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Colonial Cases

Jamaica, Courts Martial

Ipswich Journal, 1 March 1800

 Letters from Jamaica, dated the 4th ult. relate the detection of 2 French spies; one of whom, upon the testimony of the other, was tried by a Court-martial, and, having been convicted, was executed.  It appeared by the confession of the survivor, that several Frenchmen and French slaves at Jamaica, had endeavored to incite our slaves to revolt and to a general massacre.  The whole island was immediately put under military law, and all the white inhabitants and others, on whom the Governor could confide, were turned into armed associations of horse and foot, and appointed to assist the troops in guards and patroles.

 

Timaru Herald, 16 March 1866

THE LATE INSURRECTION IN JAMAICA.

  The prompt suppression of the outbreak in Jamaica, as announced in our last, was followed by the most severe measures against the negroes, of whom 2000 are said to have been either shot or hanged in the course of a few days.  The 'Jamaica Colonial Standard' says:

  The rebellion has been effectively suppressed, and the few remaining fugitives among the rebels have availed themselves of the amnesty proclamation issued by Governor Eyre.  The great heads of the rebellion, and all the minor leaders, have fallen under the power of the law and been executed, or are in custody awaiting their doom.  The number of rebels that have perished by the executioner, or have been shot down, is very large; their villages, houses, and settlements have been raxxxed, and such terrible example given them as will prove a permanent check to any future rebellion.  The confessions of the rebels, documents and other proofs show that their intentions were to exterminate the white and coloured people, and to confiscate all property for the blacks.

  Gordon, according to the confessions made, commenced agitating the plot three years ago, but most actively within the last three months.  He formed secret societies, promised the formation of trained bands, and placed his followers under a terrible oath, well calculated to awe the soul of the negro; and although most took it, all shrank with horror from revealing its terms even in presence of the gallows."

  Captain Wood, in command of St. Thomas-in-the-East irregular troop, writes as follows in the 'Morning Journal' of October 30 -

  "On our march from Morant Bay we shot two prisoners and catted five or six, and released them, as these latter were only charged with being concerned in plundering, not murders.  When we reached Golden Grove we met skirmishers from the Manchioneal party, reporting their arrival at the Suspension-bridge.  As we had determined upon making this our head-quarters, our commander sent off to order them to join us here, which they did; that company consisted of 40 of the 1st. W. I. R., under Lieut. Cullen and Dr. Morris.  This morning we made a raid with 30 men, all mounted, and got back to head-quarters at 4 pm, bringing a few prisoners, and having flogged nine men and burnt three negro homes; and then had a court-martial on the prisoners, who amounted to about 50 or 60.  Several were flogged without court-martial, from a simple examination.  One man, John Anderson, a kind of parson and schoolmaster, got 50 lashes; nine were convicted by court-martial; one of them to 100 lashes, which he got at once, the other eight to be hung or shot, but it was then quite dark so their execution is postponed till morning.

  G. W. Gordon had his black coat and vest taken from him as a prize by one of the soldiers, also his spectacles by another, so you will see he was very little differently treated from the common herd. I am told that one of his cattle at Rhine is killed every day for the benefit of the people and constables in Bath, and today we sent there and fetched away one for this party.  

  We quarter on the enemy as much as possible; small stock, turkeys, etc., we take ad libitum; other supplies we give a receipt for.  We press all the horses and saddles we can find, but the black troops are more successful than ours in catching horses - nearly all of them are mounted.  They shot about 160 people on their march from Port Antonio at Manchioneal; hanged seven in Manchioneal; and shot three on their way here.  

  This is a picture of martial law.  The soldiers enjoy it - the inhabitants have to dread it. If they run on their approach they are shot for running away.  The contents of all the houses we have been in, except only this very house, but including the barracks, have been reduced to a mass of broken and hacked furniture, with doors and windows smashed by the rebels."

  The correspondent of another Jamaica paper, writing on October 31, says -

 "There is one continual scene of hanging day by day, and it becomes a matter for consideration whether the burial of so many people, packed, as I have heard a blue jacket say, "like sardines," in the town, is not likely to produce some epidemic here - already the effluvium of the dead bodies commences to taint that atmosphere.  Last night particularly, disagreeable effluvia arising from the graves in which these dead bodies are interred pervaded the entire town, and it is not without difficulty that one could avoid getting nauseated.  This ought to be looked into.  It is a matter of vital importance.  .  .  .  

  It may not be altogether uninteresting to your readers to know that slightly over 1000 rebels have been hanged and shot in the parish of St. Thomas-in-the-East up to date; and it is not at all unlikely that ere the different court-martial close their sittings, there will be far over 2000 who have paid the penalty of their vile attempt to exterminate the white and coloured races of the island."

  A number of sympathisers, agents, and principals in the rebellion, have been arrested in Kingston, Spanish Town, and other parts of the island, and several of them transferred to Morant Bay to be tried by court-martial.  Of these the most noteworthy persons are Dr. Bruce, a practising surgeon of Vere, D. P. Nathan, an attorney-at-law and member of the House of Assembly, and Sydney Levien, the editor of the County Union, a paper published on the north side.   The following account of Gordon's trial, is given in the 'Jamaica Colonial Standard' -

  "At about 12 o'clock yesterday (Oct. 21) the rebels, among them George William Gordon, were brought and lined in front of the wharf where the court-martial was about to be held.  Gordon was tried before the military court, prosecuted by Second Lieutenant Brent. He was given a very patient trial, and was allowed to cross-examine all the witnesses through the president of the court, and, above all, was permitted to enter into a lengthy defence.  The trial lasted until candle-light, when the court was ordered to be cleared. The charges against George William Gordon were -

1st. High treason and sedition against her Majesty the Queen.

