Ch. II. Extension of Mutiny Act and statutory case referred to, as to whether the Mutiny Act and statutory Articles extended to the army when engaged in war in foreign countries. 31. In 1803, by 43 Geo. III, c. 20, the great change was made of extending the Mutiny Act and the statutory Articles of War to the army whether within or. without the dominions of the Crown. Articles to This alteration also was made on the occasion of a peace-the Peace foreign countries in of Amiens-and was made, as appears from the Preamble to the Act, in order to provide for the government of the troops engaged in the late war who had not yet been brought home, and who could no longer be governed by prerogative Articles, the power of making such Articles having been suspended on the conclusion of peace. 1803. Prerogative 32. On the resumption of hostilities, the Act and statutory Articles Articles might have been again restricted in their operation to finally superseded. the dominions of the Crown, and the troops engaged in foreign war might have been left to be governed as before by prerogative Articles. This course, however, was not adopted, but the Act and statutory Articles were applied in 1813 towards the close of the Peninsular War to the troops without as well as to those within the dominions of the Crown (a); and the prerogative power of making Articles of War in time of war was thus finally superseded by a statutory power. The law as then settled has been continued ever since, and the army, both in peace and war, was governed by the Mutiny Act and statutory Articles until the year 1879. Army Disci- Army Act, 1881. Annual 33. This brings us to the Army Discipline and Regulation Act, 1879. The inconvenience of having a military code contained partly in an Act of Parliament and partly in Articles of War made under and deriving validity from that Act had long been felt, and led at length to the consolidation of the provisions of the Mutiny Act and Articles of War in one statute. 34. Two years later the Army Discipline and Regulation Act, 1879, was repealed, and re-enacted with some amendment in the Army Act of 1881. Thus has been accomplished, after the lapse of more than a century, a wish expressed by Mr. Justice Blackstone in his Commentaries, "That it might be thought worthy the wisdom of "Parliament to ascertain the limits of military subjection, and "to enact express Articles for the government of the army" (b). 35. The Army Act has of itself no force, but requires to be brought into operation annually by another Act of Parliament, thus securing the constitutional principle of the control of Parliament over the discipline requisite for the government of the army. (e) These annual Acts afford opportunities of amending the Army Act, of which considerable use has been made. (a) 53 Geo. III. c. 17, s. 146. (b) Christian's Blackstone, i. p. 415. (c) See Army Act, s. 2; the preamble and first three sections of the annual Act are always in the same form, except that in 1907 the date on which the Army Act expires in certain places abroad was altered: see infra, p. 257. CHAPTER III. OFFENCES AND SCALE OF PUNISHMENTS. 1. Part 1 of the Army Act classifies under various heads the Classificamilitary offences formerly contained in the Mutiny Act and tion of military Articles of War. It includes all the offences for which officers offences. or soldiers in their military capacity are punishable by a courtmartial, with the exception of those relating to taking money for commissions (a). classifica 2. The principle adopted in classifying the strictly military Principle offences is that of grouping together offences of a similar character, tion. and ranging the various groups as between themselves in a manner intended to impress the soldier with their relative military importance. For example, the Act begins with Offences in respect of Military Service (ss. 4-6), and these are followed by the heading Mutiny and Insubordination (ss. 7-11), by way of showing that gross misbehaviour in the field, mutiny, and insubordination rank first among military offences. The above headings are followed by Desertion, Fraudulent enlistment, and Absence without leave (ss. 12-15); Disgraceful conduct (ss. 16-18); Drunkenness (s. 19); Offences in relation to Persons in Custody (ss. 20-22); Offences in relation to False Documents and Statements (ss. 25-27); Offences in relation to Courts-martial (ss. 28, 29); Offences in relation to Billeting (s. 30); Offences in relation to Impressment of Carriages (s. 31); Offences in relation to Enlistment (ss. 32-34); Miscellaneous Military Offences (ss. 35-40); Lastly come Offences punishable by ordinary Law (s. 41) of which the most serious are only triable by courts-martial under certain circumstances and subject to certain restrictions (b). in this 3. For the most part the military offences are laid down by the offences Army Act in the same, or nearly the same, language as that of the dealt with former Mutiny Acts and Articles of War. Those which from their chapter. importance or comparative frequency require a more detailed notice than others, are dealt with in this chapter; the rest are explained, so far as necessary, in notes to the Act. 4. Mutiny and Insubordination. The term "mutiny" implies Definition collective insubordination, or a combination of two or more persons of mutiny. to resist or to induce others to resist lawful military authority. A man cannot be charged generally with mutiny, or with an act of mutiny, but only with some one or more of the specific offences laid down in s. 7. If he has not brought himself within the terms of that section, his offence, however much it may tend towards mutiny, must be dealt with as insubordination, under s. 8 or s. 9, which afford ample powers for the purpose. Thus, where there is (a) Army Act, s. 155. (b) See ch. VII. Framing charge of mutiny. Ch. III. an actual mutiny or a conspiracy to mutiny, all concerned in the mutiny or conspiracy can be tried under s. 7 for causing or conspiring to cause, or joining in the mutiny, as the case may be. If no mutiny or conspiracy exists, a man can only be tried under s. 7 on a charge of endeavouring to persuade some person in His Majesty's forces or in the navy to join in an intended mutiny, or of failing to inform his commanding officer of an intended mutiny. 