282 THE EXECUTIVE GOVERNMENT [PART I
received favourable consideration by the Court. A further
attempt was made to bring an appeal from the decision
of the Supreme Court of Natal cited above, and the Privy
Council naturally held that the Act of Indemnity was
conclusive, and to mark their disapproval of bringing the
case again in this form condemned the appellant to pay
the costs of the Attorney-General of Natal! From these
cases it appears, therefore, fairly certain that the civil Courts
still retain power to inquire whether war is raging, but that
if they find war is raging they must not exercise their juris-
diction in any matter where the existence of war is urged as
a reason for barring their action. This of course leaves them
free to take whatever action is necessary when the war is
over, and the consciousness of this state of affairs evidently
weighed with the Government of Natal in declining to
withdraw martial law until after the Indemnity Act had
received the royal assent. It cannot be said that the situa-
tion is very satisfactory, and it may be added that no case
has yet disposed of the clear difficulty that a Governor or
other officer who takes steps under martial law may be tried
in England either under the statutes of 1699 and 1802, or
under the Offences Against the Person Act, 1861, s. 9 of
which renders justiciable in the United Kingdom offences
of murder or manslaughter wherever committed by a British
subject. Fortunately, it seems clear that this enactment does
not give power to demand action under the Fugitive Offen-
ders Act, 1881, but it is clear also that an act of indemnity
could not be pleaded in bar of an Imperial statute, and there
is some force in the protest that was made by the New Zealand
Ministry and Governor in 1869, that the position of a
Governor acting on the advice of his responsible ministers
in such a case would be unsatisfactory and abnormal.?
' [1907] A. C. 461.
* Bee Parl. Pap., H. C. 307, 1869, p. 400; C. 83, pp. 33, 191. The
Imperial Government disposed of the matter somewhat lightly by thinking
that the case of Eyre showed that an indemnity act barred action in
England. But that applied only to civil liability, not to criminal liability,
and Eyre’s law costs were very heavy, and had to be defrayed by a
committee of supporters.
