§ EARL SPENCER
My Lords, I rise to ask His Majesty's Government whether any special directions have been given, or any regulations have been made, with reference 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; whether a copy of such directions or regulations (if any) will be laid on the Table of the House; whether there is at present any organised armed resistance to the authority of His Majesty's Government in these Colonies, or either of them, which would justify the continued suspension of the action of the ordinary courts of justice or cause any impediment to the resumption by the courts of their ordinary jurisdiction, and to move for the Papers mentioned in my Motion. I shall endeavour not to repeat what I said on the first night of the session on this subject. I observe that the Prime Minister is not in his place, but I hope I shall not misinterpret what he said when this subject was last debated. On that 124 occasion the noble Marquess concluded his; observations with the following sentence—I do not in the least discourage the noble Earl from bringing on this subject, or the Idea of the necessity for the two Houses of Parliament to watch with the most careful jealousy the exercise of powers which, no doubt if unrestrained, might be very dangerous to the liberty of the subject.[The Marquess of SALISBURY here entered the House.] Therefore I think I may claim that I have the noble Marquess's acquiescence in bringing forward the subject. I feel that it is a subject exceedingly difficult to deal with by one who is not a lawyer, but any Englishman who reads constitutional history may be familiar with what martial law is, and why it is viewed with some suspicion and dislike by those who cherish their constitutional rights and privileges as citizens of a popularly governed country. We rely on the common law to protect our rights. I will read one passage from a speech by Mr. John Stuart Mill, which expresses very clearly the views which most Englishmen hold on this great subject. Mr. John Stuart Mill, in a very able speech which he made in the House of Commons in 1867, said—Our opinion was that there is not, properly speaking, as regards non-military persons, such a thing as martial law, and that it has no existence except for military purposes of course, Parliament can give it existence, because Parliament can make any law, however inexpedient or unjust. But the Crown, being only one branch of legislation, cannot do this.With regard to the prerogative of the Crown, which is much disputed and discussed, there is, I know, in every Act of Parliament which deals with this subject a saving clause to protect the Crown whatever the powers of the Crown may be. Mr. John Stuart Mill went on to say—We have thought that, although there was no such thing as martial Jaw, except for military purposes, there was a law of necessity. There may be a public necessity in case of rebellion, requiring that certain acts not justified by the ordinary laws of the country should be done; but these acts should be acts of suppression and not of punishment. Now, a point which has not been noticed, and to which I attach the highest, importance, is this—that in a case of public necessity, as in any analogous case of private necessity, those who act upon it, and do under the supposed necessity that which they would not ordinarily be justified in doing, should be amenable to the laws of their country for so doing.…. When it is said by the right hon. Gentleman the 125 Home Secretary that it is much better that the officers who intend to assume this power, and act on this supposed necessity, should declare beforehand their intention of doing' so, by all means let them do so; but do not let them or any one else think that, by using the term martial law, or by announcing that they mean to make a military tribunal one of the instruments by which they will exercise their power of superseding the law, they will clear themselves from all responsibility.What I propose tonight is to enforce the necessity of some proof of martial law being required, and that it cannot be dispensed with. I feel that very strongly, and also that martial law should be placed under strict conditions to prevent its being exercised with unnecessary harshness. Further, the moment the necessity ceases, martial law should be done away with.
My Lords, martial law has two aspects. First, we may consider it as repressive action, and the other is that it is a substitute for the common tribunals of the country. As to the first, martial law is not necessarily carried out by military men only, but other men may be employed who, under it, have excessive powers. These powers are being exercised over a very large area in South Africa, and it is for His Majesty's Government to give good reasons—we have not yet had public reasons—for what has been done. Moreover, I think they ought to be able to say why these powers are exercised over so large an area, an area which is three times the size of Great Britain. We have heard that inexperienced men or intemperate men, men how have recently been fighting in the same district, have been appointed to administer martial law. I must quote three cases which are well authenticated, and which, I believe, no one can dispute, to show how very serious the interference with constitutional liberty has been at the Cape. There is, first of all, the Maraiscase. That case sets out the law in a way which I regret; but I accept it, and it would be wrong in me to question the law in any way. So far as I understand it, this is a case of a gentleman in business who was arrested, perhaps rightly arrested, under military law, deported 300 miles to another place, and then, so far as I know, detained without any trial. That is a very serious case. There is another case which came under martial law, and which, although I am happy to 126 believe it is now discontinued, was extremely cruel and contrary to our notions of humanity. I allude to the order which was given under martial law that the executions should be witnessed by a considerable number of persons, relatives, and others, in the towns where the executions took place. I deplore that order, and am glad to think it has been withdrawn. Then I must refer to one other case. I understand there are not to be any legal proceedings; if any one in the House says there are to be proceedings, I shall not utter a word more on the subject. Miss Hobhouse went out with a fund at her disposal to visit the concentration camps which then had recently been formed. She administered this fund with great generosity and kindness. On her return she reported the condition in which she found the camps to the Secretary of State, and I believe went to meetings for the purpose of getting additional funds. After a delay—I am afraid too long a delay—vigorous steps were taken to deal with the evils which had been described by Miss Hobhouse and others in their Reports. Miss Hobhouse afterwards went to the Cape again, partly, I understand, to continue her work in the camps, and partly on account of her health, but she was forcibly deported and sent home. I cannot understand the reason of this. There may be some occult reason; but in all these matters we are left in very great ignorance, and we have to pick up our information as best we can. I cannot for the life of me see what great offence Miss Hobhouse committed, and how, if she had been allowed to remain at the Cape when she went there a second time, it could possibly have affected the military operation. I should like to know what are the checks on injudicious commandants and others. I do not for a moment say that these things have been general. I have little doubt that the officers and those who have had to carry out this extremely difficult law have been actuated by high motives; but even high officers very often have not the experience which ordinary magistrates have in the conduct of social affairs. There must have been in the enormous number of officers appointed a certain number who have had a very irritating and bad effect upon the population. I do not know whether inspectors 127 have been going round to all these places. That appears to me to be a thing that ought to have been done. Superior officers should have gone round to sec how these younger and less experienced officers were carrying out their very arduous duties. Then there is the question of the Martial Law Board, which was appointed to investigate complaints, and so on. I should like to know if that Board has worked well, and if complaints have been freely made and carefully inquired into.
