LORD CARNARVON'S CIRCULAR ON MARTIAL LAW.

Wellington Independent, Volume XXII, Issue 2587, 22 October 1867, Page 5

LORD CARNARVON'S CIRCULAR ON MARTIAL LAW.

[From the Economist, July 6.]

Lord Carnarvon's circular to the Governaors of our various colonies, directing them wherever acts authorising beforehand procla jnation of martial law exist, at once to present to the Legislature bills to repeal theae acts, if quite free from any of these ambiguities attending the discussion as to the meaning of martial law, and is, in itself, an obviously, wise and just course, the reasons for which are sufficiently assigned in a few admirable lines which explain it. A law empowering the suspension of all ordinary law it" it could liave any justification at all, could only be justified by the existence, as Lord Carnarvon observes, of a chronic danger of anarchy iiable to show itself at any moment. Otherwise to enact a law which at the discretion -of the Executive, dissolves law, in a mere moral temptation to the Executive, in the form of a notice that it is competent and empowered to determine when ordinary legal proceedings are dangerous, and need to be superseded by arbitrary volition. Unless the anarchy i 8 almost as common as respect for the law, there can be no excuse for a standing rule which authorises the anarchical suppression of anarchy. Now this is not the case, as Lord Carnarvon justly observes, in any of our colonies. In all of them at most times, indeed at all times except at very rare intervals indeed the law is never resisted ; and therefore, to give one man in the colony an absolute discretion whether he will suspend law or not, is positively to encourage the impression that law is not sacred, since its course may be suspended at one man's will. " Whatever apprehensions or disturbances m=iy exist in any of Her Majesty's colonies, it is certain," says Lord Carnarvon " that no such chronic insecurity prevails in any of them, and in no colony, therefore, should the power given by the present law to the Governor of Antigua be suffered to continue." Of •course, a state of society is conceivable in which, law, as distinguished from the mere personal government of superior force, might be so new, strange, and little known, that the novel experiment of governing by law could only be tried by a Government retaining the power, to intervene at its own discretion as a mere military force, whenever there should seem to be need for it. But it is absurd even to suggest that such a state of things ■exists in any of our present colonies. In all of them mpect for the law is the normal condition, and there can be no worse stimulus to the spirit of rebellion than an open permission granted to the Government to supersede the tow whenever it may seom to it good.

For that is a standing notification to the people that rebellion is expected, and at the same time serves as incentive to it by the positive sanction it lends to acts ofnon-lrgal, if not illegal, authority. To enact laws, and then to give any ono the power of suspending them, is to put that person above the law, Nor is it conceivable that law can ever come tobe respected as much as it now is in England, if it is not binding equally upon all, but can be broken with impunity and at pleasure by any, even tho highest, in the colony. While the law is not over every one alike, it will not in the most impressive sense be over