2nd. Inciting to murder and rebellion.

  He was brought out for execution on Monday morning (October 23).  It soon became known that he was to meet his doom at 7 o'clock.  Early that morning he occupied himself in writing several private letters.  He thanked the Provost Marshal for the courtesy he had shown to him.  He was brought up with 17 others of the rebels for execution, and they were ranged together under the great arch of the burnt Court-house.  His hands and feet were bound, and a halter was hanging round his neck.  When his time came he requested the Provost Marshal to put him out of the world quickly and not punish him.  His struggles were very few when the plank had been withdrawn, and he was quite dead in a few moments."

  It is stated that the finding and sentence of the court were not communicated to the prisoner till an hour before the execution.  In the interval he wrote a letter to his wife, which was consigned to the care of General Nelson to be delivered.  In it he says -

I regret that my worldly affairs are so degraded; but now it cannot be helped. I do not deserve this sentence; for I never advised nor took part in any insurrection.  All I ever did was to recommend the people who complained to seek redress in a legitimate way; and if in this I erred, or have been misrepresented, I do not think I deserve the extreme sentence.  It is, however, the will of my heavenly Father that I should thus suffer in obeying His command to relieve the poor and needy, and to protect, as far as I was able, the oppressed.  And glory be to His name; and I thank Him that I suffer in such a cause."

  The Houses of Legislature were opened on the 7th of November by the Governor, who, in his speech, reviewed the past occurrences, and called upon all the members of the council and others to assist him in framing such measures as should prevent the island from becoming a second Hayti, and should secure them for the future against any repetition of such rebellion and bloodshed as had lately been witnessed.  He also publicly expressed his thanks to General O'Connor and other military officers, to the Navy, the Volunteers, and the Maroons, all of whom had so nobly sustained him in subduing those who had risen in rebellion.

  A bill to regulate places of public worship, abounding in pains and penalties, was before the House of Assembly of Jamaica, and was causing considerable excitement.  The several Nonconformist clergymen of Kingston held a meeting for the purpose of considering what steps should be taken against the passing of the bill to regulate places of religious worship.

 

Evening Post, 16 March 1866

  Lieutenant Brand of the Onyx, Lieutenant Errington of the Wolverine, and Ensign Kelly of the 4th West India Regiment, were the members of the court-martial which sentenced to death G. W. Gordon in Jamaica.


 

Otago Daily Times, 21 April 1866

  Jamaica received the pro tem Governor and Royal Commissioners; Mr. Edward John Eyre is relieved of an unenviable position; and Sir Henry Storks will presently tell us all about it.   Meanwhile we pin our faith on Mr. Eyre's integrity and courage during the trying days of massacre and rebellion.  Putting aside all ex parte statements trending to impugn the character of a well-tried public servant and hitherto a firm and righteous judge, it is still urged that he was prostrated by panic, unequal to the sudden emergency, and insensible for the time to considerations of humanity.  Certainly he may have committed errors amounting to crimes; anybody can be wise after the event.  Supposing his conviction to have been that he was standing over a mine, or on the brink of a volcano, and that he acted accordingly, even this may or may not quite justify all his proceedings or the apparently cruel acts of his subordinates; but any way, should his conduct bear the impress of severity, it may be that by his vigour he stamped out a treason which would have involved us in endless little wars and heavy losses.

  The long continuance of martial law the wholesale slaughter of the blacks - the sending of Gordon from Kingston for trial by court-martial at Morant Bay - the questionable trial there - the approving of the verdict, and ordering execution; these are matters seriously affecting Mr. Eyre' and should the Commissioners rule against him, then comes the query are such illegalities covered by the Bill of Indemnity passed by the Assembly?  .  .  .  


 

Otago Daily Times, 26 April 1866

  Jamaica and Gordon.

  And a remarkable statement has been made here to the effect that in June or July last, at about the time when the Government were expecting an outbreak near Black river, Gordon was negotiating for the purchase of a 'Confederate schooner,' with arms and ammunition, and the commander of the schooner - a Lieutenant Edinburgh - alleges that the object was to land Haytians with arms and ammunition sat Black river, and that Gordon spoke of 'a new West Indian republic.'


 

Wellington Independent, 26 April 1866

THE JAMAICA REBELLION.

 The Times has sent out a special correspondent, to Jamaica, whose letters we subjoin.


 

Otago Witness, 28 April 1866

LONDON.

(FROM THE DAILY TIMES CORRESPONDENT.)


 

Lyttleton Times, 7 June 1866

THE OUTBREAK IN JAMAICA.

  The inquiry by the Royal Commissioners. Evidence of witnesses.


 

New Zealand Herald, 25 September 1866

THE JAMAICA QUESTION.

 

Daily Southern Cross, 24 October 1866

ADDITIONAL TELEGRAMS.

LONDON, September 4.

  A court-martial has gone to Jamaica, to try the officers implicated in the suppression of the insurrection.


