Hawke's Bay Herald FRIDAY, JULY 20, 1900. "MARTIAL LAW."

Hawke's Bay Herald, Volume XXXV, Issue 11593, 20 July 1900, Page 2

Hawke's Bay Herald FRIDAY, JULY 20, 1900. "MARTIAL LAW."

What is martial law i It has so often been ' proclaimed," and it is so glibly pronounced as the only way of governing the Transvaal for some time after actual hostilities have ceased, that one would have thought there would tave been no difficulty in finding a definite answer. Tet the proclamation of martial law by Sir Alfred Milner in the north of Cape Colony brought out the fact that thera is no auch thing recognised or defined. In a learned article in the Journal of the Society of Comparative Legislation Mr (i. G, Phillimore discusses the question from a legal point of view. He finds the origin of the phrase " martial law " in the " Court of the Marshal and the Constable of England " (which " practically ceased to exist under Henry Till ") the arguments against the alleged right to proclaim martial law which preceded the passing of the Petition of ti ght, the effect of the first Mutiny Act of 1689 in changing the meaning of the phrase, and a series of instances since then in which, martial law has been set up, rightly or wrongly, in the United Kingdom and in the colonies. And what is the conclusion to be drawn from all this research ? Mr Phillimore points out that " every proclamation of martial law m the United Kingdom or the colonies has .been followed by an i Act of Indemnity " — in other words, , so doubtful is the legality of the I proceeding that it has invariably been thought necessary to provide special ' statutory protection with retroßpec--1 tive ( ffect for those who have admin- ■ istered it. It is difficult to imagine a more conclutive proof that the conception is unknown to the ordinary law. The Duke of Wellington declared that "Martial law was I neither more nor less than the will , of the General who commands the | army, and was|in fact no law at all," though no doubt he was thinking 1 primarily of the military occupation of a foreign country, not of a military despotism within British territory. This is Btrictly in accordance with Blackstone's view that it " is in truth no law, but something indulged rather than allowed as law a temporary excrescence bred out of the distemper of tbe State, and • not any part or the permanent and perpetual law of the kingdom." The best that can be said for martial law is that it is a law of necessity— that, in the words of Sir James Mackintosh, '' p»t in force against rebels and enemies, it is only a more regular and convenient mode of exercising the right to kill in war, a right originating i* self-defence, and limited to those cases where such killing is necessary as a means of insuring that end; put in force against rebels it can only be excused as a mode of more deliberately and equitably selecting persons from whom quarter ought to be withheld, in a case where all have forfeited their claim to it ; it is nothing more than a better rugulated decimation, founded on choice instead of chance, to provide for the safety of the conquerors without the horrors of undistinguished slaughter." If all things which are lawful are not expedient, some things which are expedient appear not to be lawful, and martial law seems to be only an exemplification of the old adage that " necessity knows no law," The essential difference between what is known as martial law and the main principle underlying all British law is that under the former, at the order of one man, another may be arrested without any charge being formulated against him, and kept in prison for an indefinite period without being brought to trial, even before a military tribunal. Two notable caseß occurred at the Cape, where Mr Meihan, a Kimberley attorney, was arrested after the battle of the Modder, kept in durance for five months, and then discharged without being brought to trial, and Mr J. J. de Kock. who was arrested at De Aar and imprisoned for over four months. To attempt to govern the Transvaal by martial law after the Boers have laid down their arms would not only afford them good grounds for complaint, but would not be tolerated by the British residents It is an Englishman's proud boast that his hoHeo is his castle, that he cannot be arrested without a definite breach of the written law being alleged against him, and that he cannot be kept in prison without a fair trial and condemnation by a jury of his countrymen, or those entrusted with the administration of the law Yet to give the people of the Transvaal selfgovernment at first would be suicidal. If all had equal political rights the Boer element would predominate and oppress the Uitlanders. If they were denied equal political rights they would fairly complain that they were being treated in the same fashion as they treated the Uitlandere, for which they were nunished by the war and the loss of independence. There is, happily, a medium course for which there are ample precedents That lies in proclaiming the country a Crown colony for a time, and gradually conceding self-governing rights as the opposing races become more homogeneous in feeling and sentiment. And that, we anticipate, will be the course decided upon by the British Government,

NOXIOUS WEEDS BILIi. The measure introduced this session bearing the above title is a great improvement on the crude and unworkable proposals which the late Minister for Lands Bought to oarry into law. It is at the earns time more comprehensive and less drastic. Noxious weeds are divided into three schedules. The first inoludeß only blaokberry, Canadian or Californian thistles, and sweetbriar. The second embraces Bathnrst burr, broom, giant burdoot, gorse, hakea, and ragwort. The third includes all the above and burr clovers, olover dodder, dook, ergot, fathen, ox-eyed daisy, wild turnip, and thistles (any Cartina, Carduus, Cnicus, Centaurea, or Silylum). The plants in the first schedule are deolared by the bill to be "noxious weeds," and must be "cleared," whioh means "cutting down and keeping cut down or grubbing or pulling up by the stem or root so as to prevent any part thereof floworing." Any local authority may include any of the plants in the second schedule among the list of noxious weeds, when they must be dealt with in the same way. The onus of clearing ia thrown upon the occupier, whether the owner or not, but in the cubb of leaseholds the ocoupier can recover up to one-fourth of the cost, according to the unexpired term of the lease, from the owner. Gorse, broom, or hakea may be used as fences, but they must be cut and teimmed every year, and if the fence abuts on a public road or a waterway the outtings must be removed and destroyed. Sweetbriar and blackberry fences must be trimmed, and in all cases the cuttings must be burned. With respect to gorse, broom, sweetbriar, or blaokberry not forming live fences, when in small patches they must be cleared at once, but when in largo patches they must be cleared gradually, starting along fence-lines, water-race, watercourse, or boundary line, cutting the entire length to the extent of at least a quarter of a chain wide each year, except when permission is given by the inspector to reduce the width to not less than an eighth of a chain. Inspectors are to be appointed, with power to clear land at the cost of the oooupier when he fails to do so. The Act is to apply to all Crown lands and native lands, the cost, where the title has not been individualised, to be borne by the Government and to be a first charge against the land. Local bodies must clear their roads and reserves. The third schedule applies to the sowing or selling of seeds of the plants included, with the exception of gorse, when sown for fodder by permission of the local authority, or for hedge's. All grass seed must be dressed or cleaned for the purpose of removing all noxious seeds, but proof of ignorance of the presence of such seeds, or of the knowledge of the purchaser of their presence, will be a sufficient defence in legal proceedings. The buyer of undressed seed must, however, have it oleaned or he will subject himself to the penalty for sowing noxious seeds. Where threshing-machines, cloverdressers, or chaff-cutters are used by contractors working on more than one farm such machines must be thoroughly cleaned out before removal from the place where they have been used. Inspectors are to be appointed to see that the Act is carried out, and their methods of procedure, powers of prosecution, and so on are defined in a number of maohinery clauses Undoubtedly some such Act is necessary, and the present bill seems to have been drawn with an 1 earnest desire to make it as little oppresi sive as possible consistent with the object , of the measure.