5 
 
 NATIONAL REFORM UNION PAMPHLETS. 
 
 334 
 
 THE ILLEGALITY 
 
 OF 
 
 MARTIAL LAW 
 
 IN 
 
 CAPE COLONY. 
 
 A Speech delivered by the 
 
 RIGHT HON. LORD ,COLERIDGE 
 
 Tx TIIK HOI-SK OF LORDS ox MARCH 17th, 1902. 
 
 Reprinted by permission of Messrs. Wyman & Sons, from 
 thr Parliamentary Debates." 
 
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 The Illegality of Martial Law 
 
 ^ in Cape Colony. 
 
 In the House of Lords, on March 17th, LORD SPENCER moved 
 that an humble Address be presented to His Majesty for papers 
 referring to the exercise of Martial Law by the officers of 
 His Majesty's Military Forces in Cape Colony or in Natal over 
 civilian subjects of His Majesty, including returns of : 
 
 (1) The number of cases of civilian subjects of His Majesty 
 tried by court-martial in the Cape Colony and Natal. 
 
 (2) The number of members constituting each court, with 
 their military rank, and stating what number (if any) 
 were civilians. 
 
 (3) The places where the courts sat. 
 
 (4) The sentences passed by the courts. 
 
 (5) Any alterations of the sentences made by the Executive. 
 
 In supporting the motion, LORD COLERIDGE spoke as 
 follows : 
 
 My Lords, I desire to associate myself with the motion 
 of the noble Earl, upon which, happily, no question of the war, 
 and no question as to the mode in which military operations 
 are being conducted, can arise. I shall limit myself strictly 
 to the character and application of Martial Law to British subjects 
 at the Cape. I distinguish that from military law, because, where 
 persons are subject to military law, they voluntarily give up 
 a great many of their rights as citizens. Martial law may be 
 imposed by legislative enactment, and if it is, it is by that enact- 
 ment that it gets its legal sanction. But the Constitution of the 
 Cape is at present suspended, and Martial Law is being applied 
 by the mere fiat of the Executive. As such it is unknown to the 
 Constitution, and is, in fact, a state of no-law. It is prohibited 
 by all the great statutes which preserve English liberty ; it 
 is prohibited by Magna Charta, by the Petition of Right, and
 
 4 
 
 by the Act of Settlement. Every year we pass the Army Annual 
 Act, in which the imposition of martial law upon civilians is 
 expressly prohibited prohibited, it is true, in time of peace. 
 Martial law is the supercession or abrogation of the ordinary 
 criminal and civil jurisdiction. It is a violation of the Constitution. 
 Under it, persons may be apprehended without warrant ; they 
 may be arrested without any charge being preferred against 
 them ; they may be kept in prison for an indefinite time without 
 being tried ; they may be deprived of the right of trial by jury 
 or trial before a civil magistrate ; they may ask in vain even 
 for legal assistance, or for the protection of the laws of evidence ; 
 they may have their homes searched, their property confiscated, 
 and their lives taken. No wonder it is a violation of the Constitu- 
 tion, for it is the embodiment of pure force, the imposition of 
 the mere will or whim of the military officer, and it is a denial 
 to the subject of every civil right and remedy. It is a tremendous 
 power to put into the hands of any human agency , even if it were 
 applied in the most peaceful times and by the most judicial 
 and experienced men. But applied in times of public excite- 
 ment by men of one party to men of another, applied by men 
 of one race to men of another race, and applied by men not 
 j udicial and experienced, the danger to life and liberty is increased 
 from something like a risk to something like a certainty. How, 
 then, does this law come into being ? It comes into 
 force only by necessity to take the place of the ordinary 
 law when the King's Writ cannot run, and when the 
 ordinary law is inefficacious. Then, and then only, does the 
 necessity arise, which is the only justification for the imposition 
 of Martial Law. We have had three great rebellions in this 
 country since the well-known definition of Martial Law by our 
 great authorities. We had the Monmouth rebellion in 1695, 
 and the two Jacobite risings in 1715 and 1745, but no attempt was 
 made on any one of these occasions to deliver over the rebels 
 for trial by Martial Law. In 1780, at the time of the Lord George 
 Gordon riots, when London was given over to sack and pillage,
 
 the mere rumour that the criminals were to be tried by Martial 
 
 Law produced an indignant remonstrance on the part of the 
 
 Executive of the day, and a Proclamation declaring that 
 
 the persons inculpated would be tried by the ordinary law of 
 
 the land. At the time of the Irish rebellion, the superiority of the 
 
 civil law was asserted by the Chief Justice of Ireland. In 1824 
 
 Sir James Mackintosh, a high authority, used these words : 
 
 " The only principle on which the law of England tolerates 
 
 what is called Martial Law is necessity ; its introduction 
 
 can only be justified by necessity. When foreign invasion 
 
 or civil war renders it impossible for the Courts of Law 
 
 to sit or to enforce the execution of their judgments, 
 
 it becomes necessary to find some rude substitute for them. 
 
