or action which might be held to tend to such a result. In like manner, it throws on Commanding Officers the duty of arresting crimes of violence, or what may tend to them. Thus, when an Army is in the field, it is not an uncommon occurrence to confine all the troops for several days together to their camps, to prevent pillaging or cruelty to the inhabitants of the seat of war. On such occasions, the whole Army is, as it were, under arrest for the prevention of crime, and any Officer or Soldier breaking that general arrest of the Army is liable to the severest punishment, including that of death, for disobedience of orders,-a punishment, under certain circumstances, not unlikely to ensue. It was the practice of the Duke of Wellington to add a physical fatigue in addition to the mere confinement to camp; for we read, in his Orders given during the Peninsular War, that whole divisions were at times kept for long periods under arms, when it was deemed an imperative necessity to stop plunderings. It will be further admitted that, in Military usage or in the custom of war, is included the redemption of Military responsibility; and, consequently, that any Commanding Officer failing to redeem his responsibility for the prevention of crime, is liable to be removed from his command, and to be otherwise dealt with according to law, because he has not vin licated the custom of war, or in other words, Military usage, for the maintenance of discipline."

21. No doubt in this, as in every other act of Military authority, the Officer, if shown to have acted oppressively, would be brought to Court-martial and punished; but the legal power of the Commanding Officer to confine them to barracks for purposes of discipline cannot be questioned.'1

22. The legal remedy which is open to any one placed under Military arrest which he deems to be unlawful, is an application to the Queen's Bench for a writ of Habeas Corpus that he may be brought up before that Court and forthwith discharged. The case of Wolfe Tone, in 1798, is possibly better known than any other, from the circumstances of the time, and from the fact that he had been ordered for execution before the writ was applied for. Other cases have, however, arisen, as Blake's,3

See Col. Orde's Case, 1813, 26 H. D. (O. S.), p. 1150. * Vol. II. p. 169. 3 Vol. I. p. 172.

in 1814, where the Court remitted the prisoner to Military custody, and Douglas's case, in 1842,1 where the prisoner was discharged. It is admitted that the Jurisdiction of the Queen's Bench extends over persons held in Military custody, and that it will be exercised with the view of determining, according to the rules of Military Law, whether the custody is or is not lawful; if the latter, damages may of course be recovered.2

23. But against oppression the Prisoner has a legal remedy. In Captain Wall's case, where he was kept in prison for nine months at Gambia before a Court-martial was summoned, he recovered 10007. damages against the Committing Officer, whose conduct Lord Mansfield stigmatized as "malignant." In words that cannot be too often repeated, he said: "The principal inquiry to be made by a Court of Justice in such cases is how the heart stood. If there be nothing wrong there, great latitude will be allowed for misapprehension or mistake." 3 In another case, where a Soldier was imprisoned by an Officer for disobedience to orders made under the colour, but not within the scope of his Military authority, a remedy at Law was said to exist, though the prosecution of it was deprecated by the Court.*

24. The Common Law Courts would not, therefore, give damages for the fair and honest exercise of Military authority, though exercised on mistaken facts or inferences, and greatly to the Prisoner's injury. Nor would they interfere by ordering the Prisoner's release under Habeas Corpus, because the Prisoner's confinement exceeded eight days. Such attempts have been made in former times, and repeated in recent years; but, meeting with no encouragement whatever from the Judges of the Superior Courts at Westminster,' they have signally failed.

* Vol. ii. Ad. Op. p. 31.

13 Q. B. Rep. p. 830. 2 Vol. II. p. 155. Warden . Bailey, 4 Taunt. Rep. p. 89. 5 Re Blake, 2 Mau. and Sel. p. 429.

* Warden v. Bailey, 2 Mau. and Sel. p. 406.

* Dawkins v. Rokeby, 4 Fos. and Fin. p. 806.

CHAPTER IX.

THE ARRAIGNMENT, TRIAL, AND SENTENCE OF THE

PRISONER.

1. WHEN provision was made, under the Military Code, for the trial of an offender by a Court composed of a President and twelve Officers, it may reasonably be presumed that the controlling analogy which suggested this tribunal, was the Civil Administration of Justice by a presiding Judge appointed by the Crown, and twelve Jurymen' summoned by the Sheriff to deal with all the questions of Law and Fact that might be brought before them in truth, that those Statesmen and Warriors who originally framed the Military Code desired, as most Englishmen would do, to secure the administration of Justice to their fellow countrymen, and therefore, that they established the "Military" with as much similarity to the "Civil" Tribunals of the country, as the circumstances under which these different Jurisdictions were to be exercised would admit of.

