cited. In a debate in the House of Lords on the riots of 1780, Lord Mansfield,1 in a long, elaborate and argumentative speech expressly declared it a great mistake to hold that the royal proclamation authorizing the use of force (in other words, of martial law, as we contend), on that occasion, issued by virtue of the prerogative-a mistake which he said he rose to refute, and which was exactly the reverse of the truth, the king's prerogative being clearly out of the question, and he urged that every man may legally interfere to suppress a riot, much more to prevent acts of felony, treason and rebellion, in his private capacity, and not only so, but is bound to do it as an act of duty. What any single individual may do, so may any number assembled for any lawful purpose. A private man if he sees another committing felony or treason may use force to apprehend him, and would in circumstances be justified in putting him to death, and so may any peace officer or magistrate or number of men assembled or called together for the purpose. That he held to be the true ground for calling on the military power to assist in quelling the late riots. In contemplation of law they are to be considered as mere private individuals acting according to law, and, upon any abuse of the legal power with which they were invested, to be amenable to the laws. A soldier or other military person who had acted in the course of the riots and exceeded the power with which he was invested, Lord Mansfield professed himself not to have a single doubt was triable not by a court martial, but by the ordinary courts of law. Lord Thurlow in a subsequent debate adopted in full all that Lord Mansfield had said, going over the same ground and taking the same points. He besides put the necessity for an act of indemnity, then and usually in such cases resorted to, upon a reasonable and intelligible footing, which is one of the many difficulties before adverted to as appearing and not met in the evidence before the Ceylon Committee. In opposing, repressing and quelling such daring outrages, he said, the military as well as individuals must necessarily have been forced into excesses, which must, he declared, be unavoidable, and which

1 21 Hansard's Parl. Hist. pp. 694-698.

2 21 Hansard's Parl. Hist. 695, 696, 746. This doctrine was not advanced pro re nata, for it is as old as the Year Books. See 22 Ass. 55; 9 Edw. 4, fol. 26, pl. 36; Lord Say's case, 13 Edw. 4, fol. 8, 9, stat. 17 Ric. 2, c. 8; 13 Hen. 4, c. 7; stat. 24 Hen. 8, c. 5; Cro. Car. 544. Nor is it obsolete or exploded, as appears from a decision by the judges of the other day, Reg. v. Dadson, 20 Law J. (N. S.) Mag. Cas. 57; and see Poph. 121; 2 B. & P. 264 ; 2 Hale, P. C. 77; per Tindal, Č. J., 5 Car. & P. 262; 4 Tau. 449; 1 W. Bla. 47; Hawk. P. C. lib. i. c. 65, s. 11; 1 Hale, P. C. 53, 485, 489, 495.

were the proper objects of an act of indemnity.1 On the one hand, therefore, neither the military nor other persons employed in carrying into execution a proclamation authorizing the use of force for the suppression of riot or rebellion are amenable for excess to a court martial; nor on the other hand are rioters, felons or others who may be taken prisoners by those so employed. Both must be reserved for indictment and trial by the country in the ordinary course of law. Martial law has nothing to do with courts or trials or any forms of adjudication whatever. We venture to submit the above remarks to the profession as an attempt at a succinct exposition of the law martial, which we take to be the law of force, including the power of inflicting death on the spot, if the felonious, riotous or rebellious proceedings against which it is directed cannot otherwise be repressed or quelled; arising out of necessity, to be judged of by the executive; but not shielding those employed in execution of it from inquiry as regards any excess in their conduct, but only before a jury under due process of law, nor admitting of trial by any other court or authority, of persons taken prisoners in the course of such operations. The proper use of the proclamation is, we submit, to point out the nature of the acts for the suppression of which force may be employed.

But all that has been said relates it will be seen solely to such British native born subjects as have an inheritance, by virtue of their birth, in the common and statute laws of the realm. The case with respect to the natives of colonies under our rule, to whom the British constitution has never been extended, seems to present various points of difference. Can they, if they rebel or resort to force, claim the same rights and immunities as British subjects? Are their lives and liberties guarded by the same jealous provisions? Fully admitting that the extravagant doctrine of Calvin's case about infidels being perpetui inimici must be regarded as utterly exploded, still it may be required to be shown that in the crown colonies the practice at least has ever been otherwise than to resort to force against the natives upon emergencies, without regard to the strict requirements of the law as administered in England.

1 21 Hansard's Parl. Hist. 736, 737, 739. Martial law, when established in India, operates to the exclusion of all other tribunals, and allows of no civil action for acts done or authorized during its continuance; Veeraeethal v. The Shevagunga Zumeendar, Morley's Analyt. Dig. Indian Law, tit. Army, II.

2 Some remains of the principle was known to the courts as late as the reign of Car. II. See Dutton v. Howell, Show. P. C. 24, 31; and see the Charter of 1661, giving the East India Company power to make war and peace with any persons or people not being Christians.