 

Nelson Examiner, 13 November 1866

  The late Jamaica revolts, and the steps taken for the suppression, are subjects which have excited more attention, and perhaps a more bitter degree of party animosity in England, than almost any political question of late years.  .  .  .   No one could have doubted that in Jamaica, as everywhere else, the guilty would draw down evils upon some of the innocent; no one could imagine that in Jamaica any more than elsewhere, a military Court-martial would possess all the refined notions of justice which fence round - and at times encumber - the course of justice in our civil courts.   .  .  .  

  The dallying with rebellion; the constant anxiety to accept any compromise rather than to exercise a severity which might press heavily on the few, by would be wholesome for the many; the reiterated requests to murderers to accept peace and forget the past - these, and such things as these, have been the errors of our Government, and the Jamaica report affords a standing protest against such weaknesses and folly.


 

Nelson Examiner, 14 November 1866

THE JAMAICA REPORT.


 

Daily Southern Cross, 29 January 1867

JAMAICA.

Mr. Buxton, M.P. and Lieutenant Brand, R.N.



 

Daily Southern Cross, 29 January 1867

JAMAICA.

Mr. Buxton, M.P. and Lieutenant Brand, R.N.


 

Timaru Herald, 6 February 1867

LIEUTENANT BRAND AND MR. BUXTON.

 

The Press, 24 June 1867

Monday, June 24, 1867.

The prosecution of Colonel Nelson and Lieutenant Brand for the alleged murder of Mr. Gordon during the insurrection in Jamaica ended, as the telegraph has long since informed us, in the bills being thrown out by the grand jury.    Nevertheless, as the object of the body of gentlemen who instituted the proceedings was not to punish individuals, but to repel the violent and unconstitutional encroachments on the liberty and legal rights of British subjects under colour of carrying out what is termed martial law, that object has been in a great measure, if not altogether, achieved by the charge delivered to the grand jury by the Chief Justice, Sir Alexander Cockburn - a charge which, if the proceedings had been taken against the Governor, Mr. Eyre, instead of his subordinates, would have in all probability induced a different result.  The charges, we are told, occupied six hours in delivery, and the report, not absolutely verbatim, fills in entire page in the Tines; our space therefore will not allow us to publish it in full; but as the subject is of the highest importance, and the address itself an authoritative exposition of the law on points as to which much ignorance and confusion prevails, even among professional lawyers, we will invite the attention of our readers to the following digest.

  The facts of the case will be in the recollection of all.  In the month of October, 1865, a partial insurrection broke out among the black population of Jamaica, which excited the utmost degree of horror and alarm.  It did not, however, spread far, and was completely crushed in a few days by the small number of troops then in the island, aided by the local forces and Volunteers.  Immediately upon the outbreak martial law was proclaimed by the Governor, under the advice of his Council, throughout the district where it had taken place, with the exception of the town of Kingston.  Mr. Gordon resided near Kingston, and on hearing that warrants had been issued against him on suspicion of being a prime mover in the insurrection, he gave himself up to the authorities in the town to take his trial  The Governor came to Kingston in person, arrested and conveyed him to Morant Bay, where martial law was in force, and sent him to trial before a Court  composed of two Lieutenants in the Navy and an Ensign of the 5th West India regiment, by whom he was  sentenced to be hanged, and the sentence having been approved by Colonel Nelson and the Governor was duly carried into effect.

  "The prosecution was based upon two grounds - first, that there was no jurisdiction in those who tried and sentenced Mr. Gordon; and, secondly, if there was jurisdiction, that it was not honestly but corruptly used for the purpose of getting rid of an obnoxious and, as it was thought, mischievous person."

  The charge of the Chief Justice may be divided into two parts; firstly, that relating to the general question of the nature of martial law, and by what authority it may be proclaimed, secondly, that in which he deals with the particular case before the Court.

  In the first place, had the Governor power to proclaim martial law?  If he had, he must derive it either as representing the Crown, and exercising its prerogative, or form some general or local enactment.  The Chief Justice here, referring to the distinction between Crown colonies and settled colonies, showed from the history of Jamaica that, although originally acquired by conquest, it was a settle colony, and that "the inhabitants of Jamaica were beyond all doubt endowed with the rights and liberties of British subjects as against the prerogative of the Crown."  Here then we were brought face to face with the grave question, "Has the Sovereign, by virtue of Royal prerogative, the power, in cases of rebellion, of establishing and causing to be exercised martial law in England?"  In answering this question the Chief Justice examined every instance in which anything resembling martial law had been exercised in England.   The first instance was in the reign of Edward II., when the Earl of Lancaster and other nobles were summarily executed for high treason; but this, in the opinion of the Chief Justice, was not a case of martial law at all, but simply an irregular trial, and the attainder was afterwards reversed on the ground that the case should have been brought before the ordinary courts. During the reign of Richard II., when Wat Tyler was killed, a number of persons were put to death without any form of trial, but even in those days of comparative lawlessness it was thought necessary to procure an Act of Indemnity for those irregular executions.  The first instance of martial law, in the sense in which the term is now used, occurred in the reign of Henry VII, when many person s accused of being adherents of the Pretender, Simnel, were tried by a sort of martial law, chiefly, it would appear, in order to extort money.  "

  No doubt," says the Chief Justice, "if at that time anybody had questioned the right of the King to institute those proceedings he would have repented of his folly.  But, on the other hand, no one could entertain the shadow of a doubt that the whole of these proceedings were illegal.  If it were true that you could apply martial law for the purpose of suppressing a rebellion, it was equally certain that you could not bring men to trial under martial law after the rebellion had been suppressed."  

