Evening star., 1901-11-11
ORDERS TO PUSH THE WAR
GENERAL HAMILTON CARRIES DIS
PATCHES TO KITCHENER.
More Vigorous Operations to he fn-
augurated Court Decision
Stirs Up England.

LONDON. November u-According 10
the Daily News, Major General Ian Ham
ilton, who sailed Saturday for South Az
rica to act as Lord Kitchener's chief OF
stan. takes a plan prepared In London for
more vigorous campaign, with view of
ending the war before the coronation fes-
tivities begin.
General Hamilton's appointment" says
the Daily News, is part OF plan arranged
after the kings return from the continent
about six weeks ago. Unless Lord Kftch-
ener should decline to be complsisant. the
new scheme is likely to 5evcloo about the
beginning of the year"
In letter, dated October B. the Cape
Town correspondent of the Daily Mail
says:
Lord Kitchener and Sir John Gordon
Sprigg, the Cape premier. have arranged
scheme for the expulsion Of the invaders
from Cape Colony. A joint commission OF
imperial and colonial military chiefs has
been sitting here for some days past 10
draft a scheme.
'It is understood that this provides for
the colony taking a large share IN the fu-
ture Of the campaign and contributing
largely toward its cost. Apparently a levy
OF loyalists en- masse is the idea involved"
A London dispatch to the New York Her
aid says: The decision CT the judicial COM
mittee in the case of Marais has fa1eu
like thunderbolt upon the constitutional
lawyers The reasons for this startling
judgment have not yet been given, but IL
they bear any resemblance to the deciara-
tions OF the lord chancellor during the ar
gument they will destroy, so far as the ju
risdiction and authority OF the court en-
tend, those primary safeguards for the lib
erty of the subject which are supposed 20
have been finally secured by the habeas
corpus act and the bill OF rights.
Marais is a British subject confined Ia
Cane Colony without trial No daflnif,s
charge has ever been made against him.
though he was vaguely told he had in
frinsed paragraph of military regulations
which forbids intercourse with sne enemy.
On September . application was made to
the supreme court of the colony for his
release on the ground, which was not dis
puted, that he was a civilian ana therefore
menabie only TO a civil tribunal. But the
court, whose distinguished chief Justice is
in England, refused to interfere with the
actions of the soldiers in ne district under
martial law.
Last Tuesday the judicial committee Of
the priyy council was asked for special
leave to appeal as the case was cNcep-
tional and peculiar. If the case had IN
volved large sums of money an appeal to
the king in council would have been the
absolute right of the defeated lltigant, but
as Marais was charged with crime, though
with what crime no one seems 20 know, he
cannot appeal without leave against llabil
ity to death or perpetual imprisonment
In vain did Mr.. Haldare, who argued in
his behalf, cite whole chain of legal au-
thorities for the proposition that martial
law does not apply to civilians and that
they cannot, in the absence of express
Statutory enactment, be tried by court
martial while the ordinary courts are open.
The lord chancellor interrupted him al
every point and laid down the general prin-
ciple that the courts are not open IL ac-
cess to them would endanger the interests
of the state.
Lord Davey, one of the greatest lawyers
Of England, emphatically protested against
this doctrine subversive of British free
dom. He was outvoted and the petition
was dismissed.
The immense importance Of this deci-
sion is that it does not depend upon the
special circumstances of South Africa at
TIE present time, but IL is of general ap-
pication. 1t practically subordinates the
civil to the military power when martial
law has been proclaimed. The decisions
of the judicial committee are not indeed.
technically binding within the limits of the
united kingdom, but they are law through
out the rest of the British empire and are
followed obedientfy by every colonial court.
1t is singular rule Of this strange tri-
bunal-singular, at least, in this country
that only the views of the majority are
embodied in the judgment. The minority
is not allowed to state its opinions or even
to say 1t disseDts. The fiction of unauim-
ity is always maintained.
1t is credibly stated that the petition
was rejected by a majority of one.
The conduct Of the lord chancellor has
excited much unfavorable comment. AS
a cabinet minister he was responsible for
the approval which the government has
given, through Joseph Chamberlain, to the
proclamation of martial law in Cape Col
ony. 1t was therefore Thought he would
have done better not to sit, but he not
merely sat; he showed from the first he
had made up his mind, 1t now appears
that if he had not been there the decision
might have been different
A good deal more will be heard of these
proceedings, for eminent lawyers have not
hesitated TO describe the lord chancellor's
doctrines as a revolution.