Ch. I. Royal Marines. Explanation of expression "martial law." regulations, and forms relating to the Army, and the reserve and auxiliary forces. 16. As will be seen hereafter, the Royal Marines, who formerly, when not borne on the books of any of His Majesty's ships, were governed by a Mutiny Act passed for them annually, have now been made subject, when not on the books of a King's ship, to the Army Act (a). 17. It will be observed that no mention has been made of "martial law" among the branches of law with which this book deals. The reason for this will now be shortly explained; but in view of the great confusion attaching to the use of the term "martial law," its proper meaning must as a necessary preliminary be precisely ascertained. "Martial Law," then, in the proper sense of the term, means the suspension of ordinary law and the government of a country or parts of it by military tribunals and must be clearly distinguished, in the first place from "military law," the nature of which is explained above in paragraph (3), and with which it has sometimes been identified (b), and in the second place from that "martial law" which forms part of the laws and customs of war. The law of most foreign countries recognises an intermediate state between war and peace, known by the name of the state of siege, under which the ordinary law is suspended for the time being by proclamation, and the country is subordinated in whole or in part to military authority by proclamation, but such a state of things cannot exist under English law, which never pre-supposes the possibility of civil war, and makes no express provision for such contingencies. In short, although in the arbitrary times of our history attempts were made to apply military law to the civil population, such attempts have long been recognised to be illegal. Martial law, in the proper sense of the term, can be established in the United Kingdom or in a self-governing British Possession only by an Act of Parliament or of the local legislature (c). It has, however, been well pointed out (d) that "the assertion that no such thing as martial law exists under our system of Government, though perfectly true, will mislead anyone who does not attend carefully to the distinction between two utterly different senses in which the term martial law is used" by modern English writers. In time of invasion or rebellion, or in expectation thereof, exceptional powers are often assumed by the Crown, acting usually (though by no means necessarily) through its military forces, for the suppression of hostilities or the maintenance of good order within its territories (whether the United Kingdom or British possessions); and the expression "martial law" is sometimes employed as a name for this common law right of the Crown and its servants to repel force by force in the case of invasion, insurrection, or riot, and to take such exceptional measures as may be necessary for the purpose of restoring peace and order (e). (a) Ch. XI, paras. 32-36, and Army Act, s. 179. (b) See Hale, Hist. Com. Law, p. 34, and specch of Lord Alverstone, C. J., in House of Lords, 24th April, 1902. (c) See the provisions made in Ireland by 39 George III. c. 11 (1) (1799); 43 Geo. III. c. 117 (1803); 3 & 4 William IV. c. 4 (1833). In a British possession under the direct legislative authority of the Crown a proclamation of martial law by the Crown would be as effective as a Statute in the United Kingdom. (d) Dicey, Law of the Constitution, 6th ed., p. 284. (e) A full account of the right to use force to suppress riot or insurrection will be found in ch, XIII, paras. 12 seq. The intention to exercise such exceptional powers and to take such exceptional measures is generally announced by the issue of å "proclamation of martial law;" but on the one hand such a proclamation is not necessary, as the right to exercise these powers depends on the actual circumstances and not on the proclamation ; and on the other hand, the proclamation of itself in no degree suspends the ordinary law, or substitutes any other kind of law in its stead, but operates only by way of warning that the Government is about to resort, in a given district, to such forcible measures as may be necessary to repel invasion, or suppress insurrection, as the case may be. To obviate any question as to the legality of the measures taken for this purpose (whether or not they have been preceded by a proclamation of martial law) it has been usual to pass an Imperial or local Act of Indemnity, for the protection of those engaged, so far as the steps taken by them have been reasonably necessary for the purpose, and carried out in good faith, and for the confirmation of the sentences passed by military courts (a). For the purposes of the soldier, it is not necessary to discuss the several questions, of great interest to the lawyer, which have presented themselves for consideration in connection with the exercise of "martial law" during the recent war in South Africa : questions such as whether the fact of the ordinary courts of law being open is conclusive that there is no necessity for having recourse to military tribunals, and how far things done under a proclamation of martial law can ultimately be examined in the civil courts (b). It is only necessary to add that, when a proclamation of martial law has been issued, any soldier who takes, in accordance with the official instructions laid down for the guidance of those administering martial law, such measures as he honestly thinks to be necessary for carrying to a successful issue the operation of restoring peace and preserving authority, may rely on any question as to the legality of his conduct being subsequently met by an Act of Indemnity. (a) The above paragraph incorporates the substance of Article 18 ("Martial Law in the Home Territory ) of the Handbook of the Laws and Customs of War, by Professor T. E. Holland, K.C., issued in 1904. As to Acts of Indemnity, see (e.g) the cases mentioned in Clode, Mil. Forces, ii. pp. 163-173 and 511; the Cape Colony Indemnity