CO129-429 - Public Offices & Others - 1915 — Page 265

followers, necessarily in any close relation to the military. The same is probably true of section 35 (traitorous words) though in this case the offence would probably in almost all cases tend to be dangerous to the preservation of discipline, since the forces which such words stimulate are very difficult to confine when once started.

Still more necessary is it to arrly this limitation to Section 41 (offences punishable by ordinary law) since this section would, if applied to the civil population without some such restric- tion, practically oust the civil jurisdiction al- together. It is true of course that Article III (1) (second paragraph) would exempt the civil pop- ulation from trial by Court Martial, but the, tion, if construed without restriction, would none the less submit the civilian to the executive auth- urity of the General Officer Commanding in all the

cases referred to.

Bec-

If one applies the above principles to the

claim of the General Officer Commanding in the present case (taking the 8 points mentioned in his letter of the 19th of October 50252),

IX

I

x Milta & Celon

think it is possible to shew that the Order in

Council does not give him anything like the powers

which he claims.

These points are,

(1) Right of access to land or buildings

person

(11) Search person or property

(111)Clearing of Areas

(IV) Closing undesirable premises

(V) Arrest without Warrant

263

(V1) Restriction as to hours when people may

be out of their houses

(V11) Restraint regarding the showing of lights (V111)The forgery of or tampering with passes

+

It seems to me perfectly plain that there is no provision in the Army Act which gives any direct power to exercise authority in respect of any of these points with the possible exception of number (V) arres without warrant. The Crown's Common law power to act in defence of the Realm would probably, under circum- stances of great emergency, justify the General Officer Commanding in taking the steps contemplated under all the other heads, but this would have nothing to do with the order in Council or the assimilation of the civil population to the position of camp-followers thereby effected. As to the power of arrest without warrant, this is an auxiliary power it could be exercised in all cases where the civil population were held subject to the jurisdiction of the military authorities, but in no others. Its scope would therefore be strictly limited by the considerations set out above.

L

I should be inclined, therefore, to ? reply X quoting 121 of 1892 and 10 and 11 of 1894, stating that Mr. Harcourt is advised that the powers of the General Officer Commanding under Article III (1) of the Order

in Council are limited in the mammer above stated

that the position appears to be sufficiently clear, that in any event, now that Teing Tao has fallen and

the wayointing of

(V)