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Martial Law: Legal and Administrative Problems of Civil Emergency in Britain and the Empire, 1800–1940*

Published online by Cambridge University Press:  11 February 2009

Charles Townshend
Charles Townshend
Affiliation:
University of Keele
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Extract

Not the least significant constitutional difference between Britain and many continental states in the nineteenth century lay in the sphere of formal arrangements for the exercise of power during civil emergencies. Britain had no clearly understood concept of notrecht or of 'state of siege’. This omission certainly reflected the absence of foreign invasion as much as the feebleness of domestic revolutionary threats. Internal emergencies occurred, indeed, with a frequency hard to square with the old Whig interpretation; but while they often alarmed the authorities, none of them proved so formidable as not to be amenable to control by the civil power backed up by fairly small numbers of troops. A good deal of emergency legislation was passed until the 1820s, but thereafter a marked decline in the incidence and severity of violent disturbance, and in the violence of the government's responses, set in. The threat of revolution in Britain itself, in so far as it had ever existed, had faded. The terrible uncertainties revealed by the 1831 Bristol riots could be optimistically put aside: magistrates could get by with ‘reading the Riot Act’ and trusting to luck, and perhaps a few dragoons or yeomanry.

Type
Articles
Information
The Historical Journal , Volume 25 , Issue 1 , March 1982 , pp. 167 - 195
Copyright
Copyright © Cambridge University Press 1982

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References

1 Cf. Joseph-Bartélemy, and Duez, P., Traité de droit constitutional (Paris, 1933), pp. 242–5Google Scholar; War Office, Manual of military law (London, 1914), pp. 3–4.Google Scholar

2 Stevenson, J., Popular disturbances in England, 1700–1870 (London, 1979), pp. 293ff.Google Scholar; Thomis, M. I. and Holt, P., Threats of revolution in Britain, 1780–1848 (London, 1977), pp. 117ffCrossRefGoogle Scholar. Both these works deliberately skirt the problem of Ireland, though there is a short treatment of Belfast riots in J. Stevenson, ‘Civil Disorder’, pp. 155–70, in Cornish, W. R.et al., Crime and law in nineteenth century Britain (Dublin, 1978)Google Scholar. There is a comprehensive analysis of emergency procedures from the posse comitatus to the Benthamite reforms in Radzinowicz, L., A history of the English criminal law and its administration from 1750, vol. iv (London, 1968), ch. 4Google Scholar. On the preference for regular troops to yeomanry see Teichman, O., ‘The yeomanry as an aid to civil power, 1795–1867’, Journal of the Society of Army Historical Research, xix, 1 (1940), 75–91.Google Scholar

3 43 Geo. III, c. 117; continuation of Irish statute 39 Geo. III, c. 11.

4 On the shift from emergency laws in Britain see Radzinowicz, History of criminal law, iv, 232–51. The two Irish insurrections of 1848 and 1867 were dealt with under legislation already in force (11 & 12 Viet. cc. 2, 12, 20 and 25 in 1847–8, 29 & 30 Vict. c. 1 in 1866). The only disturbance to produce a legislative response resembling martial law, in the court-martial provisions of the Suppression of Local Disturbances Act of 1833 (3 Will. IV, c. 4), was the so-called ‘tithe war’. I am indebted to Richard Hawkins for bringing this legislation to my attention.

5 The Irish police forces, of course, developed quite differently from those in Britain. Blake, H. A.,‘The Irish police’, The Nineteenth Century, ix (1881), 385–96Google Scholar; Broeker, G., Rural disorder and police reform in Ireland, 1812–36 (London, 1970), pp. 219–42.Google Scholar

6 Jamaica rebellion file: P[ublic] R[ecord] O[ffice], W.O. 32 6235. The 1823 and 1848 cases produced important parliamentary debates and inquiries. The most violent reaction of all, in India in 1857, was a special case which was not seen as falling under martial, or any other, law.