We may remark in passing that the last dictum of the learned Judge, which appears to have escaped the notice of every writer who has commented on the charge, exactly applies to the case of Mr. Gordon, for it is a fact that he was tried and executed under martial law after the Government had officially declared the insurrection to be at an end.  

  The Chief Justice proceeded to cite instances of remarkable Ordinances proclaiming martial law in the reigns of Edward VI., Queen Mary, and Queen Elizabeth, but pronounced them to be entirely ultra vires, unconstitutional, and beyond the lawful prerogative.  Finally, in an attempt made by Charles I., to subject to martial law persons who had refused to pay benevolences led to the vindication of the liberties of the people from these unlawful assertions of the prerogative by the Petition of Right, which solemnly asserted that no English subject was to be submitted to martial law.     

  "This supplemental great charter of English liberties remains to this hour the unquestioned and unquestionable law of the land, and from that time there has been no attempt to establish martial law within the realm."

  In Ireland martial laws has on several occasions been proclaimed and exercised, but the illegality has been covered by Acts of Indemnity.  One remarkable case occurred -

  In 1798 the Lord Lieutenant proclaimed martial law in Ireland, and many persons were executed under it.  In that year a case occurred which, but for an unhappy incident, might have furnished a judicial precedent for the present proceedings.  Wolfe Tone, one of the most conspicuous rebels, who had been to France asking the Government of that day to invade Ireland, was captured on a French ship of war.  As soon as he was landed he was brought to trial before a court-martial and sentenced to be hung.  Having enjoyed military rank in the service of the French Directory, he prayed that he might have a soldier's death.  This was refused.  Application was made in his behalf to the Court of Queen's Bench by habeas corpus, on the ground that he had been sentenced to death by court-martial, and that martial law was illegal, as the ordinary courts were sitting, and their jurisdiction was not superseded.  The Court of Queen's Bench at once granted the writ of habeas corpus, and directed the sheriff to use force if necessary, and to bring up the military officers, the Court being determined to vindicate the law. The sheriff went, but Wolfe Tone had cut his throat in prison, and was in a very short timer a corpse. The question was thus never brought to an issue, but it was thought right to supersede the Lord-Lieutenant's proclamation of martial law, and to have statutory authority for it.

  The Chief Justice concludes this branch of his argument as follows:-

  To his mind the Acts of Indemnity which were always asked for furnished the strongest argument against the legality of martial law, and he thought that in what had occurred in Ireland there was little or nothing which militated with the proposition he laid down at starting - that, except in certain circumstances of admitted illegality, requiring indemnity, and except also in certain cases where statutory powers had been given, as in the Act of the United Kingdom continuing martial law in Ireland, there were no instances in our history where by virtue of the Royal prerogative martial law had ever been carried into actual operation in this country.
 

  The next question was, what is martial law?
 

  This was an all-important inquiry, for of late doctrines had been put forward which to his mind were of the most startling character - doctrines from which, if true, it would follow that British subjects not ordinarily subject to military or martial law might be brought before tribunals with the most arbitrary and despotic power - tribunals which were to create the law they were to administer, and to determine upon the guilt or innocence of persons brought before them with a total abandonment of all the rules and principles which were of the very essence of justice and law.  Such doctrines as these were laid down -

  "Martial law is arbitrary and uncertain in its nature, so much so that the term 'law' cannot be properly applied to it."  

And again -

  "Martial law is in fact the extinction of all law save the will of the military commanders intrusted with its execution, to be exercised in accordance with their judgment, according to the exigencies of the moment, and not bound by the ordinary rules of law."  

  Lastly, he found this startling proposition in print:-

  "When martial law is proclaimed, there is no rule at law by which the officers exercising martial law are bound to carry on their proceedings."

These being the doctrines propounded by some authorities, it was high time that they should be brought to the test of judicial interpretation. At all events, of this he was sure - if that were the system under which British subjects could be tried for their liberties or their lives, it was time that Parliament should interpose and put some check upon a jurisdiction so purely arbitrary, despotic, and capricious.  The difficulty which one had in discussing this case was that, excepting these statements, he found no authority at all for any such doctrines, which seemed to him as unfounded and untenable as, in his judgment, they were mischievous, and, he had almost said, detestable.

  Martial law is for soldiers; it is the "law emanating from the Sovereign and promulgated in the form of ordinances for the government of the army."  The procedure of courts-martial may be capable of improvement but the substance of justice is carefully attended to, and administered under a full sense of the obligation which the performance of judicial functions imposes.

  If such were the law applied to the soldier, what should be the law as applied to the civilian? Why should we be told that when you came to deal with civilians, martial law was something very different from the law applied to the soldier? The fact was, that two things were confounded, which it was important to separate.  It was said by an eminent Authority that martial law was founded on necessity, and was to be expanded, therefore, according to the necessity of each case.    

  "Surely," he said, "you do not contend that if a mutiny broke out on board ship or in a regiment, you must resort to the ordinary tribunals."     

