PUBLIC RECORD OFFICE
Reference :-
CO.
885
12 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-
COPYRIGHT PHOTOGRAPH-NOT TO
9. That we would observe that a grave difference of opinion existed between the Governor and Mr. Stockenstrom as to the proper mode of administering martial law generally, and as to the power of so-called "drumhead" courts martial in particular. That we would also observe that the present Attorney-General, Mr. Upington, differed from Mr. Stockenstrom as to proceeding by "drumhead from the Governor on the point whether civilians could be appointed to administer court martial, and apparently
martial law.
10. Mr. Malcolm was pleased to request that we would favour you whether, in our opinion, the views of Mr. Stockenstrom, Mr. Upington, or the Governor in this matter are the more correct, and in what respects (if any) the various views advanced are erroneous, and that we would further advise whether the view expressed by the Governor as to the defective powers of the Executive, in the absence of martial law, tó encounter what appears to have been almost open war, is correct.
Whether the powers of administering martial law were properly confided to civil officers, and whether the instructions issued to these commissioners were proper ones.
What would be the effect of sentences to punishments extending beyond the duration of martial law which has since been withdrawn; and, lastly, whether an Act of Indemnity will not in any case be requisite to protect officers who have acted under the proclamation of martial law, and to validate their proceedings.
In obedience to your commands we have the honour to
Report
That we are not prepared to enter upon a comparison between the opinions expressed, or supposed to be expressed, by Mr. Stockenstrom, Mr. Upington, and the Governor on the subject of martial law.
That an act done unter the authority of so-called martial law is justifiable only when it is necessary for the preservation of the State; neither "drumhead courts martial,” nor any other such tribunal, however constituted, can give any legal sanction to such acts. They must be judged of by their necessity, and by their necessity only.
That it seems to us unreasonable to expect that the statute law of any country will clothe the Executive with specific statutory powers sufficient to encounter open war without the proclamation of what is called "martial law." war or rebellion the Executive must use such force as is necessary to restore the state When order is broken by or order in which peace can be preserved by the ordinary legal and civil procedure.
That a Governor of a Colony may call upon any person, civil or military, to do any act necessary for the restoration of order. The instructions issued to the commis- sioners were improper, so far as they were directed to do acts unnecessary for the restoration of order, and having operation intended to continue after order was restored. That so soon as the danger is past, and the necessity for so-called martial law has ceased, all persons who have been imprisoned under it are entitled to immediate release. The proceedings under the proclamation of martial law can be legalised and validated by an Act of the Legislature; and some of the acts done appear to have been illegal. Some acts, as far as they were justifiable upon the principles above explained, do not require one, but some of the acts done do require an Act of Indemnity.
The Right Hon.
Sir Michael Hicks Beach, Bart.,
&c. &c.
&c.
We have, &c.,
(Signed)
JOHN HOLKER. HARDINGE S. GIFFARD.
9370.
SIR,
No. 176
(Fin.)
LAW OFFICERS to COLONIAL OFFICE.
Temple, 26th July 1878.
We were honoured with your commands signified in Mr. Malcolm's letter of the 16th of May last, stating that with reference to our report of the 15th ultimo, in which we stated our opinion that recourse should be had to Imperial Parliamentary Draft Bill. legislation to remove doubts as to the validity of certain marriages solemnised between British subjects in Fiji prior to the cession, he was directed by you to transmit to us the accompanying draft of a Bill which had been prepared in the. Colonial Department, and to request that we would favour you with our opinion whether the Bill, as now prepared would meet the requirements of the case, and might properly be introduced into Parliament.
A copy of Sir A. Gordon's Despatch, with the Ordinance passed in Fiji for the same No. 150, 39 Auk. purpose, was again transmitted for convenience of reference.
In obedience to your commands we have the honour to
Report
That if it intended to give validity to all marriages solemnised by ministers of the Christian religion in Fiji, we are of opinion that the Bill prepared will meet the require- ments of the case, and may properly be introduced into Parliament.
We suggest for consideration whether the Bill should, in accordance with the principle approved by Parliament in 12 & 13 Vict. c. 68., be extended to cases in which either of the parties was a British subject, and also whether in clause 2, after the words "duly appointed or ordained,” the words "or reputed to be duly appointed or ordained" should be added.
The Right Hon.
Sir Michael Hicks Beach, Bart.,
&c.
&c.
&c.
We have, &c., (Signed)
JOHN HOLKER.
HARDINGE S. GIFFARD.
▲ 19916.-171. 25.—19/84.
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