cusp. vl THE GOVERNOR AND THE LAW 281 
authority of that martial law was necessary, was sufficient 
to oust the jurisdiction of the Court to inquire into the 
propriety of the act. At the same time, looking to the fact 
that the situation in the Colony was in the eyes of the 
Executive so serious that martial law was still in force, he 
was not prepared to dispose of the application without 
giving the respondents an opportunity of filing a further 
affidavit stating the grounds on which the necessity arose. 
With this view Broome J. concurred. 
As a matter of fact, no further steps were taken in the 
matter, as the Indemnity Act received the royal assent, and 
it was not thought necessary to deal with the matter further 
in the Courts of the Colony. 
On the other hand, attempts were made in England to 
obtain an adjudication of the Privy Council on the question. 
In the first place it was sought to bring an appeal from the 
decision of the Court Martial in Natal on the question, 
but, as has been seen above, the Privy Council rejected 
the attempt! on the express ground that the Indemnity Act 
was binding upon the Court, and that therefore it was quite 
impossible for any action to be taken by the Colonial Govern- 
ment in the matter. It is clear from the judgement that 
the Privy Council were not prepared to deny that it was 
open to the Court to examine the question whether or not 
a state of war was actually existing, and the remark of Lord 
Halsbury shows clearly that the decision in the case of 
Marais 2 must not be deemed to assert that the mere state- 
ment that war is raging is sufficient to oust the jurisdiction 
of the Court. It might be noted too that a line of argument 
which might have been adopted does not seem to have been 
urged ; the Indemnity Act provided that the sentences 
should be confirmed and prisoners still detained treated as 
though they were detained under ordinary sentences of the 
civil Courts.- It might have been contended that by making 
the sentences equivalent to those of the civil Courts a right 
of appeal from such sentences was brought into existence, 
but it is very improbable that such a contention would have 
1 119071 A. C. 93; above, pp. 272-4. 2 11902] A. C. 109.