PUBLIC RECORD OFFICE
Reference :-
C.O.885
16 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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the temporary government of a country or parts of it by military tribunals. limited in its operation only by what is known as the custom of war and the discre- tion of those who administer it. In other words, the military commander accepts the responsibility of doing acts which are outside the law, and even contrary to it, in order, during a time of peril, to maintain those conditions of good order and government without which the ordinary law could not exist.
"Where the civil law is suspended martial law of a necessity replaces it, but where, as in this Colony, the civil law still operates, martial law merely supple- ments it."
"2. PROCLAMATION.
Martial law is called into being by a proclamation issued by His Excellency the Governor, acting under the advice of his Ministers. But even that proclama- tion, however right and necessary, is not strictly lawful. It is merely an announce- ment to the public that the provisions of the civil law are inadequate to deal with the situation which has arisen, and an intimation to the military authorities that the Government is willing that exceptional measures should be taken by those authori- ties to meet circumstances with which the ordinary law is unable sufficiently to cope, and to enable persons resisting the authority of the Government, or aiding or abet- ting the enemy, to be arrested summarily and punished promptly. In proclaiming martial law, the Government, in fact, declares itself obliged, for the protection of the community, temporarily to neglect the law, trusting to the legislature to relieve from their liability for the consequences all those who, in obedience to the consti- tuted authority, may have acted unlawfully in defence of the public safety."
That a number of proclamations were issued at the Cape proclaiming or with drawing martial law, and that it was believed that in every case these proclamations were countersigned by Ministers. That in this connexion attention might be drawn to No. 7 in the Blue Book [Cd. 420]. That the same practice had obtained in Natal both during the South African War and during the late native rebellion. That Indemnity Acts had been passed in every case by the local Legislature.
That Sir Francis Hopwood was also to draw our attention to the enclosed copies of questions and answers in the House of Commons from which it would be seen that it had never been doubted that martial law should be proclaimed or revoked on the advice of Ministers.
That Sir Francis Hopwood was to request us to take the papers into our con- sideration, and to advise your Lordship whether in Natal martial law could be pro- claimed or revoked otherwise than upon the advice of Ministers.
We have taken the papers into our consideration, and, in obedience to your Lordship's commands, have the honour to
Report
That we think that the making or withdrawing of a proclamation of martial law is one of the powers and authorities vested in the Governor as the head of the Executive administering the Colony, and that he may exercise that power in opposi- tion to the opinion of his Council if he shall see sufficient cause to dissent from such opinion. In that case he must, under Section 7 of his Instructions, report the matter to the Secretary of State without delay stating the reasons for his dissent. however, of opinion, that although constitutionally the Governor possesses the power We are, of making or withdrawing of a proclamation of martial law, it is one upon which it is rarely safe or practicable for him to act in the case of a self-governing Colony except with the consent of his responsible Ministers. Unless Imperial troops are at his disposal it is only by the consent and help of his Ministers that any effect can be given to his proclamation, and it is to his Ministers and the Legislature with which they are in accord that he must look for the Indemnity that may become necessary for acts done otherwise than under the ordinary law.
These considerations practically place the matter within their power, and we think in a case like that before us the Governor ought to act only upon their advice and responsibility.
The Right Honourable
The Earl of Elgin, K.G.,
&c., &c., &c.
We have, &c.,
W. S. ROBSON. S. T. EVANS.
No. 97.
(GRENADA.)
LAW OFFICERS to COLONIAL OFFICE, [Suspension of Chief Justice Bayldon Walker: whether the case should be referred to the Judicial Committee of the Privy Council.]
MY LORD,
Royal Courts of Justice,
5th May, 1908. We were honoured with your Lordship's commands, signified to us in Sir C. P. Lucas's letter of the 15th April last, stating that he was directed by your Lordship to transmit to us certain documents enumerated in the margin relative to the case of Mr. J. Bayldon Walker, Chief Justice of the Colony of Grenada, who had been tried before the Executive Council of Grenada on three charges of indecent conduct, and had been found guilty on the first of the three charges by a majority of the Council. That the Chief Justice had been suspended from office by the Governor of the Windward Islands.
That the Chief Justice of Grenada was appointed under the provisions of Article XV. of the Letters Patent of March 17th, 1885, and that it would be seen that he held office during His Majesty's pleasure, no provision having been made by Statute for the holding of the office during good behaviour.
That a copy of the instrument under which the present Chief Justice was appointed is enclosed. That it would therefore appear that technically the Chief Justice could be dismissed from his office by His Majesty on the advice of the Secre- tary of State and that the provisions of Burke's Act (22 Geo. III., c. 75, Section 2) did not apply to him, his appointment not being made by Patent. But that your Lordship was clearly of opinion that it would be inadvisable to adopt that course and that the final decision in the present proceedings should be given by His Majesty in Council. That in order to bring the case before the Judicial Committee of the Privy Council it would appear to be possible either for your Lordship to confirm the suspension of the Chief Justice, if after consideration of the evidence he came to the conclusion that the decision of the Council was correct, or to refer the matter at once to the Judicial Committee without pronouncing an opinion upon it. That in that connexion Sir C. Lucas was to invite our attention to the observations by the late Lord Chelmsford, included in the correspondence respecting the Removal and Suspension of Colonial Judges, which was laid before Parliament [C. 139] in June, 1870, and which would also be found in the appendix to the sixth volume of 'Moore's Privy Council Reports.
That a copy of that l'arliamentary Paper was enclosed for convenience of refer- ence and that it would be seen that Lord Chelmsford expressed the view that in all cases of the removal or suspension of a Colonial Judge "except those which some- times occur of judicial indiscretion or indecorum, the best system is that which leaves the responsibility in the first instance to the Governor of the Colony, subject to an appeal to the Queen in Council. In every instance of this kind it would be better that the matter should be brought before the Privy Council, rather than that the final decision should rest with the Secretary of State."
These observations do not apply to grave charges of judicial delinquency, such as corruption; or to cases of immorality or criminal misconduct. Instances of this kind ought to be visited by immediate removal from the Bench (of course, not before a full opportunity has been afforded to the accused Judge to defend himself). Such serious cases ought to be brought before the Privy Council, either by appeal on the part of the removed or suspended Judge or upon the recommendation of the Secre tary of State."
That you were to request that we would be good enough to advise your Lord- ship whether we considered that it would be advisable in the present instance to refer the case to the Judicial Committee of the Privy Council, and, if so, what papers we considered should be communicated to them.
That the opinions of the individual members of the Executive Council had not so far been communicated to the Chief Justice, but that your Lordship considered that it would be necessary to lay them before the Judicial Committee and that your
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