of simultaneous military operations in different quarters, to provide Ch. II. for its exercise at different places at the same time, and consequently by different persons; and accordingly we occasionally find several Constables and Marshals holding office and exercising jurisdiction at the same time. It is not quite clear whether the several Constables and Marshals from time to time appointed exercised judicial functions in the administration of military law merely by virtue of their offices, or by virtue of special commissions from the Crown. Probably the power to administer such law was chiefly conferred by commissions (a), and the administration of military law was thus less affected than would otherwise have been the case by the extinction of the office of High Constable, as a permanent office, in the 13th year of the reign of Henry VIII (1521). High 13. In that year the office, which had in accordance with the Extinction general tendency of the great offices of State in early times, become of office of hereditary in the family of the Bohuns, Earls of Hereford and Constable. Essex, was forfeited to the Crown on the attainder and execution of Edward, Duke of Buckingham, the then High Constable, and since that time a High Constable has never been appointed permanently, but only on occasions of coronations and like ceremonies (b). The office of Earl Marshal, on the other hand, long continued to be held only by grant from the Crown, and did not become hereditary till the 25th year of the reign of Henry VIII, when it was granted to Thomas Howard, Duke of Norfolk, and his heirs male, in which line it still continues. Administra virtue of 14. This change seriously affected the ordinary jurisdiction of tion of the Court of Chivalry (c); but does not seem to have materially military affected the administration of military law, which was subsequently law by provided for (as had probably been the case before the extinction Commisof the office of High Constable), by commissions from the Crown, sions. or by clauses inserted in the commissions of the Commanders-inChief authorising them to enact ordinances for the government of the army under their command, and to sit in judgment themselves, or appoint deputies for that purpose (d). These deputies consisted Councils of of officers, and out of their sittings there gradually arose a new form of military tribunal, under the denomination of a Court or Council of War, which sat at stated times under an officer of a certain rank, who was styled the President. War. 15. The transition from a Council of War to Courts-Martial in Courts Martial. their present form was a matter more of name than of substance. (a) Hale says (Hist. Com. Law, p. 40), "The Military Court held before the Constable and Marshal antiently, as the Judices Ordinarii in this case, or otherwise before the King's Commissioners of that jurisdiction as Judices delegati." See also Bac. Abr., ii. p. 152; and as to the appointment of Constables and Marshals, Grose, Mil. Antiquities, i. pp. 191 and 192. Rymer's Fadera, annis 1399, 1400, and elsewhere. (b) Coke, 1 Inst., 746; 4 Inst. 127. Grose, Mil. Antiquities, i. p. 190. (c) See Coke, 1 Inst., by Hargrave and Butler, 746, note (1). The Earl Marshal undoubtedly exercised the civil jurisdiction of the Court of Chivalry for a long time after the extinguishment of the permanent office of the Constable. See as to the jurisdiction of the Earl Marshal's Court, a letter to Sir John Somers, AttorneyGeneral, from Robert Plot, LL.D., Hearne's Curious Discourses, ii. p. 250. See also the case of Oldis v. Domville, Shower's Cases in Parliament, p. 58. The last commission to the High Constable to act as a criminal judge was issued by Charles I. in 1631, upon an appeal of treason brought by Donald, Lord Rae, against David Ramsay, Esq., for treasonable words and purposes. In this Court the accused was entitled to wager of battle; but on further reflection the King withdrew his com mission and the duel was never fought. See Thomson, Mil. Forces of Great Britain and Ireland, pp. 38, 39. The Court of Chivalry has never been abolished by law. In consequence of an appeal of death in 1818, the wager of battle was shortly after abolished by law. Ashford v. Thornton, 1 Barn, and Ald. p. 405. (d) Grose, Mil. Antiquities, ii. p. 60, et seq. Ch. II. The exact time at which courts-martial under that name began to be held is not ascertained, but they are mentioned with the distinction of general and regimental courts-martial in the Articles of War issued on the outbreak of the Dutch War, in 1672, by Prince Rupert, as Commander-in-Chief, under the authority of a commission from Charles II (a). There was this difference between the earlier courts-martial and the military courts-martial of the present day, that in the earlier courts the general or governor of the garrison who convened the court ordinarily sat as President, and that the power of the Court was plenary, and their sentences were carried into execution without the confirmation required