7 Finlason, W. F., The history of the Jamaica case, being an account, founded upon official documents, of the rebellion of the negroes in Jamaica: the causes which led to it, and the measures taken for its suppression (2nd edn, London, 1869), p. 7Google Scholar; Semmel, B., The Governor Eyre controversy (London, 1962), p. 45.Google Scholar

8 For a graphic description see Dutton, G., The hero as murderer: the life of Edward John Eyre, 1815–1901 (London, 1967), pp. 283–307. The number of deaths fixed upon by the royal commission was 439.Google Scholar

9 Dutton, Eyre, pp. 308ff.; the denunciation was passionately re-created in Olivier, Lord, The myth of Governor Eyre (London, 1933), passim. Gladstone assembled a list of the points being made in the hostile press on 1 Dec. 1865: Gladstone MSS, B[ritish] L[ibrary] Add. MS 44754, fo. 136.Google Scholar

10 Cardwell to Storks, 18 June 1866. B.L. Add. MS 44606, fos. 60–2. Cardwell had manifested suspicion of Eyre from the start (see, e.g. Cardwell to Eyre, 17 Nov. 1865 and 23 Nov. 1865, Cardwell MSS, P.R.O. 30 48/42), though it has been argued that he showed a ‘clear desire to be generous to Eyre’: Knox, B. A., ‘The British government and the Governor Eyre controversy, 1865–1875’, Historical Journal, xix, 4 (1976), 887. Cardwell's argument, which included the assertion that ‘Future good government is not the object of Martial Law. Example and punishment are not its objects. Example and punishment can only be justified when, and so far as, they are absolutely necessary for the immediate re-establishment of the public safety’ is criticized in Finlason, Jamaica case, pp. 661–71.Google Scholar

11 It has however been suggested that Carlyle's attitude in this was disastrously misunderstood: Workman, G., ‘Thomas Carlyle and the Governor Eyre controversy’, Victorian Studies, xviii (1974), 82–6.Google Scholar

12 Finlason, Jamaica case, pp. v-xv.

13 Hallam, H., Constitutional history of England (4th edn, London, 1842), 1, 235. Cf. Finlason, Jamaica case, p. xxv.Google Scholar

14 Holdsworth, W. S., ‘Martial law historically considered’, Law Quarterly Review, xviii (1902),125.Google Scholar

15 Although some believed that the crown's power derived from prerogative: such was in fact specifically stated in 43 Geo. III, c. 117. The Irish statute 39 Geo. III, c. 11 also referred to ‘the wise and salutary exercise of His Majesty's undoubted prerogative in executing Martial Law’. Such errors stemmed from a confusion of martial law with what would later be called military law, the latter being brought under statute during the nineteenth century. Holdsworth, ‘Martial Law’, pp. 119–22.

16 Rex v. Pinney (1832); Heuston, R. F. V., Essays in constitutional law (London, 1964), pp. 137–8; Radzinowicz, History of criminal law, iv, 137–40, 148–50. Sir James Mackintosh, in the House of Commons debate on the Demerara case in 1823, declared uncompromisingly of martial law that ‘if it survives the necessity on which alone it rests for a single minute, it becomes instantly a mere exercise of lawless violence’. This dictum was quoted more than once later: see Jamaica Rebellion file, P.R.O. W.O. 32 6235.Google Scholar

17 Opinion of attorney-general and solicitor-general, 16Jan. 1838. Jamaica Rebellion file, loc. cit.

18 Demerara debate, 1 June 1824. H.C. Debates n.s. vol. 11, col. 1046. Mackintosh later added that the statute 39 Geo. III, c. 2 ‘is the most positive declaration that, where the common law can be exercised in some parts of the country, Martial Law cannot be established in others, though rebellion actually prevails in these others, without an extraordinary interposition of the supreme legislative authority itself.