I come now to the other side of martial law, which is very much more important than the one to which I have referred. I mean the conditions under which courts-martial are substituted for the ordinary law. What have been the conditions placed on courts-martial in the past? There was the Act of 1799—one of the Acts of the Irish Parliament—which authorised military men to deal with cases, and which left to the Lord Lieutenant of the day the regulation and arrangement of these courts. In 1803, in the Imperial Parliament, Mr. Pitt introduced a somewhat similar measure and passed it. I want to call special attention to the changes made in very important matters in this Act. The 43rd George III., cap. 117, deals with this, and it lays down this condition, that when a Court is to be formed it should consist of commissioned officers of the Line, Militia, or Yeomanry regiments, not less in number than seven, nor more than thirteen. The last sentence of the clause is—Provided that no sentence of death shall be given against any offender by such court-martial unless the judgment shall pass by the concurrence of two-thirds at least of the officers present.That is an important restriction of the Act which had been previously passed. I come to the further fact that when courts-martial were set up in Ireland in 1833, the Act also regulated the number and character of the persons comprising the courts. Clause 14 states that not less than five, nor more than nine officers of His Majesty's Regular forces, shall have authority. The same clause provides also that no officer shall be appointed to serve on any such court-martial who shall not have attained the rank of captain in the Army, or who shall, at or within one month of the holding of the court-martial, have been in the performance of regimental duty within the proclaimed 128 district. It is also provided that no officer below the rank of field officer shall be president of the court. The next clause enacts that—Provided always, and be it further enacted, That whenever the said court-martial shall consist of nine members, then the concurrence of at least seven members of the said court shall be required, and shall be sufficient to give validity and effect to the decisions and acts of such court; and that whenever the said court shall consist of any number of members less than nine, then the concurrence of at least five members of the said court shall be required and shall he sufficient to give validity and effect to the decisions and acts of such court.I have read this because I consider that those are very important qualifications indeed of the constitution of these courts.
I should like also to refer to what Lord Carnarvon did in the year 1867. He laid down very strict regulations as to what should be done with regard to sentences of death; and he said in no case was a court-martial by which a sentence of death was passed to have less than three members, and he also made certain regulations as to power being given to those who were being tried to have free access to their legal advisers. He further laid down that these Courts should not have power to give sentences longer than the probable duration of martial law. Now I want to know whether regulations of this sort have been laid down. They seem to me extremely wise and important regulations, and certainly, as far as I can see they ought to be laid down with regard to courts-martial in South Africa. It may be said, "Why bring this on in the House of Lords? why is this a matter for discussion in Parliament?" I answer that by saying that at this moment there is no Parliament sitting at the Cape. Although I do not say myself that those regulations should be imposed by Act of Parliament, I think there is a great deal to be said for it. But what I referred to does not require an Act of Parliament: for, though no doubt such a course may not be as efficacious, the King's Government has ample power to make any regulations it may choose with regard to the conduct of courts - martial and martial law at this moment in South Africa
As I have said, this second half of the subject deals with matters of life and death. It is very difficult to ascertain 129 what has happened, and that is one of the reasons why I have ventured to put down categorically certain questions, in reply to which I hope his Majesty's Government will give us full information. But, as far as I can make out, a very large number of cases have been dealt with in the last year in Cape Colony—I speak of Cape Colony, because it is less known what has taken place in Natal. During the last ten months of 1901 there have been sent to execution twenty-three British subjects; to penal servitude with transportation, eleven; to penal servitude for life, 126; to penal servitude for twenty years, nine; and to penal servitude for ten years, seventeen not to mention lesser sentences. That discloses a very serious state of things; and I want to know who have been the officers trying these cases, and whether the courts have followed the precedent I have quoted, the precedent laid down by the Acts of 1803 and 1833, and the regulations laid down by Lord Carnarvon in 18G7. I mentioned Natal; I am rather puzzled as to what has taken place there. But I did notice a paragraph in the public Press on Natal to this effect—The Natal Treason Court completed its sittings today, having tried over 500 cases, the total number of Natal rebels being estimated at 800. The amount of tines imposed was upwards of £32,000, the highest individual fine inflicted being £5,000, and the longest term of imprisonment passed ten years. In future, cases of treason will be dealt with by court-martial.I allude to this because it seems to me a great misfortune that the Treason Act which was passed in 1899 or 1900 by the Cape Colony has now lapsed. It was only passed for a year. That established a legal tribunal, and it seems to me a great pity that that was not continued, and that trials do not take place in a more legal and better way than by the courts-martial which are now ruling in Cape Colony. But I presume from the paragraph I have read that in Natal this tribunal is still sitting.