under the present law. Military code in time of peace rendered necessary by estab standing army. 16. Before the establishment of a standing army no necessity existed for a military code in time of peace; but when, after the Restoration in 1660, such a force was established, the necessity of special powers for the maintenance of discipline began to be felt. lishment of The growth of the army was, however, always regarded with jealousy, and Parliament was therefore unwilling to confer such powers on the Crown until it became absolutely necessary to do so. The small number of men forming the garrisons maintained before the Rebellion, and the armies of Charles II and James II, were tolerated rather than sanctioned by Parliament, and were therefore governed without such powers, and rather as the retainers of a great man than as an army. For though in 1662 Charles II issued Articles for the government of his guards and garrisons, offences involving the penalty of death were expressly reserved for trial by the known laws of the land, or by special commission under the Great Seal by the advice of the judges and lawyers. Again, the Articles issued by James II in 1686, which provided for the punishment of offences by courts-martial, expressly prohibited the infliction of any punishment amounting to loss of life or limb in time of peace (b). Discipline, therefore, was naturally lax; and when on the accession of William and Mary the maintenance of the army was sanctioned by Parliament, the loose discipline and general disaffection prevalent among the troops led to special powers being granted for their coercion. Occasion of passing of Act. 17. On the 1st March, 1689, in a debate in the House of Commons first Mutiny on a message from William and Mary, suggesting the suspension of the Habeas Corpus Act, the necessity was urged of a measure for the regulation of the army (c), and on the 13th leave was given to bring in a Bill to punish mutineers and deserters from the army for a limited time, and a committee was appointed to prepare it (d). Almost at the same time 800 men enlisted by James II, who had been ordered by William to embark for Holland, mutinied at Ipswich, and marched northward, declaring that James was their king, and that they would live and die by him; and this danger, which was reported to both Houses on the 15th March (e), doubtless facilitated the passing of the Bill, which was introduced into the House of Commons on the 18th, and having passed through all its stages by the 28th, was passed by the House of Lords on the same day, and received the Royal Assent on the 3rd April (f). (a) See Code printed in 1866 by the Royal Commission on Recruiting the Army, Parl. Papers, 1867, Art. 59, p. 241. (b) Memorandum by Mr. Clode. (c) Cobbett's Parl. Hist., v. pp. 154, 155. (e) Cobbett's Parl. Hist., v. pp. 129-182. (d) 10 Comm. Journ. 47. (f) 10 Comm. Journ., 49, 52, 53, 64, 67, 69; 15 Lord's Journ. 164, 165. Act. 18. This Bill, which is known as the first Mutiny Act (1 Will. Ch. II. & Mary, c. 5), was prefaced by a preamble declaring the necessity Objects and for and the objects of the Act in terms which were repeated scope of without substantial alteration in each subsequent Mutiny Act first Mutiny until the year 1878, and have now been transferred to the preamble of the annual Act bringing the Army Act into force (a). Mutiny and desertion when committed by persons in their Majesties' service in the army were made punishable by death or such other punishment as by a court-martial should be inflicted. Power was given to their Majesties or the general of their army to grant commissions for summoning courts-martial for punishing such offences, and it was further provided that the Act should not extend to the Militia, and should not exempt any officer or soldier from the ordinary process of law. The duration of the Act was limited to seven months, from the 12th April, 1689, to the 10th November in the same year. 19. On the 19th October, 1689, Parliament reassembled, and a Second second Mutiny Act (1 Will. & Mary, sess. 2, c. 4) was passed Mutiny Act. during the session, which received the Royal Assent on the 23rd December, and was ordered to come into force on the 20th, so that an interval of more than a month occurred between the lapse of the first and the coming into force of the second Act (b). 20. Successive Mutiny Acts, with the exception of certain short Succession intervals, were subsequently passed annually from the year 1690 of Mutiny to the year 1878 (c). Acts till 1878. 