19 Ceylon debate, 1 April 1851. H.L. Debates, 3rd series, vol. 115, col. 880. Cf. Halsbury L.C. in Tilonko v. attorney-general of Natal (1907), quoted by Wiener, F. B., Civilians under military justice (Chicago, 1967), p. 219.Google Scholar

20 Clode, C. M., The administration of justice under military and martial law (London, 1872), p. 156.Google Scholar

21 Regina v. Nelson and Brand (1867); Finlason, Jamaica case, pp. 426–517, presents a long, excitable, but often telling point-by-point rebuttal of Cockburn's argument. In view of the grand jury's response, it is interesting that the War Office expressed the hope that the 1867 cases might determine 'several questions’ about martial law that were ‘open for controversy’. Further memorandum, 14 March 1867. P.R.O. W.O. 32 6235.

22 Semmel, Governor Eyre controversy, p. 149; Dutton, Eyre, p. 369.

23 Harrison, F., Martial law: six letters to the ‘Daily News’ (London, 1867); Dutton, Eyre, p. 361.Google Scholar

24 Carlyle, T., 'shooting Niagara: and after?’, Macmillan's Magazine, xvi (Aug. 1867), 324–5.Google Scholar

25 The blunt common sense of the ‘Project of rules for proceedings under martial law’ drawn up by Henry Taylor in April 1866 (Jamaica despatches, 1866, P.R.O. CO. 137 408) may be usefully compared with the more imprecise ‘official’ wording of the regulations appended to Carnarvon's letter, 14 Dec. 1866 and 26 Jan. 1867. P.R.O. W.O. 32 8173.

26 Draft regulations, 14 Dec. 1866. P.R.O. CO. 323 287.

27 See, e.g., Clode, Justice under martial law, p. 165.

28 Draft regulations, loc. cit.

29 Carlyle, 'shooting Niagara’, p. 324. In fairness it may be said that the report of Storks’ committee in 1866 recognized the problem more sympathetically than the eventual regulations. It observed inter alia that ‘Cases will vary greatly in their circumstances. In some the operations will resemble those of an army in an enemy's country, and will therefore be almost purely military. In other instances there may be a large body of loyal and well-conducted inhabitants, and yet it may be considered necessary to maintain Martial Law in order to afford them protection against predatory bands of insurgents and marauders. There may also be cases of every degree between these extremes.’ Storks to Carnarvon, 14 Dec. 1866. P.R.O. CO. 323 287.

30 Dicey, A. V., Introduction to the study of the law of the constitution (London, 1885), ch. viii.Google Scholar

31 Sir Charles Napier, then military commander of the northern district, had wryly observed in Remarks on military law and the punishment of flogging (1837) that the thoughts of the military officer in this position ‘dwell upon the (to him) most interesting question, shall I be shot for my forbearance by a court-martial, or hanged for over zeal by a jury ?...’; Radzinowicz, History of criminal law, iv, 151. After the events of 1865 ‘A soldier’ angrily wrote to the press that ‘it is cowardice - civil cowardice, which withholds from the military the freedom which their duty necessarily requires’; Daily News, 6 Oct. 1866. More recently, Heuston notes (Essays, p. 138, n. 18) how the restraints on the use of force were (at least prior to the yellow card) exaggerated in the minds of soldiers: “They can hit you, but you can’t hit them until an hour is up’ (after the reading of the ‘Riot Act’).

