Liberty in the modern stateLaski, Harold J. (Harold Joseph)
Science
Liberty in the modern state
Laski, Harold J. (Harold Joseph)
Liberty; Political science
But when once the question has been settled of who is to possess power
other questions of urgent delicacy arise in which, as I think, the
principles I have laid down possess an irresistible force. There is
the problem of how the rebel and the disaffected are to be treated; of
whether the resumption of order is to be followed by free discussion;
of the power to be exercised by the military authority over ordinary
citizens not engaged in armed hostility to the régime. Here I can
only express the view that the resumption of order ought always to
be followed forthwith by the normal principles of judicial control;
and that the military authorities ought not, save where it is quite
impossible for the civil courts to exercise their jurisdiction, to have
any powers over ordinary citizens.
These are rigorous views; and, perhaps, I may devote a little time
to their exposition. I know of no case where the state has exercised
extraordinary power outside the normal process of law, in which that
authority has not been grossly abused. It was abused in the Civil
War even under a mind so humane and generous as that of Lincoln; it
was emphatically and dangerously abused in the Amritsar rebellion
of 1919. Let me illustrate, from this latter example, some of the
things that were done. Two men were arrested in Amritsar prior to the
declaration of martial law and deported to an extreme and undisturbed
part of the province; on the declaration of martial law, they were
brought back to Lahore, which was in the martial law area, and tried
and sentenced by a martial law tribunal. A number of pleaders were
arrested in Gudaspur, where there was no disturbance, taken under
revolting conditions to Lahore, and confined there in the common jail
for a period lasting up to a month. They were then released, without
any charges being preferred against them; on the evidence, indeed, it
is difficult to know with what offence they could have been charged.
In the trial, again, of one Harkishan Lal, and others, for treason
and waging war against the King-Emperor, the accused were not allowed
to have a lawyer of their own choosing; a full record of the case
was not taken, and the private notes of counsel for the defence had
to be surrendered by him to the Court at the end of each day. Under
such conditions it is difficult to see how any adequate defence was
possible. A punitive detachment, again, under a Colonel Jacob, tried by
drumhead court-martial and flogged, a man who refused, it appears with
some truculence, to say who had destroyed some telegraph wires; later
it appeared that the man, as he had asserted, had in fact no knowledge
of who had destroyed them. In Lahore--to take a final instance--the
military officer in command prohibited more than a few persons to
congregate in the streets; a few persons did so congregate and they
were flogged. On investigation, after the flogging, it was found that
the group was a wedding-party whose purpose was not more dangerous than
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