Court Of King's Bench, We...
tIle bAonD UIIEF JUSTICE asked the Attorney-~General if he Washp.repared to consent to a special case ? TeATTOp.VEY-GENEHAL replied, that on the Part Of the die- fenidant, he dia not feel authiorized to agree to that course. The Loeti) CHIEF JUSTICE..-.Then Mr. Brougham will proceed in hiis argument. dIr. Bnoie tAx accordingly, rose, and addressed the Court. To dismis;s at once all considerations whicht might eirb~arrrass his reatson.. ing, be wouldi state distinctly whiat hie was ready to admit. And first, he would conceede most fully, that the Crown might, irdepeiadent or regimental rank, by distinct commission, phate a mian un the mili. tary commrand of a settlement, whether he were at the timne in the arnAy, or a mere civil officer.- Such a commnandant, if also holding regimaental ratnk, would not be affected by h1is reduction to half pay, nor wvould he baiable to obey the commands ofa senior officer within the limits over which his authority extended. In the second, place, he admitted that thie civil superintendent Or governor of a colony, if -a appointed, might'lhave a certain degree of' superintending power oyer the military at Iiis settlement; but theta it must be a political superintendence, and exerCised as % governor, ntot as a soldier. He mjight direct the movemnents of bodies of troops; he might pro ride for the defence of the colony, or even for the annoyance of His Mlajesty's encmies in case of watr; and he mighit become a party to certain measures to be executed bv the soeldiery ; but lie muxst do all this as a civil, not as a military officer; he must not commurnicate directly with thec troops, but issue his orders to the coimmander of the garrison and leaye him to issue mi- litarv orders founded upon. thiem. it SNh not, therefbe, follow, as had been supposed, fromn the position which he sought to establish, that the supierintenelentof a colony, divested of a military character, would be incapable of taking measures for the defence of the settle.. menit; it would Only follow that he must execute these measure thirough the mAedium of the military commander, and not by himiself asuein military cmmanid. He must do no military acts; he must not muster the troops, sit on a, court-miartial, direct punish. usents, nor interfere in mratters of dicipline. This was frequently the situation of colonial governors, who oftern were not even military men ; of which instances were not wanting in this very colony The first superintendent appointed in 1760 was a civilian, and held his office distinict from that of the commander of the forces. Thusi Colonel Arthuir himirself, though in the armiy, yet when first appointed super. intendenit, didI not take the comimand of the troops, baecause he hap. pened to be int'erior in rank to Colonel Smith, who was then at Hon- durns, and Colonel Smiitti actually commiranded the garrison while Colonel Arthur acted as Governor. WVheni Colonel Smnith resigne&l, he left AMajor Massey, who also happcued to be superior in rank to the suiperinitendent, -and he also toot ithe command instead of thec civil Governor. The L,oRD CHIIEF JUSTicE.-..Are we to receive all these facts on) the mere statement of counsel ? Mlr. BROUGonAei... rather think Colonel Smith and Mfajo? Massey were mentioned at the trial, but I refer to the succession of governa,rs in a colony as matter of history. Mlr. Justice BAYL EY.-WhIy so all facts may be said to he mat- ters offhtistrv. Alr. BnoliGoIIANs.-I hiare referred to the facts only to illustrate miy reasoning ; anid, happening in this very coloniy, and to this verv party, I thieughit thiemt peculiarly fit for the purpose The learnea counsel then proceeded to remiind thje Court, that his main proposi. sition, whiich it appearedI to him impossible to Shake, was, thalt a ilicre half.pay officer, not being amienable to Military law- not being liable to be tried by a mnilitary tribunial, could not hold a commiand over the Kitng's troops, andI that hie would not be etiabled to holdI suchi a comimand by a mere civil comnmiission. It shiouldi be recollected, that situated as Colonel Biradiley wvas, it was not a mere personal question whether he should aibstain fromi takinig the comimand whichi he believed had devolved uponi him. He had, in truthi, no option, if he had become the su- perior officer, it was as much hiis duty to commniztd, as before it had beeni his duty to obey ; anid hie would, in his owni view of the case. hiare been guilty of an offenc andl liable to punishment, if lie had consented to receive Colonel Arthur's orders as a superior officer, whien he lhad ceasedl even to) be a soldier. Mr. Justice BAYLEY.-YOU admit that Colonel Arthuir, while hiis regimnent was on f'ull pay,was Colonel BradIley's superior, efficer ? Mr. BROUGAI.-M.....oSt undoubtedly'; but only because he was thec senior officer, anid not on account of hiis civil authiority, whichi lie hiad not hiimself conaidereti as entitling hiim to command Colonel Smiith or tllajnr Mlassey. The learned coinusel thecn recurred so his genieral proposition, that no mnan wlho is, not amenable to niilitary law is capable of' military coinmand. liet thie Court only think for a moment orthecons9equences whichi would follow acouitrary doctrine. There were somne otflenecs whiceh a person in military command might commiit cognizable by botli the civil anid military tribunals, but there were seine ofr'ences cognizable only by the latter ; and therefore, fer these the comnmander would be liable to no tributnal. What chieck wouild there t hmii be on his procceelings?P Whrere was tile responsi- bility assunied to be attendant on powver ? If a civil officer, not being amnatable to