32 The 1880s saw the passage of two stringent and comprehensive Crimes Acts, in 1882 and 1887, though neither involved suspension of habeas corpus (unlike Forster's 1881 Act). Special legislation had been created 45 times in the 50 years before the 1887 Act: see memorandum, Feb. 1887, Balfour MSS; B.L. Add. MS 498222. Martial law never appears to have been officially considered, though after the Phoenix Park murders the home secretary, Sir William Harcourt, was heard to mutter that it might at last be needed. Lewis Harcourt's diary 7 May 1882; Bodleian Library, MS Harcourt Dep. 350. A good recent analysis of the nature of the challenge in the 1880s is Clark, S., Social origins 0f the Irish land war (Princeton, 1979), pp. 305–34Google Scholar. For the problems of military intervention see Haire, D. N., ‘In aid of the civil power 1868–90‘ in Lyons, F. S. L. and Hawkins, R. A. J. (eds.), Ireland under the Union (Oxford, 1980)Google Scholar; and especially J.Ross of Bladensburg's unique memorandum of 1882 (P.R.O. CO. 904 187) reprinted with a densely informative introduction by Richard Hawkins in The Irish sword, xi, 43 (1973). See also ‘General orders for the guidance of troops in affording aid to the civil power in Ireland’, H.M.S.O. (Dublin, 1970 and 1882); P.R.O. W.O. 32 6329. A minister's views on the use of weapons by police and troops after the ‘Mitchelstown massacre’ are worth reading: Balfour to Salisbury, 21 Sep. 1887. Curtis, L. P., Coercion and conciliation in Ireland, 1880–1892 (New Jersey, 1963), p. 437.CrossRefGoogle Scholar

33 So at least the administration concluded. Amery, L. S. (ed.), The Times history of the war in South Africa (London, 1909), vi, 544.Google Scholar

34 Milner to Chamberlain, 25 Oct. 1899. P.R.O. W.O. 32 8173.

35 Under sec, Colonial Office, to high commissioner South Africa, 31 Oct. 1899. Ibid. 36 Report by attorney-general, Cape Colony, 25 Nov. 1899. P.R.O. W.O. 32 8174.

37 Ibid.

38 Storks to Carnarvon, 14 Dec. 1866. P.R.O. CO. 323 287.

39 Milner to Chamberlain, 3 Jan. 1900 (received 22 Jan.), P.R.O. W.O. 32 8174; Milner's diary, 27 Dec. 1899. W.O. 32 81 75.

40 Milner to Chamberlain, 3 Jan. 1900. This letter was a substantial and very cogent discussion of the whole matter of martial law, particularly the problem of defining necessity in specific cases.

41 Army orders, Cape Town, 7 Dec. 1899. Enclosure in above.

42 Times history of the war in South Africa, vi, 548–9.

43 Blackwood to marchioness of Dufferin and Ava, 30 Nov. 1899. Blackwood MSS. Public Record Office of Northern Ireland, D. 1231/M/6/63. Ironically, Blackwood became, shortly afterwards, an administrator of martial law as a deputy judge advocate.

44 Martial law instructions, 30 Jan. 1900. P.R.O. W.O. 32 8176.

45 With no evident logic he maintained that ‘The primary object of proceedings under martial law is suppression of revolt, and I presume that it would rarely if ever be found necessary by a court to pass sentence of death’. Chamberlain to Milner, 5 Mar. 1900. P.R.O. W.O. 32 81 74.

46 Times history of the war in South Africa, vi, 554–5.

47 Ibid. pp. 556–7. ‘The ports’ were Cape Town, Wynberg, Simonstown, Port Elizabeth and East London.

48 Milner to Brodrick, 5 Nov. 1900. P.R.O. 30–67; Pakenham, T., The Boer War (London, 1979), p. 469.Google Scholar

49 Sir W. Hely-Hutchinson (Milner's successor as governor of Cape Colony in 1901) to Kitchener, 17 April 1901. P.R.O. W.O. 32 81 39. Kitchener to Brodrick, 20 Sep. 1901. Kitchener MSS, P.R.O. PRO 30/57 22. Kitchener added that, in the opinion of the former attorney general, the new attorney general was ‘off his head’.

50 Times history of the war in South Africa, vi, 559; for the demands on the civil population see Farwell, B., The Great Boer War (London, 1977), pp. 329ff.; resident magistrate, George, weekly report, 2 Sep. 1901. P.R.O. W.O. 32 8124.Google Scholar

51 D.G.M. 1 (Nicholson) to under sec, 9 Sep. 1901. P.R.O. W.O. 32 81 17.

52 Chamberlain to Hely-Hutchinson, 17, 24 Aug., and reply, 31 Aug., 4 Sep. 1901. P.R.O. W.O. 32 81 16, 81 17. On 18 September Hely-Hutchinson explained the Cape ministers’ view that Kitchener's proposal of limited martial law was ‘impracticable’, that once martial law was proclaimed the military view must prevail in any conflict. In a private communication he dissented from this view and asked if he should dismiss the Cape ministry. Chamberlain, by then convinced that the extension of martial law was necessary, replied that the Cape government must accept the opinion of the British military, 'since we are pouring out blood and treasure for the defence of the Cape’. Chamberlain to Hely-Hutchinson, 19 Sep. 1901. W.O. 32 81 25.

