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