Acts of 1900 and 1902; and the Natal Indemnity Acts of 1900 and 1901. (b) See a discussion of these questions by Mr. G. G. Phillimore in Encycl. of English Law, vol. xiii., under title "Martial Law," and Note xii. in the Appendix to Dicey, Law of the Constitution; and generally on "martial law" ch. viii. of the same work. 6 Definition law. CHAPTER II. HISTORY OF MILITARY LAW. 1. Military law, as distinguished from Civil law, is the law of military relating to and administered by military courts, and concerns itself with the trial and punishment of offences committed by officers, soldiers, and other persons (e.g. sutlers and camp followers) who are from circumstances subjected, for the time being, to the same law as soldiers. This definition is to a great extent arbitrary, the term "military law" being frequently used in a wider sense, to include not only the disciplinary, but also the administrative law of the army, as, for instance, the law of enlistment and billeting. In this chapter, however, the term is used only in the restrictive sense above mentioned. Object of military law. Military times consisted of Articles of War issued when war 2. The object of military law is to maintain discipline among the troops and other persons forming part of or following an army. To effect this object, acts and omissions which are mere breaches of contract in civil life-e.g., desertion or disobedience to ordersmust, if committed by soldiers, even in time of peace, be made offences, with penalties attached to them; while, on active service, any act or omission which impairs the efficiency of a man in his character of a soldier must be punished with severity. 3. In the early periods of our history military law existed only law in early in time of actual war. When war broke out troops were raised as occasion required, and ordinances for their government, or, as they were afterwards called, Articles of War, were issued by the Crown, with the advice of the Constable, or of the Peers, and other exbroke out. perienced persons; or were enacted by the Commander-in-Chief in pursuance of an authority for that purpose given in his commission from the Crown (a). These Ordinances or Articles, however, remained in force only during the service of the troops for whose government they were issued, and ceased to operate on the conclusion of peace. Military law, in time of peace, did not come into existence till the passing of the first Mutiny Act in 1689. Government of troops in time of war by Articles of War. Account of Articles of 4. The system of governing troops on active service by Articles of War issued under the prerogative power of the Crown, whether issued by the King himself or by the Commander-in-Chief or other officers holding commissions from the Crown, continued from the time of the Conquest till long after the passing of annual Mutiny Acts (b), and did not actually cease till the prerogative power of issuing such Articles was superseded, in 1803, by a corresponding statutory power (c). 5. Numerous copies of these Articles are in existence, made on the occasions of the various wars, both foreign and domestic, in which England was from time to time involved. The earliest complete code seems to have been the "Statutes, Ordinances, and Customs" of Richard II, issued by him to his army in the ninth year of his reign (1385), and probably on the occasion of the war with France (d). These are followed by the statutes of Henry V made by him during his conquest of France (c). Domestic dissensions gave occasion for the orders for the English army promulgated by Henry VII, before the battle of Stoke (1); and (a) Grose, Mil. Antiquities, ii. p. 58. See Commission in Rymer's Fœdera. (c) See Mutiny Act of 1803 (43 Geo. III. c. 20). (d) See copy printed in Grose, Mil. Antiquities, ii. pp. 64 et seq. (e) Grose, Mil. Antiquities, ii. p. 69. (f) Grose, Mil. Antiquities, ii. p. 70. in the Great Rebellion the King and the Parliamentary leaders Ch. II. alike governed their troops by Articles of War. On the side of the Crown, Articles or Ordinances of War, as they were then called, were established by the Earl of Northumberland, in 1639, for the regulation of the army of Charles I; whilst, in 1642, Lord Essex, the leader of the Parliamentary forces, under authority given by an ordinance of the Lords and Commons, put forth Articles of War almost in the same language as the Royal Articles of War (a). Articles of War were also issued by Charles II in 1666, when the first Dutch war was declared, and in 1672, upon the outbreak of the second Dutch war; and by James II in 1685, on the occasion of Monmouth's rebellion (b). Articles. 6. The earlier Articles were of excessive severity, inflicting death Severity of or loss of limb for almost every crime. Gradually, however, they early assumed somewhat the shape which they bore in modern times, and the Ordinances or Articles of War issued by Charles II in 1672 formed the groundwork of the Articles of War issued in 1878, which were consolidated with the Mutiny Act in the Army Discipline and Regulation Act of 1879, now replaced by the Army Act (c). enforce 7. Attempts were made from time to time, especially during Illegal the despotic reigns of the Tudors, to enforce military law under the attempts to prerogative of the Crown in time of peace; but no countenance military was afforded to such attempts by the law of England; and com- law in time missions for the execution of military law in time of peace issued of peace. by Charles I in 1625 and the following years gave rise to the declaration in 1628, contained in the Petition of Right (3 Cha. I, c. 1), that such an exercise of the prerogative was contrary to law (d). The law having been thus declared, the question of the legality of the Articles of War issued in 1639 came under the notice of the Council Board in July, 1640, and the lawyers and judges were all of opinion that martial law could not be executed in England "but when an enemy is really near to an army of the King's" (e). So, again, it was stated in