The Petition of Right (x) did not in terms condemn martial law in time of war, but only in time of peace; but that, as was said by Blackburn, J., in Reg. v. Eyre, (y) is a very different thing from sanctioning it. Mr. Finlason, however, says in his commentaries, (z) "But the Mutiny Acts are only necessary to authorize the Crown to apply in time of peace those regulations which the Crown may by prerogative apply in time of war or of rebellion, which amounts to war; and in a recent case before the Privy Council, (a) the Earl of Halsbury, L.C., said, "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.”

In the Act of the Irish Parliament authorizing martial law there is a proviso to the effect that nothing in that Act contained shall be construed to take away, abridge, or diminish the acknowledged prerogative of His Majesty for the public safety to resort to the exercise of martial law against open enemies or traitors; " (b) and the same proviso is to be found in another statute. (c) But although, as was said by Cockburn, C.J., in Reg. v. Nelson & Brand, (d) "so emphatic an opinion of Parliament is certainly entitled to great and respectful consideration," still "it cannot prevail against fact and truth if a thorough investigation of the subject should lead to an opposite conclusion . . . against it may be set the fact that Parliament has passed Acts to indemnify persons who assisted in carrying martial law into execution."

Ex parte D. F. Marais.—The recent case of ex parte Marais (e) (1902) throws some further light on the subject. David François Marais was a British subject residing in Cape Colony; on August 15, 1901, he was arrested and kept in custody by the chief constable of the district under a warrant from the military authorities, martial law having been previously proclaimed in the district where he resided (x) 3 Car. I. c. 1.

C.L.E.

(y) Finlason's Rep., p. 73.

(z) Finlason's Comm., p. iii. n.

(a) Ex parte D. F. Marais, P. C., [1902] A. C. 109.
(b) 39 Geo. III. c. 11, s. 6 (Irish).

(c) 43 Geo. III. c. 117.

(d) Fred. Cockburn's Rep., p. 74.

(e) P. C., [1902] A. C. 109.

3

in the following terms :-" Notice is hereby given that from and after April 22, 1901, all subjects of his Majesty and all persons residing in Cape Colony, who shall in districts thereof in which martial law prevails (1) be actively in arms against his Majesty, or (2) directly incite others to take up arms, or (3) actively aid or assist the enemy, or (4) commit any overt act by which the safety of his Majesty's forces or subjects is endangered, shall immediately on arrest be tried by a military court convened by authority of the Commanderin-Chief, and shall on conviction be liable to the severest penalties, including death, penal servitude, imprisonment, and fine; any person reasonably suspected of such offences is liable to be arrested without warrant or sent out of the district to be hereafter dealt with by a military court."

Mr. Marais presented a petition to the Supreme Court of Cape Colony, alleging that his arrest and imprisonment were illegal, and asking to be liberated. Buchanan, J., having refused the application on the grounds that martial law had been proclaimed in the district, that the court ought not to go into the necessity for that proclamation, and that the court could not exercise jurisdiction as long as martial law lasted, Mr. Marais petitioned the Privy Council for special leave to appeal from the order of the Supreme Court, on the grounds, (1) that he had committed no crime; (2) that if he had he should have been arrested and tried according to law; (3) that the civil courts were open for his trial; and (4) that his arrest, deportation, and confinement were illegal. The Privy Council refused leave to appeal. In delivering the reasons on which their Lordships' judgment was founded, the Earl of Halsbury, L.C., said, " The only ground susceptible of argument urged by the learned counsel was, that whereas some of the courts were open it was impossible to apply the ordinary rule that where actual war is raging the civil courts have no jurisdiction to deal with military action, but where acts of war are in question, the military tribunals alone are competent to deal with such questions. . . . That question came before the Privy Council as long ago as the year 1830, in Elphinstone v. Bedreechund (f)... Lord Tenterden in giving judgment said, 'We think the proper character of the (ƒ) (1830) 1 Knapp, 316.

transaction was that of hostile seizure made, if not flagrante, yet nondum cessante bello, regard being had both to the time, the place, and the person, and consequently that the municipal court had no jurisdiction to adjudge upon the subject.' . . Doubtless cases of difficulty arise when the fact of a state of rebellion or insurrection is not clearly established. It may often be a question whether a mere riot or disturbance, neither so serious nor so extensive as really to amount to a war at all, has not been treated with an excessive severity, and whether the intervention of the military force was necessary; but once let the fact of actual war be established, and there is an universal consensus of opinion that the civil courts have no jurisdiction to call in question the propriety of the action of military authorities. 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.