:

We here leave the subject, by no means taking credit for having solved any thing like all the questions that may be stated upon it; but, on the contrary, being fully aware that great difficulties beset every view of the subject that can be proposed, difficulties partly peculiar, partly such as belong to all questions of exercise of discretion, and partly arising out of the extent and variety of the British dominions, the number of the population and other matters, which preclude the admission into our constitution of a legal à priori mode of conferring a power of proclaiming martial law upon the executive, resembling the happy device of the ancient Roman constitution, by which, when in their opinion the necessity for appealing to first principles arose, the senate might proclaim in effect martial law by the decree ut consules darent operam ne quid detrimenti respublica caperet.

J. G.

ART. V. THE CAUSE LISTS ON THE OXFORD CIRCUIT, PAST, PRESENT AND FUTURE.

THE

THE Honourable Claude Wilde, Clerk of Assize on the Oxford Circuit, having availed himself of the assistance of Mr. R. A. Goodman, the Clerk of Indictments, in preparing a table of the names of the judges who went that circuit, "and of the nisi prius causes entered before them, from the Lent Assizes 1780 to the Summer Assizes 1849, both inclusive," has recently printed that account for the use and information of the members of the bar and others connected with the Oxford Circuit.

At the present time, when we are on the eve of certainly some, and probably very important and extensive, changes in the practice of the superior courts as well of law as of equity, it will not be uninteresting to take a glance at the past and present condition of one of the principal circuits with reference to the number of causes brought to trial.

The table before us gives first the date of the year with the names of the judges who went the Spring and Summer Circuits, then follows the number of causes entered for trial in each county of that circuit, namely, Berks, Oxford, Worcester, Stafford, Salop, Hereford, Monmouth and Gloucester, with the cities of Worcester and Gloucester in addition. The total number of cases on each circuit, as well as the yearly total, occupy the last column.

In the first year (1780), the total number of causes tried was 230; in the last year (1849), 162, being the lowest number of the whole series, a somewhat ominous fact. The year 1827 gives the highest figure, when the total number of causes tried amounted to 412.

But it is not from such a comparison that any conclusion can be arrived at. The average during a given period is the true criterion. Dividing, then, the whole period of seventy years into ten series of seven years each, we find the following result.

We have, therefore, a gradual decrease for the first four periods, then a rise for the next three, followed by a decrease more rapid than the previous increase or the first decrease.

The whole period being divided into two parts, it appears that the causes from 1815 to 1849 increased, as compared with the period from 1780 to 1814, by 9.5. But comparing the period 1822-1835 with 1836-1849 the causes in the latter were 26 per cent. less than in the former period.

Let us proceed to inquire how far these vicissitudes may be traced to those more obvious causes which are presented to the mind of the lawyer, namely, to the changes in the law during the period under investigation.

The first of these alterations requiring notice came into effect in 1831. Previously to that year the power of trying Welsh causes at Shrewsbury and Hereford (the next adjoining counties to Wales) was exercised to a considerable extent; and on the cessation of that power in consequence of the abolition of the Courts of Great Sessions in Wales by the statute 11 Geo. IV. & 1 Will. IV. c. 70, which came into operation after the Summer Assizes of 1830, the Cause Lists for those counties were very

considerably reduced. Attention is directed to this fact in the following note to the table before us: "In the year 1831 the English judges first went the Welsh circuits, which will account for the diminution of causes entered in Shropshire and Herefordshire from that period." Nevertheless the effect, though considerable, is not so striking as might be expected. The total number of causes entered at Shrewsbury for the seven years, from 1823 to 1829, both inclusive, was 343, giving a yearly average of 49. The total number at the same place for the seven years subsequent to the change, namely, from 1831 to 1837, (1830, the year of the change, we purposely omit,) was 234, or an average of 33 and a fraction. At Hereford we find 304 causes were entered from 1823 to 1829, giving an average of 43; from 1831 to 1837, 178, or an average of 25 and a fraction.

The Cause Lists at Shrewsbury and Hereford have gradually decreased since 1837 with an equal rapidity. The last seven years (1843 to 1849) give a yearly average of those respective places of only 18, and 12 and a fraction.

As the total decrease in the number of causes on the whole circuit in the seven years from 1831 to 1837, as compared with the seven years from 1823 to 1829, was 408, while the total decrease at Shrewsbury and Hereford on the same comparison was 235, it is obvious that this decrease is not wholly the effect of the before-mentioned statute.

The "New Rules" of pleading came into operation early in 1833, and in the following year power was given to try ordinary actions of contract under 201. before the sheriff.

In 1840 Lord Denman's Act (3 & 4 Vict. c. 24) was passed, depriving plaintiffs of costs in almost all actions of tort where the damages recovered are less than forty shillings, and in 1847 the County Courts Act came into general operation, depriving plaintiffs of costs in most actions in the superior courts where the plaint might have been entered in the county court, and the verdict is for less than 207. if the action is founded on contract, or for less than 57. if founded on tort.

It will be observed, that whatever influences may have operated to reduce the number of causes of late years, the result shown above could not be materially affected by the last-mentioned act, although the effect of that statute is discernible in the three last years of the period.

Assuming for the moment that the rapid decrease in the number of causes during the last twenty years is wholly attributable to these changes and amendments in the law, the variations in