same spirit, death was imposed for the use of traitorous words against the King, or for enticing or persuading to join or engage in any traitorous or rebellious act.

30. Under the third Section, if any number of Soldiers should assemble to take counsel for demanding their pay, death was imposed on any Inferior Officers accessory thereto; and that or other punishment was to be awarded against the Soldiers by a General Court-martial. Both Officers and Soldiers "uttering words tending to Sedition, Mutiny, or Uproar," or hearing "any mutinous or seditious words spoken," without immediately revealing the same to their superior, were liable to such punishment as a Court-martial should think fit to award; but disobedience to a Superior Officer was only to be punished by dismissal, or such punishment as a Court-martial should award.

31. Justice was to be administered in the two Courts named in the Code of 1666, viz., that of the "General" for grave offences, and that of the Colonel of the Regiment for the lesser ones of Discipline. There was, however, no definition of the relative powers or authorities of these Courts. The number of Judges was not prescribed, but those of either Court were "to take an oath for the Administration of Justice according to these Articles or (where these Articles assign no absolute punishment) according to their consciences, the best of their understandings, and the custom of War in like cases." Every Judge was to deliver his vote or opinion distinctly; the sentence was to be by the plurality, or with the President's casting voice in case of the equality of votes. The Sentence, when given, was to be pronounced by the President, and execution to be done "on Warrant" by the Provost Marshal. In Criminal Causes affecting the Crown, the Judge Advocate General' had to inform and prosecute on behalf of the Crown; and of all proceedings by General Court-martial, a Clerk was to be sworn to make a true and faithful record.

32. The Regimental Court had primary Jurisdiction over

1 Turner, writing in 1671, lays down that "it is his duty to inform the CourtMartial what the Civil or Municipal Law provides," that the Military might not infringe upon the Jurisdiction of the Civil Courts. (Pallas Armata, p. 287.) While Tytler lays it down (in 1814), that in Courts-Martial he "has no judicial power," p. 353.

"all controversies either between Soldiers and their Captains and other Officers, or between Soldiers and Soldiers relating to their Military capacities;" but if either of the parties felt himself aggrieved, he had an appeal to the General Court-martial, subject to this penalty,—that if he failed to "make good his suggestion, he should recompense the other for the trouble and charge of such appeal." The internal discipline of the Regiment was in effect with the Captains, in subordination to the Colonel, and the Provost of each Regiment carried into execution the Sentence of its Court.

33. There was far less of arbitrary power in these than in other Articles of War, either of earlier or later date. I gather from them that the office of Provost Marshal (either Regimental or General) was to apprehend and hold offenders for trial; and when found guilty after trial, to punish them according to the sentence of the Court. In the execution of these duties no one was to hinder the Provost, except upon pain of death; but, on the contrary, all Officers and Soldiers were to aid him, or failing (on his request) to do so, they were to suffer such punishment as a Court-martial should award.

34. A redress of wrongs for the Soldier, or inferior against his superior Officer, was also provided. Permission was given to him to complain in the first instance to the Colonel, who (on due proof) was to redress the wrong, or, failing to do so, the party grieved might apply to his General for redress, subject to the wholesome punishment by Court-martial "if the accusation be false." Under no circumstances, however, was the Soldier to "take his own satisfaction."

35. These Articles-only to be brought into operation abroad, as it was alleged by Secretary Coventry-made no reference to the Civil power, and the jurisdiction of the Magistrate was not ostensibly interfered with. The King, however, in December 1672, issued a Proclamation 1 (which the Commons presented as a grievance) enjoining his subjects to appeal to the Officer for protection against any injury from the Soldier; and in case of need, through a Secretary of State, to His Majesty, that he (and not the ordinary Common Law Tribunals) might give relief to the person injurel and punish the Soldier. The Proclamation

1 Vol. I. p. 453.

2 Vol. I. p. 61.

C

was no doubt within the preamble of the Petition of Right, and was intended to operate "as a measure exempting the Soldier from the ordinary course of Justice." It occasioned, therefore, a strong feeling of opposition to be manifested in Parliament, and revived fears (never altogether dormant) against the re-introduction of " Martial Law" by Royal Proclamation.

