HE CHIEF JUSTICE AND MR. JUSTICE BLACKBURN.
THE extraordinary and probably unprecedented scene which took place in the Court of Queen's Bench on Monday will more than justify all that we said last week as to the diametrically opposite views of Mr. Eyre's criminal, and still more, as it turns out, legal responsibilities, taken by the Chief Justice of England and the senior Puisne Judge of the Queen's Bench, Mr. Justice Blackburn. At the meeting of the Court on Monday, the Chief Justice explained that he was obliged to correct the statement which had gone forth that Mr. Justice Blackburn had consulted his brother Judges as to his legal -directions in Mr. Eyre's case, and had had their approbation for the doctrines so laid down. On the contrary, said Sir A. Cockburn, the only legal propositions on which he had been consulted, and to which he had given his hearty assent, were these,—that a governor having power to proclaim martial law cannot be held criminally responsible for a mere -error of judgment in so doing, if he has exercised reasonable dcliscretion, that is, has brought to his decision of the case that "careful, conscientious, and considerate judgment" which may fairly be expected from persons invested with authority,—that honesty of intention would not be held sufficient without a reasonable amount of care, self-restraint, and wisdom in guid- ing that intention ; but that, if this reasonable amount of care, self-restraint, and wisdom can be assumed, he is not criminally responsible for the consequences, even though it prove that he was in error. Further, according to the Chief Justice, such a governor must exercise the same reasonable care and judg- ment in prolonging the duration of martial law after it had once been put in force, as in first proclaiming it. Finally, if he has even blundered as to his legal powers in proclaiming martial law, but has acted under the proper -official advice as to what his legal powers are, he cannot be held criminally responsible for what he does under such legal advice, even though it appears subsequently that he has _actually exceeded his legal powers. Nor would he be criminally liable for the excesses of subordinates to which he was not acces- sory. Such and no other, according to the Chief Justice, sup- ported by Mr. Justice Lush (who tells us, moreover, that Mr. Justice Blackburn himself admits that these were the only doctrines reduced to writing to which he had the express assent of his brother Judges of the Queen's Bench), were the -doctrines to which he had given any sort of assent. Nothing was said in the written document on the legality of Mr. Gordon's apprehension beyond the limits of martial law, and Lis despatch to. Morant Bay ; and not only was nothing said, but the Chief Justice positively affirms, and Mr. Justice Blackburn does not deny, that "almost till the eve of the delivery of the charge, the opinion of Mr. Justice Blackburn -himself was that the apprehension and removal of Gordon were in point of law unjustifiable. It certainly was so understood by other members of the Court, and I believe I Am warranted in saying that the statement of the learned judge to the Grand Jury on this head took the other members .of the Court as much by surprise as it certainly did me. Had I been led to expect that in a charge delivered in my own Court, any opinion declared to the grand jury in the case of "Regina v. Nelson and Brand" would have been thus authoritatively overruled, I should assuredly have deemed it my duty to declare my own opinion to the Grand Jury, and to apprise them that the statement of the law thus made to them had not the sanction of any other member of the Court besides that of the learned judge who gave it." The Chief Justice goes on to say that "the seizure of Mr. Gordon was in the opinion of the majority of the Judges of this Court altogether unjustifiable and illegal."
This remarkable censure of Mr. Justice Blackburn,—for to that the Chief Justice's language certainly comes,—does not seem to us to be more grave or more startling than the occa- sion really required. We are still unable to understand Sir Colin Blackburn's blunder. He himself said positively, in the remarks he made after Mr. Justice Cockburn had concluded, that he had carefully read the.Chief Justice's charge in the case of "Regina v. Nelson and Brand," and that he had come to the .conclusion—" it may be an erroneous one, but it is one that I
still entertain,—that there was no point on which it was necessary to give the Grand Jury a direction, on which my opinions as to the law was in conflict with any direction contained in that charge." Is the emphasis here on the word direction? And does 'direction' mean only what the judge laid down authoritatively with express reference to the Grand Jury's immediate duty ? If so, it is possible Mr. Justice Blackburn maybe technically correct. But that he had expressly overruled some of the most emphatic legal opinions laid down by the Chief Justice to the grand jury in the case of Lieu- tenant Brand and Colonel Nelson, there is no doubt at all. Compare, for instance, the following statements :— THE CHIEF JUSTICE.
