MR. FOX AND MARTIAL LAW.

Taranaki Herald, Volume XIII, Issue 632, 10 September 1864, Page 3

MR. FOX AND MARTIAL LAW.

The following letters were laid before the Council, the first 6n Tuesday, the second last night. The circumstance out of which they arose are briefly as follows : — In April last complaints were made to the Superintendent that cattle were being slaughtered at Oakura, without there being any chance of inspecting them previously, so that there was no check to prevent the cattle of .-any being iaken and slaughtered "without the owner knowing anything of if...- To prevent this the Superintendent was about to put up a stockyard and proclaim it as a place for slaughtering cuttle under the Ordinance, when he "was informed by the Colonel commanding, that 'under martini law this would not be allowed, and that, moreover, the Oakura land not having been alienated to the Crowi. — it being the block taken from the natives — the authority of tho Provincial Government did not extend to it. The Superintendent and Council then joined in asking the General Government to revoke the proclamation of martial law, and in two mouths — received an acknowledgement of the letter ! The Council thereupon passed the following resolution : —

That as from tho letter of the Colonial Secretary it does not appear to bo the intention of the General Government to revoke martial law in this Province, * * * * and 83 from the correspondence on tho stockyard afrOaknra, laid bofore the Council, it would appear,' that the officer commanding exorcised the power vested™ him in that matter, not on tho ground of military requirements, but because in his opinion sacli a step was necessary in order to prevent the Provincial Government from exceeding its proper civil jurisdiction, this Council would urge upon his Houor the necessity of obtaining a definition from the General Government or the Supreme Court, a3 to the limit 3to which tho civil authority of tho Provincial Government extends. — This was transmitted to the Colonial $6cretary,\\ho returned the following answer. jft will be observed that Mr. Fox puts aside 'ithe question of revoking martial law as one apparently in which we have no concern. The correspondence we are sure will be read with interest. Colonial Secretary's Office, Auckland,*27th August, 1864. Sir, — I have to acknowledge the receipt of your Honor's letter (No. 33, of the 22nd inst.,) transmitting a copy of a resolution of the Provincial Council, in which you express your entire concurrence, urging on your Honor the necessity of obtaining a definition from the Gcueral Government, or the Supreme Court, as to the limits to which the civil authority of the Provincial Government of Taranaki extends.

This question of jurisdiction seems to have arisen out of another specific question, which has recently lioen discussed between Colonel Warre and yourself, and which you brought under tho notice of the Genoral Government in your letter, No. 35, of the £3rd May last, whether your Honor could have a stockyard erected on the Oakura block, undor tho provisions of the Provincial Ordinances entitled retpcctively the " Cattle Ordinance, 1861," and the " Cattle Ownership Ordinance, 1862."

It appears to me on a review of the correspondence transmitted by you, that although Colonel Warre may not have been technically correct in quoting Martial Law as a bar to your jurisdiction, he was. substantially correct in his conclusion that your Honor had ho jurisdiction in the matter at issue, inasmuch as the Provincial laws, under which your Honor claimed to be acting, could not, by the terms of the Constitution Act, "affect" either Crown lands or Native lands, to one of which classes the Oakura block belongs. I regret to say that I do not quite understand tho genoral question propounded in the resolution of tho Provincial Council, that the General Government, to whom your Honor has addressed it, should define the limits of the civil authority of the Tarapaki Provincial Government. lam not aware what legal power the General Government has to make such a definition.

It does not appear from the terms of that quesfion that, the opinion of tho honorable AttorneyGeneral is requested on the particular point in question between your Honor and Colonel Warro ; but it would rather appear that your Honor is asked to obtain from the Colonial Executive a general treatise on Martial and Civil Law, and, further, one that, if it has to have any effective operation, must have the force of an Act o.' Parliament.

I have the honor to be, Sir, Your most obedient servant, William Fox, His Honor the Superintendent, New Plymouth.

Superintendent's Office, New Plymouth, Bth September, 1864.

