Haldane, K. C., and Mackarness, for the petitioner, submitted that leave should be given, for the question of law involved was of substantial importance. The special feature of the case was that the district where the arrest was made was undisturbed, and that civil courts were still exercising uninterrupted jurisdiction. That being so, and it appearing that the ordinary course of law could be and was being maintained, a state of war did not exist, and martial law in that case could not be applied to civilians. Even if a state of war did exist, still the application of martial law was limited by the necessity of preserving peace and order in the district, and did not oust the jurisdiction of those civil courts which, notwithstanding the pressure of military circumstances, were still administering the law of the land. There was no necessity alleged or shewn for bringing the petitioner before a military tribunal whilst a civil court was sitting. The right of the crown to resort to such an extremity as the proclamation of martial law was limited by necessity, and, if a civil court was open, the crown had no power to try an offender by a military one. [The Lord Chancellor referred to Sutton v. Johnston (1786) 1 T. R. 493, 1 R. R. 257.] That case only establishes that, on grounds of public policy, a superior officer cannot be sued by an inferior for the consequences of an act done in the course of duty or discipline, even though done maliciously. And see the dictum of Lord Mansfield, C. J., to the effect that no case can occur of overpowering necessity in a well-ordered country with a regular government. Even in a remote dependency it must be extreme and imminent. *

Dec. 18. The reasons for their Lordships' report that the petition should be refused were delivered by

THE LORD CHANCELLOR.22 This was a petition by D. F. Marais for special leave to appeal against a decision of the courts in Cape Colony which had refused to release him from an arrest effected by the military forces of the crown on August 15 last. *

*

From the petitioner's affidavit it appears that the ground of his arrest was stated in an affidavit by Major General Wynne, that in the opinion of the military authorities there were military reasons that the petitioner should be removed and kept in custody.

All the persons arrested were, as appeared by the warrant under which they were arrested, charged with contravening what were called "Martial Law Regulations," which regulations are set out in the petitioner's affidavit as follows:

"No. 14. Rebellion, Dealings with Enemy, etc. Notice is hereby given that from and after the 22d April, 1901, all subjects of His Majesty and all persons residing in Cape Colony who shall in districts thereof in which martial law prevails:

"(1) Be actively in arms against His Majesty, or

22 Part of the opinion is omitted.

"(2) Directly incite others to take up arms against His Majesty, or "(3) Actively aid or assist the enemy, or

"(4) Commit any overt act by which the safety of His Majesty's forces or subjects are endangered

-shall immediately on arrest be tried by a military court convened by authority of the General Commanding-in-Chief of His Majesty's Forces in South Africa, and shall on conviction be liable to the severest penalties. These penalties include death, penal servitude, imprisonment and fine.

"Any person reasonably suspected of such offence is liable to be arrested without warrant, or sent out of the district, to be hereafter dealt with by a military court."

Under these circumstances their Lordships were appealed to, to give special leave to appeal, and Mr. Haldane, on behalf of the petitioner, was fully heard on November 5 last.

The only ground susceptible of argument urged by the learned counsel was that whereas some of the courts were open it was impossible to apply the ordinary rule that where actual war is raging the civil courts have no jurisdiction to deal with military action, but where acts of war are in question the military tribunals alone are competent to deal with such questions.

The question was as fully argued before their Lordships by the learned counsel as it could have been argued if leave to appeal had been given, and their Lordships did not think it right to suggest any doubt upon the law by giving special leave to appeal where the circumstances render the law clear. They are of opinion that where actual war is raging acts done by the military authorities are not justiciable by the ordinary tribunals, and that war in this case was actually raging, even if their Lordships did not take judicial notice of it, is sufficiently evidenced by the facts disclosed by the petitioner's own petition and affidavit.

Martial law had been proclaimed over the district in which the petitioner was arrested and the district to which he was removed. The fact that for some purposes some tribunals had been permitted to pur-' sue their ordinary course is not conclusive that war was not raging. That question came before the Privy Council as long ago as the year 1830, in Elphinstone v. Bedreechund, 1 Knapp, P. C. 316. * * *

The truth is that no doubt has ever existed that where war actually prevails the ordinary courts have no jurisdiction over the action of the military authorities. Doubtless cases of difficulty arise when the fact of a state of rebellion or insurrection is not clearly established.

It may often be a question whether a mere riot, or disturbance neither so serious nor so extensive as really to amount to a war at all, has not been treated with an excessive severity, and whether the intervention of the military force was necessary; but once let the fact of actual war be established, and there is an universal consensus of

opinion that the civil courts have no jurisdiction to call in question the propriety of the action of military authorities.

* *

For these reasons their Lordships advised His Majesty to refuse leave to appeal.23

28 The principal case has created much comment, and a wide difference of opinion exists as to the nature and extent of martial law.

For a discussion of martial law as applied in the Marais Case, see 18 Law Quarterly Review (1902), containing W. S. Holdsworth's article entitled "Martial Law Historically Considered," pp. 117-132; Sir H. Erle Richards' "Martial Law," pp. 133-142; Cyril Dodd's "Case of Marais," pp. 143-151; Sir Frederick Pollock's "What is Martial Law?" pp. 152-158.

See, also, A. V. Dicey's Introduction to the Study of the Law of the Constitution (8th Ed. 1915), "Martial Law in England During Time of War or Insurrection," Appendix, note X, 538-555.