"I am of opinion, therefore, that in their individual capacity the Governor and the Castes, if they had a really honest belief in the guilt of Mr. Gordon, were warranted in apprehending him. But for what purpose ? In my judgment, the only purpose for which they could legitimately apprehend him was in order to hand hint over to the civil tribunals which had power to take cognizance of his offence The duty that attaches upon the apprehension of an offender under such circumstances is immediately to hand him over to the first civil authority which can be found. . . . I entertain a very strong opinion that the whole proceeding—the seizing him where he was, the put- ting him on board a steamer, and taking him to Morant Bay, and handing him over to the martial tribunal—was altogether unlawful and unjustifiable. . . . I know it has been said and written that it was justifiable to take Mr. Gordon to Morant Bay because he had been as much guilty of high treason and sedition there as he had been at Kingston, and that as all crime is local, it was competent to the authorities to take or send him to be tried in that part of the island where he had been guilty of the offence laid to his charge. Now, it is perfectly true that crime is in a legal sense local, and that accord- ing to the law of England a man must be tried where the offence with which he is charged is alleged to have been committed. . . . But it does not follow that if a man is capable of being tried in one of two counties, and you have got him in a county whore he may be triod, you can send him into another where he may also be tried, simply because you think you are more likely to get a conviction, or that justice is there going to be admin- istered by a sterner judge, who will be likely to measure out a larger amount of punishment. That would be a most arbitrary and unwarrantable exercise of authority. If you have got a man where you can try him, you must try him there, and you have no right to take your choice of the tribunal because you think you may have a greater chance of success before the one than before the other. So that here, if Gordon could have been tried either at Kingston or that part of the county of Surrey where martial law was in operation, having him at Kings- ton, they had no right to take him to Morant Bay to be tried."
Ms. Jusrrcs BLACKBURN. (Times' Report.)
" When martial law was in force in a particular district, Mr. Eyre caused five or six persons to be seized out of that district and to be carried into it to be tried for alleged offences there, and of these, one (Gordon) was so tried and con- victed and executed. Two othera (Phillips and Morris) were, with or without trial, flogged. The others were not so tried, but were detained in custody Then arises the question whether, looking at thes 3 acts, this could be justifiable. I have considered that point carefully and have come to the conclusion that, looking at what martial law was, it might, under pro- per circumstances, be justifiable. It is a great principle that the trial of crime is local,' and that offences are to be tried where they are alleged to have been committed. No doubt, in the case of martial law, one of the reasons for it, the impracticability of the trial by ordinary law, would not apply when the arrest was out of the district where the rebellion was going on. But then the Legislature contended that there should be the power of summary trial in order that parties might thus be more quickly tried, with a vtew to the effect of this in stopping the progress of insurrec- tion. And so, if that was really the object, it might be justifiable, or, at all events, not criminal, though it might be otherwise if the motive was indirect. . . . If you believe that Mr. Eyre sent him to be tried merely to get rid of him as a troublesome fellow, that was an act of oppression, and you should find the Bill. But if you believe, putting yourselves in Mr. Eyre's position, seeing, so to speak, with his eyes, hearing with his ears, and having, the state of things before you which was before him, if you believe that he bond fide thought that there was this conspiracy through the island, and that it was likely to break out into insur- rection unless suppressed, and that it was really necessary and proper, for the sake of checking it, that Gordon, whom he had believed was at the head of it, should be sum- marily tried, and that it was important that ho, as the head of the insurrection, should be made an example of at once,—in order to atop the insurrection, — then I think that under the circumstances it cannot be said that the act was not justifiable. On the contrary, I think he would have been excused in so acting, under the powers con- ferred by the local Legislature."
