Responsible government in the Dominions: Responsible government in the Dominions

Responsible government in the Dominions (Vol. 1)

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Multivolume work

Identifikator:: 1896933912

Document type:: Multivolume work

Author:: Keith, Arthur Berriedale http://d-nb.info/gnd/119086794

Title:: Responsible government in the Dominions

Place of publication:: Oxford

Publisher:: Clarendon Press

Year of publication:: 1912-

Collection:: Economics Books

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Volume

Identifikator:: 1896934455

URN:: urn:nbn:de:zbw-retromon-236504

Document type:: Volume

Author:: Keith, Arthur Berriedale http://d-nb.info/gnd/119086794

Title:: Responsible government in the Dominions

Volume count:: Vol. 1

Place of publication:: Oxford

Publisher:: Clarendon Pr.

Year of publication:: 1912

Scope:: LI, 568 Seiten

Digitisation:: 2022

Collection:: Economics Books

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Document type:: Multivolume work

Structure type:: Chapter

Title:: Part II. The executive Government

Collection:: Economics Books

272 THE EXECUTIVE GOVERNMENT [paRrT II they acted under the instructions of such officials or in good faith. But the Imperial Government allowed the act partly because it was not desirable to allow the régime of martial law to continue in the Colony, and partly because the Ministry were not willing to withdraw martial law unless the act came into force and protected them from suit.! The proclamation by the Natal Government in 1906 of martial law, and its maintenance in 1907 and 1908 despite the absence for much of the time of any obvious necessity for the system, was much criticized in England and even in South Africa. Fortunately the matter was not complicated to any serious extent by the fact of any misuse of the powers which the Government thus possessed, and the question can be considered as practically one of constitutional law. In the first place, it was asked whether a Governor could pro- claim martial law when as a matter of fact there was no actual war being waged in the Colony. The answer would appear to be that it would be difficult to declare that any such action was illegal ; any action might be illegal, but hardly the proclamation. Again, it was suggested that there was no possibility of martial law existing if there were no war. The argument seems fairly sound, but obviously it must be left to the Courts to decide as a matter of fact whether or not there is war. It appears very clearly from the cases of Marais? and van Reenen 3 that the Colonial Courts have no right to interfere if there is war being waged ; but it rests for the Court to decide if war is being waged ; the only way of preventing it so deciding is by force. The whole position is admirably laid down by the judgement of the Privy Council in the case of Tilonko’s appeal for special leave to appeal from a judgement of the court-martial sitting at Pieter- maritzburg, which was declined on November 2, 1906, for the grounds set out in the following judgement :— 4 This is an application for special leave to appeal to His Majesty in Council. It is desirable to call attention to that ! Parl. Pap., Cd. 3247, pp. 36, 92-4. 2 [1902] A. C. 109. * [1904] A. C. 114. Cf. the Natal case, Msolo and Guana v. Rez, Cd. 3247, pp. 8, 9: 26 N. L. R. 421, 4 119071 A. C. 93.

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