53 Under sec. Colonial Office to under sec. War Office, 7 Sep. 1901. P.R.O. W.O. 32 81 17. Chamberlain to Brodrick, 17 Sep. 1901. Amery, J., Life of Joseph Chamberlain, iv (London, 1951), 42.Google Scholar

54 Attorney-general, Cape Town, to legal adviser, Pretoria, 7 Sep.; Hely-Hutchinson to Chamberlain, 10 Sep. 1901. P.R.O. W.O. 32 81 24.

55 Attorney-general, Cape Colony (J. Rose Innes), memoranda, 27 Aug., 12 Sept. 1901. P.R.O. W.O. 32 8120, 8218. Kitchener to Hely-Hutchinson, 4 Sept. 1901. W.O. 32 81 21.

56 Maj.-Gen. Wynne to governor, Cape Colony, 17 Sept.; memorandum of attorney-general, 24 Sep. 1901. P.R.O. W.O. 32 81 28.

57 Chamberlain to Hely-Hutchinson, 23 Sep. 1901. W.O. 32 81 25.

58 Note of interview, prime minister Cape Colony and commander-in-chief, received by Chamberlain 28 Oct. W.O. 32 8126. Order, 9 Oct. W.O. 32 81 29. Milner to Chamberlain, 2 Sep. 1901. W.O. 32 81 22.

59 For problems in native territories see, e.g., Col. Leary, magistrate of Engcobo, to Maj. Elliot, Umtata, 1 Oct. 1901. W.O. 32 81 26. Fresh martial law regulations were introduced on 1 December; for details and effects see Times history of the war in South Africa, vi, 562ff. Milner's letter to Chamberlain, 1 Nov. 1901, is in Amery, Chamberlain, iv, 45.

60 D. F. Marais v. G.O.C. lines of communication and another; Ex parte D. F. Marais (1902), A.C. 109.Keir, D. L. and Lawson, F. H., Cases in constitutional law, 6th edn (Oxford, 1979), pp. 235–7. The case led to a special series of articles in the Law Quarterly Review (1902), esp. C. Dodd, ‘The Case of Marais’, 18 L.Q,.R. p. 145. Heuston, op. cit. pp. 153–4, surely goes too far in suggesting that the judgement indicated that ‘the question whether martial law could be enforced or not lay solely within the discretion of the military’.Google Scholar

61 F. Pollock, ‘What is martial law?’, 18 L.Q.R. pp. 155–6.

62 Tilonko v. attorney-general of Natal (1907), A.C. 93. Keir and Lawson, op. cit., the most substantial modern legal analysis of martial law, refer, it may be noted, to 'some ill-advised dicta’ of Halsbury in this case and that of Marais.

