HL Deb 24 April 1902 vol 106 cc1149-63

My Lords, I beg leave to ask His Majesty's Government the Questions standing in my name—viz.: Whether at any time during the war military operations have taken place, either in the Cape Peninsular, or in the districts of Port Elizabeth or East London, or within an area of fifty miles from the coast at any point for upward of 600 miles between Cape Town and the border of Natal; if so, at what point or points, what forces were engaged, and what casualties, if any, resulted; whether at any time since March, 1901, the Supreme Court has not held its sittings without any interruption both at Cape Town and Grahamstown; and whether, with the exception of the towns on the Northern Circuit, the judges of assize have not held Courts in most of the twenty other circuit towns; and whether any difficulty has been found in executing the process of these Courts in the districts subject to their jurisdiction; and, if so, when and where, on what occasions, and in what towns. I do not wish to raise again the contentions which were urged on this side of the House in the last discussion on the subject of the application of martial law.† I said on that occasion that in certain large districts in Cape Colony the state of things existed which I indicate in my Questions. The noble and learned Earl the Lord Chancellor challenged my statement, though I do not think he contradicted it.


I asked upon what authority the noble Lord made that statement, but I received no reply.


The noble and learned Earl is quite right. He challenged my statement, but he did not contradict it. I now place on the Paper the districts to which I alluded; I specify them and define them; and I urge, with regard to those districts, that to impose martial law without Parliamentary sanction and by the mere fiat of the Executive was an illegal act. The noble and learned Earl, in combating the arguments addressed from this side of the House and in justifying the imposition of martial law in such †See preceding volume, p. 123. districts, even if they were in the state which I allege, set forth a certain doctrine which was new and surprising to myself, and which, pushed to its logical extremity, would seem to go the length of saying that, if we were at war somewhere, the Executive, without Parliamentary sanction, might impose martial law anywhere. That is a doctrine in which, if I may say so with all modesty, I cannot concur; and I have in my favour the opinion of Lord Davey—a high legal authority—who stated emphatically the other evening that he could not assent to any such doctrine. I also alluded to certain Regulations with regard to the application of martial law which bore the sanction of two successive Secretaries of State for the Colonies and the Law Officers of the Crown, and I said that those Regulations had been sent to all the Colonial Governors as the final mind of the Government of the day upon the application of martial law.


Has the noble Lord the document in which the statement was included that the Regulations represented the final mind of the British Government?