Sir, — With reference to the subject of my letter of the 22nd ultimo (No. 33), and of your anßwor thereto of the 27th nit., I regret that in a matter of so much importance the wording of the resolution of the Provincial Council, which I enclosed, should have left any possibility of misinterpreting its meaning. At the same time I cannot but express my opinion that hnd you soen fit to give tho subject a fuller consideration yon would have had no difficulty in apprehending the ptecise bearing of the resolution in question, and would have felt that tho request conveyed therein was strictly reasonable, and that it was the duty of the General Government to relieve the Government of this Province from the uncertain position now held by it under Martial Law, either by putting an end altogether to Martial Law in the Province, or by defining either" certain territorial limits or certain classes of subjects beyond which, if the Commanding Officer should make use of his power, he would not be supported by the General Government.

If any authority be required in support of the statement that, under the circumstances, \the request for a limitation of the exercise of Martial Law is a reasonable one, I would rofer to the opinion of his Grace the Duke of Wellington on tho nature of Martial Law and the proper manner of administering it, quoted in Colonel Ripon's Manual of Military Law.

" It (Martial Law) is neither more nor less than the will of the General that commands the army. In fact Martial Law means no law at all ; therefore the General who declares Martial Law, and commands that it should bo carried into execution, is bound to lay down the rule, regulations, and limits according to which his will is to be carried out."

In reference to the paragraph of your letter in which you rofer to tho clause of the Constitution Act prohibiting Provincial Legislatures from making laws affecting Native lands and Crown lands, which you treat as decisive of the qnestion at issue, I have tho following romarks to make : —

I can soe only two possible meanings that can be ascribed to that paragraph. Either you consider that Provincial laws are, by the clause referred to, rendered wholly and in every respect inoperative upon Native lands and Crown lands ; or, taking the view, of the meaning of that clause which I' believe to be correct, namely that the expression " affect, ing lands " means only, affecting the title, thereto ; you consider that by proclaiming a certain portion of land to be "a place for exposing cattle under the " Cattle Ordinance, 1861," I should be affecting the title of that piece of land. If the first interpretation of that paragraph be the true one, it would follow that all private property, being for the time upon a public road or other waste land of the Crown, or even upon the lands of private individuals for whioh Crown grants have not yet been issued, would be altogether beyond the pale of Provincial laws. It will be readily admitted that such a state of things, if actually the caae, should be romodiod without doltiy. '

On the other hand, if my second interpretation of your meaning be correct, as the Ordinances under which I proposed to act do not purport to give the Superintendent power to confiscate or forcibly occupy any land, whether Crown land or the property either of Native or Europeans, the, reference to the Constitution Act was I think unnecessary. In proposing to proolaim a place in the Oakura district for the exposure of cattle, I was perfectly aware that such a proclamation would be inoperative without the consent of the Native proprietors of the piece of land, should they be allowed 'to resume occupation ; or without the consent of the Crown if the laud was confiscated ; and had I supposed it probable that his Excellency's Government would not freely support me in this attempt to protect private property from unprincipled persons, I should bafore taking further action have written for their sanctiou, as well as consulting the Officer Commanding on tho subject in a military point of view. I may state lhat a stockyard has already baen erected on the block by the contractors for the supply of meat to the troops, with the permission of the Officer Commanding. A similar temporary occupation by the Provincial Governn.ent wa3 all that I contemplated. As the Pi-ovincial Government is precluded from taking further action in tho matter, it is now my duty to call the attention of tho General Government to the serions evil which I desired to remedy, namely, that large numbers of cattle are slaughtered on the Oakura block without any proper provision for the protection of the owners of stock, and to the general result of checking the op"ration of Provincial Ordinances in such districts, which is, that on many subjects which have been left by the General Assembly to the Provincial Legislatures, and with which it is not possible for military tribunals to deal, no law whatever can bo enforced. £ have also to urge once more on hi 3 Excellency's Government tho propriety of putting in end without further delay to the paralysing conflict of authority caused ty the coutinuauce of Martial Law in this Province, all necessity for which was I believe completely removed by tho passing of the " Suppression of Rebellion Act, 1363." • I have tho houor to bo, Sir, Your most obedient servant, (Signed) Ciuei.es Brown, Superintendent. Hon. the Colonial Secretary, Auckland.