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not binding on any English Court, and probably not binding on the Judicial Committee itself.” 1 Whether a state of war exists at a given time and place is a question of fact, which according to Coke could only be determined by the Court and was not a question for the jury. But, as Sir Frederick points out, under modern conditions of warfare and with the present means of communication, there may be a state of war at any place where aid and comfort can be effectually given to the enemy. “In many places there
“ may be outwardly peace, and yet modern means of communication may admit of important aid being conveyed to the enemy in the shape of information, supplies, and personal adherents. In this manner the effective radius of a state of war has been multiplied tenfold, or more. By recognising this fact we do not alter the law, but apply it to facts as they exist ; nor do we disparage the wisdom of our predecessors who declared their opinion of the law in a form appropriate to the facts as known to them.” Thus, by applying the spirit and not the strict letter of the law, the mediæval and modern theories may be reconciled. So that, although we can no longer say with Coke that “when the Courts of Justice be open, and the judges and ministers of the same can by law protect men from wrong and violence and distribute justice to all, is a time of peace,” we can say that when the Courts are open and the judges free to administer the law without let or hindrance, although a state of war exists in fact within the jurisdiction, offences committed by civilians against the law of the land, or against any regulations issued by the Crown, should be tried and punished by a judge and jury in the civil Courts.
Under modern conditions it is difficult to determine whether a state of war exists at the present time within the realm or not. Subject as this country is to attacks by sea or air at any moment, a state of war may be said · Law Quarterly Review, 18, 157.
2 Co. Lit. 2496.
to exist throughout the realm and indeed throughout the empire. But this is not the sense in which Coke and the mediaval lawyers understood the phrase. In former days, asmies were opposed to each other within narrow limits, and within such limits obviously the administration of the law by civil tribunals became a physical impossibility. The principle they intended to express was, that where it was possible for the civil Courts to administer justice, they should be allowed to do so. This principle is equally applicable to-day in the United Kingdom. The fact that Scarborough is shelled by the German fleet or Sheerness bombarded by a German aeroplane, or that Ahlers assisted German reservists to return to their fatherland, may constitute a state of war within the realm, but it is not such a state of war contemplated by the Common law which renders it impossible for the civil Courts to sit.
That the civil Courts are able to sit is, however, assumed by the powers of the Act. By Regulation i of the General Regulations, " ordinary civil offences will be dealt with by the civil tribunals in the ordinary course of law.” Moreover, by the Act itself, minor offences against the Act may be tried by Courts of Summary Jurisdiction. If Courts of Summary Jurisdiction are able to sit, presumably the High Courts are also able to sit. One may therefore be permitted to ask why graver offences against the Act may not be tried by the High Courts which are sitting, and which are presumably more fitted for the trial of offences than military tribunals. No sound reason has yet been adduced. It miglit be argued that in some circumstances it is of vital importance to punish offences instanter in order to deter others and to maintain order. The answer to this is, that under the Common law such punishment may be inflicted by any naval or military officer responsible for the safety of the realm.
As Sir Frederick Pollock has so admirably and lucidly explained, under the necessity of war, acts which in time of peace are illegal become lawful. They “are not a kind of splendid offence, but are in the words of Justice Kingsmill) `justifiable and lawful for the maintenance of the Commonwealth.'” The old doctrine that necessary acts in time of war were in the first instance illegal and could only be condoned by a subsequent Act of Indemnity, Sir Frederick contends, is to “impute gratuitous folly to the Common law which cannot be so perverse as to require a man in an office of trust to choose between breaking the law and being an incompetent officer and a bad citizen.”
Under the Common law, therefore, any person, military or civil, during a state of war, acting reasonably and in good faith may, and is in duty bound to, interfere with rights of property and with personal liberty, provided such interference is necessary for “the maintenance of the Commonwealth."
But the person so acting will act at his peril. His action is liable to be reviewed in the civil Courts. He is liable at the suit of the person damnified to civil damages or criminal penalties. This liability exercises a wholesome restraint upon the over-zealous, whether military or civilian.
-, But by the Defence of the Realm Act, a military person acting under its provisions can no longer be challenged. No doubt military persons called upon to act in cases of emergency, with the choice of breaking the municipal law or disobeying orders, feel themselves badly used.
“The inconvenience," wrote Stephen,“of being subject to two jurisdictions, the sympathies of which are not unlikely to be opposed to each other, is an inevitable consequence of the double necessity of preserving on the one hand the supremacy of the law, and on the other the discipline of the army.” 1
The principle of the Common law was quite simple. If they acted in good faith, with reasonable and probable cause for the safety of the Realm, they were immune. If they did
i Hist. Crim. Law of England, I, 206.
not so act, they were liable to be punished like every other citizen. Even a proclamation by Order in Council declaring a state of war was no defence. It was only evidence of a state of war, and of a reasonable and probable cause of action. Indeed it is doubtful whether the Crown still enjoys the right of making such a declaration within the realm.
Thus the Act, without in any way increasing the powers of naval and military authorities during a state of war, has abolished the Common law right of the subject to that redress to which he is entitled, provided he can prove that those authorities had acted in bad faith or without reasonable and probable cause in maintaining the defence of the realm. This subordination of the Common law to militarism is as great a blot on the Act as the substitution of Courtsmartial for civil Courts in the trial of civilians. It might have been “made in Germany."
It has indeed been contended that “where war actually prevails, the ordinary Courts have no jurisdiction " over the actions of the military authorities, and that their power having been once suspended is gone for ever. The better opinion is against this extreme view. Under the Common law, both during the continuance of the war and afterwards, the civil Courts are entitled to go into the merits of such actions. In the recent case of one Dove, Lush and Atkin, JJ., refused to grant a rule nisi upon a writ of habeas corpus, but this refusal was based, not upon the ground that the Court had no jurisdiction, but upon the merits of the case. They were satisfied that the man was properly detained.
So far as such authorities were acting under the provisions of the Defence of the Realm Act, it is doubtful how far, if at all, the Courts would interfere.
Other reasons for the substitution of Courts-martial for the trial of civilians may be urged. There is the difficulty
of taking the evidence of military witnesses, where cases are deferred till the Assizes come round. In the cases to be tried under summary jurisdiction, this difficulty does not exist, and in cases fit for the High Court it could easily be surmounted by expediting the trial. It is said that secrecy is in general vital, but where such is the case, the Court has power to hear the evidence in camera. In disturbed districts it is urged it might be impossible to obtain an impartial jury. If the disturbance is due to civil disaffection and rebellion, I quite agree, but we are not considering such a situation.
We are considering only the possibility of trying a British subject for an offence against the Defence of the Realm Act under the present state of affairs. Suppose Mr. Keir Hardie were accused under Regulation 27 of making statements which, in the opinion of the commanding officer in the district, were "likely to prejudice the recruiting, training, discipline, or administration of His Majesty's forces,” which would be the most impartial tribunal, a body of officers, "judges in their own case," or a High Court judge and jury of average citizens ? Or take the case of an editor of a great daily paper, who is accused under the same regulation of "prejudicing His Majesty's relations with foreign Powers." Is a military tribunal to determine whether references, for instance, to the conduct of Russia in Finland constitute an offence punishable with six months' imprisonment, when an Assize Court is sitting in the same street ?
Suppose, in addition, that in either case the motive of assisting the enemy is alleged. Which tribunal is most likely to elicit the truth, a military Court composed of individuals with little or no experience in sifting evidence, unacquainted with the most elementary rules of evidence, and totally unfit by training for deciding such delicate questions as the imputation of intention, or a civil Court composed of trained judges, assisted by professional lawyers,