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18527 S.

سيسيليا

'ग य ' 'ग

PUBLIC RECORD OFFICE

19

A. G. 4.,

No. 84 A

(CAPE.)

DEPUTY JUDGE ADVOCATE-GENERAL TO WAR OFFICE.

(Received in Colonial Office, May 29, 1901.)

We

THIS question is of such general importance that I delayed answer in order to consult the J.A.G. We are of opinion that the ruling of the Colonial Office, viz., that sentences imposed under martial law cannot remain in force beyond its contin- uance unless expressly extended by legislation, goes beyond our view of the law. think that although the special Courts would cease to sit when the declaration of martial law is withdrawn, their punishments would be carried out, unless when peace is made the release of such prisoners is made an express condition. It may be useful to briefly express our views in more detail.

1. It is the prerogative of the King (through his Commander-in-Chief or Governor) to resort to the exercise of martial law in the interest of public safety, against open enemies or traitors. (Sec 43 Geo. III, cap. 117, sec. 5, and 3 Wm. IV, cap. 4, sec. 40.)

2. In the present case the Governor proclaimed martial law and every guarantee has been given to the accused-publicity, right to call witness, to have counsel, due attention to the rules of evidence-in short, the procedure of an ordinary court-martial has been followed.

3. Supposing the Cape Parliament refused an Act of Indemnity, the proceedings in these martial law cases have been conducted with such regularity that relief ́under a writ of habeas corpus, if it were applied for, would not be granted, as there had been no wrongful confinement, and there had been a [? no] violation of law as laid down by the Governor, in accordance with the accepted usages of war.

4. Prisoners of war must, of course, in the absence of special reason to the contrary, be released when peace is made. But persons who have distinctly helped the enemy

in one way or another, who have been duly tried and found guilty, and sentenced for the offence, must, from our view, work out their term in spite of the declaration of peace, in the absence of special provisions in the Treaty of Peace such as were made in the Treaty of San Stefano (Articles 17 and 27) (I think, to a certain extent, similar relaxation of punishment was a term of the Treaty of Frankfort).

It may be useful to consider the result of the ruling of the Colonial Office. The Commander-in-Chief, South Africa, is informed that all offenders against martial law would be released when peace is proclaimed, or, even, when martial law is withdrawn. Would he not feel bound to make punishment more rigorous, as it is quite as much deterrent as punitive? The will of the Commander is the source of martial law, and he might even decide to increase the application of the death sentence.

Finally, if the terms of peace involved the return to the status quo ante bellum, the release of persons imprisoned for offences against martial law would probably form a term of peace, but there will not, in all likelihood, be a return to the status quo, and as the offenders are British subjects the punishment can be carried out.

J. SCOTT,

D.J.A.G.

Reference :-

C.O. 885

15 PUBLIC RECORD OFFICE, LONDON

ALLY. WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

The question was whether sentences passed under martial law would expire when martial law ceasul to be in force.

May 23, 1901.

307 (37)

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