I am afraid that I have trespassed too long on your Lordships' time, but the subject is one of great importance, not only to Colonists in South Africa, but to every citizen of the United Kingdom and to Colonists elsewhere than in South 130 Africa. We have here a lesson as to what martial law may be; and I repeat that while I do not for a moment say that His Majesty's Government ought not to have created martial law and court-martials in South Africa, I do think it is of the utmost importance, for the high constitutional privileges which we have to maintain, that whet) martial law is established proper and clear reasons for it should be given in Parliament. If we look specially to South Africa I cannot help thinking that the enormous, the gigantic difficulties which I am afraid must present themselves after the war is over and we are resettling the country, not only in the new Colonies, but in Natal and the Cape, I cannot help thinking that these difficulties may be increased by what I am afraid in many cases must—it could hardly have been avoided—have been the harsh administration of these courts-martial. I therefore think it is important that this subject should be ventilated, particularly with a view, if possible, of knowing whether proper regulations have been made as to the administration of the law; and if they have not been made, then of pressing on His Majesty's Government the necessity of promptly making those regulations.
§ 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 courts-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.
§ (The Earl Spencer.)
§ * LORD COLERIDGE
My Lords, I desire to associate myself with the Motion of the noble Earl, upon which, 131 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 enactment 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 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 Constitution, 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 excitement 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 judicial and experienced, the danger to 132 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 rebel ions 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 sacking 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 the 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 Government—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 can see, 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 Blackburn, and others were of the same opinion; and only a 133 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 frown. 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 only, 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 vast districts where no rebellion has ever taken place, where no shot has ever been fired, where no military operation has ever been con-ducted, 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 Oudtshoorn, 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 doctor who was arrested on August 27 by an order of the Commandant. He was carried off to Malmesbury and imprisoned for three weeks without any charge being preferred. On September 18 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 134 doctor may be under arrest still. It may be said that that is a proof that the ordinary tribunals cannot enforce their orders, that the law is, in fact, in abeyance, and that the necessary requisites 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 fore-fathers took a very serious view of these things, because in the reign of Charles II., by an Act of 1679, any person re-committing to prison anyone 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.
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 sanction, 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 Government whether these regulations 135 have boon 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 tribunal, 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 dead to life, but you can, at any rate, refrain from approving of sentences I which, if you follow legal precedent, can never ultimately be carried into 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 for 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 only precedent I can find in English history for such conduct is the precedent of Judge Jeffreys at the Bloody Assizes, and I trust that 136 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 justify 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." Disloyal 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 veneration. 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 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 disaffection' than can he 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 over the-broad face of Cape Colony.
§ THE LORD CHANCELLOR (The Earl of HALSBURY)
My Lords, I had not intended to intervene so early in this debate, but the speech that has just been delivered seems to me to call for a reply at once. I cannot help distinguishing very much that speech from 137 the speech of the noble Earl who initiated this debate. The noble Earl, as I think, very temperately and with great moderation, asked a certain number of questions, and I think I may say at once that if he had confined his interrogatories to the questions arising under sentences of death or penal servitude, the Government would have been glad to assist him by making a Return on the subject. I may say that in a very recent period indeed a large number of documents, many of them, no doubt, of the nature the noble Earl asked for, has been received at the War Office. The weight of them is, I think, half a hundredweight, and they certainly have not, as yet, been either perused or formulated. Before I say a word or two as to the form of the Return he has asked for, I should be very glad indeed to reply to the somewhat violent invective of the noble Lord who has just sat down. I do not know where the noble Lord obtains his facts. He has stated a great many things for which he appears to me to be the only authority. He has stated, for instance, that martial law has been proclaimed in districts where there has never been a shot fired. What are the districts? What is the authority for that statement? I have heard none quoted, and I should vary much like to know what is his authority for that statement. I may say at once, apart from the question of what martial law is, that no proclamation of martial law has been made in any part of the Gape Colony without the full assent of the responsible Ministers there. It is not a question arising by the direction of the Secretary of State for the Colonies, as it was in Lord Carnarvon's case, to the Crown Colonies. Hen; we are dealing with constitutional Colonies who have a constitution of their own; and, so far as that matter is concerned, the whole of what has been done has been done with the full assent of the responsible Ministers of the Crown in Cape Colony. What authority the noble Lord has for making these statements I do not know. I do know he has made no response to my interrogatory.
I will not revert for a moment to what martial law is. I have no compliant to make of what the noble Earl who began the discussion quoted from Mr. John Stuart Mill, with one exception. I do not think he was a legal authority, and he was not a very impartial authority, in 138 the particular case in which he was engaged, being one of the prosecutors of Governor Eyre and forming what is certainly a novelty in our jurisprudence—a combination to prosecute a particular man. He was one of what was called the Jamaica Committee.
§ EARL SPENCER
I rather think the noble and learned Lord is not correct. I quoted from a speech made in the House of Commons in a case where martial law was going to be applied to Ireland.
§ THE EARL OF HALSBURY
What Mr. John Stuart Mill was referring to was Governor Eyre's case and what had been done in Jamaica. I repeat what said—that Mr. Mill was one of the Jamaica Committee engaged in a combined attack upon an individual in respect of his conduct as Governor of a colony, conduct which I think I may say parenthetically, saved from cruel outrage and utter destruction the white inhabitants of that colony. I do not quarrel with what Mr. Mill said on that subject, with one exception. He said it must be divided under two heads—suppression and punishment—and that punishment had no part in it. That I think was erroneous, although, perhaps, in referring to what Mr. Mill had no doubt in his mind, it was not so inaccurate as it might seem. Of course it is absolutely inaccurate to say that you cannot punish by way of suppression, and to say that punishment is to be severed from suppression is ridiculous. The object of punishment may be suppression or to prevent the repetition of offences, which but for that punishment would continue. But with respect to the precedents quoted by the noble Lord, it was assumed that the war or rebellion, whichever it might be, was over. When you are talking of something which was done after the complete suppression of the rebellion or after the cessation of war, it is one thing, but when you apply that to the present condition of things, that is another thing.