63 Note by judge advocate general to chief secretary for Ireland, 19 July 1920. P.R.O. CAB. 24 109, CP 1662.

64 Jones, T., Whitehall diary, ed. Middlemas, K., iii (London, 1971), 42.Google Scholar

65 Ibid.

66 The fact that, so long after Hallam, martial law was kept in force for some four months in 1916 reflects the derangement of normal standards caused by the war. But Maxwell himself was evidently uncertain of his legal position; see especially Maxwell to Walter Long, 18 July 1916, in memo, by Long, 21 July 1916. House of Lords Record Office: Bonar Law MSS, 63/C/29. Civil-military friction developed over executions (D.M.O. to C.-in-C., 3 May 1916. P.R.O. W.O. 32 4307) and raids (Hacket Pain to G.S. Irish command, 16 June 1916. W.O. 35 69/1), but in general tight control was exercised by the chief secretary, H. E. Duke. Martial law was never formally withdrawn, though Duke, speaking in 1917, said vaguely that it had ‘passed away when the time of the insurrection passed’. It was certainly widely believed to be still in force in 1917, but by then it was being confused with the Defence of the Realm Regulations. Townshend, C., The British campaign in Ireland, 1919–1921 (Oxford, 1975), p. 4Google Scholar. For Duke's curious statements about martial law see D. G. Boyce and Cameron Hazlehurst, ‘The unknown Chief Secretary: Duke, H. E. and Ireland, 1916–18’, Irish Historical Studies, xxi (1977), 296–7.Google Scholar

67 Townshend, British campaign in Ireland, pp. 27–105.

68 Cabinet 51 (20), 26 July, app. iv; Cabinet 65A (20), 1 Dec. 1920. P.R.O. CAB 23 23.

69 Jones, Whitehall diary, iii, 19.

70 Judge advocate gen. to chief sec, 19 July 1920. P.R.O. CAB 24 109, CP 1662. Diary of Mark Sturgis, 12 Dec. 1920. PRO 30 59/3. Townshend, British campaign in Ireland, pp. 105, 137.

71 The C.-in-C, Gen. Macready, told the C.I.G.S. on 28 September that he had ‘not the least doubt that within a few weeks the situation would be in hand’ if martial law were proclaimed, Anderson MSS, P.R.O. CO. 904 188/1. On 29 December, Macready, Wilson and Strickland (C.O.C. 6th Division) were still more definite. Cabinet conference 79A (20), CAB 23 23.

72 But as a reminder that many officers had been habituated in the colonies to the exercise of governmental and judicial powers, at least over natives, see Harries-Jenkins, G., The army in Victorian society (London, 1977), p. 177.Google Scholar

73 Townshend, British campaign in Ireland, esp. pp. 160–8.

74 T.Jones to prime minister, 24 July. Jones, Whitehall diary, iii, 31. Diary of Mark Sturgis, 14 Dec. 1920. PRO 30 59/3.

75 Macready to Greenwood, 17 July 1920. Anderson MSS, P.R.O. CO. 904 188. Henry Wilson wrote in May 1921 that ‘Unless we had England entirely on our side, I would strongly advise that we should not attempt martial law in all its severity’. Callwell, C. E., Field-Marshal Sir Henry Wilson: his life and diaries, 11 (London, 1927), 295–6. The Cabinet Irish Situation Committee felt that’ the English people generally were against the resort to martial law except in extreme cases’, and feared that the government would be ‘open to the reproach of undue severity’. S.I.C. 8th Conclusions, 26 May 1921. P.R.O. CAB 27 107.Google Scholar

76 Jones, Whitehall diary, iii, 25.

77 Macready was told by the under secretary, Sir John Anderson, on 29 March 1921 that appeals could not be prevented ‘ unless you had martial law everywhere’ (which was of course what the army by then wanted). The C.-in-C. was forced to withdraw a proclamation restricting the jurisdiction of civil courts in the martial law area on 14 April. Diary of Mark Sturgis, 19 April 1921. PRO 30 59/4. Cf. Macready to Anderson, 7 April 1921. Anderson MSS.

78 The high court accepted affidavits from Macready showing that war was actually raging in south-western Ireland. Rex v. Allen (1921), 2 I.R. 241–73. The other important appeals were Rex (Garde) v. Strickland and Others (23 March), Rex (Ronayne and Mulcahy) v. Strickland and Another (2 April), Rex v. Clifford and O'sullivan (7 July).

79 Rex v’ Clifford and O'sullivan (1921), 2 A.C. 570. House of Lords. Chief secretary for Ireland, Weekly Survey, 1 Aug. 1921. P.R.O. CAB 24, C.P. 3209.