36. Contrasting the Codes of 1666 and 1672, with regard to infliction of punishment, the latter was far more lenient than the former. In the first there were 42, but in the other only 22 Articles which awarded the punishment of death. Running the gauntlet and imprisonment in irons were added to the lesser punishments in the Code of 1666, which in other respects remained much the same in each, except that power was given by that of 1666 to inflict "arbitrary punishment," or as otherwise expressed, "arbitrary correction," which, so far as regards the expression used, is not to be found in that of 1672.

37. On the Rebellion of Monmouth, James II. put forth Articles of War (sixty-five in number), to remain in force during the Rebellion; but the later Military Code of James II., dated 1686, was in substance that of 1672, with clauses omitted and added, besides such other modifications as may be easily explained. First, to the Oath of Fidelity was added the substance of the Militia Oath against the unlawfulness of taking up arms against the King. Secondly, to the Article (14) against Mutiny were added words inflicting capital punishment "on any person who should presume so far as to raise or cause the least Mutiny or Sedition in the Army." To the 4th Section, two Articles (17 and 18) were added, inflicting capital punishment "on Murder or wilful killing of any person," and the like punishment "on robbery or theft committed by any person in or belonging to the Army." To the last Section was added the Devil's Article (64), with this proviso, " that no punishment amounting to the loss of life or limb be inflicted on any offender in time of

1 From Code of 1672; viz., 10, 24, 26, 27, 37 to 42, 44, 45, 50 [incorporated with 38], 51,

reducing 74 through omission of 14 to

60

4 added 4

Total of 64

King James's Code

Peace, although the same be allotted for the said offence by the Articles and the laws and customs of War."

38. The Code was altered in one other important particular, viz., in being made applicable to " rebels" as well as to enemies; so that (as in Monmouth's Rebellion) it might have been used against the Civil Community as such. The King also put forth Directions with regard to Military Discipline, which are incorporated in a subsequent Chapter.2

39. Such, then, was the Code which was in force when the throne was declared to be vacant by the abdication of James II.3 The Army were pledged by their oaths to his service, and when the Scotch Regiments refused to obey the orders of William III. but went on their way northward, declaring that “James” was their king, the interference of Parliament became a political necessity, arising from no ordinary circumstances, but certainly not from a desire to ameliorate or amend the Military Code. Had Parliament not expressly sanctioned the change of dynasty, the punishment of the Soldier for Mutiny or Sedition against William III. would have been impossible. Hence the Mutiny Act of 1689, with its annual renewal, always encountered a strenuous opposition for many years at the hands of the Jacobites.

1 The Code here referred to—which is printed in Grose, M. Ant.,' Vol. ii. p. 139 -was put forth to govern the Camp at Hounslow. There was another code of earlier date, judging by the references in the Court-martial Trials. See also Rules for regulating Courts-martial, C. M. Bk. (114), p. 49.

3

Chap. VII. par. 9.

It must not be forgotten that James II. put in force the old laws (see these printed, Vol. I. p. 351), against desertion, and got soldiers condemned to capital punishment as felons. King v. Dale (note p. 33, post).

Vol. I. pp. 142, 497.

CHAPTER II.

THE MILITARY CODE AFTER THE MUTINY ACT.

1. THE political attitude assumed by the Regiments on the Scotch Establishment in declaring for King James II., and their open Mutiny in his favour, obliged Parliament to confer upor William III. those Statutory Powers for the suppression of Mutiny which are to be found in the Act printed elsewhere.' In the circumstances under which the country was placed, and regarding the urgency of the evil that needed an immediate remedy, no wiser measure could have been framed. In the short interval that elapsed between the appointment of the Commons' Committee to frame the Bill on the 13th and its acceptance by the Lords on the 28th of March, great Constitutional questions had to be debated and settled. Without giving any sanction to the undefined Prerogative of Proclaiming "Martial Law," or dealing with any other than those semi-political offences which then threatened the State with destruction, Parliament adopted-as will be clearly seen on a comparison of the Act with the preceding Articles of War-the existing Military Tribunals for their punishment; and, instead of exalting their own power by weakening that of the Crown over the Army, the two Houses confirmed and strengthened the latter by their Legislation.

2. In a carefully-worded Preamble, which, after nearly 200 years of party conflict, now remains, with but trifling amendments, as it was originally placed upon the Statute Book, the framers of the Act, while upholding the provisions of the Great Charter, “that no man should be prejudged of life or limb, or subjected to any kind of punishment by Martial Law or other

1 Vol. I. pp. 142, 497, and post, Appendix (A).