I want to know, will any noble Lord tell, me whether we are at war or not? I am aware that one noble Lord has been good enough to suggest that my words, "there is a sort of war," require exposition. I have a word or two to say to him presently. With reference to the immediate 139 question, I want to know what is the state of things at present. Are we at war, or are we not? If we are at war, what is the moaning of all this grand rhetoric about the violation of the Constitution? What is the meaning of that phrase, if we are actually at war at this moment? What is the meaning of all these high-sounding fervid phrases about the violation of the right to be tried by a jury and the right to be brought before the regular tribunals? The real English of the matter is that if you are at war there is and there can be no constitutional liberty at all. You are under the hand of the Commander-in-Chief, whoever he may be. That may be a very grave reason for preventing, if you can, war from taking place at all; but, if your enemy chooses to invade your colonies, I am afraid you must have war in your colonies as well as in the place where he has started. I would ask whether it is historically a fact that Cape Colony was invaded; whether it is a fact that an ultimatum was delivered—all these things appear to have passed from the minds of certain noble Lords—in October, 1899; whether an organised force then invaded what were then Her Majesty's dominions, and whether at the present time there is a force in arms which, both as against Cape Colony and His Majesty's forces, is waging war or not? Certainly, in the face of the unhappy disaster which happened not so long ago, it is, I will not say a little amusing—it is too serious—but it is a little ridiculous to hear this question raised of the propriety or impropriety of having the existence of a military authority in the country.
Now, just one word about the extent and degree to which this military necessity exists. In the first place, I entirely differ from the noble Lord who has last addressed us about his view of the law and constitution. He is good enough to suggest that I should be instructed to give an answer. I should be glad to receive instruction from him or anybody else. I doubt very much whether he is competent to give me instruction. I understand the constitution of this country recognises as part of the constitution the necessity of the suppression of violence or war in what 140 ever form it may be; and, as a matter of fact, when war arises or violence takes place it is not only lawful, but the absolute duty of the proper authorities, with the Crown at their head, to proclaim the necessity and to enforce the necessity of preserving law and order. As the noble Lord wishes for instruction, I should like to read what one of the most learned judges said on that subject—It is manifest, however, that there may be occasions in which the necessity of the case demands prompt and speedy action for the maintenance of law and order at whatever risk, and where the Governor may be compelled, unless he shrinks from the discharge of paramount duty, to exercise de facto powers which the Legislature would assuredly have confided in him if the emergency could have been foreseen, trusting that whatever he has honestly done for the safety of the State will be ratified by an Act of indemnity and oblivion. There may not be time to appeal to the Legislature for special powers. The Governor may have, upon his own responsibility, acting upon the best advice and information he can procure at the moment, to arm loyal subjects, to seize or secure arms, to intercept munitions of war, to cut off communications between the disaffected, to detain suspected persons, and even to meet armed forces in the open field. If he hesitates, the opportunity may be lost of checking the first outbreak of insurrection, while by vigorous action the consequences of allowing the insurgents to take the field in force may be averted. In resorting to strong measures he may have saved life and property out of all proportion to the mistakes he may honestly commit under information which turns out to have been erroneous or treacherous.We have to recognise the fact that we are dealing with an actual state of war—a proposition which the noble Lord who last addressed us has entirely put out of his mind—an actual state in which our colony has been invaded by the enemy, and in which the necessity of the proclamation of martial law has been recognised even by the noble Lord who objected to my phrase, because I observe that Lord Rosebery's complaint against the Government was that they did not proclaim martial law long before. That was his complaint; and I am quite prepared to admit that a great deal more might be said on that subject, because no doubt the prolongation of the war has been in great measure due to information given by disloyal subjects, and to munitions and imported arms brought in in various parts of the colony; and I am not prepared to say that it would not have been 141 better if the assent of the constitutional officers of the colony to the proclamation of martial law had been obtained at an earlier period. But we are now discussing something in the abstract; because, if it is once admitted that war exists, I do not think there is the smallest doubt in the opinion of any lawyer whatever of the propriety of using armed force, and of the absolute dislocation of society to such a degree as to prevent the ordinary course of law being followed.
I think that there is some misapprehension as to the old test of the courts being open. There is no doubt that phrases of that sort may be quoted from ancient books; but it seeems to be forgotten that those who are in charge of the whole safety of the colony or country may think it right to administer martial law by the assistance of the ordinary tribunals. The Duke of Wellington did it in Spain, and in this House he took credit to himself for having done so. He said that in the first instance the local tribunals were led away, but when they found he was disposed to recognise them and claim their assistance, he was then able to administer the law, such as was necessary at the time to be administered by the local tribunal. And so here, where you are dealing with what I now call statutable courts, which is the case quoted by the noble Lord, you are administering not martial law at all—you are administering statutable law, which has been enacted for the occasion. But where you are left without legislation—and, as I say, the state of things in the Cape Colony or Natal was such as to prevent the possibility of legislation on the subject—you are remitted to that which I quite admit is the test of all—namely, the necessity of the case. And, although every Governor may be subject to be proceeded against afterwards for anything which has been done which was irregular, on the other hand, if he neglects his duty, he may be made the subject of indictment In the great Bristol riots of 1833 the Mayor of Bristol was actually indicted because he did not interfere with sufficient promptitude and firmness to suppress the outbreak that was then going on. A great deal of the discussion which has taken place on 142 subjects of this character has been a discussion whether or not there has been a state sufficient to justify the application of martial law. It is novel to me to hear this discussion when there is, no doubt, actual war prevailing in the district. The discussion has always been one of fact—whether war is there. But if war is there, the consequence follows as a matter of course that you cannot pretend that the ordinary constitution or laws exist; and you must be remitted to the Commander-in-Chief.