  Certainly not.  But it was an egregious mistake to suppose that the punishment which might be inflicted there formed any part of martial law.  There was one law which was paramount to all other laws; and that was, that where illegal violence was used you might defend yourself and repress that violence by any amount of force necessary for that purpose.  You were not bound to submit to injuries inflicted by a man who attacked you with a murderous intent, and to wait for the redress which might afterwards follow.  To use a common expression, you might at once take the law into your own hands, and in self-protection kill the offender by any means in your power.  So in the case of a mutiny you might put it down by force; it was part and parcel of the law of England.  It was a paramount right recognized by all civilized countries - the right, when violence was threatened, to quell it at once by any force which might be necessary.  Now the question here was whether, in the suppression of the rebellion, you might not subject persons who were not actively engaged in it, and whom you could not kill upon the spot, to a law which was in this sense entirely exceptional and to be carried into execution in an exceptional way.  There was no authority in support of any such proposition."

 The Chief Justice argues that the distinction between martial law and the military law maintained in the works of courts-martial is contrary to the statutory law, as exemplified in the Petition of Right, and the Mutiny Act, and is founded on an entire misconception of Hale and Blackstone, whose language is ambiguous till it is seen that they are speaking merely of the law applicable to the soldier, and then all difficulty vanishes.  The Irish Acts of 1798 and 1832 do indeed contain some emphatic words referring to "the acknowledged power of the Crown to declare, proclaim, and put in force martial law," "but" his Lordship added "it must not be forgotten that these were mere words of reservation; they were neither enacting nor declaratory words; and though such a statutory reservation would have the greatest weight and urgency, yet it was extremely questionable whether such a recognition of the Queen's authority, being neither declaratory nor enacting, would give the Crown this power, supposing that in all other respects the conclusion could be satisfactorily arrived at that the Crown had no such power.

  Coming now to the case in hand, we find the Chief Justice instructing the Grand Jury as follows:-

  They must judge whether martial law could be proclaimed by the Governor of a colony, who stood in the same position as the Sovereign, and whether under it jurisdiction could be given to courts-martial to deal with British subjects and was so far established as to render the putting a man to death justifiable.  Supposing no such jurisdiction was established, did the putting a man to death constitute the crime of wilful murderxxx He must say, as at present advised where there was jurisdiction, but where the jurisdiction was exercised under a misapprehension with reference to an offence, or carried to any degree of excess beyond the power of the tribunal - in such a case he was clearly of opinion that persons acting in a judicial capacity would not be responsible.  But supposing there was no jurisdiction at all, and that judicial powers were being exercised by persons who had no juridical authority or power, and that thus life and estate were forfeited, that was murder; for murder was the putting a man to death without justification or without any of those mitigating circumstances which reduced the crime of murder to one of a lower denomination, and if a man was put to death without authority that, said Lord Coke, was murder.  Where jurisdiction had been exercised under misapprehension, no one would say a murder had been really committed; and they could not doubt in such a case a prerogative of the Crown - that prerogative which has been said to be the brightest jewel and ornament - the prerogative of mercy, would be exercised.

  It will be remembered that at the beginning of his charge the Chief Justice said that the Governor of a colony could properly exercise the power of proclaiming martial law conferred upon him by local legislation, and his Lordship appears to rule that such legislation had taken place in Jamaica.  An Act had been passed by the Colonial Legislature in the ninth year of the Queen, which was certainly considered as giving the Governor full power to declare and exercise martial law, and that power seemed to have been abundantly used.

  Mr. Montgomery Martin stated that between the settlement of the colony and 1832, a period of 154 years, there had been no less than twenty-eight insurrections, or about one in every five and a half years, and those insurrections had been put down with a degree of violence and barbarity which one shuddered to think of.  In one, in 1760, about 1000 negroes perished by execution and by slaughter of every sort and kind, and martial law was carried to an excess scarcely credible.  *   *   *  In the great rebellion of 1831-32 a vast number of executions took place, and other punishments were inflicted. They might take it therefore that, according to the views of the inhabitants of Jamaica, the Governor was entitled and empowered to exercise martial law; but, on the other hand, it was the power of exercising that law on those who were entirely at their mercy, sand upon whom they were desirous of exercising the utmost possible vengeance.  The Act 9th of the Queen undoubtedly recognized martial law to the fullest extent.  It was not capable of being interpreted by what was then known as martial law in England, nor did it contain any words of limitation.  *   *   *   It took away from the Governor the power to proclaim martial law except in a given way, and a council of war must be summoned for that purpose; but on the other hand the Act considered martial law as within the power of the Governor to establish, and it spoke of martial law in its ordinary application to military offences punishable by military tribunals, but martial law applied under circumstances of public emergency beyond the scope of the ordinary laws, and then when so exercised it was described as productive of such mischief and calamity as to constitute it one of the greatest of all possible evils.

  The Chief Justice next proceeded to remark upon the circumstances attending Mr. Gordon's arrest and trial, and denounced in the strongest terms the utter illegality which marked the proceedings against him from first to last.

