PUBLIC RECORD, OFFICE
Reference
C.O.885
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
3 PUBLIC RECORD OFFICE, LONDON
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generally suspended. This is often to be attri- buted to the revolted condition of the people rather than to the restraint of the military; and in some cases also the ordinary tribunals con- tinue, or are allowed to resume partial opera- tion.
It is obvious that these exceptional conditions involve grave questions of constitutional law. Such are, for instance, the legal effect of a pro- clamation of Martial Law, the authority of the Governor or the military officer to restrain the civil law of the Colony, the authority to inflict summary punishments, and the nature of the responsibility of these officers for the mode and degree in which they may have exercised such extraordinary powers. Upon these, however, and the like legal questions, although we have been obliged in some measure to consider them, we feel that it is not for us to express any opinion. We have assumed that occasions of necessity will arise when the Governor of a Colony and military officers will be called upon to exercise extraordinary powers of this nature, and we have assumed also that if they use such powers in good faith for the purpose of suppressing insurrec- tion and public disorder, their acts either will be legal or will be sanctioned by a Statute of Indemnity.
Such occasions, it is clear, leave little time for deliberation, and we think that Governors of Colonies and military officers ought to be fur- nished for their guidance with a few simple rules which have been carefully framed before- hand. The rules should be very general, in order that they may not interfere with the more detailed instructions which on each actual occasion the chief authority on the spot should adapt to the exigencies of the case.
At the same time if the spirit of the general rules be sufficiently clear, they would serve to suggest the proper tendency of any such supplementary directions.
Appended to this Report is a draft of the Rules which we would submit for approval. We will
add a short statement of the considerations upon which they are founded.
The function of proclaiming Martial Law when no other means appear sufficient for the public
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safety, and the power of revoking it when the the necessity ceases, must evidently belong to the supreme civil authority. On the Governor (with such Advisers as, by local statute, are associated with him in some of the Colonies for
the purpose) must rest the responsibility both of commencing and of putting an end to Martial Law.
The earlier Articles in our draft provide
for this, and are intended to afford him some guidance as to the circumstances which can alone justify the proclamation of Martial Law, and as
to the limits of its duration and area.
Our Rules next provide, that upon the procla- mation of Martial Law in any district, the Governor of the. Colony should, in conjunction ̈ with the officer commanding the troops in the Colony, arrange for the military occupation of the proclaimed district, and should give such officer instructions as to the nature and objects
of the measures to be performed. We have advisedly mentioned these instructions in general terms, because they must necessarily deal with`a variety of matters, and may differ in every case.
We then proceed to the very difficult question
of the personal authority which the Governor should be entitled to exercise in the proclaimed district during the continuance of Martial Law.
And first with respect to the troops. The existing Colonial Regulations confer upon the Governor in ordinary times certain rights and powers in respect of the troops, but declare that be is not entitled to take the direction of any military operation, and that in the event of invasion by a foreign enemy, the officer in com- mand of the land forces assumes the entire military authority over the troops. As Martial Law involves military operations for the purpose of suppressing armed resistance by force, we think that, in conformity with the foregoing rule, the officer in command of the troops in the pro- claimed district should assume over those troops
the entire military authority. We have, how- ever, provided for prompt and constant com- munication between that officer and the Gover-
nor.
Secondly, with respect to the civil population of the district. It is obvious that the officer in