The Star. MONDAY, MARCH 16, 1914. MARTIAL LAW AND DEPORTATION

Star (Christchurch), Issue 11027, 16 March 1914, Page 4

The Star. MONDAY, MARCH 16, 1914. MARTIAL LAW AND DEPORTATION

: Professor J. H. Morgan, Professor of Constitutional Law at University College, London, having been requested by tjie editor of. the "Daily News" to express an opinion on the proclamation of ipartiaf.la4v .in South 'Africa, and iu particular about the deportation by the.South African Government of the Jeadbi;s of the local trades unions set out 'his "opinion in the following phrases:—

It may ho as well to explain at the outset that the term "martial law" is misleading in so far as it'would seem to presume thut such extraordinary' jurisdiction is recognised by the common law of England. It is no part of onr common law; indeed it can only •xist in virtue of circumstances, i.e., f frtate of war, being such that the jpmmori law is already superseded. So tnuch is .this the case that the older loetrine.'(which on the whole still holds godd) was, that the test of Avar to be applied by the common law courts in determining the justification for such proceedings,was whether or hot, at the time of the assumption of such'jurisdiction''by the executive of the military Authorities, the ordinary courts were htill sitting. If they wore, the mere fact was regarded as conclusive proof that ho justification for such proceedings l : The famous Mara is case in. 1901 only limited this doctrine in so far as it laid down that the mere fact that the courts wpre sitting in one part of the country wftjs not a conclusive proof that a state'of war did not exist in another'part. It in no way denied the right; of the courts to inquire whether a. state of war did, in fact, exist. Indeed the Supreme Court of the Cape in' thfe years 1001-03 repeatedly quashed, conviction by military tribunals or by magistrates* acting under military authority and when it did not do so it expressly reserved 'its right to inquire- into the justification for such proceedings when the disturbances were over.. The more proclamation of martial law in no way alters this rule and a proclamation as such has no legal validity.

t The .second, principle, which no lawyer Toulci dispute, however ' much lie might dispute as to the test of what Constitutes a. state of war, is that njflrtial " law" can only be used for .vyppression~it must never he used for punilhmertt except in so far as the pjeurt.l'measures arise immediately out of the suppression and are necessitated by it. The moment the " war "is at .end if'is the duty of the military authorities to hand over their prisoners to' be tried, by the regular tribunals. TbiA has been laid down in unimpeachable, terms by Chief Justice Cockburn, and again by Mr Justice Blackburn, " in the ease of Governor Eyre, and repeatedly emphasised in the opinions of the lafr officers of the Crown. Now looking at the facts as they are reported, there can, I think, he no doubt that, judged by these tests, the proceedings 'in .South Africa are illegal, and could not bo supported by any plea, of justification in a court of law. T have, very little doubt that had the Government :not been so prudent as to release Mr Creswell at the last momejnt, the rule nisi granted by the Supreme Court would have been made a. nils absolute and his discharge ordered under a writ of Habeas Corpus. ; ;The recent deportation is not quitei so simple. The law of South Africa.'is hot the same as ours; it is ' the Roman-Dutch lav;, but as regard* criminal Initit is neither Roman-Dutch nor English, but contains elements front both,'and has been developed by j&cni"' statutes and judicial decisions. A- good deal of confusion esists on the subject, and it has been proposed to rejnofe doubts and correct errors by codifying the law. Still, t-think there can be very little doubt that there is no legal authority for, this, arbitrary act, and the extreme haste of-the Government in the dispatch • of their prisoners seems to iuggest as much.

These deportation proceedings violate an elementary right of British subjects —the right to .remain on British territory- Except in Protectorates (which *re not British territory, and are governed by the Foreign Jurisdiction Acts) the '.'. Crown has no power to deport British .Subjects, and the action of tho South' I "African Government is not only illegal, .'t is unprecedented. And 1 am tiot at. jOI sure that, unless the Indemnity' Act is made prospective, as w<Jll as retrospective (which, won Id: ha An unprecedented step), tho ■ deported Labour leaders will not be "able io "enforce ;i right to re-enter South Africa. The Crown has no more power -,o exclude' British subjects from entering British territory than it has to expel them. The real danger, therefore, is that, having beusu with one arbitrary

act, the Government will be insensibly | led on to attempt others. I am rfcI minded of the wise words of Hallam ' when lie sou] of martial law thtrf, as a resort to force, it encourages the. disposition to which most Governments arc f prone "to maintain too long, .to ; pursue too far, to extend too much—- | so perilous a remedy." From this it will be .seen that in the view of this high and competent authority neither (ho ni*oclii?iiatioi? of martial Jaw nor the deportation without trial of the strike leaders can be justified by a strict. reading. of the law. Whether it can be justified by expediency is another matter. It is quite clear that in acting in an arbitrary and unlawful way in face of a national emergency the South Afiica Government rrceived the almost vnaninioits bnrfcing of local, public opinion. Their action has also received the enthusiastic sanction of the Conservative Press in Grent Britain and the dominions, especially in quarters ivhere the militant aggressiveness of Labour is exciting qualms of resentment. On the, other band there, are not wanting critics who contend that the modern tendency of Conservatism is to bold tho law in contempt. They are strengthened in this opinion by tho resistance which has been offered by individuals to recent Liberal enactments, nnd tho threats of open rebellion which have been .made by Unionist leaders in regard to the situation in Ulster. The position is a serious one, because if it is once admitted chat all political and social questions nave their ultimate reliance on force majeure, and that militant minorities are justified in setting tho law at defiance, or treating it with absolute contempt, the whole world is beaded for anarchy and civilisation will scon become a misnomer.