  He thought in their individual capacity the Governor and the Custos were warranted, if they had a real, honest belief in the guilt of Mr.Gordon, in apprehending him; but for what purpose?  For the purpose of handing him over to the civil tribunals which had power to take cognizance of the offence.  The power of a magistrate was derived from the ordinary common law of the land, and the power of authority of an individual member of the community to arrest was in like manner derived from the law.  The duty was to hand him over to the first authority of the law, to be dealt with by him according to law.  These gentlemen were not the ministers or the apparators of the martial authority.  They had no

power to take up this person for the purpose of handing him over to martial law,  They did so by the strong exercise of the hand of power; that had been avowed and the motive had been avowed -  

that it was not thought a conviction could be got at Kingston, and they took him from Kingston, where

there was no martial law, and where he would have been safe, to Morant Bay, where there was

martial law, and a tribunal ready to receive and condemn him.  The question was whether that was

an exercise of authority which invalidated what took place afterwards.  He (the Lord Chief Justice)

entertained a strong opinion upon that. The whole proceeding  of taking him from where he was safe

, putting him on board a war-steamer, and handing hom over to a court-martial at Morant Bay was

unjustifiable.  To Mr. Gordon it made the difference of life or death.  He (the Lord Chief Justice) said so advisedly, and after a careful perusal of the evidence he came irresistibly to the conclusion, that if Mr. Gordon had been tried before any ordinary tribunal, presided over by a competent judge - but he stopped himself - he could not have been tried on that evidence, for three-fourths, he had almost said nine-tenths, of the evidence on which that man was convicted, sentenced to death, and executed was not evidence that, according to any rules of ordinary or military law, or of right or justice, would ever

have been admitted if a competent judge had presided, or if there had been the advantage of the

experience a military officer who knew the rules by which military tribunals ought to be governed.  

He came to the irresistible conclusion that no jury, however interested, or prejudiced, or guided by a

competent, impartial, and honest judge, could on evidence so morally and intrinsically worthless,

have condemned that man on a charge of high treason.  If Mr. Gordon had lived, and if he had been subjected to some minor punishment, and, having come to Kingston, had brought an action for damages against Governor Eyre it might well have been that a jury of Englishmen, presided over by an English judge, would have awarded him exemplary damages for the  wrong done to him.

  Surely if Mr. Eyre had been before the Court the Jury after such decided language from the Judge could not have but returned a true bill.  At the same time as against Colonel Nelson and Lieutenant Brand, his Lordship points out that the question is, not how Mr. Gordon was brought within the jurisdiction of martial law, but whether, being there, he could properly have been tried, and gives it as his own opinion that he could.

  But was Gordon amenable to martial law? That was a grave question.  A man could not be tried under a law not in existence when his offence was committed, nor could he by an ex post facto application of the law be made liable to the punishment which it inflicted.  Again, a serious question arose as to the constitution of the tribunal.

  If the tribunal was to be constituted according to military law it was a bad tribunal, which had no jurisdiction.  Martial law could not be exercised by anybody, no matter by whom.  Strong cases, though they might seem absurd, sometimes illustrated what was meant.  Suppose, for instance, it was competent for the Governor of Jamaica to take a man out of the street, and say to him, "I constitute you a court-martial, and you are to decide whether A, B, and C, subjects of the realm, have been guilty of an offence against martial law, and if you think they have you shall cause them to be hung."  If a Governor could do that, and could take civilians by the more capricious choice to try any prisoner, then the tribunal was properly constituted.  But if it was necessary that the tribunal should be constituted according to military law, then this particular Court was null and void, for there was nothing better settled in the Acts regulating the military and naval service or in the Articles of War that a court-martial could not be composed of officers of the two services.  Any military court-martial must necessarily be composed of officers of the army.  It must consist of a certain number of officers, who were bound to take an oath to administer justice according to the Mutiny act and the Articles of War.  So, the exercise of a naval court-martial, no naval officer was warranted in sitting unless by virtue of an order from an officer in the service holding a commission from the Admiralty to appoint a court-martial. That clearly was not the case in the present instance.  It was not, therefore, if a naval court, a properly constituted court, because it was not called by a commission from any naval officer.  And, again, there was no commission for blending the officers of the two services. That went to the root of the whole case, and if martial law required the tribunal to be properly constituted, as he had mentioned, then the whole thing fell to the ground.

  This point tells strongly against Colonel Nelson and the other officers of rank concerned in the case, for surely they could not have been ignorant of the ordinary rules of the service as to the construction of courts-martial.

  The Chief Justice then read over the evidence taken at the trial, commenting strongly, says the reporter, on the fact that depositions made behind the back of the accused, by witnesses who might have given oral evidence, were made use of for the prosecution - "one of the most lamentable departures from every principle of evidence that could be imagined."  The negroes appeared to believe that they had serious causes of complaint, and Mr. Gordon, himself a man of colour, probably synmpathized with them; but though there could be little doubt that his system of agitation, working on the union of an ignorant and excitable population, led to the calamity that ensued, so far from there being any evidence that he was concerned in the rebellion the evidence in his Lordship's opinion went exactly the other way.  On the other hand, he was undoubtedly a man most obnoxious to the authorities.

