MR. FORSTER ON MARTIAL LAW.
[To THE EDITOR OF THE "SPECTATOR."]
Sriz,—In Mr. Wemyss Reid's excellent and most interesting Life of Mr. Forster, there is an important extract from a. letter (Vol. I., p. 388) giving Forster's views on the subject or martial law in relation to the case of Governor Eyre, and in opposition to something which I wrote at the time:—
" Again, he (Goldwin Smith) says that the most violent. theories on martial law say that its jurisdiction is limited by necessity. On the contrary, every lawyer I have seen tells me- that it is limited,not by the actual necessity, but, to use Erdwell's words, quoted from his law adviser in his despatch, by the belief of the Governor, reasonably entertained, that they were- necessary.' Here lies the whole pinch of the matter. I think that Eyre, using his reason as best as he could, did entertain the belief that the acts he- committed and sanctioned were neces- sary. Undoubtedly these acts were not necessary, and to our judgment were unreasonable, or rather the reasons which weighed with Eyre and almost all the other whites in the island are, to our minds, altogether insufficient. But surely it is not fair to put a. man in the position of Governor not by law, but by his belief in necessity, and then to prosecute him because he acted according to such belief ? It appears to me that when once we admit that Eyre was justified in declaring martial law, which means in abolishing law, we take his acts out of the province of law' and therefore of prosecution, unless we can show them to have been reckless or malicious. We can recall him as unfit ; we can censure him as a fool ; but we have no right to punish him as a criminal ; for his reply would be : You say I did right in putting my dis- cretion in place of law ; you allow that these acts against which you complain were acts of discretion ; you say that these acts were in themselves bad. Well, then, you have a right to recall and censure me, as unfit for, my place, and as governing badly ; but you have no right to punish me as a criminal for doing, after all, what I thought to be my duty.' " I do not presume to argue a point of law against the lawyers ; but I venture to think that when it is a question of launching butchery, torture, and havoc on a defenceless peasantry, of putting to death 439 men and women, barbarously flogging not less than six hundred of both sexes, and burning a thousand houses, a Governor's "belief" as to the necessity ought to corre- spond very closely with the "actual necessity;" or he ought to answer for it. However, the acts for which it was proposed to -call Governor Eyre to account were not those done during or for some days after the suppression of the disturbances, or so long as the Governor's subordinates may be thought to have lost their self-possession ; but those done after the complete restoration of tranquillity, and when Governor Eyre himself had declared that the rising had been crushed, and that conse- quently no reasonable necessity for execution under martial law -could any longer exist. On Friday, October 20th, 1865, two Spanish men-of-war arrived, and Mr. Eyre declined their aid, on the ground that "long before their arrival he had got under the rebellion." On the 20th he wrote to Mr. Cardwell," We are not only in complete military occupation of, but have traversed with troops all disturbed districts ;" and again, on the same -day, "In the lately disturbed districts the rebellion is crushed." Again, he wrote, on October 20th, "I left Morant Bay satisfied that the rebellion was got under." He afterwards added :— ' Further reports from the disturbed districts have confirmed the impression I entertained on October 20th that the re- bellion is crushed, and all the principal persons concerned in the outrages have, so far as we are aware, been either killed or captured." Yet, besides a hundred and three persons already put to death, beginning with that day (October 20th), the .executions went on, Sundays excepted, for twenty-five days, during full three weeks of which they averaged eighteen a day. Again, on October 25th Governor Eyre wrote :—" The rebellion has been quite got under, and nearly the whole of the chief guilty parties punished I have now no apprehension of any further outbreak taking place." Three -days later, he wrote, "The time for an amnesty has arrived ;" to which General O'Connor replied, "The sooner it is pro- -claimed, the better." On October 30th it was issued. It certified that "the wicked rebellion had been subdued, that the chief instigators thereof and actors therein had been visited with the punishment due to their heinous offences, and that the inhabitants of the districts lately in rebellion had signified their willingness to return to their allegiance." Nevertheless, such large classes were excepted (even "those with stolen property in their possession"), that on and after the day on which the amnesty was proclaimed. 112 men and women were executed. The floggings and burning of houses went on at the same time. Would Mr. Forster have maintained that there could be a reasonable belief in the Governor's mind of the necessity of hanging :and flogging women and burning houses after the complete suppression of the rebellion and the proclamation of amnesty P Mr. Eyre's own phrase was not "terrible necessity," but 4‘ terrible retribution." It was, in fact, a hideous outpouring
of race-hatred, panic, and vengeance, which the Governor, instead of restraining, personally stimulated and headed, Lieutenant Brand reports : "His Excellency and suite re-
turned on board, after hanging a rebel to a tree near the pier." This man, Edward Fleming, having been carelessly hanged—
like many others—got his feet upon the ground, and after being twice shot by Lieutenant Brand, was at last put out of his agony by a marine.
That "declaring martial law" means "abolishing law," so that when martial law has been declared judicial murder cannot be committed, is surely a startling and dangerous doctrine. Martial law, I would venture to submit, is still law of a certain kind, though its tribunals are un- professional, its proceedings summary, and its evidence not strictly legal. Governor Eyre and William Gordon were political and personal enemies, and the Governor had incurred something like a rebuke from the Colonial Office for the violence which he showed in the quarrel Governor Eyre himself arrested Gordon in a district where martial law had not been proclaimed, carried him into the district where it prevailed, and handed him over to a court- martial, the composition of which was changed, on what seemed a very hollow pretence, in a manner unfavourable to the prisoner. By that court-martial Gordon was convicted and sentenced to death on evidence which the Royal Com-
mission of Inquiry subsequently pronounced "wholly insuffi- cient to establish the charge upon which the prisoner took his trial." The proceedings were specially submitted by the Major- General, who evidently felt hesitation, to Governor Eyre, who returned them with a letter, saying that he fully concurred in the sentence and in the policy of carrying it into effect. I venture to maintain that this was a cause against which the gates of public justice ought not to have been closed, and that when they were closed by the political sympathy of the upper classes in England with Governor Eyre, a stain was brought on the honour of the country. I shall always feel that those who tried to avert that stain did their duty to England.
We did not, as the biographer seems to think, demand ven- geance upon Governor Eyre. What we demanded was the establishment of the principle that all British subjects, white or black, powerful or weak, were under the protection of British law, and that he who took their lives, tortured them, or destroyed their property without clear necessity, would have to answer for it to British justice.—I am, Sir, &c.,
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