The heading of the Rules which I hold in my hand is as follows: "Proposed Rules to be introduced on the subject of martial law into the Colonial Regulations." I understand that they were so introduced, and I think they may, therefore, be correctly described as representing the mind of the Government of the day. Those Regulations lay down the principle that the Governor should not proclaim martial law unless he is satisfied that there are men in armed resistance to the authority of the Crown; that such armed resistance cannot be dealt with by the Military acting merely in aid of the civil power in the ordinary manner; that such armed resistance cannot be promptly and effectually suppressed otherwise than, by subjecting the inhabitants of the disturbed district to direct military control, and by inflicting summary punishments; on offenders against the peace. It would appear, although I cannot state it as a; fact, that those Regulations, containing the stipulations which I have read to the House, were, in fact, conveyed to Lord Milner, and that in the year 1900 he expressed his concurrence in them. There is an allusion in a letter by Mr. Schreiner, the then Cape Prime Minister, to a certain Circular Despatch from the Colonial Office, which I interpret to mean the Despatch containing the words I have quoted. If I am wrong, I can easily be contradicted. If that be the case, these Colonial Regulations in regard to martial law were before the Ministers at the Cape, were approved of by them, and were further approved of in the year 1900 by Lord Milner. More than that, on November 28th, 1899, Mr. Schreiner, in a Minute to Lord Milner, said:— Ministers beg specially to draw the attention of his Excellency to the great importance, from the legal and other points of view, of handing over prisoners arrested by the military authorities to the civil authorities, to be dealt with by the ordinary procedure in conformity with law. In a Report, dated November 25th, 1899, which was transmitted to Lord Milner, Sir Richard Solomon (Attorney General at the Cape) said— I think it right to point out the grave complications which may arise if, in districts where martial law has been proclaimed, persons charged with the commission of serious crimes should be tried before courts-martial while the Civil Courts are still open. Martial law has been proclaimed on grounds of necessity. I have very little doubt, however, that such a proclamation cannot be justified on legal grounds. There is no statute authorising such proclamation, and the prerogative of the Crown, under which it may probably be proclaimed when necessity requires it, has not been delegated to the Governor in his commission. It is because I have such serious doubts as to the legality of the proclamation of martial law in this colony that I am exceedingly anxious that nothing should be done by the military authorities, under cloak of such a proclamation, which will provoke an application to the Supreme Court, whereby such proclamation might be declared null and void. It may often be absolutely necessary for the safety of the country and for the suppression of rebellion to arrest persons suspected of crimes without the authority of a warrant obtained in the usual way. This is one of the reasons for the proclamation of martial law. I do strongly hold, however, that persons so arrested should be handed over to the civil authorities to be dealt with by them by the ordinary civil procedure. The object of martial law is not to obtain convictions against persons on mere suspicion or on "violence which would not be recognised as sufficient in Civil Courts of Justice. It is therefore, highly desirable that as long as the Civil Courts are open all persons arrested by the military for the commission of crimes against the laws of the land should be handed over to the magistrates to be dealt with by them. Again, on November 27th, 1899, dealing with some instructions issued by General Buller to the magistrates with regard to martial law, Sir Richard Solomon stated that— The establishment of special Courts for the trial of civilians for the offences specified in General Bullet's instructions would be contrary to the law of the land, and the sentences of such Courts would, strictly, be illegal, and would have to be legalised by an Act of Indemnity. Paramount necessity may require the establishment of such Courts when the Civil Courts are closed, and the safety of the country demands the prompt trial and punishment of persons arrested for offences, and in such cases it is right that such Courts should be established. Where, however, the Civil Courts are open for the trial of offenders, I must again point out how necessary it is that persons arrested by the military authorities should be tried in the ordinary way by duly constituted Courts. The fact that the sentences of courts-martial established on the grounds of paramount necessity are illegal is an additional reason for my earnest desire to have all peasons, where possible, tried by legally established Courts. I apologise for the length of the extracts I have read, but they are quotations hardly one word of which could be omitted. Sir Richard Solomon, who put this forward as his interpretation of the law, is a person of no mean importance. Since writing this declaration he has been appointed to a high office in the newly-annexed territories, and he is at present the legal adviser to Lord Milner. Now, I have two or three very simple questions to ask the Government. Were Lord Carnarvon's Regulations brought to the attention of Lord Milner? Did Lord Milner and the constitutional legal advisers at that time approve of them? If they approved of them, why have they not been observed? Further, I should like to know whether the Government do or do not agree with the law as expounded by 'Sir Richard Solomon, their own legal adviser to their own constituted authority. I submit that the opinion of Sir Richard Solomon is worthy of high regard, and that it is being daily and hourly violated in the territories defined in my Question. I think, therefore, that I am justified on all grounds in calling the attention of the House to this state of things, with a view, if possible, to its being altered or mitigated. I am well aware that it may be said that this is an inopportune moment to bring forward this question. If I thought that the ventilation of a matter of this supreme importance could militate in the smallest degree against the success of the negotiations for peace, I should be the last to allude to it. I cannot see myself how the application of martial law to territory far removed from the seat of war can possibly affect any negotiations that may be passing between the combatants; but, on the other hand, I believe that martial law applied in this way constitutes a very real and solid obstacle to the success of the peace negotiations. The application of martial law—martial law as it is now applied—is leading every day to the steady manufacture of recruits for the enemy, and I am not without hope that the discussion of the subject may induce the Government to cease to impose martial law in those districts—and I am not alluding to any other districts—where it can come into conflict with the ordinary law. To my mind, the truest advocate for peace is the man who would urge the Government to mitigate, if not to remove, that which is, in my judgment, both illegal and disastrous to the welfare of the colony.


