JELLICOE TO THE RESCUE

Press, Volume LXII, Issue 12507, 21 May 1906, Page 7

JELLICOE TO THE RESCUE

PETITION TO PRIVY COUNCIL.

Mr E. G. Jeliiooo is indefatigable! ' His latest coup i.s to take up the caiif-o of these poor, much-wronged Kaffir murderers M J ho were executed on Monday last, and whose case brought aliout a grave Imperial cricis. The earliest sitting that could be convened of the Judic.al Committee of the Privy Council, which had been moved by Mr Jeliiooo to consider the case, took place oji , Monday last, when there v,-en> present tlK' Lord Chancellor, the ex-Lord Chan- j cellor (Lnrd llaL-bury), Lord Mncnagh- ; ten, Lord Davey, Lord James of Here- ' ford, Lord Atkinson, and Sir Arthur Wil-o'ii.. The cow was oivtered as "Mgomini, Mzinchva, and Wanda (by t'hci'r next friend, Alfred Mangooia) v hu Exotvknoy the Governor and tlto Attorney-General for the Colony of Natal," and was described an an urgent petition for special leave to appeal with reference to the postponed execution of i the twelve nat:v:s in Natal, whose ca.sc« ■' have roc?ntly tce»n niukvr dit?ciiMsion in ; Partiarnent. i

Mr K. G. Jolliooe, who appeared in support of t-lio petition, raid thait hs had to morn in a matter of extreme urgency and <;-f tho greatest importance, involving the life or death of twelve Briti-h subjects, for special loavo to appoa.l against the judgment and sent: !"e;> of a niilitnry Court. claJinlng to. act in Natal under a declaration of mat* tial Jaw, in circumstances which, he had to submit, wor? wholly illegal and ■without juriiidictioji. After relating the facts of tho caeo, Mi* Jcllicoe contended that the proceedings connected ivit.li tlie trial of tho natives -.vero irregular and improper. Tho Court-martial took place, ho said, at a great military demonstration i of tho Cameron Highlanders, Carabi- | neers, and Natal Field Artillery, with | guns and rifles, and many natives were compelled to give evidence against the appellants under great procure and duress caused by fear created by tho military demonstration. Subsequently to tho declaration of martial law no overt act of rebellion on the part of the appellants or any other native against the King had been committed, and during tho whole of the intervening period from the dote of the declaration of martial law to the date of t>ho appellants' , trial and conviction, the juri&idiction of the Supremo Court of Natal, which exercised a. supreme criminal jurisdiction, had run throughout the colony without any interruption whatever, and the ordinary law of the colony had never at any time l>ecn suspended. The appellants had not been taken in open resistance or charged with, any overt net of rebellion committed i after tho alleged oxprcieo of tho prero- ; gative of executing martial law, and at I the time of the commission of the acts i charged against the appellants and at ■ the time of their trial and conviction, j there was no suspension of any of the ordinary tribunals; and that fact he (the learned oounsol) submitted entirely disposed of the oaso made against' the appellants. All the ordinary Courts of tfie colony were open, and the appellants had a. right in law to bo delivered over to those Courts and doalt with according to law. He oontended that in law tho proclamation of martial law had not any retrospective operation. Air Jellicoe went on to any that tho first question was whether there was a state of rebellion which did raise do facto a state of war against the Crown. Ho answered that question by invoking tho facts, which were that what hap- j pened involved the resistance of a num- I , her of armed officers, and a riot winch ! resulted in. the death of two police officers.

Lord Halsbury here interposed, and remarked that that was rather minimising what was done; it was the rescue by armed natives of prisoners lawfully arrested.

Mr J<?lliocc said ho did not wish to minimise anything that occurred, and no doubt, it did Involve the rescue of persons lawfully arrested. He submitted that the necessity for martial law was a condition precedent, otkl did not extend beyond the case of persons taken in open*resistance, and with whom, by reason of the suspension of the ordinary tribunals, it was impossible to deal according to tho regular course of justice Where the Courts were open, so that criminals might be delivered over to them to bo dealt with according to law, there wjy>- not, lie (submitted, any right in tho Crown to adopt any other course of proceeding. On February Bth there was no proproclamation of martial law in existence; the civil Court« were, open, and, if any crimo was committed at all on that day, it wae a crimo against the ordinary law of the land. 'Hie next question was a grave oik , , and that was whether the prerogative of executing martial law had, in fact, been delegated to the Governor of Natal either by the letters patent, tne letter of instruction*, or by the Natal Constitution. Ho desired to raip-o thes-e questions in view of what took place in Governor Eyre's case, and he w;te instructed that no statutory authority existed in Natal for the exerc : se of martial law, or for making provisions analogous to those r>f the Mutiny Act and the Articles of War.

Their Lordships having consulted in private, the Lord Chancellor delivered tho following judgment:—T-heir Lordships thought it right to sit at tho earliest moment in order to liar a'i application which they were inform oil concerned a matter of life or death. Having heard it, tiheir LorcLshipe arc unable to advi«e vis Majesty to gra"t this petition. It is not an appeal from a Court, but in mi bet a nc? from the ac: of tho Executive. Evidently tlio responsible Government of the cxlony coneider that a serious (situation exi'fts, for martial law has been pr'c'aimed. The Courts of Justice in the col my have not VrQi'n asked to interpose, and. apart from any question of jurisdiction, any interposition of a judicial character, directed with mre: imperfect know led £>"" botri of the danger that ha* thr«ja*e"od and may threat-en N-n-tal, and of the facts which came before the tribunal of war, would be inconsistent with tneir Lor -1 -' hips' duties. Their Lordships wiil hiiT; 'ly advise his Majesty to du=mis* the petition.

It will bo obwrved that the Privy Council diemifsed the petition on the ground ot insufficient information !>"- ing available upon which what wafi subBtantiallv the act not of tho Natal Law Cotirts, but of the Executive, could be interfered with. It may be pointed