THE

ADMINISTRATION OF JUSTICE

UNDER

MILITARY AND MARTIAL LAW,

AS APPLICABLE TO

"The Army, Navy, Marines, and Auxiliary Forces."

66

CHAPTER I.

INTRODUCTION. THE MILITARY CODE PRIOR TO THE MUTINY

ACT.

1. In a former Work I have endeavoured to write a Constitutional History of "The Military Forces of the Crown," and to describe the method of their "Administration and Government." All that I could there do was to give such a general outline of the Mutiny Act and Articles of War,' as the nonprofessional reader-for whom that work was mainly designedmight be supposed to require. Now, however, that a Work on Military Law" is said to be needed by the Military profession, I have ventured, in the present volume, to place at their disposal such information às some years of official investigation have enabled me to acquire upon that subject, intending in these pages to give a brief outline of the "History of the Military Code both before and under the Mutiny Act," and at the same time to provide a legal Manual of "The Administration of Justice under Military and Martial Law," for those who-in the discharge of the practical duties of professional life-may have

1 Vol. I. Chap. VIII. The reader will be pleased to note that when a Vol. alone is cited (as in this instance), the work is The Military Forces of the Crown' (John Murray, 1869).

B

either to study or to administer the Law which governs the Army.1

2. The method which I have adopted in dealing with the subject is the result of the peculiar conditions under which the Law for the Government of the Army has been established and administered, differing essentially as these do from those under which "The Civil Administration of Justice" has been perfected. Our Civil Institutions, as fostered in their growth and development by the free thought and action of the whole community, are familiar at least in outline to every reader, but of our "Military Institutions" little was ever known, and nothing recorded, until the present century. Raised as the Army originally was under an influence supposed to be antagonistic to freedom,3 the people have willingly remained ignorant of those peculiar laws and institutions under which both officers and soldiers were governed.

2

3. Information which is so abundant for the use of the writer on Constitutional, can therefore scarcely be said to exist in relation to Military Law. The rights which, whether public or private, every citizen enjoys, are secured to him by permanent Laws-as the Great Charter or the Statute of Frauds. Having remained for centuries upon the Statute Book, not only has their meaning been rendered explicit by the aid of great Jurists and commentators, but their language has become interwoven with our National History. With almost equal truth the same remark may be applied to our Judge-made Law. All legal controversies being settled in open court at Westminster, after a public discussion, in the presence of a learned audience, the reported decisions of Coke or Hale, Holt or Mansfield-have declared the law for the security of society not only in their time, but in succeeding years.

4. Essentially different are the conditions under which information on Military Law is to be obtained. In the first

1 In this respect I have had the advantage of many useful suggestions from my friend Major-General Erskine, late Inspector-General of Volunteers, and now in command at Chatham, who perused the pages as they passed through the press.

2 Bruce's Work, published in 1717, relates rather to the Military Laws of Greece and Rome than of England.

The Army under the Stuarts, see Vol. I. Chaps. III. and IV.

aspect of the case, no permanent Statute relating to the administration of justice in the Army exists on the Statute Book;1 in the other aspect, the Jurisdiction exercised by Military tribunals has been advisedly withdrawn from public observation. The officers acting as Judges have dealt with each case before them without the aid of legal precedent or of forensic argument, and their decisions have been buried in the oblivion of the War Office. Obviously, therefore, a writer on Military Law can glean, under ordinary circumstances, few materials from sources similar to those which furnish to any writer on Constitutional Law both information and authority.

5. Now if the Military Code really stood upon slender warranty, it probably would be received by the Army with little confidence. Apparently arbitrary in its provisions and severe in its punishments, such a code needs, far beyond any other, both the sanction of experience and the weight of high authority to command a loyal acceptance. In presenting the Code under which the Army is now governed to the notice of the reader, my object, therefore, will be to show that, all the essential conditions in relation to the Administration of Justice, can be traced in earlier Codes, and that Military Law, as a system established and understood in the service, has been gradually developed and improved. So far from being either framed without experience or unsanctioned by authority, the Code, in its main characteristics, has governed the Army for centuries, been administered by experienced Generals,-repeatedly sanctioned by the deliberate judgment of Parliament,—and upheld after argument by the Constitutional tribunals not only of our own country, but of a kindred race.2