CHAPTER X

ANGARY 1

THE ZAMORA.

(Privy Council, 1916. L. R. [1916] 2 App. Cas. 77.)

The judgment of their Lordships was delivered by LORD PARKER OF WADDINGTON. * *2 It remains to consider the third, and perhaps the most difficult, question which arises on this appeal-the question whether the crown has, independently of Order XXIX, r. 1, any and what right to requisition vessels or goods in the custody of the Prize Court pending the decision of the court as to their condemnation or release. In arguing this question the Attorney General again laid considerable stress on the crown's prerogative, referring to the recent decision of the Court of Appeal in this country in In re A Petition of Right, [1915] 3 K. B. 649. There is no doubt that under certain circumstances and for certain purposes the Crown may requisition any property within the realm belonging

1 In The Diplomatic Protection of Citizens Abroad or the Law of International Claims (1916), Professor Edwin M. Borchard thus defines "angary”: "The right of belligerents in case of necessity, for belligerent purposes, to detain, use, or even destroy neutral property not vested with enemy character is known as the right of angary, a modern development of the former jus angariæ. The payment of indemnity is a necessary condition of such use of neutral property. The application of this rule has generally arisen through the detention, use or destruction of neutral vessels temporarily in the ports of a belligerent." pp. 266-7.

In a footnote to the above passage the learned author cites the following authorities:

"Labuan (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3791; Ophir (U. S.) v. Mexico, April 11, 1839, Id. 3045; Brig Splendid (U. S.) v. Mexico, Id. 3714; Kidder (U. S.) v. Mexico, March 3, 1849, Opin. 519 (not in Moore); Orr and Laubenheimer (U. S.) v. Nicaragua, March 22, 1900, For. Rel. 1900, 824, 829; The Moshona and the Beatrice (U. S.) v. Great Britain, For. Rel. 1900, 529-618; The Tabasqueno v. U. S., For. Rel. 1907 [1908] 614 (neutral cargo is in the same position as the neutral vessel); U. S. v. Russell, 13 Wall. 623, 20 L. Ed. 474 (1871), implied contract in municipal law. See the celebrated case of the sinking by German troops of British vessels in the Seine, 1870, in which indemnity was paid. 61 St. Pap. 575, 600, 611, and Moore's Dig. VI, 904." See the elaborate monograph by Erich Albrecht, entitled "Requisitionen von neutralem Privateigentum, insbesondere von Schiffen," Zeitschrift für Völkerrecht und Bundesstaatsrecht, Supplement 1 to Volume VI (1912), English translation in "Memorandum of Authorities on the Law of Angary," by Theodore Henckels and Henry G. Crocker, pp. 1-57 (1919); and the admirable article by J. Eugene Harley on "The Law of Angary," 13 American Journal of International Law, 267-301 (1919). See the "Memorandum of Authorities on the Law of Angary" also for a collection of the views of writers, official documents, and a bibliography on the subject.

2 For the facts of this case, see post, p. 1052. Only the portion of the opinion relating to the law of angary and requisition is here printed.

to its own subjects. But this right being one conferred by municipal law is not, as such, enforceable in a court which administers international law. The fact, however, that the crown possesses such a right in this country, and that somewhat similar rights are claimed by most civilized nations, may well give rise to the expectation that, at any rate in times of war, some right on the part of a belligerent power to requisition the goods of neutrals within its jurisdiction will be found to be recognized by international usage. Such usage might be expected either to sanction the right of each country to apply in this respect its own municipal law, or to recognize a similar right of international obligation.

In support of the former alternative, which is apparently accepted by Albrecht (Zeitschrift für Völkerrecht und Bundesstaatsrecht, VI Band, Breslau, 1912), it may be argued that the mere fact of the property of neutrals being found within the jurisdiction of a belligerent power ought, according to international law, to render it subject to the municipal law of that jurisdiction. The argument is certainly plausible and may in certain cases and for some purposes be sound. In general, property belonging to the subject of one power is not found within territory of another power without the consent of the true owner, and this consent may well operate as a submission to the municipal law. A distinction may perhaps be drawn in this respect between property the presence of which within the jurisdiction. is of a permanent nature and property the presence of which within the jurisdiction is temporary only. The goods of a foreigner carrying on business here are not in the same position as a vessel using an English port as a port of call. Even in the latter case, however, it is clear that for some purposes, as, for example, sanitary or police regulations, it would become subject to the lex loci. After all, no vessel is under ordinary circumstances under any compulsion to come within the jurisdiction. Different considerations arise with regard to a vessel brought within the territorial jurisdiction in exercise of a right of war. In the latter case there is no consent of the owner or of any one whose consent might impose obligations on the owner. Nevertheless, even here, the vessel might well for police and sanitary purposes become subject to the municipal law. To hold, however, that it became subject for all purposes, including the municipal right of requisition, would give rise to various anomalies.

The municipal law of one nation in respect of the right to requisition the property of its subjects differs, or may differ, from that of another nation. The circumstances under which, the purposes for which, and the conditions subject to which the right may be exercised need not be the same. The municipal law of this country does not give compensation to a subject whose land or goods are requisi

3 For an English translation of this important monograph, see "Memorandum of Authorities on the Law of Angary," by Theodore Henckels and Henry G. Crocker, pp. 1-57 (1919).