Now, my Lords, I said that I would say a word to the noble Lord who criticised me; and I think I have rather anticipated what I have to say. I do not hesitate now to avow and to adopt the language which I used. But the noble Lord, I think, did not, perhaps, quite do me justice. I am not very much in the habit of saying I am not prepared to speak; I never expected to speak this afternoon until I came here, but I did go to Sheffield, and I did intend to speak. But, as a matter of fact, the particular passage which the noble Lord criticised was in reply to a speech of Mr. Asquith's which I read in the train. I do not put this ad misericordiam, that I spoke hastily. I did not speak hastily, and what I said I believe to be accurate. But what was I dealing with? I was dealing with the supposed fact that the British Commander and the English Government had suggested that the war was over at a particular date; and I said, and I repeat, that in ordinary circumstances, where the capitals of the country are in the hands of the enemy, when your lines of communication are in the hands of the enemy, and you dare not meet in the open field and fight a battle, but run skulking behind hedges, in caves, and rocks, and mountains—then I say it is a "sort of war" that is going on; that it is not a war in the ordinary sense in which nation fights against nation. I think I am justified, not only by the facts to which I have referred, but by the fact that the Boers themselves so far recognise this that a considerable body of them are fighting against their own countrymen in order to put an end to that which, although it is "a sort of war," is a wanton destruction of human life, which can give no benefit to them 143 or to any other human being. That is the sort of war of which I was speaking. If the noble Earl is filled with contempt for me, I am very glad to find I am in good company; for I find my noble friend at the head of the Government is also—I will not say dismissed, but his Majesty may no longer require his or my services by reason of the view the noble Earl takes of our respective behaviour, it is very nice of him to re-arrange the Cabinet. I confess I should have thought that just at present, or even then, he had quite enough to do to arrange his own Cabinet.
THE EARL OF ROSEBERY
Will the noble Lord quote where I urged his dismissal and that of the Prime Minister?
§ THE EARL OF HALSBURY
I thought it very likely the noble Lord would like to hear his speech again, and I have it with me. He said—I confess that when I read these speeches of the Prime Minister and the Lord Chancellor I began to think the Government wanted a little new blood. 'Oh, yes,' you will say, 'they had new blood last year.' But did they? It was old Wood; it was anything but new blood.Does the noble Lord desire any more?
Well, I now come to what I think is an error which has been committed by the noble Earl who moved this Resolution. To begin with, I think we should recognise, what I think nobody appears to recognise, the magnitude of the task that is being performed by the armed forces of the Crown, It is all very well to talk of such things as the very wide area over which the operations are being transacted, but, when one comes to find what the noble Earl desires and what are the Returns he wants, I think it will be important to consider what it is that we are dealing with. If we are at war, as I have already said, and if it is a serious task for any Government to have to perform, let me ask the noble Earl, whose candour and courtesy I am most anxious to recognise, whether what he has put down as his demand is a reasonable thing to do. We have had Motions on February 20th by Lord Carrington on February 24th by Lord Tweedmouth, and on March 6th again by Lord Carrington, asking for various Returns as to contracts made by and on behalf of the War Office. On March 14th we had a Motion by Lord Ribblesdale as to the 144 purchase of horses; and now we have the present Motion. Now, I do ask, considering the task that is being performed by the War Office at home and its endeavours to bring the war to a conclusion, whether, if these Returns were ordered, it is possible to suggest anything more vexatious and more calculated to destroy that efficiency of which the Earl of Rosebery is a marked advocate than to prevent men from doing their duty because they have to make Returns. The Returns already granted weigh half a hundredweight, and I hesitate to say, if all the Returns asked for were ordered, what they would weigh. It does seem to me that, although a great many of these matters-ought, and must be, inquired into when the war is over, to insist on a Motion of this kind is to hint—or is calculated to produce the impression—that the Government are keeping something back; and it is a course which is neither patriotic nor fair to this House. I do-not say that the noble Earl has the least idea of hampering His Majesty's-Government. I am very far from suggesting such an idea, but I do say if your Lordships were to assent to this or any of the other Motions to which I have referred, and of which this is only one part of the whole combination of attempts to extract something which could form the subject of attack on the Government, I can only say that there could be no more efficient assistance to those who are prolonging this useless war. These Motions are submitted night after night in the endeavour to discredit His Majesty's Government and to convince the Boers that there is a large party in this country—as to which I be have they are entirely wrong—anxious and desirous to assist them, and by doing which they are prolonging, this wicked and useless war.
THE EARL OF ROSEBERY
My Lords, I had no intention of intervening in this discussion; indeed. I was sunk in a lethargy which sometimes overtakes Members even on the Ministerial Benches. But the noble and harried Earl has made so strong an appeal to my feelings that I should be more or less than human if I did not respond to him. The other night, I understand, the House of 145 Commons started an inquiry as to its atmosphere, to detect whether there ore any poisonous microbes floating in it; and if that investigation is pursued to any great extent I would humbly suggest that the Woolsack should be included. The other night the Chairman of Committees, usually the most urbane and genial of men, sat on the Woolsack, and he descended on the Opposition like a volume of fire flowing down the sides of a volcano; and this evening, when we had some right to expect a calm and lucid and legal argument from the noble and learned Earl on the Woolsack, he gets up, and, I think, with some want of judicial equanimity, bangs about the House and about the unfortunate carcases of my two noble friends behind me in a way that made me seriously apprehensive.
The noble Earl on the Woolsack, determined on this occasion to be prepared, brought down the copy of the printed pamphlet which I had issued containing a report of my speech to which he objected, and from which he did not, I think, quote the passage he intended. The passage which he read only contained an innocent jest as to the reconstitution of the Government last year. I thought that he had rather meant to produce those passages which are more pertinent to his own speech at Sheffield. I was immensely gratified by the noble Earl's bringing that pamphlet down to the House, because on the last occasion he deigned to notice my existence it was in the heat of summer, when I was fearing for a moment he was on the brink of profanity. With some impetuousness of demeanour, and shaking his "mailed fist," he said he did not care a—Here the noble Earl paused, and then, looking towards the right reverend Bench, he became calmer, and said he did not care a blank what I thought. I am glad he has got over that, and purchased a copy of my speech and read it with attention.
