MARTIAL LAW.

Hawera & Normanby Star, Volume XLII, Issue 7389, 15 February 1902, Page 4 (Supplement)

MARTIAL LAW.

REASONS FOR THE PRIVY COUNCIL'S DECISION.

The Lord Chancellor last Wednesday, after a lapse of six weeks, gave the reasons for the decision of the Judicial Committee of the Privy Council in the Marais case, when their Lordships upheld the decision of the Courts in Cape Colony, which had refused to release David Marais from an arrest by the military forces of the Crown on August 15. Marais had petitioned the Supreme Court of Cape Colony, complaining of his arrest under martial law, and had applied for immediate release from custody, but the application had been refused on the ground that he was detained by martial law, regulations of which he was alleged to have contravened. The district in which Mr. Marais was*arrested and the district to which he was removed had been proclaimed under martial law. The Lord Chancellor said the only ground susceptible of argument urged by Mr. Haldane on behalf of Mr. Marais' appeal was that whereas some of the courts were open, it was impossible to apply the ordinary rule that when actual war is raging the civil courts have no jurisdiction to deal with military action, but where acts of war are in question the military tribunals alone are competent to deal with such questions.

Their Lordships were of opinion that where actual war was raging acts done by the military authorities were not justifiable by the ordinary tribunals, and that war in this case was actually raging was evidenced by the facts disclosed by the petitioner's own petition. The fact that for some purposes some tribunals had been permitted to pursue their ordinary course was not conclusive that war was not raging.^ That question came before the Privy Council as long ago as 1830, when the Indian case of Elphinstone v. Bedreechund had been decided. "No doubt has ever existed that where war actually prevails the ordinary courts have no jurisdiction over the action of the military authorities. Doubtless cases of difficulty arise when the fact of a state of rebellion or insurrection is not clearly established. It may often be a question whether a mere riot or disturbance, neither so serious nor so extensive as really to amount to a war at all, has not been treated with an excessive severity, and whether the necessity for the intervention of the military force was necessary; but once let the fact of actual war be established, and there is a universal consensus of opinion that the civil courts have no jurisdiction to call in question the propriety of the action of military authorities. The framers of the petition of right knew well what 'they meant when they made a condition of peace the ground of the illegality of unconstitutional procedure. For these reasons their Lordships advised His Majesty to refuse leave to appeal."

The lay mind will find it rather hard to reconcile this decision with the dicta in such text books as Dicey's on "Constitutional Law," that "martial law" is unknown to English law, and to understand why an Irish court should have had jurisdiction to grant Wolfe Tone a habeas corpus to save him from execution as the result of a sentence by court-martial, while the Cape Court has no power to take a similar step in the case of a civilian similarly condemned by court-martial under martial law in Cape Colony. When Mr. Haldane cited Wolfe Tone's case the Lord Chancellor said: "The Irish Court only acted as it did because it was assured that otherwise Wolfe Tone would be executed in an hour." But if the Court had no jurisdiction to call in question the propriety of the action of the military authorities, it was immaterial whether the action complained of by Wolfe xone was his arrest or his execution. It follows logically that once admit Cape Colony was in a state of war and martial law proclaimed in Capetown, the military authorities had just as much power to shoot Miss Hobhouse as to arrest Marais, and the courts would have been powerless to save her. The fact that at the conclusion of the war Lord Kitchener (say) might have been put on his trial for her murder unless an act of indemnity had been passed to protect him would have been a poor consolation to her and her friends.

The fact seems to be that hitherto owing 1 to her freedom from invasion England has deemed any legislation of. martial law unnecessary. The time has come, however, when it should be clearly stated by statute •under what circumstances and in what manner martial law may be proclaimed, and what its exact effects are, and safeguards to prevent its abuse should be enacted.

Sir William Eden, the well-known amateur artist, who has been residing at Nice for the winter months, hearing that the Societe dcs Beaux Arts was about to inaugurate an art exhibition, instructed nis daughter to write to the secretary for particulars. This she did, but styled her father, by a slip of the pen, "Sir William Eden, Bar.," omittjng the letter *t." No reply was received, and a further application was made to know the reason why, when it transpired that the secretary had concluded that the applicant was some unknown artist named "Sir William," •who could be of no standing whatever as he had no better adrefcs to give than "Eden Bar."