21. To indicate in detail the changes which took place in the Periods in various Mutiny Acts from the first in 1689 to the termination of Mutiny Act worthy of the series in 1879, on the passing of the Army Discipline and observation. Regulation Act, would be out of place in the present work; but it may be useful to point out the various periods, so to speak, in military legislation, and the principal changes which took place from time to time, until military law assumed the form which it bears in the Army Act. 22. The first period lasted till 1712. During this period the From 1689 Mutiny Acts did not extend to the dominions of the Crown to 1712. abroad (d), and the principal offences punishable under them were mutiny and desertion; but no difficulty was felt from the narrow extent of the statutory provisions, inasmuch as the nation was at war during almost the whole period, and the main body of the army was in consequence on active service, and was governed by Articles of War issued by the Crown in pursuance of the prerogative. (a) This preamble emphatically states: (1) That the raising or keeping a standing army within the United Kingdom in time of peace, unless it be with the consent of Parliament, is against law. (2) That no man can be fore-judged of life or limb, or subjected in peace to any kind of punishment within this realm by martial law, or in any other manner than by the judgment of his peers, and according to the known and established laws of the realm. See the text of the Army (Annual) Act, infra, p. 257. (b) Copies of the Mutiny Acts to the end of the reign of Aune will be found in the Record Edition of the Statutes. A copy of the first Mutiny Act will also be found in Clode, Military and Martial Law, Appendix A, p. 182; Mil. Forces, i. p. 499; also in Grose, Mil. Antiquities, ii. p. 73. (c) The Mutiny Act of 1690 expired on the 20th December, 1691, and the next Act passed on the 14th March, 1692, but it was ordered to be in force from the 10th of that month The Act of 1694 expired on the 1st March, 1695, but was continued in force from the 10th April, 1695, to the 10th April, 1696, by an Act passed on the 22nd April, and having therefore a retrospective operation. Again, there was a lapse from the 10th April, 1698, to the 20th February, 1702, Grose, i. p. 64; and the Record Edition of the Statutes. See also table in Clode, Mil. Forces, i. pp. 389-391. The authorities for the statements as to the Mutiny Acts are an analysis of these Acts prepared by Mr W. L. Selfe (now Judge Selfe), of Lincoln's Inn, and a memorandum by Mr. Clode on the Articles of War and Mutiny Acts. (4) The Act was extended to Ireland in 1702 (13 & 14 Will. III. c. 2), and to Scotland in 1707 (7 Anne, c. 4). Ch. II. Lapse of 23. From 1698 to 1702 the nation was at peace, and the Mutiny Act was allowed to drop. The greater part of the army was Mutiny Act disbanded at the same time, and though the King was allowed by statute (10 Will. III, c. 1) to maintain 7,000 troops in England and 12,000 in Ireland, no special powers were conferred upon him for their government. from 1698 to 1702 in time of peace. Renewal of 24. On the renewal of hostilities in 1702, the Mutiny Act was Act in 1702. revived, and extended to Ireland; and in the next year clauses were added for the better enforcement of discipline abroad, which provided that certain offences committed abroad should be triable in England as treason or felony. These clauses, however, were accompanied by a proviso saving the power of the Crown to make Articles of War and constitute courts-martial and inflict penalties by sentence or judgment of the same beyond the seas in time of war, and by a clause empowering the Crown to grant commissions for holding courts-martial within the realm, by which persons committing crimes out of the realm against the Articles of War, and not tried by courts-martial before their return, might be tried and punished according to the Articles of War (a). Power to make Articles of War bind ing on the army in time of peace when out of the Kingdom, conferred Act of 1712. 25. On the conclusion of the Peace of Utrecht in 1712, the Mutiny Act was again allowed to expire, and was replaced by an Act "for better regulating the forces to be maintained in Her Majesty's service," by which mutiny, desertion, and certain other offences were made punishable by such punishments as a courtmartial should adjudge, not extending to life or limb; power being at the same time given to inflict by sentence of court-martial corporal punishment not extending to life or limb, on soldiers for by Mutiny immoralities, misbehaviour, or neglect of duty. The operation of this Act was restricted to Great Britain and Ireland; but at the same time the difficulty was felt of maintaining discipline amongst the troops in the colonies and elsewhere out of the kingdom, as the prerogative power of governing such troops by Articles of War had been suspended by the conclusion of peace. A statutory power was therefore given to the Crown to make Articles of War and constitute courts-martial in any of Her Majesty's dominions beyond the seas, or elsewhere beyond the seas, "in such manner as might have been done by Her Majesty's authority beyond the seas in time of war" (b). Power extended by Mutiny Act of 1715. 