My Lords, since I have had the honour of a seat in your Lordships' House, I have intervened but very rarely in your debates. If this were an ordinary political question, or a subject connected with party politics, holding my present office, I should abstain from intervention in this debate; but after careful reflection on the earlier speech made by the noble and learned Lord, the report of which I have read, and having regard to what he has said today, I ask permission to say a few words with reference to the matter. The question raised is a vital one, and it is closely connected with some of the most important interests of the Empire and the duties of the Executive. I had the privilege for twelve years to be the adviser of Her late Majesty's Government in the position of Attorney General, and during that time it was my duty to make myself acquainted with this question, not merely by reading a few passages from text-books or from speeches, but by endeavouring to get to the bottom of the matter and its principle. It is because I think the observations of my noble and learned friend on the last occasion and today would lead to serious misunderstandings of what the true and proper view of martial law is, and what are the true principles which the Executive should consider in relation to it, that I feel impelled to address your Lordships.

Let me go back to the principle of this matter. My complaint of the speech made by my noble and learned friend on the last occasion is that he overlooks altogether as many persons who speak on this subject have overlooked, the fundamental distinction in the difference between military law and martial law. On the last occasion I noticed that my noble and learned friend quoted Coke, who said that when the Courts were open martial law cannot be executed. If any one takes the trouble to read carefully the discussion which took place at the time these words were used, he will find that Hale, Comyn, Coke, and others cited by the noble lord were speaking of military law as applied to soldiers, and of the attempt of the Crown to enforce military law in time of peace on civilians. At no stage in the discussions in Parliament on the Petition of Right did any question arise as to the duty of the Executive when there was a state of war, or when the kingdom was in danger. The fundamental objection I take to my noble friend's question and the arguments he used is that his statements and arguments are only consistent and reconcilable with the position that he was speaking, or should have been speaking, of military law as distinguished from martial law. At the time of the discussions on the Petition of Light, as many writers have pointed out, no question of martial law properly so called arose. The martial law which had then to be discussed was the old law of the "marshall," and had nothing to do with martial law properly so called, although the two names have often been confused. All those who were then striving to protect the interests of the people were protesting against the Crown in times of peace trying civilians by a military tribunal as distinguished from the ordinary Civil Courts; and it was from that point of view Hale and Coke spoke.

Side by side with this military law now embodied in the Mutiny Acts, by which soldiers are governed in times of peace and war by the military codes, there was martial law as we are dealing with it today, and as recognised by Hale and Coke, and by the great writers who have written on the subject. What is that? That is the law by which it is the paramount duty of the Executive to do what is necessary to defend the Commonwealth against the King's enemies. That is the root and foundation of martial law. The martial law founded on necessity arises solely from the duty of the Executive and the Government of the day to protect His Majesty's dominions. Vice-Chancellor Kent says— Martial law is quite different from ordinary military law; it is justified by paramount necessity and proclaimed by a military chief. I could quote many other passages which show how clearly he appreciated the distinction. The acts must be acts done by necessity for the defence of the Commonwealth where there is war within the realm. These are the justifications of martial law—the safety of British possessions and the security of British lives and property. The whole question is—Is there such a state of war or rebellion that it cannot be put down by the civil authority, or by the military authorities acting under the orders of the civil authorities? I should not detain your Lordships on this part of the subject, but for the extraordinary arguments used on former occasions and repeated on the present occasion. The distinction has been pointed out by the great American writers; it was explained by Lord Brougham in the great Demarara debates, it has been written on by Professor Dicey, by Finlason, and by one of the most philosophic lawyers of the present day, Sir Frederick Pollock; and therefore I submit that, unless my noble and learned friend is able to show that his demands are consistent with martial law as I have ventured to explain it, great mischief lurks in his question. I am speaking, of course, of martial law in the sense to which I have referred—namely, that law which it is the duty of the Executive to establish for the protection of the kingdom. What does my noble and learned friend say? He says that because in some parts of a territory, however large, the Courts may be open, there cannot be martial law in the sense I have indicated. He endeavours to drive those who hold my view into maintaining the position that if there is war somewhere, there might be martial law anywhere. There cannot be a greater travesty of the arguments I am supporting; because the foundation of martial law is necessity, and the limits of what the Executive may do under Martial Law is limited by that necessity. They have not the abstract or absolute right of suddenly saying that the Courts shall not sit. But at the same time they are bound to do everything in their power to maintain the safety of the Empire, and to protect the whole Empire against the King's enemies. This is no duty of the Government different from the duty of private individuals, except in degree. The mayors of towns and other responsible authorities, if riot and rebellion take place, have the duty to enforce a kind of martial law; and there is only a greater and paramount duty on the Government not to hesitate or falter in the matter, but, if the necessity demands it to declare martial law and put it in force.

