately follows his paper is an opinion of the Attorney-General and Solicitor-General for the time being as to the status of an American citizen residing in Canada. The law officerssay that in their judgment he is an alien. Their reason for coming to this conclusion is that it agrees with a decisioh of the King's Bench, and they add, " This question, therefore, which has been so long and so frequently agitated, may at length be con- sidered as finally determined." No lawyer can quarrel with such an opinion, yet it reminds us rather too much of the clerical tutor who finding some difficulty in a passage in the Greek Testament, turned to his English Bible, with the remark, " Let us see what authority has to say on the subject." After the elaborate dis- quisition of Mr. Reeves, we might have expected some independent reasoning from the Attorney-General and Solicitor-General.
On the question of martial law the opinions are not so reticent. It is of the very greatest significance that in 1757, and again in 1838, the Law Officers of the Crown pronounced against that theory of martial law which has lately been put forth by Mr. Eyre's defenders. Lord Campbell and Lord Cranworth, then Attorney- General and Solicitor-General, stated in 1838 that the proclama- tion of martial law confers no power on the governor of any colony which he would not have possessed without it. " The right of resorting to such an extremity," they say, " is a right arising from and limited by the necessity of the case. For this reason we are of opinion that the prerogative does not extend beyond the case of persons taken in open resistance, and with whom, by reason of the suspension of the ordinary tribunals, it is impossible to deal according to the regular course of justice. When the regular Courts are open, so that criminals might be delivered over to them to be dealt with according to law, there is not, as we conceive, any right in the Crown to adopt any other course of proceeding From the foregoing observations your Lordship will perceive that the question how far martial law when in force supersedes the ordinary tribunals can never, in our view of the case, arise It is hardly necessary for us to add that,
in our view of the case, martial law can never be enforced for the ordinary purposes of civil or even criminal justice, except, in the latter, so far as the necessity arising from actual resistance compels its adoption." The opinion given in 1757 was, remarkably enough, called for by the pro- clamation of martial law in Jamaica, and by the refusal of the Council in that island to meet for the despatch of business, on the ground that the proclamation of martial law suspended the legis- lative authority. In the judgment of the Law Officers of the Crown, this is altogether a mistaken notion. " Nor do we apprehend," they go on to say, " that by such proclamation of martial law the ordinary course of law and justice is suspended or stopped, any further than is absolutely necessary to answer the then military service of the public and the exigencies of the pro- vince." Mr. Hargrave, the well-known editor of Coke upon Littleton, speaks even more decidedly. We are not sure that Mr. Forsyth comes to the right conclusion in his notes to this chapter. What he says is that " martial law may be justifiably imposed as a terrible necessity and an act of self-defence ; under it there is a suspension of civil rights, and the ordinary forms of trial are in abeyance. Under it a man in actual resistance may be put to .death on the spot by anyone acting under the orders of competent authority ; or if arrested, may be tried in any manner which such authority shall direct." It is evident that according to this state- ment the proclamation of martial law carries with it very different -consequences from those mentioned by Lord Campbell and Lord Cranwortb. The theory of martial law contained in the two -opinions from which we have quoted is that all acts done in self-defence and necessary for the suppression of rebellion are justi- - fiable. But the justification does not consist in the proclamation of martial law, which is merely a notice to the community that such acts may become necessary. One of these acts may be the punishment of rebels taken with arms in their heeds, and that may be necessary in order to make an example. But just as this punishment need not be inflicted by a court-martial, if it is inflicted by a court-martial the sentence is not conclusive. Mr. Forsyth's words would favour the theory that when once martial law has been proclaimed there is an end of responsibility. He seems to speak of civil rights and ordinary forms of trial being suspended by the proclamation of martial law, instead of martial law being rendered necessary by the violent invasion of civil rights and by the cessation of the functions of law during rebellion. Yet though we dissent from his conclusion, we think the materials he bas collected on the subject are generally trustworthy. They -enable us to take an impartial view of the question, and to see where the error lies which has had such lamentable effects on our eecent history.
The question of martial law is further illustrated by an account of Geoffroy's case in France after the creation of a state of siege in 1852, and of McCardle's case in the United States with respect to the Commissions issued under the Military Reconstruction Acts of 1867. Perhaps neither of these cases adds very much to our present knowledge, but they are useful for the purposes of Mr. Forsyth's book. It is a good sign of his impartiality that he has gone out of his way to publish materials which, if anything, make -against his theory.
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