 As soon as the law can act, every other mode of punishing 
 
 a supposed crime is in itself an enormous crime." 
 
 In the year 1838 the Law Officers of the day afterwards Lord 
 Campbell and Lord Cranworth gave this advice to the Govern- 
 ment : 
 
 " When the regular courts are open, so that criminals might 
 be delivered over to them to be dealt with according to 
 law, there is not, as we conceive, any right in the Crown 
 to adopt any other course of procedure." 
 
 In 1861 that doctrine was emphasised by Chief Justice Taney 
 of the Supreme Court of the United States, acting on legal 
 precedent. In 1867 Lord Chief Justice Cockburn, Lord Black- 
 burn, and others were of the same opinion ; and only a few days 
 ago Chief Baron Palles in Ireland said : 
 
 " He could not take upon himself the responsibility of laying 
 down such a law as that, if there was a rebellion in any 
 part of the country, the whole population of the country 
 was to be subjected to the licence of officers and the 
 forces of the Crown. It might be done; but, if so, it 
 would be done by some court of which he did not form 
 a part."
 
 Assuming that I am correct in saying that Martial Law arises 
 from necessity, and necessity alone, the test -of necessity is 
 whether the ordinary law is efficacious. What has been done 
 at the Cape ? Martial law has been proclaimed throughout 
 the whole of Cape Colony. No lawyer in or out of this House 
 will suggest that that proclamation carries with it any legal 
 sanction. The foreign idea of a state of siege is happily unknown 
 to our Constitution. To declare otherwise would give the 
 Executive power at will to suspend at once all civil liberty. 
 As I say, Martial Law has been proclaimed throughout the whole 
 of Cape Colony. It has been proclaimed over districts where 
 no rebellion has ever taken place, where no shot has ever been 
 fired, where no military operation has ever been conducted 
 and, moreover, where the courts have been regularly sitting and 
 enforcing the ordinary law of the land. Civilians have been 
 snatched away from the jurisdiction of the ordinary courts, 
 imprisoned without trial, or tried before courts martial. At 
 Kimberley and at Oudsthoorn, Supreme Court judges were 
 sitting at Assizes, and military officers were sitting at courts 
 martial at the same time and in the same place. The civil 
 courts are powerless where the military authorities illegally 
 defy them. I would cite the case of a Dr.Reinecke,who was arrested 
 on August 27th by an order of the Commandant. He was carried 
 off to Malmesbury and imprisoned for three weeks without any 
 charge being preferred. On September 18th he was charged 
 with a breach of a Martial Law regulation, no evidence being 
 given against him. At that time the Circuit Court was sitting 
 at Malmesbury, and Chief Justice Buchanan, in answer to an 
 application for his habeas corpus, ordered him to be released. 
 But the instant he was released he was re-arrested by the military 
 authorities and hustled off elsewhere, and for aught I know 
 this doctor may be under arrest still. It may be said that that 
 is a proof that the ordinary tribunals cannot enforce their orders i 
 that the law is, in fact, in abeyance, and that the necessary requi- 
 sites of Martial Law prevail. But the military authorities cannot 
 be allowed to plead their own high-handed action as a proof 
 that the ordinary law is suspended. Our forefathers took a 
 very serious view of these things, because, in the reign of Charles 
 II., by an Act of 1679, any person recommitting to prison any 
 one who was released on his habeas corpus rendered himself 
 liable to a fine of at least 500 to the man whom he had deprived 
 of his liberty. During last year the Supreme Courts were sitting 
 regularly at Cape Town, Kimberley, and Grahamstown, and 
 there have been no substantial commandoes in the whole of 
 Cape Colony since February, 1901;
 