80 Egan v. Macready (1921), 1 I.R. 265. There is an interesting and extensive commentary in Keir and Lawson, Cases, pp. 226–30; for a slightly different perspective cf. Heuston, Essays, pp. 158–60.

81 146 H.C. Deb. 5s, col. 437, 10 August 1921. The Cabinet Committee on Military Law in Ireland advised that steps be taken ‘to establish firmly the position of the Military Governor under Martial Law so that his proceedings shall be recognized as final and unaffected by the proceedings of a court of law’. 1 (M.L.) 1st Conclusions, P.R.O. CAB 27 155.

82 Hobsbawm, E. J., Primitive rebels (Manchester, 1959), p. 162.Google Scholar

83 This point was made by Gen. Sir Charles Gwynn in Imperial policing (London, 1934), p. 2. The first two chapters of this significant book provide a perceptive analysis of military action in civil emergency. Gwynn argued that ‘the advantages conferred by martial law in dealing with a serious situation are so great that they should be widely appreciated. Hesitation to apply it on account of political prejudice has often led to a worsening of the situation’ (p. 17). In subsequent chapters he instances a number of cases throughout the empire, including Egypt in 1919, where timely martial law had speedily restored order. However, the incident at Amritsar (pp. 34–64) dramatically reinforced political fears of military ruthlessness, at the same time as convincing many soldiers that ‘ an officer who takes strong action which he genuinely considers is necessitated by the circumstances cannot rely on the support of the Government, and that his career will be ruined’.Google Scholar

84 C.I.G.S. to Sec. of State for War, 10 Dec; Cabinet conference, 21 Dec. 1921; Interdepartmental conference, 19 Jan. 1922. P.R.O. W.O. 32 5840.

85 High commissioner to Sec. of State for Colonies, 3 June 1936. P.R.O. CO. 733 297. Bowden, Cf. T., The breakdown of public security (London, 1977), pp. 169–71.Google Scholar

86 Cohen, M. J., Palestine: retreat from the Mandate (London, 1978). p. 21. The bias of the courts was serious enough to bring the cabinet to the unprecedented point of recommending the transfer of the Lord Chief Justice. CAB 24 263, CP 194.Google Scholar

87 Cohen, M. J., 'sir Arthur Wauchope, the army, and the rebellion in Palestine, 1936’, Middle Eastern Studies, ix (1973), 23.Google Scholar

88 Report by A. V. M. Peirse, ‘Disturbances 19 April-14 September 1936’. P.R.O. W.O. 32 4177, pp. 7iff. For the public impression see Kalkas, B., ‘The revolt of 1936: a chronicle of events’, in Abu-Lughod, I. (ed.), The Transformation of Palestine (Evanston, 1971), p. 265.Google Scholar

89 ‘Note on martial law’, App. ‘A’ to Peirse's Appreciation, 20 Aug. 1936. P.R.O. W.O. 32 4177. Officers doubtless had in mind Gen. Gwynn's contention (Imperial policing, pp. 221–52) that the sudden crisis in Palestine in August 1929 had been contained by a form of ‘de facto martial law’ which had furnished the crucial element of unified command. Gwynn held that while special legislation could supply the equally important recognition of the ‘continuance of necessity’ (op. cit. p. 18), unity of control was peculiar to the concept of martial law. In 1936 there was immediate friction over Wauchope's decision to restrict cordon/search operations at the end of July because they were ‘provocative’. The Air Staff subsequently complained that the high commissioner had ‘greatly exceeded his powers’. P.R.O. Air 2/1938, minute by D.O. Air Ministry, 2 Nov. 1936. Part of the problem was that Wauchope outranked his military officers: he had been appointed by Ramsay MacDonald as a general ‘who does it with his head not his feet’. Sykes, C., Cross roads to Israel (London, 1965), p. 166.Google Scholar

90 Cabinet 56 (36), 1 Sep. 1936: minute and conclusion (3). P.R.O. CAB 23 85.

91 Memo, by Sir G. Bushe, Colonial Office, Sep. 1936. P.R.O. CO. 733 315.

92 Ibid. 93 Notes of interdepartmental conference, 19 Sep. 1936. P.R.O. CO. 733 315.

94 Ibid.

95 To some extent Wauchope did indeed see himself in this role, or at least that of the ‘kindly father’ as against the ‘bloody soldiers’. Wauchope to Parkinson, 8 Sep. 1936; M. J. Cohen, 'sir Arthur Wauchope’, p. 27.

