Chapter XXIII: Section 13: Martial Law

The first of the letters which follow has reference to the case
of two Boer prisoners who, having taken the oath of neutrality
on the British occupation of Pretoria, attempted to escape from
the town. Both were armed, and one of them fired upon and
wounded a sentinel who called upon them to stop. They were
tried by court-martial, condemned to death, and shot on June
11, 1901. The Hague Convention quoted in the letter is that of
1899, but the same Art. 8 figures in the Convention of 1907.

The second and third of these letters relate to a question of
English public law, growing out of the exercise of martial law
in British territory in time of war. One Marais, accused of
having contravened the martial law regulations of May 1, 1901,
was imprisoned in Cape Colony by military authority, and the
Supreme Court at the Cape held that it had no authority to
order his release. The Privy Council refused an application for
leave to appeal against this decision, saying that "no doubt
has ever existed that, when war actually prevails, the ordinary
courts have no jurisdiction over the action of the military
authorities"; adding that "the framers of the Petition of Right
knew well what they meant when they made a condition of peace
the ground of the illegality of unconstitutional procedure"
(_Ex parte_ D.F. Marais, [1902] A.C. 109). Thereupon arose a
discussion as to the extent of the prohibition of the exercise
of martial law contained in the Petition of Right; and Mr.
Edward Jenks, in letters to _The Times_ of December 27, 1901,
and January 4, 1902, maintained that the prohibition in
question was not confined to time of peace.

The last letter deals with the true character of a Proclamation
of Martial Law, and was suggested by the refusal of the Privy
Council, on April 2, 1906, to grant leave to appeal from
sentences passed in Natal by court-martial, in respect of acts
committed on February 8, 1906, whereby retrospective effect
had, it was alleged, been given to a proclamation not issued
till the day after the acts were committed, _See_ Mcomini
Mzinelwe and Wanda _v._ H.E. the Governor and the A.G. for the
Colony of Natal, 22 _Times Law Reports_, 413.

THE EXECUTIONS AT PRETORIA

Sir,--No doubt is possible that by international law, as probably by every system of national law, all necessary means, including shooting, may be employed to prevent the escape of a prisoner of war. The question raised by the recent occurrence at Pretoria is, however, a different one--viz. What are the circumstances in connection with an attempt to escape which justify execution after trial by court-martial of the persons concerned in it? This question may well be dealt with a part from the facts, as to which we are as yet imperfectly informed, which have called for Mr. Winston Churchill's letter. With the arguments of that letter I in the main agree, but should not attach so much importance as Mr. Churchill appears to do to a chapter of the British _Manual of Military Law_, which, though included in a Government publication, cannot be taken as official, since it is expressly stated "to have no official authority" and to "express only the opinions of the compiler, as drawn from the authorities cited."

I propose, without comment, to call attention to what may be found upon this subject in conventional International Law, in one or two representative national codes, and in the considered judgment of the leading contemporary international lawyers.

I. The Hague "Convention on the laws and customs of war on land" (ratified by twenty Powers) lays down:--

"ARTICLE 8.--Prisoners of war shall be subject to the laws,
regulations, and orders in force in the army of the State
into whose hands they have fallen. Any act of insubordination
warrants the adoption as regards them of such measures of
severity as may be necessary. Escaped prisoners, recaptured
before they have succeeded in rejoining their army, or before
quitting the territory occupied by the army that captured
them, are liable to disciplinary punishment. Prisoners who
after succeeding in escaping are again taken prisoners are
not liable to any punishment for their previous flight."

The Hague Conference, in adopting this article, adopted also, as an "authentic interpretation" of it, a statement that the indulgence granted to escapes does not apply to such as are accompanied by "special circumstances," of which the instances given are "complot, rébellion, émeute."

"ARTICLE 12.--Any prisoner of war who is liberated on parole
and recaptured bearing arms against the Government to which
he had pledged his honour, or against the allies of that
Government, forfeits his right to be treated as a prisoner of
war, and can be put on his trial."

II. The United States Instructions:--

"ARTICLE 77.--A prisoner of war may be shot or otherwise
killed in his flight; but neither death nor any other
punishment shall be inflicted on him simply for his
attempt.... If, however, a conspiracy is discovered, the
purpose of which is a united or general escape, the
conspirators may be rigorously punished even with death, &c."

"ARTICLE 78.--If prisoners of war, having given no pledge nor
made any promise on their honour, forcibly or otherwise,
escape, and are captured again in battle, having rejoined
their own army, they shall not be punished for their escape."

"ARTICLE 124.--Breaking the parole is punished with death when
the person breaking the parole is captured again."

_Cf._ the French _Code de Justice Militaire_, Art. 204, and other Continental codes to the same effect.

III. The _Manuel des Lois de la guerre sur terre_ of the Institute of International Law lays down:--

"ARTICLE 68.--Si le fugitif ressaisi[B] ou capturé de nouveau
avait donne sa parole de ne pas s'évader, il peut être privé
des droits de prisonnier de guerre."

"ARTICLE 78.--Tout prisonnier libéré sur parole et repris
portant les armes contre le gouvernement auquel il l'avait
donnée, peut être privé des droits de prisonnier de guerre, à
moins que, postérieurement à sa liberation, il n'ait été
compris dans un cartel d'échange sans conditions."

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, June 17 (1901).

THE PETITION OF RIGHT

Sir,--This is, I think, not a convenient time, nor perhaps are your columns the place, for an exhaustive discussion of the interpretation and application of the Petition of Right. It may, however, be just worth while to make the following remarks, for the comfort of any who may have been disquieted by the letter addressed to you by my friend Mr. Jenks:--

1. Although, as is common knowledge, the words "in time of peace," so familiar in the Mutiny Acts from the reign of Queen Anne onwards, do not occur in the Petition, they do occur, over and over again, in the arguments used in the House of Commons by "the framers of the Petition of Right," to employ the phraseology of the judgment recently delivered in the Privy Council by the Lord Chancellor.