It will be noticed, in the first place, that the regulation by which martial law was proclaimed gave authority to the military tribunals, not only to punish by death or fine, but also by imprisonment.

It must also be noted that Acts were passed by the Cape Parliament (g) to indemnify the Governor and Military Authorities, and all persons acting under them, for "all acts done for the suppression of hostilities, or the establishment and maintenance of good order and government, or for the public safety of the colony." These Acts also confirmed all sentences passed by the military tribunals during the war, and made void all legal proceedings commenced against the governor or the military authorities.

Further, a commission was appointed (h) under the Royal' Sign Manual and Signet to examine into sentences of fine and imprisonment passed by the military courts, with power, where expedient, to remit or reduce such sentences. The powers conferred by the Crown on this commission were subsequently confirmed by the Cape Parliament, (i) and the commission accordingly sat, and in many cases reduced or remitted sentences.

(g) No. 6 of 1900, and No. 4 of 1902 (Cape of Good Hope Acts). (h) Aug. 2, 1902.

(i) No. 4 of 1902, s. 5 (1), (Cape of Good Hope Act).

Conclusions as to Martial Law by Prerogative. From a consideration, then, of the authorities on martial law in connection with the prerogative, (k) the following deductions may be made :

(1) The Crown's prerogative to declare martial law does not exist in time of peace; its extent in time of war, if it exists at all, has never been judicially determined, but the only excuse for its exercise is the necessity occasioned by an actual state of war, or rebellion or insurrection amounting to war. (1) (2) Its exercise is strictly limited by, and must cease with the necessity which gave rise to it, and the civil courts will grant a habeas corpus in the case of persons detained in military custody for acts done after the war, insurrection, or rebellion is over (Wolfe Tone's Case). (m)

(3) The extent of the Crown's prerogative being uncertain, the Government would either obtain Parliamentary sanction for its exercise, or Acts of indemnity would be passed.

(4) There seems no reason why, supposing the same necessity to exist, martial law should not be proclaimed in England, as well as in the colonies or Ireland; but in this case the Government would probably be particularly careful to obtain the sanction of Parliament.

(5) Where a state of war actually exists and is recognized by the courts, the latter, even though they may be still sitting for some purposes, have no jurisdiction over the actions of the military authorities (ex parte Marais). But it seems doubtful whether sentences of fine or imprisonment would be valid without confirmation by Parliament.

(k) And in particular Reg. v. Eyre (Finlason's Rep.); Reg. v. Nelson & Brand (Fred. Cockburn's Rep.); Ex parte D. F. Marais, [1902] A. C. 109.

(1) Per Blackburn, J., in Reg. v. Eyre, p. 74: "I think this much is settled, that it is by no means that wild unbounded prerogative which some persons have been saying that it is."

(m) (1798) 27 St. Tri. 613.

CHAPTER IV.

CHARACTERISTICS OF ENGLISH CONSTITUTIONAL

LAW (continued).

(3) The Equality of all Persons before the Law.

THE equality of all persons before the law means that all persons are subject to the same law, and are subject to the jurisdiction of the same tribunals.

Exceptions to the Rule. There are a few exceptions to this general rule :—

(1) The Crown is a partial exception, for, under the maxim that the Crown can do no wrong, it is exempt from criminal prosecutions, and even for a civil action arising in tort. (a) Civil actions also against the Crown or its servants for the recovery of real or personal property (except in particular instances where a different remedy is provided by statute, as under the Crown Private Estates Acts, or the Crown Lands Acts) can only be brought by the particular process of Petition of Right, (b) which is available to the subject in cases of debt, or for damages for breach of contract; (c) but this remedy is available as of grace and not as of right, (d) and it is not available in actions arising out of tort. (e) This prerogative of the Crown, however, forms part of the ordinary common law of the land, and, as such, the extent of the prerogative itself is cognizable by the courts.

(a) Tobin v. Reg. (1864), 16 C. B. (N. S.) 310.

(b) The procedure by Petition of Right is regulated by the Petitions of Right Act, 1860 (23 & 24 Vict. c. 34).

(c) The damages may be either liquidated or unliquidated, Thomas v. Reg. (1874), L. R. 10 Q. B. 31.

(d) 23 & 24 Vict. c. 34, s. 2.

(e) Tobin v. Reg., supra.