' any one. i Lord Carnarvon has, however, bcon blamed without «ny reason we think, for adding to his circular that the Government did not intend, while asking for the repeal of acts legalising martial law, to prohibit absolutely the recourse of any government to it on its j own responsibility, " under the stress of great emergencies, and in anticipation of an act of indemnity." That has been thought to lend some sort of encouragement to colonial governmentsto do, without legal sanctions, what they are to he refused the legal right to do. Encouragement, however, it cannot by any means be called. There was never any sort of doubt that any government may do on its own responsibility anything which it regards as absolutely necessary to save the state from destruction, however little legal authority there may be for its action, — the check on ' such unlawful acts of authority being of ! course, that if, after the supposed emergency has passed away, there is no sufficient proof that any such emergency existed, if life has I been sacrificed and liberties disregarded i without real evidence of pressing necessity, tho Executive which took those steps will ; receive no idemnity, und will be liable to the heaviest criminal penalties and to claims for ! personal compensation. And if it is always 1 open to a government to act thus on the pressure of necessity with good confidence, : that if the necessity be real and demonstra- ! ble, and nothing be done for which a plea of ; urgent necessity cannot be proved, it will be justified, and even raised in credit or rewarded for its presence of mind in saving tho state, — it is clear that the declaration of ' martial law, whatever that may mean, is also within the discretion of the Government for such a purpose and within the same limits. ! It is not the mere declaration, indeed, of j martial law which is so highly responsible an ' act, but the mode in which martial law, when ! declared, is acted upon. Mr Eyre would ' never have been blamed for the mere declai ration of martial law, which — whatever the exact meaning of martial law — is really only equivalent to a public notification to people in general that force will be resorted to more freely Rnd under less well-defined formalities than usual to put down resistance, and that therefore, people are bound to be specially careful not to give any excuse for thinking that they are either offering resistance themselves to the established authorities, or lending any sanction to the resistance offered by others. Had Mr Eyre used martial law only to check and punish open resistance — had he not used it for putting hundreds to death, and flogging far greater numbers whom he could easily have tried, and, if guilty, punished by the ordinary legal tribunals — had he not, in short, used what he called martial law not under urgent necessity, but without any necessity at all, he would have been praised instead of blamed. The mere declaration of martial law is, as Mr Hardy said on Tuesday night, rather an act of caution and warning than an assumption of illegal power. What- ! ever it ma} r be justifiable to do under martial j law, it would be, in all probability at least, I equally justifiable to do under the pressure of necessity, whether it had been formally declared or not. All that the declaration does—such, a t least, is the best opinion on the subject which we have at pre--Bent — i s to give public notice that in the opinion of the Government an extreme emergency does exist, which may make it essential to the safety of tlie state to use force with much less scruple, and under much fewer restrictions than usual. This is I probably the case even when tho declaration of martial law is legalised by an act of any colonial legislature. But it is quite certninly the case if martial law is declared by a Government, on its own responsibility, and in anticipation of- an act of indemnity. It is self evident that no Government could enlarge its owa legal power, by an act which, transcends its legal powers, aud which requires an indomnity to cover it. If it must be indemnified for declaring martial law at all, it must be indemnified for every act done in conformity with that declaration. The whole policy of martial law is, according to Lord Carnarvon's circular, extra-legal. Of course, therefore, the extra-legal declaration that ordinary law is for the time partly suspended, can be no sort of excuse for extra-legal acts which carry out the policy announced in this declaration. It is beyond nil question, tliat if Lord Carnarvon's directions to repeal ail nets authorising colonial governments to declare martial law bo carried out, the declaration itself, so far from enlarging the powers of the Government, would be a mero formal notice to the people that a great emergency had, in the opinion of the Government, nvi^on, which might justify arbitrary acts usually illegal. And this, of course, so far as ib goes, rather limits the arbitrary character of tho nets done, by forewarning everybody of their danger, than adds to the illegalit)'. It seems probable enough that the same is trno of declarations of martini law made under the authority of colonial acts. There seems no reason to bebelievo that such declarations enlarge the powers of Government, or leualise acts for which the pica of urgent necessity cannot be individually pleaded. But, however this may be — and it is a point on which we have as yet no authoritative decision — il; is guiLe certain that such declarations of martial liuv, in anticipation of acts of indemnity, as Lord Carnarvon declined " absolutely to prohibit," could not by any possibility ndil to thn powers assumed by the Government making out that declaration. Lord Carnarvon gave no sanction whatever in this clause of his circular to tho doctrine that a Government can do more than an illegal declaration of martial law than it could do without it. He only said that her Majesty's Government would not undertake to condemn nil declarations of martial law made undor the stress of a great emergency, but must judge by the evidence produced in tho individual case whether there were any adequate occasion for such a declaration — the declaration itself being, of course, merely taken for the announcement of an intention to do, in certain cases, acts generally illegal, and not itself the illegality. It seems to us that Lord Carnarvon's circular is admirably adapted to save the colonial Governments from official errors nnd official injustices, such as we had to complain of recently in Jamaica, pending a clearer legal determination of the force really attaching to these irregular colonial acts authorising the declaration of martial law, the precise validity of which wo scarcely know, nnd the mischief of which we have now learned only too well.