 UC SOUTHERN REGIONAL LIBRARY FACILITY 
 
 The noble Earl has referred to some wise, humane, and, I 
 think, legal regulations issued by Lord Carnarvon in 1867. 
 Those regulations were alluded to by Sir M. Hicks-Beach in 
 1878, and were recommended by him in a Circular to all the 
 Governors of the Colonies. They come, therefore, with the sanc- 
 tion, presumably in the first instance of the Law Officers of the 
 Crown, and, secondly, of two successive Secretaries of State 
 for the Colonies. What do those regulations enjoin ? Three 
 points stand out clearly. In the first place, it is laid down that 
 nothing short of unavoidable necessity should justify the infliction 
 of capital punishment on the authority of only three officers. 
 That regulation, I believe, has been generally disregarded. 
 In the second place, they recommend that care should be taken 
 to afford persons every reasonable facility of making their 
 defence. But over and over again prisoners have been refused 
 leave by the military authorities to consult their legal advisers. 
 Thirdly, the regulations laid down that, as the sentences of a 
 court martial may not avail beyond the term of Martial Law, 
 no sentences of imprisonment or penal servitude beyond that 
 term should be awarded. The noble Earl has recapitulated 
 the terrible list of executions and sentences of penal servitude 
 for life and for other various terms. I would ask the Govern- 
 ment whether these regulations have been shown to the authorities 
 at the Cape, and, if not, why not ? If they have, why have they 
 been neglected ? When I reflect on the excitement of public 
 feeling, the non-judicial and inexperienced character of the tri- 
 bunal, the frequent refusal to allow prisoners legal assistance, 
 the difficulty of obtaining witnesses for the defence, the difficulty 
 of language, the unreliability of native testimony when I 
 reflect on these things, I am perforce filled with grave misgivings 
 as to the justice of many of the sentences. It may be said that 
 a Bill of Indemnity may give legal sanction to these sentences; 
 but if so, what is the precedent ? All Bills of Indemnity that 
 have ever been passed have only indemnified the authors of 
 the sentences from legal action at the hands of those whom 
 they have sentenced ; never has an Act of Parliament sanctioned 
 any sentence of a court martial which has endured beyond the 
 period of Martial Law. If your Lordships are to sanction these 
 sentences, you will have to do it by Act of Parliament, and you 
 will be setting a bad precedent in English history. When Martial 
 Law is over, by the law of England every prisoner under Martial 
 Law is entitled to be instantly released. To justify detention 
 there must be legislative enactments, which shall sanction the 
 sentences that have been passed. Then why permit these 
 sentences to be imposed ? I know you cannot bring the (I';i<i
 
 to life, but you can, at any rate, refrain from approving of 
 sentences which, if you follow legal precedent, can never ulti- 
 mately be carried int(/ legal effect. In July last, ten men, all 
 under thirty years of age, were sent for penal servitude for life 
 to Bermuda. I ask whatever noble Lord it is who will reply to 
 this Motion a question which I hope he will answer. By what 
 legal justification do the authorities at Bermuda detain any one of 
 those prisoners by a single hour ? I hope the noble Lord will 
 not forget that question, and will give me such answer as he is 
 instructed to give. We have sent men under sentence of death 
 from the place where they were condemned to be executed 
 in districts where their relatives and friends live. The onlv 
 precedent I can find in English history for such conduct is the 
 precedent of Judge Jeffreys at the Bloody Assizes, and I trust 
 that that is not a precedent which His Majesty's Government 
 are anxious to follow. 
 
 But the worst remains. We have ordered the friends and 
 relatives and compatriots of the condemned men to attend their 
 dying moments. Will any noble Lord in this House get up and jus- 
 tify that, or recommend a repetition of such conduct ? I trust 
 for the honour of this House that no noble Lord will respond to that 
 appeal. On one occasion, at one of these compulsory attendances, 
 the Commandant stepped forward and thought it decent to call 
 for three cheers for the King. Our late Queen, " clarum et 
 venerabile nomen," by her personality and character was justly 
 beloved by her Dutch subjects in South Africa. Do you think 
 that this is the way to endear the King to the hearts of his Dutch 
 subjects ? It is said, " Oh, but these men are disloyal." Dis- 
 loyal to what ? What is loyalty ? Loyalty is respect for 
 and obedience to the law. You have no right to call men disloyal 
 when you have taken away from them the object of their venera- 
 tion. We call ourselves loyal. Let us then be scrupulous in 
 our observance of the law. Let us obey the wisdom, the humanity, 
 and the legality of Lord Carnarvon's regulations. Let us remove 
 from those districts where the civil law holds supreme sway the iron 
 and capricious hand of Martial Law. Remember the character 
 of the race with which you have to deal. They are a race, large, 
 slow, still ; a race easy to manage, difficult to rouse, but when 
 once roused, indomitable and not to be appeased. It may be 
 too late ; I hope it is not. But if you follow the policy which 
 I have indicated, you will, at any rate, do more to quell dis- 
 affection than can be done by all the harrying under Martial 
 Law, all the fines and imprisonment, all the hangings and shootings, 
 all the marches and counter marches of innumerable troops orei 
 the broad face of Cape Colony