I will attempt to state very shortly the main points at issue.
The Roman constitution, while restricting the capital jurisdiction of the magistrate over citizens, allows him to use any amount of force against enemies of the State. A citizen may commit acts which constitute him an enemy, in which case he by his own deed renounces his civic privileges. The rule for the magistrate by Roman, as by English,[1] law seems to be that he may not treat any citizen as an enemy on the ground of apprehended or future mischief nor on the ground of past offences, but only in the presence of overt acts implying grave and immediate danger to the State, which can only be repelled by the use of violent methods of self-defence. It follows that the executions must be on a scale not out of proportion to the necessity, and that they must not be continued after the imminent danger has ceased. If the conduct of the magistrate is afterwards called in question, the burden of proof that the forcible act was really necessary lies on him. On the other hand the moment that the necessity is present he is neglecting his duty if he fails to act on it. In extreme cases the private man has the same duty. In the colonies and dependencies of England the exercise of this terrible responsibility has been sometimes preceded by a solemn proclamation of "Martial Law." This proclamation does not, strictly speaking, make any alteration in the rights and duties which each magis-
- ↑ See Dicey, Law of the Constitution, Lecture vii.