If these two legal directions are not in express and absolute contradiction to each other, and if that fact was not palpable to Mr. Justice Blackburn, we must be incapable of understand- ing the simplest propositions. We can only interpret Sir Cohn Blackburn's assertion that he had not traversed any legal direction given by the superior Judge to the Grand Jury in the case of Lieutenant Brand and Colonel Nelson, by suppos- ing him to say that in that case, as Mr. Eyre's act in seizing Gordon was not sub judice, the only persons indicted being Colonel Nelson and Lieutenant Brand, the Chief Justice's opinion was not so much a direction to the grand jury, as an obiter dictum which need not have so much weight. Yet it waa an opinion most elaborately argued,—argued at far greater length than our extract can give the least idea of,—most con- fidently and emphatically expressed,—and one which, as the Chief Justice tells us without any dissent from Mr. Justice Blackburn, was shared by the latter to the very eve of his charge, and which was believed by his colleagues to be still held by him until they saw in print his confident over-ruling of that opinion. Surely there was something positively in- decent in thus over-ruling a legal opinion so elaborately laid down by his superior judge, and so recently acquiesced in by himself, without even a citation of it, and without the slightest respect to the great authority from whom he was compelled to differ. Sir Colin Blackburn admits that he had carefully studied his superior's judgment. He must, therefore, have known that he was positively and authoritatively contradict- ing it without so much as a review,—and this to a grand jury, whose business it is not to convict, but only to say whether or not it is a case which requires a full argument and a judicial investigation. Indeed, it was a positively flagrant breach of legal usage in the whole tone of Sir Colin Black- burn's charge, that his language was adapted throughout for a petty jury, who have to decide finally on the guilt or innocence of the prisoner, and not for a grand jury, who have only to decide whether or not there is a primd facie case for full argument and judicial investigation. Let us consider what is the result of Mr. Justice Black- burn's extraordinary prepossession by political prejudices. He had, in the first place, given the authority of his colleagues to three legal doctrines which were not only not shared by his brethren in the Queen's Bench, but either emphatically repudiated or gravely distrusted by the most distinguished of them,—(1) that martial law in the modern meaning of the term was ever exercised in this country with any pretence of legality against civilians not taken in arms ; (2) that the Jamaica statutes authorized martial law in any other sense than by compelling the inhabitants to military service, and subjecting them while engaged in it to military law ; (3) in justifying the removal of Mr. Gordon and the other five prisoners from a region not subjected to martial law to a proclaimed district, and there summarily trying or imprison- ing them. Moreover, on the last point Mr. Justice Blackburn not only misled the grand jury as to the legal views of his colleagues, but misdirected them in their practical conclusion. The Chief Justice and the majority of the Court must have directed them to find a true bill on the count charging Mr. Eyre with illegal and unjustifiable conduct towards these six men,—for which conduct Mr. Eyre not only had, but claimed the sole responsibility, not even affecting to act under legal advice in what he did,—and probably also the Court would have indicated clearly enough the Chief Justice's opinion that a true bill should also be found on the count charging Mr. Eyre with needlessly prolonging the duration of martial law after the insurrection was suppressed. On the whole, it is impossible to conceive a greater amount of misrepresentation, both in legal doctrine and in practical direction, than Mr. Justice Blackburn, owing, no doubt, to the overpowering force of his prepossessions, was guilty of in this case. If the Chief Justice had not openly disavowed his colleague, and corrected the statements he had made, he would have been not only unjust to his own reputation, but infinitely more unjust to his country. As it is, his authority will, we hope, do much to counteract the mischiefs of Mr. Justice Blackburn's charge. The Times says that the great lawyers of the country are almost equally divided as to the legality of Mr. Eyre's proceedings. So far is this from being true, that of the great legal authorities who have been judicially concerned in this case, five have been clear for the necessity of a judicial investigation, and only one has charged in a contrary direction. We know that Sir Thomas Henry, Mr. Vaughan, and three of the Judges of the Queen's Bench, the Chief Justice, Mr. Justice Hannen, and Mr. Justice Lush all hold that there was strong prima facie evidence for trial. The majority of the Grand Juries, who understand, apparently, nothing of law, and less of justice, are on the other side,—the side of Mr. Justice Blackburn,—but what the great majority of our great lawyers think is no longer doubtful.
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