MILITARY LAW AND MARTIAL LAW.

Dominion, Volume 8, Issue 2386, 16 February 1915, Page 7

MILITARY LAW AND MARTIAL LAW.

Sir,—lncidental to popular remarks about the Gaudin case, but in no way affecting or affected by its merits or demerits, it is. obvious that profound ignorance exists locally regarding the' difference between military law ana martial law, which, to the man in the street, are synonymous terms. Indeed, that astute lawyer, Sir John" Findlay, displayed anything but familiarity with the subject, as I gathered from carefully listening to, his argument in support of his application for a writ of habeas corpus.

Permit me, sir, as one who was engaged in the administration of martial law in Cape .Colony during the late Anglo-Boer war, to differentiate in simple language between these two widely different subjects. Military law is a branch of law in the strict sense of the term, based npon a statute, to wit, the Army Act- and is applicable only to military officers, noncommissioned officers,, and men, irrespective of whether war exists or not, and irrespective of whether at home or abroad. . Martial law is not strictly law at all) but is merely the formally-ex-pressed will of the Officer Commanding, based upon no statute whatever, called into, operation at the discretion of the military when a state of war or riot approximating to war exists, either at home or abroad, and is applicable alike to soldiers and civilians, combatants and non-combatants, who contravene martial law regulations.

■ -Military law offences ■' are triable by courts-martial—general, regimental, and district-rand the trials are strictly legal and constitutional, therj being no appeal. Martial law offences are triable bv any Court or official (generally an Administrator . or . Deputy-Administrator) whom the military authorities in their discretion see fit 'to appoint. The trials being based upon usurped or'assumed authority, at© not' actually legal, and require confirmation by Act of Parliament at the conclusion ,of hostilities. Civil .law, is pro tanto suspended during martial law, aid.no Civil Court'will interfere with the exercise of martial law jurisdiction during hostilities, while, at the conclusion of hostilities, the Courts are debarred from so doing by a confirmatory statute,. which also indemni-, fies all officials who assisted in the administration of martial law and possibly committed irregularities^ : _ The rigidity , of martial law regulations depends upon the exigencies of the particular area, but there is no authority, as was suggested by Sir John Findlay, to support the contention that there is no justification for martial law unless war existß on the spot; the Civil Courts -will not review that question. I personally acted as Deputy Administrator in a district of Cape Colony which, except for the briefest period, was never within the area of operations at all; furthermore, martial law was continued in operation for some little time after the peace of Vereeniging had been signed—l am, otc., PERCIVAL R. WADDY. Wellington, February 15, 1915: -