Parliament by Mr. Secretary Coventry that the articles of 1672 were only to be executed abroad (f), and the operation of the Articles of 1685 was limited to the duration of Monmouth's rebellion (g). In short, the only direct assistance in the enforcement of military discipline given by the law before the passing of the first Mutiny Act was afforded by certain statutes enforceable before civil and not before military tribunals, which made desertion punishable as a felony (h). (a) See these Articles set out in Clode, Mil. Forces, i. App. vi. and viii. (b) Clode, Mil. and Martial Law, pp. 9-19. As to Articles of War by Will. III. see Clode, Mil. Forces, i. p. 503; and by Anne, 2 & 3 Anne, c. 20. (c) A comparison of the ancient with the more modern Articles of War will show how slight are the changes which have been made in military law during a series of years. It is easy to trace in the Articles of Richard II. the germ of the Articles of 1878, and having regard to the changes in custom and manners, the difference in the character of the regulations is less than might have been expected. (d) See extract from the Petition of Right printed below, p. 613. (e) Clode, Mil. Forces, i. p. 23, and App. vii. (g) Clode, Mil. Forces, i. p. 79, and App. xxiv. (f) Cobbett's Parl. Hist., iv. 619. (h) 18 Henry VI. c. 19 (1439), made it a felony for a soldier to leave his captain and the King's service without licence. 7 Henry VII. c. 1 (1490), repeated by 3 Henry VIII. c. 5 (1511), provided that if a soldier immediately retained by the King departed out of the King's service without licence of his captain, it should be deemed to be felony. See The Case of Soldiers, Coke's Reports, part vi. p. 27 (43 Eliz.), which decided that the first Act was obsolete, but that the second and third were perpetual. See p. 154, note (e); see also 2 & 3 Edward VI. c. 2 (revived by 4 & 5 Phil. & Mar. c. 3), which imposed punishments on soldiers furnished at the cost of others, for making away with their horses, and made their departure from service without licence punishable as felony, and provided also for the punishment of officers improperly discharging soldiers. Ch. II. Court of 8. The origin of later military courts is to be found in the Court of Chivalry, the ordinary judges of which were the Constable, or Lord High Constable, who was originally the King's General; and the origin the Marshal, or Earl Marshal, whose duty it was to marshal the of military army, and to ascertain whether the persons liable to serve the King in his wars fulfilled their services (a). courts. Constitution of Court of Civil jurisdiction of Court of Chivalry. Criminal jurisdiction of Court of Chivalry. Administra tion of military law by Court of Chivalry. 9. The Court of Chivalry formed part of the Curia Regis, or Supreme Court established in England by William the Conqueror. The Curia Regis was a Court in a double sense: first, in the sense of being composed of the great officers of State; and secondly, in the sense of being a judicial body, as each of the great officers had judicial authority over the officers and persons belonging to or having dealings with his department. In this division of jurisdiction the Constable or Comes Stabuli, or Master of the Horse, (to use the modern designation) was Commander-in-Chief of the army, and had allotted to him the army, and all persons and matters connected therewith: while he and the Marshal together constituted the Court of Chivalry which exercised both civil and criminal jurisdiction (b). 10. Its civil jurisdiction was that of a court of honour, and consisted in redressing injuries of honour, and correcting encroachments in matters of coat armour, precedency, and other distinctions of families. It also exercised jurisdiction in respect of contracts connected with war out of the realm, and in this respect gradually infringed on the jurisdiction of the ordinary courts, until such infringements were restrained, and the powers of the court were defined, by two Acts passed in the reign of Richard II. The first of these (8 Rich. II. c. 5, 1384) enacted, "that all pleas and suits touching the common law of the land, and which ought to be examined and discussed by the common law, shall not hereafter be by any means drawn or holden before the Constable and Marshal, but that the court of the said Constable and Marshal shall have that which belongeth to the said court;" while the second (13 Rich. II. stat. I, c. 2, 1389) declared the jurisdiction of the court to consist in the "cognizance of contracts touching deeds of arms, and of war out of the realm, and also of things that touch arms or war within the realm which cannot be determined nor discussed by the common law, with other usages and customs to the same matters pertaining." 11. The criminal jurisdiction of the Court, except in time of war, was confined to the punishment of murder and other civil crimes committed by Englishmen in foreign lands (c). In time of war, however, its jurisdiction was extended, and the court, which was more usually called the Court of the Constable, acquired somewhat of the character of a permanent court-martial, as it followed the march of the army, and punished summarily, and in accordance with the Articles of War for the time being in force, all offences committed by the troops. 12. Such being the jurisdiction of the Court, it is obvious that it must from time to time have been necessary, as, for instance, in case (a) See an account of the duties of the Constable and Marshal, in Stubbs, Constit. Hist. of England, i. p. 338, notes 1 & 2. See also Grose, Mil. Antiquities, i. ch. 7. (b) See as to the jurisdiction of the Court of Chivalry, Coke, 1 Inst. 746; 4 Inst. 127; Bac. Abr. 5th edn., ii. p. 141; Hale, Hist. Com. Law, p. 40; Comyn's Digest, iii. p. 331; Christian's Blackstone, iv. p. 267. (c) The Court seems to have infringed on the jurisdiction of the ordinary criminal courts as well as on that of the ordinary civil courts, and such infringement was restrained by statute in 1899 (1 Henry IV. c. 14). |