96 Army Council instructions to Lt.-Gen. J. G. Dill, 7 Sep. P.R.O. W.O. 32 41 74; Dill to War Office, 30 Oct. 1936, p. 5. W.O. 32 9401.

97 A series of regulations were printed, denning 23 offences, primarily (1) carrying or use of firearms and explosives (death penalty); (2) intimidation (death); (3) harbouring offenders (life imprisonment); (4) holding unauthorized meetings (2 years imprisonment); (5) unauthorized signalling (10 years imprisonment); (6) conveying information to ‘persons engaged in activities prejudicial to the public safety’ (5 years imprisonment); (7) spreading false reports, incitement to disorder (10 years imprisonment); (8) failure to give information to the authorities (2 years imprisonment). These were maximum, not fixed sentences. The Palestine Martial Law (Defence) Order in Council 1936: regulations made by the G.O.C. Forces in Palestine; Instructions for guidance in the administration of martial law in Palestine 1936, Jerusalem 10 Oct. 1936. P.R.O. W.O. 32 9618.

98 A. V. M. Peirse, despatch, p. 105. P.R.O. W.O. 32 4177. Kayyali, Cf. A. W., Palestine: a modem history (London, 1978), p. 200. Cohen, Palestine, pp. 27–31, 'sir Arthur Wauchope’, p. 28.Google Scholar

99 G.O.C.-in-C. Palestine and Transjordan to War Office, 30 Oct. 1936. P.R.O. W.O. 32 9401.

100 Cohen, 'sir Arthur Wauchope’, p. 30.

101 The politely bitter contest between Dill and Wauchope produced a file running to no less than 196 pages: ‘Respective functions of the high commissioner and of the G.O.C. Forces’, P.R.O. W.O. 32 4178. This includes notes of the Colonial Office meeting of 16 Feb., and the War Office critical minutes of 23 Feb. 1937.

102 Duff Cooper to Ormsby-Gore, 5 March, and reply, 8 March. Loc. cit.

103 W. Ormsby-Gore cabinet memorandum: ‘Palestine: Defence orders in Council’, with draft of Palestine (Defence) Order in Council 1937. CP 86 (37), P.R.O. W.O. 32 9618.

104 Ibid.

105 F.O. to Col. Mackereth (Damascus), 26 Oct. 1937. W.O. 32 9618.

106 Ibid. This was slightly different in emphasis from a Foreign Office note in 1936 that ‘There is nothing in international law to prevent a Government in times of emergency from establishing a special régime for the enforcement of law and order’. Rendel to under sec, War Office, 2 Oct., and F.O. to G.O.C. Palestine. P.R.O. W.O. 32 4175.

107 Gen. Haining to D.M.O. and I., War Office, 2 Dec. 1938: ‘Hostile propaganda in Palestine - its origin, and progress in 1938’. P.R.O. W.O. 106 1594C.

108 For a recent military critique of the problems caused by uncertain or ambiguous legal arrangements in Ulster, see Evelegh, R., Peace keeping in a democratic society: the lessons of Northern Ireland (London, 1978)Google Scholar. On current emergency powers legislation cf. Wilson, G., Cases on constitutional and administrative law (2nd edn Cambridge, 1976), pp. 738–92. A grim explanation, which has not entirely lost its force, is Sir Charles Napier's: ‘ it has been convenient for ministers to leave things undefined, so that if circumstances demand it, they may cover themselves by sacrificing the officer’. Remarks on military law, p. 46.Google Scholar