My noble and learned friend suggested that, because the Courts are open in some places, there can be no martial law within the jurisdiction of these Courts. There is the highest authority for saying that for many years those who have had the responsibility of advising the Crown have taken a different view. I would appeal to the opinion of Sir Robert Henley and the hon. Charles Yorke, Attorney General and Solicitor General—no mean authorities—and I refer to them only because the opinion was delivered 150 years ago. In 1757, in dealing with this question, they used these words, directly negativing the main proposition of my noble and learned friend— By proclamation of martial law the ordinary course of law and justice is not suspended or stopped any farther than is absolutely necessary to answer the then military service of the public and the exigencies of the province. I am expressing my own opinion, formed as the result of the study of many writings and speeches on this subject; and I say that if the Executive, when they proclaim martial law, unnecessarily put an end to the jurisdiction of the Civil Courts, they are exceeding their authority. The mere fact of the sitting of a Court in this or that district cannot have any bearing on the question under discussion. We are not in the same position in the point of view of communications as we were 250 years ago. Have telegraphs and railways made no difference? Such an area as the noble and learned Lord referred to must comprise many thousands of square miles. May there not be going on in that district action aimed at the Government and British dominion, even though the Court may be sitting in the very town where that action is going on? To limit, or attempt to limit, the authority, duty, and responsibility of the Executive, and to enable the Executive to shift that responsibility on to the shoulders of the Civil Courts, would be to invite them to abandon their responsibility and to decline their duties.

What is the real necessity for martial law? It is the presence of the King's enemies, public or secret. You may have enemies working effectively against you, although there is no armed force within 200 miles. A military commander may get information which it is quite impossible for him to publish, and his paramount duty may be to take action in consequence is he to go to the Courts and ask for an injunction or a mandamus, when the man is at that moment sending information to the enemy or taking action which may in a few days develop into a crisis? Is the military authority to wait, and not to act until the Civil Court has given authority? The result of that would be that the responsibility which now rests with the Executive under martial law would not rest with them, but with the civil tribunals. Therefore, my noble and learned friend; whose opinion I value, by asking whether the Courts are sitting here and there, and by endeavouring to show that the Government have been guilty of illegal acts, and that the Executive have had no right to proclaim martial law is approaching the question in the wrong way. Let him, if he can, argue that there has been no necessity for martial law at all. But I protest against its being stated by lawyers that the Government are powerless to take the necessary steps to protect the Empire and any part of the dominions of the King because in this or that part, linked though the parts are by telegraph and the present means of communication, there may be a Court sitting. The Executive are bound to do what is necessary. The action of officers in proclaiming martial law may afterwards be tried in the Civil Courts, and, unless it can be shown that the officers acted bona fide, they may be and have been mulcted in damages. I will not discuss the difficult question as to how far the necessity of the act could be inquired into, but it is perfectly plain that on the question of bona fides, the act may be challenged. The justification of what is done under martial law does not rest on the fact that the acts, illegal in themselves, will afterwards be justified by an act of indemnity. The justification rests on the necessity of the action, and that is judged by circumstances which can generally only be known to the Government of the day if, in such a discussion as this, the idea is to be supported that Governors of colonies and others can only act with the permission of the Civil Courts, there is an end to anything like responsibility or effective action on the part of the Executive. I do not know in the least what the answer of the Government may be; but if as was stated in one of the discussions, these Courts were sitting at the request of the Executive, it is in accordance with procedent. If the Commander-in-Chief has, in cases in which it was considered desirable, craved in aid the Civil Courts, the state of things would be exactly the same as has been found in a great many cases in which martial law has been established without question.

