doned, on account of the feebleness of its jurisdiction, and incapacity to enforce its judgments.

The office of Earl Marshal still exists, but is now chiefly confined to the duties required at coronations, marriages, &c.

After the suppression of the post of High Constable, the Court of Chivalry being, in consequence, abridged of its criminal jurisdiction, there does not appear to have been any regularly established Court for the administration of Martial Law, until the Revolution; when by an Ordinance passed in 1644, the Earl of Essex and other Commissioners were appointed with full power to hear and determine all such causes as belonged to military cognizance, according to the articles mentioned in the Ordinance, and to inflict upon offenders such punishments as the Commissioners should adjudge. Many Courts Martial were held under this Ordinance; but these Courts, as well as others similarly authorized, were subsequently abolished, and it was not until after the Revolution that the Military Law assumed a regular, authorized, and permanent form.

An Act of Parliament for the punishment of Mutiny, Desertion, &c., was passed in the year 1689, and has been renewed annually ever since (excepting from April, 1698, to February, 1701, the peaceable part of King William the Third's reign) with the various additions, alterations, and amendments, which have been called for by the exigencies of the service, and the amelioration in the discipline and conduct of the British soldier.*

The Mutiny Act and Articles of War continue in force * Tytler. Adye.

from their receipt and publication, until revoked, or superseded by others, without reference to dates.*

The distinction between Martial and Military Law is this-Martial Law extends to all persons: Military Law to all military persons, but not to those in a civil capacity.†

The Martial or Military Law now in force does not in any respect interfere with, or supersede, the civil laws of the realm. On the contrary, it is expressly stated in the Mutiny Act (2nd clause), "That nothing in this Act con"tained shall be construed to exempt any officer or soldier "from being proceeded against by the ordinary course of "law." Crimes, therefore, for which the Common or Statute Laws of the country have decreed punishments, are not cognizable by Courts Martial, (except those crimes which are specified in the Articles of War) nor can the Military Power interfere to prevent soldiers being punished for such offences, or supersede the ordinary effects of the laws of the country; unless Martial Law is proclaimed by the legislature, at which time the authority under which it is exercised claims a jurisdiction over all military persons, in all circumstances; and even their debts are subject to enquiry by a military authority. Every species of offence committed by any person who appertains to the army is then tried, not by a civil judicature, but by the judicature of the regiment, or corps, to which the offender belongs.

Where Martial Law prevails every man is liable to be * Simmons. + Mc Arthur.

treated as a soldier, and Courts Martial are thereby vested with such a summary proceeding that neither time, place, or persons are considered. Necessity is the only rule of conduct; nor are the punishments which Courts Martial may inflict, under such an authority, limited to those, which, under ordinary circumstances, are prescribed by the Mutiny Act and Articles of War; they may even inflict the punishment of death, where the imperious necessity of the case, and the existing circumstances warrant it; when such a penalty would not in similar cases be visited with such severity by the ordinary Common Law; but these powers cannot be assumed, they must be duly delegated by proper authority.*

The Military Law being subordinate to the Civil, (except in the case of rebellion) the military power is expressly required to aid and assist all magistrates, and other persons duly appointed, in carrying the Civil Laws into execution.† Vide Regulations and Orders for the Army, pages 225, 226, 227, 228.

Mutiny and Sedition are, by some, considered as convertible terms, and perhaps properly so; but by military men, Mutiny is rather understood to imply extreme insubordination, as individually resisting by force, or collectively rising against or opposing military authority, such acts proceeding from alleged or pretended grievances of a military nature; and Sedition is supposed to apply to deeds of a treasonable or riotous nature, directed rather against the government or civil authorities, than military superiors, though necessarily involving or resulting in insubordination Hough. Tytler.

to the latter. The facts by which it is intended to substantiate mutiny (or sedition) should be set forth in the charge; it must be proved by facts, not by words alone, or by words at all, except in connexion with facts, since even traitorous words against her Majesty are not punishable, as mutiny, by death.*

An essential and important difference exists between Desertion, and Absence without Leave. Intention is the criterion which distinguishes the difference. Desertion is the wilful departure of an officer or soldier from his regiment or detachment, without intention of returning; or it is the wilful and continued absence of an officer or soldier, an intention of not returning being evinced, though the departure in the first instance might be attributable to a cause not under the control of the offender, as when taken prisoner &c. The animus revertendi, the intention or disposition to return, constitutes the difference between absence without leave, and desertion. The punishments to be inflicted for desertion cannot be awarded on conviction of absence without leave, however aggravated; but an offender charged with desertion may be found guilty of the minor crime, absence without leave, and receive judgment accordingly.* Vide "CHARGE."

Disgraceful Conduct implies confirmed vice and all unnatural propensities, indecent assaults, repeated thefts and dishonesty, ferocity in having maimed other soldiers or persons, self mutilation, tampering with eyes, and all cases

* Simmons.

of confirmed malingering, where the conduct is proved to be so irreclaimably vicious as to render the offender unworthy to remain in the Army.*

Ordinary offences against discipline must not therefore be charged as disgraceful conduct, unless the same be proved to come within the designation cruel, indecent, unnatural, felonious, or fraudulent. It is desirable that disgraceful conduct should be specially charged, when it is intended to induce the punishment peculiar to that crime; an offender is not otherwise liable to be recommended by a Court Martial to be discharged with ignominy. A soldier charged with certain facts predicated to amount to disgraceful conduct, may be acquitted of the imputation, and found guilty of the facts; which if clearly cognizable as an offence within the jurisdiction of the Court, may be visited by the corresponding punishment.*

The general Regulations and Orders for the army have all the binding force of Military Law, and in a Military Court they are received as evidence on record; but by a Court of Civil Judicature they would only be admitted in evidence when duly supported by vivâ voce testimony, as any other written instrument might be.*

* Simmons.