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arrest and the detention on the ground that he is acting in the 

 exercise of his powers under Martial Law. By virtue of a Pro- 

 clamation, dated August 5th last year, bringing into operation 

 an Imperial Order in Council of October 24th, 1896, all persons 

 in this Colony are subject to military law as if they were actually 

 accompanying His Majesty's Forces. By a later Proclamation, 

 dated June 2nd in the present year, His Excellency the Governor 

 declares that the maintenance of order and the defence of life 

 and property in the provinces to which the Proclamation shall be 

 made applicable have been committed to Brigadier-General 

 Malcolm, the Officer Commanding the Troops, and that he is 

 authorised " to take all steps of whatever nature that he may 

 deem necessary for the purposes aforesaid." This Proclama- 

 tion is in force in the Western Province, within the limits of 

 which the applicant has been arrested. The question now 

 arises whether he is entitled to be released from custody by the 

 issue of a Habeas Corpus. The principles of law applicable to 

 the determination of this question are well settled. We are con- 

 cerned here with Martial Law in the sense not of the old law 

 martial, which governs the discipline of an army engaged in 

 actual, and especially upon foreign service, or of the modern 

 military law, but of the assumption by the Officers of the Crown 

 of powers which they deem necessary for the protection 1 of the 

 Colony in view of the existence of what is known as an " actual 

 state of war." This expression is not confined to hostilities 

 between independent Sovereign States. It is obvious that there 

 may be domestic disturbances which present all the features of 

 actual warfare, and which justify the same measures for the 

 public security. The question whether an " actual state of 

 war," as thus defined, exists or not is purely one of fact. The 

 circumstance that the ordinary Courts are open may constitute 

 evidence, and material evidence, against the existence of such a 

 state of war. But it is not conclusive. It is, least of all, con- 

 clusive where a country is in a state of unsettlement at a time 

 when actual acts of violence may for the moment have ceased. 

 The authorities, when they have to deal with such circumstances 

 as these, may well regard the keeping open of the municipal 

 tribunals as being itself a part of the healing process which it 

 must be their endeavour to induce. No authority was cited to 

 me at the argument yesterday, and I am aware of none, which 