The noble and learned Lord, I thought, a little contradicted himself in Jus recent utterances. He concluded with a peroration to which we are now becoming accustomed, and which, I think, hat been circulated in a red box to the Cabinet, about the difficulties in which the Government are in carrying on this great war—he did not say this 146 "sort of war"—to a conclusion, and that, under these circumstances, to ask of those overburdened and harassed Ministers for any Returns, or replies, or any statements on any subjects relating to the war, is unpatriotic, and displays qualities which I should be sorry to enumerate. What is the defence against the argument of my noble friend behind me? It is that we are in a state of war, and that in a state of war the precedents my noble friend has quoted as applicable to martial law cannot be held to exist, and that war is a suspension of all law, and that, therefore, under present circumstances, martial law is fully justified. I quite agree with him, but what becomes of the speech at Sheffield, what becomes of this "sort of war?" Be said the Boers skulked behind hedges and in ditches. I think that is doing them less than justice. He himself referred to the unfortunate occurrence of a few days ago, which certainly seems to point to the war being of a very genuine kind, waged by foes not altogether unworthy of our steel. Why does the noble and learned Lord come down and try to defend the expression "this sort of war," and endeavour to stand on both legs at once? Either there is war which justifies martial law, or else there is no war, and martial law is not justified. I ask the noble and learned Karl to consider that dilemma. He maysay that there is a sort of war going on. Are we to suppose that what is going on in South Africa is merely a sort of martial law which is applicable to the state of things? It appears to me that his present contention is just as well-founded as his past one was ill-founded. Let me say one word more as to the extraordinary attitude of the Government with regard to all these Motions. I cannot consider the expletives of the noble Earl of the Woolsack sufficient answer to the calm and reasoned speech of the noble Earl behind me. He has asked several questions, none of which have been answered. He has moved for some Papers which he knew he was not likely to get; but he might, at least, have expected that he would get a civil answer to his questions. We have had no answer, and I do not think it is I treating my noble friend the Leader of 147 the Opposition, who has shown so much courage and ability, with discourtesy.
But we are now told that we are seriously hampering His Majesty's Government in the conduct of the war; and we have had read out to us tonight a long list of the various inquiries made of the Government, and the various Motions made for information by some of my noble friends behind me. Are we to understand that when we are engaged in this prodigious war, or prodigious sort of war, when we have a quarter of a million of men in the field, when the information given us from the seat of war is more limited, I believe, than in the case of any war that has over taken place on the face of the globe—are we really to suppose that it is the duty of the Opposition to remain absolutely silent, to ask no questions, and that, whatever scandals may appear to be produced by the Press or from other sources, we are to be totally silent? Why, then, what is the use of this House sitting? It has no Bills to pass; it has no measure before it. If you wish to reduce the Opposition to silence, if you tell them that they are unpatriotic if they speak, in however humble a voice and even the noble and learned Earl on the Woolsack acknowledges the courtesy and moderation of my noble friend behind me—if when, in however moderated and humble a voice, they ask for information in matters which, after all, concern every British subject they are told that they are hampering the hands of the Government, that they are preventing the Government from prosecuting the war with the vigour and energy they would wish, and that they are acting the part of bad citizens—such an argument as that seems to me to strike at the very root of the existence of this House. If we are not to ask these questions, if we are to say nothing, if we are to remain in silence, why do not we adjourn until a Bill comes up from the other House?
§ * LORD DAVEY
My Lords, I rise to address your Lordships on this subject with some difficulty, because it is my duty to take part in the judicial business of your Lordships' House, and in matters coming before the Judicial Committee of the Privy Council, and I do not desire to express any opinion which may interfere with the proper performance of those 148 duties. The noble and learned Earl on the Woolsack has told us that those who support the Motion of my noble friend below me, asking for information as to the circumstances under which martial law continues to be administered in Cape Colony and Natal, are destitute of patriotism. I must confess that that does not terrify me, for I have no doubt in my own conscience that it is not unpatriotic to call attention to the circumstances under which a state of things, which is admittedly a violation of Constitutional rights, is being continued over a large portion of the territory comprised in the King's dominions. There is no term which has been more abused than that of martial law, and which has had a greater variety of meanings attached to it. It has been described as military law, under which all persons belonging to His Majesty's military forces are subject. It is not in that sense that I use the term. It has also been used to describe the duty of every citizen to aid and assist the civil authority in putting clown disturbances. Again, it has been used to describe what is claimed as the prerogative of the Crown to supersede and suspend the action of the ordinary courts, and to commit the administration of civil and criminal justice to military courts set up by the Crown without any legislative authority. That is the sense in which I shall use the term, and in which my noble friend below me used it in moving the Motion now before the House. In that sense I think it will be seen that the arguments of the noble and learned Earl on the Woolsack have nothing to do with the case before us. I admit to the full the passage which he quoted, but it is one thing to say that everybody is bound in a case of invasion and rebellion to assist the authorities in restoring the King's authority, and a totally different thing to say that, because there is, or has been, a state of war, persons are to be deprived of their constitutional rights under the existing law, and the whole jurisdiction of the courts handed over to military tribunals set up for the purpose. A state of siege is a recognised part of French Constitutional Law, and the French Code provides regulations as to what can be done by the military powers, and under what circumstance in a state of siege. They may supersede the Civil Courts in their entirety, except 149 so far as they choose to allow them to exist. Those powers are given by Statute, and are legally exercised by the great military commanders when the occasion arises. Many of the powers prescribed in the French Code are the exact powers which are now being exercised in South Africa, but the deportation of people hundreds of miles away from their residence exceeds anything contained in the French law regulating the state of siege. We have no such law in this country. It is said that ours is an unwritten Constitution, and that such a power must reside in the Government ex necessitate. On the other hand, there is a large amount of authority—of judges, statesmen, and other learned persons—that martial law, in the only sense in which I am using it, is utterly unknown to the Constitution. I naturally desire not to come into conflict unnecessarily on the floor of this House with the noble and learned Earl on the Woolsack on a question of law. I shall therefore express no opinion on the somewhat abstract question as to whether the proclamation of martial law, in case of necessity, is or is not a common law prerogative of the Crown. But my noble and learned friend is surely wrong in assuming that everybody would admit that the power to set martial law in operation did reside in the Government. It seemed to me that he confused the power of the Crown to supersede the action of the ordinary law with the power which is undoubtedly vested in the Crown by common law, to call upon every citizen to aid in repressing rebellion. I was rather struck by the passage which the noble and learned Earl read, but he did not tell us where the extract was taken from.