6. From the year 1629, there will be no difficulty in showing, from the Articles of War issued from time to time by Royal authority, and the Court-martial Records which are still extant, what were the provisions of the Military Code, and the modes of procedure prior to the Mutiny Act. In our inquiry these Codes and Records may fairly be accepted as standing in

As to the early Law, see Vol. I. pp. 345–355. In the authorised reports of the American Courts, cases on Military Law and procedure are not (as will be seen from these pages) of unfrequent occurrence.

lieu of Statutes and legal decisions in Constitutional History; and although some of these documents will be used and cited in these pages, with but little authentication save that which may be derived from the place in which and the person by whom this Work is written, yet they will, I hope, be accepted as authentic. Articles of War prior to the present century do not appear to have been regularly printed or published;1 and those anterior to the reign of George I. have little authentication, except that of being found (as copies) in the War Office. There is, however, no reason that I know of to impeach their authenticity, and absolute credence may, I believe, be given to them.2

7. But at the threshold of this inquiry lies the subject of "Martial Law;" and as "Martial Law" and "Military Law" -for some years deemed terms synonymous-continue to be used indiscriminately by some authors to express the same meaning, a few paragraphs must be written to explain, first, their common origin, and then to show under what circumstances" Martial" became distinguished from "Military" Law, and how the one has been condemned and the other system upheld by Parliament.3 The illustrations well suited for this purpose are the two Commissions of Charles I.-the one issued (in 1625), before and condemned by, the Petition of Right (1628); the other (in 1638) after that Petition, and declared by the Judges to be illegal.

8. The Commission of 1625 (directed to the Lord Marshal and Serjeant-Major of the Army, with twenty-three other Civil and Military Persons) was in substance as follows:-It stated that the Soldiers lately returned home would be billeted in certain places (as Plymouth, Devon, and Cornwall), and then averred that disorders and outrages might be timely prevented. The King (more desirous of keeping his people from mischief

They are not to be found in the War Office. I have an octavo edition for 1749, and that is all.

2 Since this was written, General Adye, C.B. (the distinguished grandson of the author of Military Law') has called my attention to original prints of the Articles of War, 1639 and 1640, in the library of the Royal Artillery at Woolwich. These formerly belonged to Grose, and at his death were purchased by Captain Adye. * See this distinction further insisted upon, Chap. X. par. 3. 18 Rym. F., p. 255.

than of punishing them for the same) gave the powers which the Commission contained to the Commissioners, or to any three of them, within the places named-1st, to proceed, according to the Justice of Martial Law, against enlisted Soldiers and other dissolute persons joining themselves with them, and to punish them for robberies, felonies, mutinies, or other outrages or misdemeanours which, by Martial Law, ought to be punished by death; 2nd, by summary course, as used in Armies in time of War, to proceed to trial and condemnation of such offenders, and to put them to death according to the Law Martial for an example of terror to others, and to keep the rest in due awe and obedience; 3rd, to erect the Gallows or Gibbets in such places as the Commissioners thought fit, and to execute the offenders in open view, "as a warning to others to demean themselves as good subjects" ought to do. The concluding and mandatory part of the Commission was addressed to all Mayors, Sheriffs, Justices, and Peace Officers, charging them, on their allegiance, to aid and assist the Commissioners in the due execution of this "our Royal Commandment," as the Commission was designated.

9. This Instrument shows (according to the theory of Royal Power then asserted) what Martial Law was supposed to beviz., the arbitrary right to punish or destroy, without legal trial, any assumed delinquent. Such an authority, when exercised, was a direct violation of the fundamental Laws of the Land, as those Laws were thus emphatically upheld by Parliament in their Petition of Right:

"Whereas by authority of Parliament, in the 25th year of the reign of King Edward III., it is declared and enacted, That no man shall stand forejudged of life or limb against the form of the Great Charter and the laws and statutes of this Realm; And by the said Great Charter and other laws and statutes of this your Realm, no man ought to be adjudged to death, but by the laws established in this your Realm, either by the customs of the same Realm or by Acts of Parliament; Whereas no offender, of what kind soever, is exempted from the proceedings to be used, and punishments to be inflicted by the laws and statutes of this your Realm; Nevertheless of late, divers Commissions, under your Majesty's great Seal, have