peace, but because it seemed to be expedient on general political
grounds. This was what the law called murder, whatever the propriety of
the name. Fitzjames made an application in January 1867 before Sir
Thomas Henry, the magistrate at Bow Street, to commit for trial the
officers responsible for the court-martial proceedings (General Nelson
and Lieutenant Brand) on the charge of murder. In March he appeared
before the justices at Market Drayton, in Shropshire, to make a similar
application in the case of Governor Eyre. He was opposed by Mr. (the
late Lord) Hannen at Bow Street, and by Mr. Giffard (now Lord Halsbury)
at Market Drayton. The country magistrates dismissed the case at once;
but Sir Thomas Henry committed Nelson and Brand for trial. Mr.
Lushington tells me that Sir Thomas Henry often spoke to him with great
admiration of Fitzjames's powerful argument on the occasion. On April
10, 1867, the trial of Nelson and Brand came on at the Old Bailey, when
Chief Justice Cockburn delivered an elaborate charge, taking
substantially the view of the law already expounded by Fitzjames. The
grand jury, however, threw out the bill.

The law, as understood by Fitzjames, comes, I think, substantially to
this. The so-called 'martial law' is simply an application of the power
given by the common law to put down actual insurrection by force. The
officers who employ force are responsible for any excessive cruelty, and
are not justified in using it after resistance is suppressed, or the
ordinary courts reopened. The so-called courts-martial are not properly
courts at all, but simply committees for carrying out the measures
adopted on the responsibility of the officials; and the proclamation is
merely a public notice that such measures will be employed.

It is clear from Fitzjames's speeches that he felt much sympathy for the
persons who had been placed in a position of singular difficulty, and
found it hard to draw the line between energetic defence of order and
over-severity to the rebels. He explains very carefully that he is not
concerned with the moral question, and contends only that the legal name
for their conduct is murder. In fact, he paid compliments to the accused
which would be very inappropriate to the class of murderers in the
ordinary sense of the term. The counsel on the opposite side naturally
took advantage of this, and described his remarks as a 'ghastly show of
compliment.' It must be awkward to say that a man