§ THE EARL OF HALSBURY
It was from the judgment of the Court of Exchequer Chamber in the case of Phillips v. Eyre.
§ * LORD DAVEY
Your Lordships, no doubt, observed that, in the passage quoted by the noble and learned Earl, the illegality of martial law was implied, because it is stated that in a case of emergency it is the duty of officers of 150 the Government to take upon themselves responsibility in the interest of the Commonwealth and of the public safety, trusting to the Legislature to ratify the Acts which they may do. The noble and learned Earl on the Woolsack said that there could be no Constitutional law in the case of war. But I should like to know why, because a certain portion of our territory has been invaded, and because there are disturbances in a certain portion of our territory, either from invasion, riot, or rebellion, the Constitution is to be suspended all over that territory? It was not so in 1715 or 1745. No doubt you are entitled to take adequate means for repressing disturbances, but why, I ask, is it a necessary consequence that the constitutional guarantees of the people, their ordinary rights as citizens, should be superseded, unless the disturbance is of such a character that the courts of law are paralysed and there is a necessity for the Government to try some other means, however rough, of supplying their place? It is only when the disturbance is of that character, and the action of the ordinary courts is paralysed that, according to many authorities which might he quoted, the Government are called upon to provide such other means as they may have at hand, There was one observation in the speech of my noble and learned friend which rather surprised me. He said, I think, that martial law was established in Cape Colony, with the authority of the Colonial Government.
§ THE EARL OF HALSBURY
I said it had been established with the hearty assent of the constitutional ministers of that Colony.
§ * LORD DAVEY
Then I misunderstood my noble and learned friend. I understood him to argue from that, that martial law was not under the control of this Parliament. [The LORD CHANCELLOR dissented.] I take it to be beyond question that the Imperial Parliament has power to legislate for the Colonies as well as for every part of His Majesty's Dominions. It may be said, What were the Government to do if they thought such exceptional and extraordinary powers necessary for the prosecution of the war, or were demanded by the State of Cape Colony, and if they thought the 151 resources at their command were not sufficient for the adequate maintenance of order? I think the answer is that they should have done what is suggested in the passage which the noble and learned Earl read from the judgment of the Court of Exchequer Chamber in the case of Phillips v. Eyre—they should have taken the first opportunity of coming to the Imperial Parliament and asking for the powers which they needed. They would then have had to lay before Parliament the circumstances which, in their opinion, demanded the exercise of extraordinary powers, and to state why the ordinary courts could not deal with eases which might come before them in the usual way No doubt Parliament would have given the necessary powers, and, at the same time, regulations and conditions might have been imposed which would have prevented any possible abuse of those powers, and have secured, as far as was possible under the circumstances, the personal rights of individuals.
The information which filters through from Cape Colony is very fragmentary and unreliable. At one time we are told that war is raging; at another time we are told that armed resistance within the limits of Cape Colony is confined to a few broken units in the mountainous regions in the Northwestern portion of the Colony. The truth with regard to this is exactly what we want to ascertain. Is there, or is there not, such armed resistance going on at present in Cape Colony and Natal as will justify the continual suspension of the ordinary law? My noble friend Lord Spencer asks certain definite questions of the Government in his Motion. He has asked whether any regulations had been made with reference to the exercise of martial law in Cape Colony or in Natal over civilian subjects of his Majesty. I have not heard any reply to that question. Surely it is not a great burden on any member of the Government to give a reply to that interrogation, nor would it be a great burden, if such directions and regulations have been ma le, to lay copies on the Table of the House. To my mind, there is no excuse for the refusal of the Government to answer this modest question. My noble friend next asked 152 whether there is at present any organised armed resistance to the authority of His Majesty's Government in the Colonies which would justify the continued suspension of the action of the ordinary Courts of Justice, or cause any impediment to the resumption by the Courts of their ordinary urisdiction. I have not heard any answer to that question. I am quite aware that the noble and learned Earl on the Woolsack; has said in a general way that there is a war going on. Of course there is a war going on, but if the noble and learned Earl thinks that, because a war is going on somewhere, suspension of Constitutional authorities is justified all over Cape Colony and Natal, I am bound to say I do not agree with him I am aware that there are some people who think that these legal subtleties, as they call them, are unworthy of consideration, but I am not one of those who hold that opinion. I attach great importance to the Constitutional liberties of the people of this Empire, and I am one of those who think any infraction of those liberties is a matter of very serious moment. It is a sorry reflection for many of us—perhaps I ought to say for all of us—that the first consequence of a war which we were told was undertaken in defence of political liberty has been the suspension of the ordinary Constitutional liberties of His Majesty's subjects in two of our most important Colonies.