26. On the breaking out of the rebellion in 1715, difficulties arose in maintaining discipline among the troops serving in the kingdom. For though troops serving elsewhere in the dominion of the Crown might be dealt with under statutory Articles of War, which could impose death for the most serious military offences, the troops in the kingdom were under a different law. The then existing Mutiny Act (e), by imposing a punishment for the most serious military offences, had superseded the prerogative power of making Articles of War in respect of those offences, though committed by troops engaged in war by reason of the rebellion, but as the punishment under the Act was not to extend to life or limb, it was insufficient to maintain discipline. Accordingly an Act was passed in 1715 (d), reimposing the punishment of death for mutiny, desertion, and the offence now known as fraudulent enlistment, in Great Britain and Ireland, and conferring on the Crown (a) 13 & 14 Will. III. c. 2; 1 Ann. stat. 2, c. 20 (c. 16 in Ruffhead). (b) 12 Ann. c. 13, in the Record Edition of the Statutes (c. 12 in Ruffhead). (d) 1 Geo. I. stat. 2, c. 9. statutory power to make "Articles for the better government of Ch. II. His Majesty's forces, and inflicting penalties to be proceeded upon to sentence or judgment in courts-martial to be constituted pursuant to this Act." 27. Subsequently (a), the two powers of making Articles of War Mutiny Act for the troops in the kingdom and for.those in the other dominions of 1718. of the Crown were combined, and in the Act of 1718 (b) received the form which was retained until 1803. The Act of 1718 conferred on the Crown a power to make Articles of War and constitute courts-martial with power to try offences under such articles, and inflict penalties by judgment of the same, "as well within the kingdoms of Great Britain and Ireland, as in any of His Majesty's dominions beyond the seas." The Articles of War made under the Act of 1712 and subsequent Acts not being limited to the time of war, applied to the troops also in time of peace. 28. At about the same time the provisions of the Mutiny Act, Extension which enacted death or corporal punishment for mutiny, desertion, Act in of Mutiny and other specified offences, and which had previously been re- Colonies. stricted to offences committed in Great Britain or Ireland, were extended to some of those offences if committed in His Majesty's dominions abroad, and to others wherever committed (c); and the Act and statutory power were subsequently re-enacted annually in this form, without material alteration, until 1802 (d). statutory and colonies 29. By these successive changes the Crown gradually acquired Power a complete statutory power for the government of the army in govern time of peace, whether at home or in the colonies, by means of the Act and Mutiny Act and the Articles of War made thereunder, co-extensive Articles in with the prerogative power of governing troops serving in foreign Kingdom countries in time of war by means of Articles of War made under in time of the prerogative; and as further dominions abroad were gradually peace coacquired, the Act and statutory Articles were from time to time extensive with power extended, so as to provide for the enforcement of discipline among to govern the garrisons maintained in such dominions (e). The Act and by prerogative Articles statutory Articles were not, however, extended to foreign countries, in foreign as it was still assumed that the army never could be in a foreign countries in country except in time of war, and troops engaged in active service in such countries were governed as before by the prerogative Articles. time of war. 30. That this was so is clear from the case in 1761 of Barwis Case of v. Keppel (f), in which the Court of King's Bench decided that Barwis v. Keppel. neither the Mutiny Act nor the Articles of War made thereunder applied to the army when engaged in war abroad. It seems probable, however, that the Articles issued under the prerogative which governed the army when so engaged were the same in form as the statutory Articles which governed the army at other times, and hence arose the question, decided in the negative in the (a) 1 Geo. I. stat. 2, c. 34; 3 Geo. I. c. 2. (b) 4 Geo. I. c. 4. (c) Compare 1 Geo. I. stat. 2. c. 34; 3 Geo. I. c. 2: 4 Geo. I. c. 4; 9 Geo. I. c. 4. (d) In 1781 (21 Geo. III. c. 8) the provisions of the Act enacting punishments for certain offences were extended to the specified offences wherever committed; but the power to constitute courts-martial was still restricted to the Kingdom and the dominions of the Crown abroad. (e) The Act and Articles were extended to the Channel Islands in 1756-7 (30 Geo. II. c. 6), and to the Isle of Man in 1766 (6 Geo. III. c. 8); and in 1767 (7 Geo. III. c. 10) special provisions were made as to the constitution of courts-martial in the garrisons of Goree and Senegal, and detachments therefrom. Ireland was excluded from the operation of the Act, but not of the Articles, in 1781 (21 Geo. III. c. 8), a separate Mutiny Act for that country being passed in that year by the Irish Parliament (21 & 22 Geo. III. c. 43 (1)); but it was again included after the Union. (f) 2 Wilson's Reports, 314. |