  It was impossible to suppose that he contemplated outbreak which did take place,

But he (the Lord Chief Justice) could quite understand that, considering all Mr. Gordon had said if he had been the master spirit, which had fostered this agitation among the negroes, the authorities would be led to suppose he was at the bottom of the outbreak.  On the other hand, it was quite possible that they considered that though Mr. Gordon did not intend a rebellious outbreak, he was, nevertheless, morally responsible for it, and ought to be brought to condign punishment, so that his example might at once annihilate the insurrectionary movement.  It was for the jury to say whether that was not the true solution of Mr. Gordon's conviction upon such evidence.  The result had any way been lamentable.  A man had been sentenced to death upon evidence which ought not to have been admitted by any properly constituted tribunal, and which altogether fell short of proving his guilt.  The jury must judge whether what was done from the time of his apprehension to his conviction was honestly done.  Mr. Gordon was obnoxious to the authorities, for he reviled them, called their authority in question, and kept the minds of the negroes in perpetual agitation.  He was a man whom it was desirable in every way to get rid of if possible.  But this would not justify the putting a man to death unless upon proper evidence.  He (the Lord Chief Justice) had seen it written, but confessed he had shuddered as he read, that it was justifiable to send Mr. Gordon for trial by court-martial because such a court would be justified in convicting a man from whose acts mischief had resulted, though that mischief had been entirely beyond the scope of his acts and contrary to his intention.  As if it could make any difference as to the quality of his offence whether he were tried before one tribunal or the other.  If that was the principle upon which they had appeared in Mr. Gordon's case, it was one of the most lamentable miscarriages of justice that history had recorded.

  The Chief Justice concluded by putting the case to the jury in the following words-

  It might be that all he had said on the subject of the law would have left them, as he owned candidly it still left him, in some degree of doubt; but if they were of opinion that upon the whole the jurisdiction in this case was not so far satisfactorily made out that these parties ought not to be called upon for  their defence - if they thought it was a matter which should be submitted to the consideration of a jury before a competent Court, where all questions of law incidental to the case might be fully raised and impartially considered, - then they would let this matter go forward.  If there was a jurisdiction, that point would be satisfactorily ascertained and established; if there was none, then there had been a miscarriage of justice which called for enquiry; but if, on a review of the authorities he had pointed out, they were of opinion that the accused ought not to be harassed further by criminal proceedings, and that their case ought not to be submitted to a jury, then they would say there was no true bill.  The jury must exercise their own judgment.

  Again, if they were of opinion that although there might have been a mistake, and a most grievous mistake, in condemning this man to death, yet the proceedings were conducted in what was believed to be the due course of justice, the accused here ought not to be harassed by being sent for trial.  But if the jury thought upon the whole that it was a case which called for further inquiry, and for an answer on the part of those who stood charged with this most serious offence, then they would return a true bill.

  The Grand Jury, after long deliberation, threw out both bills, a result to which several of the Judge's remarks more or less tended.  We hear that further proceedings against Mr. Eyre are in contemplation, but whether they are carried out or not, or with whatever effect, a great public advantage has been gained by the clear explanation of the meaning of martial law given in the charge we have just been considering.  The following paragraph from the Examiner well sums up the several points established in the charge:-

 If the Chief Justice's reading of the law be wrong, it shows what the law ought to be.  We think that it only recalls wandering attention to what it is:- in sum, that the Petition of Right is valid still for the protection of all British subjects; that martial law means military law, which has defined rules for assurance of justice; that martial law, in the sense of a superseding of law by the will of military chiefs, has no place in the English system; and that the strong hand used in putting down active rebellion is not to be quoted as an example of it, but as a mere exercise of the universally-admitted right to oppose force to force in self-defence when that is absolutely necessary."

 

Welshman, 5 June 1868

TRIAL OF MR. EYRE. - CHARGE TO THE GRAND JURY. The grand jury of the county of Middlesex was sworn on Tuesday morning in the Court of Queen's Bench, before Mr. Justice Blackburn. His lordship said they had been summoned as the grand jury of the Queen's Bench in the county of Middlesex, to inquire into the case of which they had all probably heard, viz. that of Mr. Eyre, ex-Governor of Jamaica. In 1865 Mr. Eyre was Governor of Jamaica, and in October of that year an insurrection broke out in that colony, and what they had to investigate was whether he exercised legal or illegal powers in putting down that insurrection. Now it could not be disputed that the governor of a colony in council had the power of proclaiming martial law and sending troops into the proclaimed district in order to summarily suppress an insurrection. That had been done in this instance, and extended over a period of thirty days after the armed insurrection had been put down, and the question was whether in what Mr. Eyre then did he did that which made him criminally responsible. It was of the greatest importance that the law should be correctly known, and after he had fully explained it to them they would have to apply it to the facts. It was his responsibility to lay down the law, and theirs to decide the facts, and say what ought to be done.