§ THE PRIME MINISTER AND LORD PRIVY SEAL (The Marquess of SALISBURY)
My Lords, I gather from what fell from the noble and learned Lord, although I did not hear all that he said, that he was dissatisfied with the answer given to the noble Earl whom he follows, and that he thought we had not sufficiently explained that which we ought to have explained. I do not for a moment admit that it is possible for us to explain every doubt that may come across the mind of the noble Earl opposite. It is not possible for us to enter into the circumstances, which, no doubt, if we were able to do so, we should have great hope of using for the purpose of clearing up any ambiguities he might see. But it does not seem to me that it is necessary to meet with an absolute negative all that has been said by the noble 153 Earl, though I doubt whether I shall be much more successful in satisfying him. He asks His Majesty's Government whether any special directions have been given, or any regulations have been made, with reference to the exercise of martial law by the officers of His Majesty's military forces. I am bound to say that a great many directions has been given, but whether they are special or not I have some difficulty in answering, and whether they are to be called regulations or not is difficult to answer. I am bound to say that, such as they are, the subject-matter with which they are concerned is of a kind which makes it quite impossible to lay them on the Table of the House. I am afraid that will not satisfy the noble Earl. I wish it would; but he will see, if he considers that the whole object of suspending in any way the liberties of any persons in Cape Colony is that of making it more possible and more easy to suppress the efforts made by the King's enemies against him, and to restore the ordinary course of peace and well-being in the colonies. But we cannot enter into the effect of any directions we have given to attain that desirable end without also entering into the causes for which martial law is necessary; and I think the noble Lord will hardly ask us to be so simple as to tell everybody with whom we are concerned what the reason is that we imposed certain impediments in their way.
§ THE MARQUESS OF SALISBURY
I really do not know. But those applied to Jamaica, and this applies to the Cape. There was a riot in Jamaica, but there was no civil war. This is a case of invasion and civil war. It is to the last degree improbable that the circumstances which Lord Carnarvon had to foresee and deal with are the same circumstances as those which the present Secretary for the Colonies had to foresee and deal with. I sometimes regret very much that the word martial law has been so much used. If I may sit at the feet of the great legal pundits whom I see opposite, I think I understand that it has no place in the Constitution whatever, that it is merely a fashion of speech, 154 that there is no such thing as martial law. But there is a substitute for it—the application of force when law will not suffice If I may call the noble Lord's memory back to what happened some forty years ago, I think he will remember that then, in a friendly country, there was a great Civil War raging, and that then the enemies of the Government tried to use the existing machinery, tried to use the Supreme Court and the processes of law, for the purpose of attaining the objects they had in view, and that that effort was resisted by the dominant party of the time, the Republican Party and the Government of the United States, and the justification for resisting it was that the war power must be allowed its way. They did not talk of martial law; it is much more simple to talk of war power. The ordinary peaceable machinery by which our State is conducted had to be suspended; soldiers were in the field, battles were being fought, and the war power had to be acknowledged as supreme. It was acknowledged as supreme. We acknowledge it now as supreme in these colonies which are in this unhappy state of disturbance. We acknowledge it as supreme in order that we may be able to restore peace; but until that object is attained we shall not permit those who, however unwillingly, we think are fighting the battles of the enemy—we shall not permit them by examination or cross-examination to bring out any facts which may be injurious to the Government of the King and foster and favour the cause of the King's enemies. That seems to me a far simpler, broader answer than any attempt to analyse authorities or quote decisions on previous cases. There have been no previous cases like this. We are thrown back on the rights which every Government has to defend its own existence; and those rights now and in the future we shall confidently uphold.
§ EARL SPENCER
I think I have a right to a few words of reply. First, let me refer to what the noble Marquess said as to the recommendations issued by Lord Carnarvon. Those recommendations were not simply applied to the case of Jamaica; they were sent, as a circular, to all the colonies—
§ EARL SPENCER
No. I have here a despatch from Sir M. Hicks Beach, addressed to Sir Bartle Frere, in which he refers to this very circular addressed to Governors of colonies, and says it may possibly be of use to him in framing instructions for the guidance of officers, and so on. I ask, is that circular still in existence to assist or direct the officers conducting courts-martial in South Africa? I am afraid, from what the noble Marquess says, that he will not answer me directly. Then the noble Marquess has not answered the rest of the question. Is there still so much armed resistance in Cape Colony as to justify the continuance of martial law?
§ THE MARQUESS OF SALISBURY
I did not think it necessary to assure the noble Earl that armed resistance was still going on in Cape Colo v. I think I may leave that to him to find out. There is undoubtedly sufficient resistance going on to make the measures which have been taken by the Government measures of necessity.
§ EARL SPENCER
Do I understand that, over the whole of this enormous district, because there are still armed bodies in one part, it is still necessary to have courts-martial? As to the remainder of my question, after what fell from the noble and learned Earl on the Woolsack, I should certainly be disappointed if I did not get what I have asked for. What I ask for is very reasonable, and I cannot understand how it would not only upset the arrangements of the officers at home, but impede the vigorous prosecution of the war. The noble and learned Earl said I have asked Questions which involve tons and tons of Papers.
§ EARL SPENCER
I am not very often guilty of exaggeration, and I apologise for that one. But as the noble and learned Earl said that I should have confined the Return to cases connected 156 with penal servitude and death sentences, I think I may claim that that should be granted.
§ THE EARL OF HALSBURY
What I said was that, if that had been the Motion, we should have been most happy to yield to it; but unless the noble Earl amends his Motion altogether we cannot do so.
§ THE MARQUESS OF RIPON
if that is done, noble lords opposite will accuse us of raising this question continually.
§ On Question, resolved in the negative.