MARTIAL LAW.

Hawera & Normanby Star, Volume XLII, Issue 7383, 8 February 1902, Page 3 (Supplement)

MARTIAL LAW.

A DIFFICULT POSITION.

Martial law has figured largely in "this week's news. We are still waiting for the Privy Council's reason in writing 1 for its decision in the Marais

Mr Marais, an auctioneer, liv-

ing at Paarl in Cape Colony, Avhere lie could have been tried by a civil

scourt, Avas' arrested by the military

authorities, com T eyed more than 300 >■ miles to Beaufort West, Avhere there -were only military courts and im-

prisoned there on suspicion of assisting the enemy. He appealed to the Supreme Court of the Colony, which, "hoAA'ever, declared that as martial laAv had been proclaimed both in the Paarl and Beaufort West districts, it could not consider whether there was or was not necessity for the proclamation, ana tnat it could

not exercise jurisdiction

over tne

prisoner as long as martial laAv existed. From' this decision the Privy

Council refused leaA'e to appeal some

fh-e weeks ago, for reasons Avhich •would be stated in Avriting. Seven judges heard the case, and it is rumoured that it AA r as only by a majority of one that the decision Avas come .to. The death of ex-GoA'ernor Eye last

Saturday, and the publication by Miss

Emily Hobhouse on Wednesday of a , pamphlet, setting forth the circumstances of her deportation from Capetown, together Avith the announcement of her intention to bring an action in England for false imprisonment and assault against Lords Kitchener and Milner, and the officers engaged in her detention 'n the first ship, and her removal to the second, have led to numerous contrasts between the'controversA r over

the effect of martial laAv at the time

of the Jamaican revolt, and the discussion on the same subject caused by the application of martial law to the whole of Cape Colony. Governor Eyre, AA-hose sympathies Avith the aboriginals of Australia had been freely displayed in his book on his "DiscoA'eries -in Central Australia," had in 1565, AA'hen he Avas Governor of Jamaica, to face a very serious riot. The negroes at Morant Bay killed the magistrates and sacked the courthouse, and committed atrocities in other places. The handful of AA-hites in the island, outnum-

bered by the blacks by 50 to 1, were

in serious danger of a general massacre. Governor Eyre, hoAvever. promptly not only stamped out .-vith an iron heel- 'the fire of rebellion before it had time to spread, but tramped out every ash which shoAved

the suspicion of smoulder. He pro-

claimed martial laAv throughout the county of Surrey, the city of Kingston being exempted, despatched

troops to the scene of disturbance,

hanged some insurgents on the arch of the Courthouse, shot others, and

made an example of all those who

played any part, however insignificant, in the rising. $39 people were put to death, many without trial, others after the most cursory Court martial. 600 Avere flogged, some AvithAvire cats, many Avithout any trial, and oA-er 1000 houses Avere burnt down Avith all .their contents. Gordon, a coloured member of the Assembly, Avhom Eyre considered the chief cause and origin of the Avhole rebel.lion, Avas deported from Kingston, AA'here he might have been tred by the ordinary civil court, tried by court martial at Morant Bay, and •shot. Public feeling Avas aroused at Home, and a Commission Avas, sent out to inquire into the facts. After a full investigation it came to the conclusion that the Governor's promptitude and A:igour had led to the speedy termination of the insurrection, and that .his military and naval operations Avere jjrompt and judicious, but that martial law Avas continued too long, Gordon had been condemned on insufficient evidence, the punishments had been excessive, and in many cases barbarous. The findings of the Commission seem to have been substantially correct, bus

(iovernor Eyre, on his inevitable re*

•t-all, became the centre of an embittered controversy. England was

divided into pro-Eyres and antiEyres, Carlyle, Kingsley, Ruskin, Tyndall, considered the Governor a chiAalrous hero; Mill, John Bright, Herbert Spencer, GoldAA'in Smith, Huxley, formed the Jamaica Committee to prosecute him for murder. A series of prosecutions and civil actions against the GoA T ernor came to naught, largely OAving to the fact that the Jamaica Assembly had passed an Act of Indemnity in his .flavour. Mr Justice Blackburn and Lord Chief Justice Cockburn differed materially in their A'ieAvs on martial ]aAA\ Eventually th<; excitemem subsided, the Government paid Mr Eyre's expenses, aud gave him a pension of, £750. He retired into private life at Devon, and after years of dignified silence, died only the other day at the age of 86.

Lord Halsbury, then Mr Giffard, whose defence of -the ex-Governor persuaded the magistrates at Market Drayton to dismiss the charge of 'murder against him, is noAv the Lord Chancellor, and presided at the hearing of the Marais appeal, the first instance, I believe, in Avhich the question of martial laAv has cropped up in the English laAv courts since the trials of Governor Eyre. Thanks to our freedom for centuries from invasion, martial laAv, A-iz.. the suspension of ordinary laAv, and the temporary government of a country or I part of it by military tribunals, is unknoAA'n to the laAv of England. »

We have nothing equivalent to what is kno.wn on the Continent as a "state of siege," for which special proA-ision is made by French laAv, and under Avhich all law is suspended, and "any man is liaole to arrest, imprisonment or execution at the will of a military tribunal consisting of a few officers excited by the passions natural to civil laAv." Martial laAv is, in fact, no laAv, the mere despotic Avill of the commanding officer. -Such, law is unknown to our constitution, xmd yet the present state of Cape Colony proves that on emergencies martial laAv must be proclaimed, however illegal, however inconvenient it. may be to loyal citizens, as Avell as to skulking 1 traitors. Those AA'ho are engaged in repelling an invasion of 'our enemy, and in suppressing insurrection, must take the law into their own hands, and trust to a retrospective justification of their actions by an act of indemnity. Meamvhile Avhat are the law courts to do if an application is made to them for a writ of habeas corpus on behalf of a non-military person imprisoned by army officers? Are they, as in Wolfe Tone's ca-o. to grant the writ, or are they to decline interference, Avith. the result f .hr.t suspected but innocent persons may be shot out of hand Avithout trial. In times of peace the accused person is given the benefit of the tloubt. In war time the safest cou.-sa is to shoot the suspect. We are. therefore, in this dilemma — Eirher the laAv courts are entitled to interfere and render nugatory the effect of a proclamation of martial laAv, or they are to do nothing, with ths rcsi'lt that people obnoxious to the military may be deprived of liberty and life. Our law .seems both doubtful and defective, and noAv that a necessity for lhe proclamation of martial j.-iw has arisen (for no one can deny that the measure is necessary ii; a colony Honeycombed with treason and sedition, where it has become almost impossible to distinguish friend from foe), it Avould seem advisable to make some statutory proA-is'on for the establishment temporarily of military iiile in emergencies which may easily arise in some part of the British Empire.

So far as the treatment of .Miss Hobhouse is concerned, she fieem* to have been determined o make a mar\vr of herself. Otherwise she Avould have yielded to a show of technical Iforce and walked from one \ essel to another under protest, without making it necessary for two soldiers to carry her. In hsv deportation the officials concerned seemed to have shown her every consideration. Whether the authorities in Soifh Africa were well adviuivl in deporting her is another matter. Peris. -nally, I should have thought the be.-ter course would have been to treat her as a "woman of no importance," to let her lan,}, and then subject her to martial law in the same way as any other British citizen at Capetown, giving her r.eillu?r more nor less freedom.