2. The prohibition contained in the Petition, so far from being "absolute and unqualified," is perfectly specific. It refers expressly to "Commissions of like nature" with certain Commissions lately issued:--

"By which certain persons have been assigned and appointed
Commissioners, with power and authority to proceed within the
land, according to the justice of martial law, against such
soldiers or mariners, or other dissolute persons joining with
them, as should commit any murder, robbery, felony, mutiny,
or other outrage or misdemeanour whatsoever, and by such
summary course and order as is agreeable to martial law, and
is used in armies in time of war, &c."

The text of these Commissions, the revocation of which is demanded by the Petition, is still extant.

3. The Petition neither affirms nor denies the legality of martial law in time of war; although its advocates were agreed that at such a time martial law would be applicable to soldiers.

4. A war carried on at a distance from the English shore as was the war with France in 1628, did not produce such a state of things as was described by the advocates of the Petition as "a time of war." "We have now no army in the field, and it is no time of war," said Mason in the course of the debates. "If the Chancery and Courts of Westminster be shut up, it is time of war, but if the Courts be open, it is otherwise; yet, if war be in any part of the Kingdom, that the Sheriff cannot execute the King's writ, there is _tempus belli_," said Rolls.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, December 31 (1901).

THE PETITION OF RIGHT

Sir,--In a letter which you allowed me to address to you a few days ago, I dealt with two perfectly distinct topics.

In the first place I pointed out that the words occurring in a recent judgment of the Privy Council, which were cited by Mr. Jenks as a clear example of an assumption "that the Petition of Right, in prohibiting the exercise of martial law, restricted its prohibition to time of peace," imply, as I read them, no assumption as to the meaning of that document, but merely contain an accurate statement of fact as to the line of argument followed by the supporters of the Petition in the House of Commons. Can Mr. Jenks really suppose that in making this remark I was "appealing from the 'text of the Petition' to the debates in Parliament"?

I then proceeded to deal very shortly with the Petition itself, showing that while it neither condemns nor approves of the application of martial law in time of war (see Lord Blackburn's observations in R. _v._ Eyre), the prohibition contained in its martial law clauses, so far from being "absolute and unqualified," relates exclusively to "commissions of like nature" with certain commissions which had been lately issued (at a time which admittedly, for the purposes of this discussion, was not "a time of war"), the text of which is still preserved, and the character of which is set forth in the Petition itself, as having authorised proceedings within the land, "according to the justice of martial law, against such soldiers or mariners," as also against "such other dissolute persons joining with them," &c. The description of these commissions, be it observed, is not merely introduced into the Petition by way of recital, but is incorporated by express reference into the enacting clause.

Thus much and no more I thought it desirable to say upon these two topics by way of dissent from a letter of Mr. Jenks upon the subject. In a second letter Mr. Jenks rides off into fresh country. I do not propose to follow him into the history of the conferences which took place in May, 1628, after the framing of the Petition of Right, except to remark that what passed at these conferences is irrelevant to the interpretation to be placed upon the Petition, and, if relevant, would be opposed to Mr. Jenks's contention. It is well known that the Lords pressed the Commons to introduce various amendments into the Petition and to add to it the famous reservation of the "sovereign power" of the King. One of the proposed amendments referred, as Mr. Jenks says, to martial law, forbidding its application to "any but soldiers and mariners," or "in time of peace, or when your Majesty's Army is not on foot." The Commons' objection to this seems to have been that it was both unnecessary and obscurely expressed. "Their complaint is against commissions in time of peace." "It may be a time of peace, and yet his Majesty's Army may be on foot, and that martial law was not lawful here in England in time of peace, when the Chancery and other Courts do sit." "They feared that this addition might extend martial law to the trained bands, for the uncertainty thereof." The objections of the Commons were, however, directed not so much to the amendments in detail as to any tampering with the text of the Petition. "They would not alter any part of the Petition" (nor did they, except by expunging two words alleged to be needlessly offensive), still less would they consent to add to it the reservation as to the "sovereign power" of the King.

The story of these abortive conferences, however interesting historically, appears to me to have no bearing upon the legality of martial law, and I have no intention of returning to the subject.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, January 8 (1902).

MARTIAL LAW IN NATAL

Sir,--It seems that in the application made yesterday to the Judicial Committee of the Privy Council, on behalf of Natal natives under sentence of death, much stress was laid upon the argument that a proclamation of martial law cannot have a retrospective application. You will, perhaps, therefore allow me to remind your readers that, so far from the date of the proclamation having any bearing upon the merits of this painful case, the issue of any proclamation of martial law, in a self-governing British colony, neither increases nor diminishes the powers of the military or other authorities to take such steps as they may think proper for the safety of the country. If those steps were properly taken they are covered by the common law; if they have exceeded the necessities of the case they can be covered only by an Act of Indemnity. The proclamation is issued merely, from abundant caution, as a useful warning to those whom it may concern.

This view, I venture to think, cannot now be seriously controverted; and I am glad to find, on turning to Mr. Clode's _Military and Martial Law_ that the passage cited in support of Mr. Jellicoe's contention as to a proclamation having no retroactive application is merely to the effect that this is so, if certain statements, made many years ago in a debate upon the subject, are correct. As to their correctness, or otherwise, Mr. Clode expresses no opinion.

I am, Sir, your obedient servant, T. E. HOLLAND.

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