I hope I have at any rate made my own opinion plain. My view is that, keeping clear of all questions of military law, keeping clear of all questions as to what might be done in times of peace, there is a paramount and existing duty and authority of the Executive to put in force martial law as we understand it for the protection of the colony; and if on consideration my noble and learned friend feels that I have at any rate pointed out to him some grounds for thinking that the distinction that he has drawn is not well-founded, and that he could only use the argument he used in your Lordships' House some five weeks ago by for the moment forgetting the point of view from which the learned writers to whom he referred were speaking—if, as I have said, there exists this duty and this responsibility, will it not also occur to him that very great harm may be done to those who are responsible by such debates as these? Here are men acting 7,000 miles away; they ought not to wish to act under the direct instruction of anybody at home; if they do they neglect their duty. The responsibility is theirs; we ought not to increase the burden of their responsibility; and I do respectfully submit to your Lordships that if the state of things in the Cape Colony was such as I have no doubt it was, although I have no information beyond what I have seen; in the public papers, that proclamation of martial law was justified. If for the safety of the Empire and the safety of the colony it was necessary that martial law should be enforced, that arrests should take place, that houses should be entered without legal authority, then I do respectfully submit to my noble and learned friend that the fact that a Court was sitting in this place or that place and discharging its duty is immaterial, and to raise the suggestion that there cannot be martial law because Courts are sitting is to lose sight of the principles upon which alone martial law is justified, and to put responsibility upon the shoulders of those who ought not to bear it.


My Lords, as Cape Town, Port Elizabeth, and East London have been from the commencement of the War bases of the British Army in South Africa, they have been continually the scenes of military operations since war was declared.


By military operations I do not mean merely the moving of troops from place to place, but military operations of an active character which might possibly have involved casualties.


It would entail much reference to Lord Kitchener and much work on the Staff in South Africa to draw up a detailed and full Report of all the collisions with the enemy which have taken place within the area of 30,000 square miles as to which the noble Lord asks for information. No general action of magnitude has taken place within that area, but it may be said that there has been a large amount of fighting over the greater proportion of it. In most cases this fighting has consisted chiefly of collisions between hostile patrols, and it would be extremely difficult to give exact numbers as to the force engaged on either side or the actual casualties. Six hundred miles of coast line could not be adequately protected from constant importation of arms and ammunition without the application of military force, and as a matter of fact it was found that large amounts, both of arms and ammunition, were being landed and supplied to the King's enemies. Supposing it was true that no conflicts whatever had taken place within that area of 30,000 square miles, it would only prove that His Majesty's forces were sufficient to prevent any such supplies being given to the enemy; and the Return moved for by the noble and learned Lord would be entirely misleading if the inference were drawn from it that there was, therefore, no occasion whatever for the imposition of martial law in these districts. My answer will cover the noble and learned Lord's last question, and I merely give that answer in illustration of the difficulty of replying to questions at such a distance, put by those who are not acquainted with the military situation.


My noble friend has explained the difficulties which exist in making a Return, and I wish in a few words to state the somewhat broader grounds of objection to this Motion entertained by His Majesty's Government. I hope I may ask my noble and learned friend in what sense he has moved this Motion. If it is academic, it is useless; if it is practical, it is dangerous and mischievous. His Majesty's Government are unwilling that those who are absent should suppose that the Government at home are not mindful of the necessity of protecting them from attack, I am not for one moment about to throw responsibility upon those who constitutionally represent the Government of the Cape Colony. It is unnecessary to do so, and that is what I wish to avoid. I know not against whom my noble and learned friend makes this attack. I hope he makes it against His Majesty is Government only and it is sufficient for me now to say that the Government believe that the steps which have been taken were necessary, legal, and wisely taken, and desire to accept the full responsibility for what has occurred. That being so, let me point out to my noble and learned friend that the position he has taken up in regard to the imposition of this law is not quite accurate in point of fact. He asked— Have you sent out to the Cape Colony the instructions which Lord Carnarvon gave twenty-five years ago in relation to martial law? His Majesty's Government have not sent them out, and if they had, I think they would have been guilty of a serious act of unconstitional interference. Those instructions were sent out to Crown colonies. Why should we tell the Government of the Cape Colony how they should act under constitutional government? They have there a Ministry representing the rights of the people in that colony as much as His Majesty's Government represent the rights of the people here, and, as a fact, they were most watchful of the interests of the civilian population, and jealous of any unconstitutional dealing with them in the exercise of martial law.