5. In framing a charge therefore under s. 7, the specific act or acts which constitute the offence must always be alleged; and the offence is so grave that a charge for it should only be brought on very clear evidence. Cases of insubordination, even on the part of two or more, should, unless there appears to be a combined design on their part to resist authority, be charged under s. 8 or s. 9. If an insubordinate act were committed which could not be charged under any of the sections of the Act relating to mutiny and insubordination, it must be charged under s. 40 as an act to the prejudice of good order and military discipline. Provocation by a superior, or the existence of grievances, is no justification for mutiny or insubordination, though such circumstances would be allowed due weight in considering the question of punishment. Definition of sedition. Offences of disobedi ence to a lawful command. Definition of graver offence of disobedience. 6. Sedition in s. 7 of the Act is the same offence as in the ordinary criminal law, and consists in doing any act or publishing| any words tending to bring into hatred or contempt, or to excite disaffection against, the Sovereign, or the government and constitution of the United Kingdom, or either House of Parliament, or the administration of justice; or to excite His Majesty's subjects to attempt to procure otherwise than by lawful means the alteration of the law, or to incite any person to commit any crime in disturbance of the peace, or to raise discontent and disaffection among His Majesty's subjects, or to promote feelings of ill-will and hostility between different classes of such subjects. A person is not guilty of sedition who acts in good faith, merely intending to point out errors or defects in the government or constitution or the administration of justice, or to promote alteration of the law by legal means, or to point out, with a view to their removal, matters which have a tendency to produce feelings of hatred between different classes of His Majesty's subjects. It is not, however, intended to imply that an officer or soldier is at liberty to enter on any such course of action or discussion, but simply to point out the legal meaning of the term sedition. 7. Closely connected with the offence of mutiny is the offence of disobedience to a lawful command, which is punishable under s. 9 of the Act (a). No offences differ more in degree than offences of this class. The disobedience may be of a trivial character, or may be an offence of the most serious description, amounting, if two or more persons join in it, to mutiny. Accordingly the object of this section is to enable charges to be framed in such manner as to discriminate between different degrees of the offence. 8. The essential ingredients of the first and graver offence under the section are that the disobedience should show a wilful defiance of authority, and should be disobedience of a lawful command given personally and given in the execution of his office by a superior officer; in fact, it would ordinarily be such an offence as would be mutiny if two or more persons joined in it. In order to convict a man it must be shown (1) that a lawful command was given by a superior (a) For the history of this enactment, see Clode, Mil. Forces, i. p. 155. officer; (2.) that it was given personally by such officer; (3.) that Ch. III. it was given by such officer in the execution of his office (a); (4.) that the man disobeyed it, not from any misunderstanding or slowness, but so as to show a wilful defiance of his superior officer's authority. For example, a man not falling in for escort duty when ordered to do so by his non-commissioned officer, may have failed to hear the order or may be merely slow in executing it; on the other hand, the refusal may be deliberate and obstinate, so as to show in the clearest manner an intention to defy and resist superior authority. offence of 9. The second and less grave offence laid down by the section of less consists of disobedience to any lawful command given by a superior disobediofficer, which is not accompanied by the essential ingredients of ence. the graver offence. To constitute this offence it is essential that the disobedience should be wilful and deliberate, as distinguished from disobedience arising from forgetfulness or misapprehension, which can only be punished under s. 40 (b). The disobedience must have reference to the time at which the command is to be obeyed. If the command be a lawful command, and demands a prompt and immediate compliance, hesitation or unnecessary delay in obeying it may constitute disobedience fully as much as a positive refusal to obey, though mere omission or hesitation can seldom constitute the graver offence referred to in the preceding paragraph; but if the command is of a prospective nature, a man, before he can be guilty of disobedience, must have had an