  By an Act passed soon after the Revolution, in the reign of William III, it was enacted that charges made against governors of colonies should be tried in such county as the King by his commission should point out. And by a subsequent Act, the 42 Geo. III., chap. 85, it was enacted that any governor guilty of any crime, misdemeanour, &c., under the execution, colour, or in the exercise of his office, should be tried in the Queen's Bench by indictment found by a Middlesex grand jury, and afterwards tried by a jury from the same county, the same as if the offence had been committed within the county. All, therefore, that Mr. Eyre did was so done as Governor of Jamaica, and the next important question was what were the crimes or misdemeanours with which Mr. Eyre was charged. They would have to consider what was the text of the rule of law in the case of an officer whose duty it was to put down insurrection which made him criminally responsible for any acts he had done. The duty and responsibility of such an officer in the suppression of an insurrection must vary according to his powers by the general law and particular statues. The powers of a governor of a colony were more extensive and very different from those of a lord-lieutenant of a county and the mayor of a borough, and consequently what he might be authorised to do and what he could not do was different, but the principle applicable to them was the same. About thirty years ago, when the Bristol riots broke out and much mischief was done, the Government thought the then mayor of that city, Mr. Pinney, had not exercised his duty as mayor of the city in putting down the riots. The difference between these cases was this, Mr. Eyre was charged with exceeding his duty, and Mr. Pinney with neglecting his duty. In the latter case, at a trial at bar, Mr. Justice Littledale laid it down that a man who had to put down a riot was not bound to hit the exact line between excess of duty and neglect of it, and the question was whether he had done what, in point of law, was required of him. The question left to the jury in that case was whether Mr. Pinney had done all in his power to suppress the riots that could be reasonably expected from a man of ordinary firmness, prudence, and moderation. A man who so neglected his duty was criminally responsible. Now (the learned judge proceeded) he could not strictly define what made a man criminally responsible, because a great deal must depend on the individual case, and he left it to the common sense of the grand jury. He, however, must tell them that if an officer did an act altogether beyond the powers conferred upon him even to the salvation of a colony, although it might be good ground for an act of indemnity or the exercise of the Royal prerogative, it was no bar to a criminal prosecution. Honesty of intention was no doubt greatly in favour of a man charged with a misdemeanour in the exercise of his duty, but it was not in itself conclusive in his favour. It was a very important circumstance in the consideration of the case, but he was bound to tell them that the governor of a colony was bound to exercise ordinary firmness, judgment, and moderation, and in such a case the jury had to determine first, whether the circumstances were such that what was done was done in excess of duty; and secondly, whether a person placed in Mr. Eyre's position, with the information he possessed, using ordinary judgment, firmness, and moderation, could have perceived there was an excess. Much allowance must be made for the difficulty of Mr. Eyre's position, but not too much, and how much had more or less always to be determined by a jury. It was hard to define, as he had said, what excess would make Mr. Eyre criminally responsible, and this must be considered much as a question of common sense, to be decided by a jury taking all the facts into consideration. The extent of Mr. Eyre's responsibility must depend upon the law then in force in Jamaica.

  The learned judge then at considerable length pointed out the law as applicable to colonies known as settled colonies and conquered colonies. There could be no doubt that the law of England was applied to Jamaica as a conquered country by the prerogative of the Crown in the time of Charles II., and that what was the law in this country with reference to martial law was applicable to Jamaica. That had been altered by the laws passed by the Jamaica Legislature, and the question was what power, more or less, had been given by them for the declaration of martial law in that colony. The learned judge then reviewed the law of the country with reference to the declaration and exercise of martial law from Magna Charta down to the present time, and said that to keep up martial law for a period of thirty days after an armed resistance had been put down was unreasonable, and no one could doubt that it exceeded much the prerogative of the Crown. Upon these facts, if they thought them proved, it would be their duty to return the bill and have them further required into.

  A third and great question was whether Mr. Eyre caused Gordon and four others to be brought into the proclaimed district and tried. Gordon as they all knew was executed. The others were afterwards tried, and one convicted, and three acquitted. In dealing with that part of the case they must consider what was the motive and circumstances which induced Mr. Eyre to cause Gordon to be removed into the proclaimed district. There could be no doubt that Gordon was a pestilent firebrand in close communication and using violent language with those actually in insurrection, and when they murdered the Custos. He did not think the evidence against Gordon amounted to more than that. He thought he was a violent pestilent agitator, whose injudicious language caused the rebellion, but that he was not a party to an organized conspiracy for a rising throughout the island. It was, however, generally believed at the time that he was so, and no doubt Mr Eyre really believed that he was guilty. If they thought that Mr. Eyre considered at the time that Gordon was a violent fellow whom it was better not to try by the ordinary law of the island, conceiving that by some technicality he might escape punishment, but to send him to Morant Bay, try him by courtmartial, and get rid of him, it was an act of great lawless oppression, and they ought to find the bill; but if they were of opinion that he acted in a contrary spirit and used ordinary firmness, judgment, and moderation, and from a bona fide belief in the honest discharge of his duties, they would not find the bill. The specific acts of brutality could not be charged personally to Mr. Eyre, because in all probability he had no knowledge of them, but they were the result of a continued state of martial law in the island.

  His lordship having gone minutely through the evidence to be brought in support of the indictment, said the first three counts were for illegally proclaiming martial law on the ground that Mr. Eyre had no power to do so in the manner and way in which it had been done. The next charge was that he exceeded his duty in keeping it up for thirty days when in point of fact the actual armed resistance was stopped in a day or two, and that it was exercised in a wild and reckless manner to an extent and a degree beyond what was required. The charge then assumed various shapes in connection with Gordon's case, and there were also charges with reference to the others who were taken into the proclaimed districts and tried, and the flogging, &c. In conclusion, his lordship said it was for them, guided by the law as laid down by him, to say whether or not they considered there was sufficient evidence for putting Mr. Eyre on his trial in answer to the charges that had been preferred against him. The grand jury came into court at ten minutes to four o'clock, and returned No Bill.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School