My noble friend has quoted proceedings which took place in 1899. Soon after the outbreak of the war the Attorney General of the Cape Colony pointed out that the exercise of martial law would interfere with civil rights. He was acting then as the defender of the civilian population. But time went on, and unfortunately the Cape Colony became honeycombed with treason and treachery. There was a state of things existing there which rendered it impossible for His Majesty's soldiers to control the war without the assistance of martial law. Lord Kitchener made that representation. He said he was paralysed in his action by traitors and rebels there, and it was necessary that martial law should be proclaimed. He had to deal with a condition of things which probably no soldier has had to deal with before. There were rebels all round him, not armed forces with distinctive uniforms so that he might know they were hostile forces, but men at the plough one hour and in a few hours with weapons in their hands fighting against us. There were men who passed through the country contraband of war, and there were ships delivering contraband of war on the coasts. What is the noble and learned Lord's suggestion? His suggestion is that Lord Kitchener should have sent to some Court which was sitting for a warrant to enter a farmer's house and search for arms; that he should lay an information before one of the Courts in order to seize contraband of war landed on the coast. The noble and learned Lord contends, as the Lord Chief Justice pointed out, that because at some distant spot a Court was sitting the efforts of our military forces were to be paralysed, and that there was nothing to be done to stop the state of things existing. Lord Kitchener acted as a soldier was bound to act. Nothing was arbitrarily done. When these representations were made, Sir Gordon Sprigg, who had shown himself to be a most constitutional Minister, went to Pretoria. He had an interview with Lord Kitchener, and arrangements were made as to the terms upon which martial law should be proclaimed. Those terms involved the protection of the civil population, and those terms having been effected, martial law was proclaimed. It was not an arbitrary proclamation, but one taken charge of by Sir W. Hely-Hutchinson, the Governor of the Cape Colony. The proclamation was countersigned by his Excellency the Governor and by Sir J. Gordon Sprigg the Prime Minister. He had consented, who had been fighting the battle against martial law as long as the civilian view could prevail. And now the noble Lord says, "Have you sent out Lord Carnarvon's instructions given twenty-five years ago?" There is proof that the civilian element, the Constitutional element, acted with care, inasmuch as they demanded that a Board should be appointed with civilians upon it to hear the complaint of any human being injured by martial law, and to make full compensation to any such person out of the revenues of the colony; and there was a proclamation to that effect by Major-General Kelly.

I am sorry to have detained the House so long, but His Majesty's Government feel strongly on this question. I really am not desirous to come into conflict with my noble friend, but I can assure him that these Motions do no good, and can do, and are doing, a great deal of harm. Are we to tell loyal subjects who have never asked him to represent them that we care not for their protection by martial law, or to tell their enemies that there are people in this country who condemn His Majesty's Government? No doubt the speech of the noble Lord will read better than it has sounded to us. It will sound well in Dutch. It will be read in every camp where our enemies are. They will hope, and believe, that there are friends and allies in this country who are willing to condemn everything done by the British Government, and haw nothing but words of encouragement to give to the enemies of their country.


I understand that I have no right of reply; but I should like to ask the noble and learned Lord if he can tell me what the Colonial Office Despatch was which Lord Milner gave to his Ministers on January 4th, 1900, if it was not Lord Carnavon's circular. May I also ask whether it is not the fact that in the year 1878, that circular was submitted by Sir M. Hicks Beach to the then Governor of Cape Colony, which was not a Crown Colony?


The circular may have been submitted to him for his information; but no instructions have ever been given to a Constitutional Governor as to the way in which he should administer a Constitutional Colony.