WHAT IS THE LAW?

Evening Post, Volume LXXXVIII, Issue 131, 30 November 1914, Page 3

WHAT IS THE LAW?

CAN PRISONERS BE SHOT? CIVIL AND MARTIAL JURISDICTION DEALING WITH TRAITORS. \ — — Though Sydney is far removed from the storm centre of the war, we have been thrilled for weeks by stories of happenings in. our midst (remarks the Sydney Sun). Almost every day reports are circulated that people caught in treasonable acts have been executed. Sometimes the names of well-known business men have been mentioned in these reports. They were^ bo it has been stated, found in possession of means of giving information to the enemy, were marched away under an escort of military, lodged in a dungeon, and at dawn the next da.y taken out to a secluded spot and shot. Very often the stories are prefaced with the remark : "I got it from a man in authority," or from "a man who knows the brother of a sergeant who was in charge of the shooting party." There is not a word of truth in these reports, which emanate from the fertile brains of people who delight in manufacturing sensations to cause a shudder to pass through the community. In the first place this community is not under martial law, and if it were it would be contrary to British justice to execute a man without trial, and last, but not least, under our laws a man could not be taken out and shot by a firing party, no matter what his misdemeanour might be, or whether he came under the designation of an alien enemy or a treasonable person of our own nationality. DOUBTFUL PREROGATIVE. In time of war it is true the Crown has much wider latitude in exercising its prerogative than in the caee in times of peace. The public safety demands very frequently that mure stringent measures should be taken than is ordinarily allowable under common or statute law. A proclamation for the trial of civilians by martial law is for this reason, to some extent, permissible in time of war; and it is la-id down ac an axiom of British law that when once a state of actual war exists the civil courts have no authority to call in question the action of the military authorities. Although Lord Halsbury has stated in a recent case that the fact that for some purposes the civil tribunals' have been permitted by the military authorities to pursue their ordinary couree is not conclusive that war is not raging, it is still a matter of doubt a« to when the military have authority to step in and administer the law according to the Acts which give them power. It is, however, generally conceded by the moat eminent authorities that so long as the civil courts are op«n and are following the ordinary processes unobstructed - martial law le not paramount; and delinquents must be tried according to the common laws and etatutes of the country. That the Crown's prerogative with regard to trial by court-martial of persona possessing civil rights is doubtful is borne out by the fact that it is customary for Parliament to pass Act* of indemnity after the occasion is over, because it is necessary to protect persons who have acted bona. fide in time of war or insurrection. But these Acts are so worded that they offer no protection to persons who have acted mala fide and without due regard to humanity. Members of court-martials and naval and military authorities generally are responsible as individuals to any person injured by reason of their having acted without or in excess of their jurisdiction. Even if they i are acting within their jurisdiction they ! are liable if they are guilty of any abuse of their authority by way of undue severity, oppression, or otherwise. Where death or injury to the person results from illegal exercise of naval or military authorities or from acts done by military authorities without jurisdiction the responsible parties are liable to criminal prosecution. This is necessary in order to protect law-abiding citizens from summary injustice, and to give alien enemies that measure of justice which should permeate the administration of the law in every highly civilised nation. There is a wide difference Tjetween military law — which permits of the creation of courts-martial — and martial law. Martial law extends to all persons ; military law to all military persons only, and not to people in a civil capacity. Martial law is explained as superseding and suspending the civil law of a community, and military law is super-added and subordinate to the civil law. Though military law — through the action of the nation being at war — is at present established in this State, the necessity for invoking the power of martial law has not arisen. That is why the civil authorities take action in dealing with alien suspects ; and it is a sufficient guarantee that no one can be arrested, thrust into prison, and taken out at dawn and shot. It disproves all the stories and fabrications which are in circulation. THE ALIENS' POSITION. Such is the law under which we live that aggrieved persons detained by naval or military authorities can avail themselves of the remedy of a writ of habeas .corpus — provided that the person is not an alien enemy. It is necessary to note that an alien resident in British territory owes allegiance to the Crown, and continues to do so, although the country of which he is a subject declares war against Great Britain and its dominions. An alien, whether he is a friend or not, has no legal right to enter British territory, but while he is here he owes a temporary and loyal allegiance to the Crown to the same extent as a British subject. This allegiance is a recompense for the protection he enjoys for himself, his family, and effects during the time he lives here. He may, therefore, be convicted of treason. Among the overt acts which are set down as high treason are : Conspiring to send intelligence to the enqmy concerning the disposition of the King's subjects in case of an invasion ; any intelligence sent to the enemy in order to serve them in shaping their at-

tack or defence, though the puiport of it may be to dissuade them from an invasion. Even though the intelligence is intercepted it is high treason. It is treason in a foreigner who iB living here, or who is living abroad, and whose family lives here, to aid even his own countrymen in acts or purposes of hostility. This clearly puts the position that aliens who lend themselves to any such overt acts are liable to arrest; but they are given fair trial, according to the law of the country. The prisoner is so justly dealt with that he is not bound of necessity, when in Court, to show what was the object or meaning of the acts done by him. The offence has to be made out by those who make the the charge. No 'person may be tried or indicted for such an offence except upon the oath of two lawful witnesees. SHOOTING NOT LEGAL EXECUTION. To further dispiove the stones that persons found guilty of treasonable acts have been shot, we have the authority of Biitish law to prove that persons cannot be executed by such means. The punishment for _ a person convicted of treason is hanging. There is an alternative. It lies greatly with the condemned person, who may petition. The Crown may by warrant diieot that in place of hanging " the head of the convicted person shall be severed from the body whilst alive," and may also direct an order how the head_ and the body may be disposed of. The Treason Act of 1814 (54 George III.) was partially repealed. Jfrior to that the condemned person was drawn on a hurdle to the gallows, and the dismembered body was drawn and cut into quarters, the various parts being disposed of in different portions of the city. By the Forfeiture Act of 1870 such persons must be tried by criminal law and procedure. On every side these gruesome stories, which are circulated in the city — reflecting as they do on British justice and upon the civilised sense of the community — are refuted by the law of the land, which holds no man guilty until proof of his guilt has been shown. The time has arrived when the inventors and circulators of these stories should be punished according to the same laws and by the same justice which they have traduced.