opportunity to obey the command. For example, if the command is to turn out for parade in half an hour, then, until the expiration of that time, no offence of disobedience to a lawful command can be committed. If the soldier on receiving the command makes a reply implying an intention to refuse, and is put in the guard-room before the end of the half hour, he may be charged under s. 8 with using insubordinate language; or under s. 40 with conduct to the prejudice of good order and military descipline in respect of the improper language, but not with the offence of disobedience to a lawful command. lawful com 10. "Lawful command" means not only a command which is not What is a contrary to the ordinary civil law, but one which is justified by mand. military law; in other words, a lawful military command, whether to do or not to do, or to desist from doing, a particular act. A superior officer has a right at any time to give a command, for the purpose of the maintenance of good order, or the suppression of a disturbance, or the execution of any military duty or regulation, or for any purpose connected with the amusements and welfare of a regiment or other generally accepted details of military life. But a superior officer has no right to take advantage of his military rank to give a command which does not relate to military duty or usages, or which has for its sole object the attainment of some private end. Such a command, though it may not be unlawful, is not such a lawful command as will make disobedience to it criminal. In any case of doubt, the military knowledge and experience of officers will enable them to decide on the lawfulness or otherwise of the command. 11. If the command were obviously illegal, the inferior would be Duty of (a) As to the meaning of "superior officer," and "in the execution of his office," see note to section 8 of the Army Act. (8) Even under s. 40, the neglect must be wilful or culpable and not merely arising from ordinary forgetfulness or error of judgment or inadvertence. See note to the section. obedience. (M.L.) B Ch. III. Religious scruples. Desertion justified in questioning, or even in refusing to execute it, as, for instance, if he were ordered to fire on a peaceable and unoffending bystander. But so long as the orders of the superior are not obviously and decidedly in opposition to the law of the land, or to the well-known and established customs of the army, so long must they meet prompt, immediate, and unhesitating obedience (a). 12. Religious scruples, however bond fide they may be, afford no justification for neglect or refusal to obey orders. An officer cannot (for example) plead conscientious scruples as justifying a refusal to go into the trenches on a Sunday, or to pay marks of respect enjoined by superior authority to a religion different from his own. 13. Desertion, Fraudulent Enlistment, and absence without leave. and absence A distinction is made by the Act between desertion and fraudulent enlistment. The latter, which is constituted a separate offence by s. 13, is dealt with hereafter. without leave. intention not to return. The criterion between desertion and absence without leave is intention. The offence of desertion-that is to say, of deserting or attempting to desert His Majesty's service (b)—implies an intention on the part of the offender either not to return to His Majesty's service at all, or to escape some particular important service as mentioned in para. 16; and a soldier must not be charged with desertion, unless it appears that some such intention existed. Further, even assuming that he is charged with desertion, the court that tries him should not find him guilty of desertion, unless fully satisfied on the evidence that he has been guilty of desertion as above defined. On the other hand, absence without leave may be described as such short absence, unaccompanied by disguise, concealment, or other suspicious circumstances, as occurs when a soldier does not return to his corps or duty at the proper time, but on returning is able to show that he did not intend to quit the service, or to evade the performance of some service so important as to render the offence desertion. Evidence of 14. It is obvious that the evidence of intention to quit the service altogether may be so strong as to be irresistible, as, for instance, if a soldier is found in plain clothes on board a steamer starting for America, or is found crossing a river to the enemy; while, on the other hand, the evidence is frequently such as to leave it extremely doubtful what the real intention of the man was. Mere length of absence is, by itself, of little value as a test, for a soldier who has been entrapped into bad company through drink, or other causes, may be absent some time without any thought of becoming a deserter; but in the case above put, of a soldier found on board a steamer starting for America, there could be no doubt of the intention, though he might only have been absent a few hours. Distance by 15. Nor can desertion invariably be judged by distance, for a itself not a criterion. Evasion of important service. soldier may absent himself without leave and depart to a very considerable distance, and yet the evidence of an intention to return may be clear; whereas he may scarcely quit the camp or barrack yard, and the evidence of intention not to return (by the assumption of a disguise, for example, and other circumstances) may be complete. 16. A man who absents himself in a deliberate or clandestine manner, with the view of shirking some important service, though (a) See s. 9 of the Army Act, and note. |