2. In following throughout the subject of the present Chapter, it will be seen that the same rough analogy has been preserved, and that the "Military" has been gravitating towards the "Civil" Administration of Justice. In the various changes that during the last two centuries have been made in the rules of procedure, the main desire-that of securing to the Prisoner a fair trial-is conspicuous. Though Military, like other tribunals, may be fallible, the spirit of Justice leavens their proceedings; and "these Courts," to quote the words of the Court-martial

1 Turner writes of the "President" with "12 or 14 assessors" as forming a Court-martial, p. 206. To attempt to make the Judge Advocate (who is only the Recorder) rather than the President-who is a Judge-supreme is a mistake, not a reform. Rival or dual authority is thus created, whereas the unity of the Court and the authority of the Judges should have been upheld. Rep. of C. M. Com. 1869, App. II. and p. 102.

Commissioners, "have the confidence of the Army,' and are satisfactorily spoken of, even by those who have been subjected to their jurisdiction.”

3. The method in which Justice is to be administered, will be seen by reference to the "Regulations and Forms of Procedure" printed in the Appendix. What is there given will not be anticipated here; but it will be assumed, that as each Officer is required to make-so each reader will have made-" himself well acquainted with the Mutiny Act, Articles of War, and Queen's Regulations, so far as a knowledge of these is necessary for the performance of the duties of members of Courts-martial." As supplementary to the information there

given, this text is written.

4. In ordinary cases, the Offences of Soldiers are now disposed of at the instance of the Commanding Officer, and without the intervention of the Judge Advocate-by the Regimental Court. Under the Code of 1717, the primary Jurisdiction, except in Capital cases, appears to have been in this Court; for, in addition to the powers (which might be the subject of appeal to a General Court), of punishing the Soldier under the Mutiny Act "for immoralities, misbehaviour, or neglect of duty," the Articles declared specifically, "That all controversies in the Regiment between the Soldiers and their Officers, relating to their Military capacities," should be there determined; and that, on notice of the arrest, the Colonel should summon this Court for the punishment of the Prisoner. If the Regimental Court should adjudge the Case to be beyond its Jurisdiction, the Colonel was then to send to the Secretary at War the "Proceedings, proofs, and examinations made therein,” for an order to summon a General Court.

5. Where the nature of the offence, and the limit of the Jurisdiction are matters of doubt, the Commanding Officer, at the present time, forwards a report of the facts to the General of the District; and it is left to his discretion to determine whether by any, and which, Military Tribunal the prisoner shall be tried-his ruling being final. A discretion would appear to

2nd Rep., p. 3.

2 W. O. Circular, Army and Reserve Forces, 1872. First inserted in the Mutiny Act, 12 Anne, c. 13, sec. 3, and continued till the year 1851. Vol. I. pp. 153, 154. 4 Art. 21. 5 Art. 40.

have always been held by the General in cases where, by the Military Code, the Jurisdiction of the Regimental on the one hand, or a General Court on the other, was not defined; for though a certain original Jurisdiction was given to a General Court by the Code of 1717, in cases (a) Of Crime punishable with Death, and (b) Of an Officer having a complaint to make against his Superior,2 or (c) Having himself committed an offence-yet a discretion as to the selection of either Court was left to the General: in other cases, as (d) of words used3 in contempt of the General, or (e) Of waste committed in Quarters or March; for the Prisoner was to be "punished according to the nature and degree of the offence, by the Judgment of a Regimental or General Court-martial."

6. In former times-that is from 1758 to 1828-a discretion as to the tribunal or authority by which the offender should be punished, appears to have been intrusted to the Committing Officer; for the Articles of War directed him to give notice of the arrest to the Colonel, if the offence (of which he was to be the judge) were a neglect of duty in his own corps or to the Commander-in-Chief in other cases. However, to secure greater uniformity in the administration of justice, the Articles of 1829 provided, as the Code' now remains, that no Commanding Officer shall give in vague or indefinite charges against a Prisoner, so that the trial may be before a Regimental instead of a higher tribunal; but that, in cases of doubt, each one shall (with the proposed charges) be laid before the General, for his decision thereon.

6

7. Assuming that the offence be one for trial by a Superior Court, the charges and evidence are sent up by the Colonel to the General of the district, for his directions to be givenwhether a district or a General Court shall be summoned. Where dealt with by the District Court, the charges are (either with or without the aid and advice of the Judge Advocate General) framed, approved, and submitted to that Court, the President there acting as Judge Advocate. Where a General

1 Art. 21.

2 Art. 19.

3 Art. 6.

• Art. 30. 5 Compare 1742, Sec. 15, Art. 22; and 1828, Sec. 16, Art. 28.

6 91st.

7 140th.