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

cHAP. v] THE GOVERNOR AND THE LAW 273 fact, because the learned Counsel for the Petitioner has, from time to time, used the phrase that his right to appeal cannot be refused. There is no right to appeal. This is an applica-~ tion for special leave to appeal, which their Lordships have no difficulty in advising His Majesty to refuse. The foundation upon which Counsel for the Petitioner has proceeded is a totally inaccurate analogy between the pro- ceedings of a Military Court sitting under what is called the Mutiny Act, and proceedings which are not constituted according to any system of law at all. It is by this time a very familiar observation that what is called ‘ martial law ’ is no law at all. The notion that ‘ martial law ’ exists by reason of the Proclamation—an expression which the learned Counsel has more than once used—is an entire delusion. The right to administer force against force in actual war does not depend upon the Proclamation of martial law at all. It depends upon the question whether there is war or not. If there is war, there is the right to repel force by force, but it is found convenient and decorous, from time to time, to authorize what are called ‘ Courts’ to administer punish- ments, and to restrain by acts of repression the violence that is committed in time of war, instead of leaving such punish- ment and repression to the casual action of persons acting without sufficient consultation, or without sufficient order or regularity in the procedure in which things alleged to have been done are proved. But to attempt to make these proceedings of so-called * Courts-Martial ’, administering sum- mary justice under the supervision of a military commander, analogous to the regular proceedings of Courts of Justice is quite illusory.* Such acts of justice are justified by necessity, by the fact of actual war; and that they are so justified under the circumstances is a fact that it is no longer necessary to insist upon, because it has been over and over again so de- cided by Courts as to whose authority there can be no doubt. But the question whether war existed or not may, of course, from time to time be a question of doubt, and if that had been the question in this case, it is possible that some of the observations of the learned Counsel with regard to the period of trial, and the course that has been pursued, might have required consideration. But no such question arises here. An Act of Parliament has been passed in Natal which in * So in the case of the twelve Natal natives sentenced by order of a court martial in 1906 the Judicial Committee declined to interfere, partly on the ground of lack of jurisdiction—no application having been made to a court below—-and partly for lack of knowledge: see Parl, Pap., Cd. 2927, p. 9. 1279

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