martial law, abused hiis power, he would not, indeed, be liable to a court-martial, btit lie wouild be subject to represelnta. tions miade to the Kinig in Council, or to imipeachimeiit by Parliament. But couhli lie perform military acts, thiough not amenable to miilitary tribunals ? Such an irresponisible situation was contrary to the very p1rinecyiplaes of miilitary subordination, which imiposed on every man in lis exct pla.ce specific duities, and providled mieans tO) enforce their performanica. If timeCourt looked toihistainces in which commiss-ions were given by othier auitlorities than the Crown itself, they would perceive liow clear it ass thiat the Crown could not, except specially auithtorized by act of' P.mrlian,ieiit, d'elegatte suich power ; and such power existed and could exist nowhere except by, special provision. The East Izndia Company were in the haibit of euspleymng great bodies of menl alid rcrating officers, whont they somietimnes railed commissioned officers, but whio were not called so by thec lawr. In 27 Geo. I I., c. 9., whichi authiorized tile Crown to allow thie Directors of' that Company to issue powers under wlichl their officers might hold courts-martial, carefuilly avoidled the word corntiniesion ; it spoke of '1 the persons mnustered and paid by the Comipany;"I and then spe- cially gave power tothecDirectorstsoauthiorize courts-miartial. Did niot this prove that, withiout sucli authority, the Crowns could nuit hIave citipowveredi the Directors to convey this authority to their of. ficers ?' In like manner it hiad been thought requiisite exLpressly to atithorize thte lord-lieuatenants of counties to issue commiissions in thec tnilitla, whlichl they could (lo only by virtuze of this prvio. Didl not thiese instances clearly, prove that the Crown coutl not, ex- cept by legislative sanction, dtelegate a power of issuing comrniisbions and creatinig soldliers ? As the learnied counsel was oroceedinig, Tue LORD CuirEs JtSTI'rCa, after constulting AMr. Justice Hol- roydI and Mr. .Justie Bayley- addressed the Atttrnicy-Genieral.... " lr. Attorney, tihe Court thiink that this mnatter should be put inito thie formi of a special ease., in whichi thec decurmerts affect- lug the qluestion niay he mnore coniveniientlv brought before us, than on a rule to show causae. SVe fuintImr tliii'sk that the commission nudi(er which flie Duke of Manchester held the G;overnment of Jamaica anO. its depemidenicies, andthe commiissioni of'.tfcural Faller shiould be atldedi to thec documents proved at 'the trittl." The ATT~o as't vGxtEttRAL -Perhaps the ptarticular comisils. sionis graitied me dieC plaijiitfl atmd def'endant should also be embodied in the ease. AIr. BROUGIscAiti..Certainly; I thoughit they) were in evidence alreadiy. The ATTORNLYTGENERAL...Xoiur Lordship wFill recollect that in this case thiere was a verdict for the plaintiff on tite new as- sigrne1,s, with 1001. damages. Now if,on thecargument, the Court shouild tliltikt that tlhere wvas noe grounid at all for the action, otight I not to hiave judgi ttPt The LottD F11CsEIxF JUSTICE...YOn Calnnot have jUdgMent Of noinsuit ; you have not moved for it. And was it not a question for thie jtiry wvlethier the close arrest wvas excessive, anid whiether the Arrest itself; was continued lornger tTasn tIme orcasion-would jinsttfyp 'I'he ATTR'rEtwY.GEs'ERAL,.... submnit that it wims not, myLord. If the defendant liad authiority to order tIme arrest of thie plaintiff at nll, vhichi'I ant inow assumiing, he was net bound to take ofl'the arrest unitil lie received an oflicral coiranmurafation fromr hiome. Ll~ iniglit, it' he pleased, act on newspaper inielligence or general rin. mno"r bitt hie was not bound to do so, and not liable to action for deliniuing to dio so. The lioaD CitEsr JUST I CE..Wc can reserve for you the right of' mioving fbi' a new triali, if you should be so advised. aller we hiave giveti ourjnidgmienit. Tke ATTrORNEY-GENERAL.-All I wish is to hiave the benefit of those Advantages on diei special case which I could lhave had on a special verdlict; and in case of a special verdict, thiere must bejudg. usentof time whiole record. The LoRD CsitEr .J USTicE.-Ana now,if a new tria isagranted, there mnist be a new trial on the whole record. Alr. BRtouOseAme-Oh I certaittly, my Lord! The LoanD CHIEF JUS'ricE...Thien it wouild be of no use to re. serve to you. the righit of mnoving. If tliere is a new trial, the whqle ease will be investigated againi: if not,' the verdict will sgtand as it is at present. .The ATTORNEY-GENERAL...A5 malter of arrangement,, I thiiught I mighit prdopose, 'that as imy frieisd 'seeks to set aside the verdict as far as it is atgainst himn, I shoutilti have liberty tb set it asi'de as agai4tst mne; othdersise1l miiy as well accede at once to my friend's rule, and let the case go to a new trial. All. Jutstice R3AYLrY..-T'he law mray be better understood after tIme discussion. Yea cannot have a nonsuit, anti the new trial is alt- the plaiuitif'asacs for. Thie LOan CHIEF JUSTISCE.-Titere wats no point reserved on which yeni can havve a norasuit. Alr. Jutstice BAYLEY.-You did net ask for a nonsuit at the trial. '1'lle Leass CHIEF JuJ5TicE.-TheM was mention inade at hea trial of an order, betiring date in 1817, expressly applicable to thie colony of Hondluras. It was not then in proof; but perbaps that ordler vshould be usade part of the ease, if eittier p arty wi3h it. Mlr. BitoUGaAsr....Certainly ; it was alluded to by Sir Heny Torrens. We sihall be ~glad to ace that order. The LIoRD CHIEF J USTI CE.-Tlien, upon thiese t-erms, let the' facts be turned ituto a special case. COURT OF KING'S BENCH, WESrm--- DN.. - BItAU,k^Y V. ARTlT-rT