wise than by the judgment of his Peers and according to the known and established Law of the Realm," nevertheless declared the necessity, so long as the Army was on duty, "of retaining an exact discipline." Not dealing with mere offences against discipline, but with those which would have rent the State asunder had Parliament not declared in favour of William III., and constrained the Army to allegiance, they limited their enactment thus:-"That every person mustered and1 in pay as an Officer or Soldier in the King's Army found guilty by Court-martial of exciting, causing, or joining in any mutiny or sedition, or of desertion from the Army, should suffer death or such other punishment as that Court should award.” The effect of the Act was, therefore, to leave all ordinary Military offences to be dealt with, as heretofore, by the Crown alone, but to give Parliamentary sanction to the infliction of Capital Punishment for certain specified offences which, whether regarded as Military or Political, it was expedient should be summarily punished by Courts-martial.

3. Direct authority was then given to the King or to the General of the Army to grant his Warrant to Officers (not under the rank of Colonel) for assembling Courts-martial from time to time for the punishment of offenders. These Statutory (as distinguished from Prerogative) Courts were never to consist of less than thirteen Officers-of the rank of Field Officers for the trial of Field Officers, or of Captains for the trial of other offenders. In all cases they were to have the power of swearing witnesses giving evidence before them, and the life of the accused was guarded by other securities laid down in the Statute: thus, "where the offender may be punished with death," the Judges were to be sworn upon the Holy Evangelists "well and truly to try and determine according to the evidence the matters then pending between the King and the Prisoner:" -they were to proceed in the trial "but between the hours 8 A.M. and 1 o'clock P.M.," and nine of them at least w. concur in the Sentence. Lastly, the Act-as an expe for the protection of the Civil Community—was ' months' duration.

"Or" in the Mutiny Act till the 6th of Ann

4. The Act, however, contained (as will be seen) one other Section, to which special reference must be made. Having, in the preceding Reign, established the Militia as localized forces under the command of the Lord Lieutenant, aided as to discipline by the Civil Magistrate, Parliament did not see fit on this occasion to alter these arrangements; a Declaration was therefore inserted that nothing in the Mutiny Act "should extend or by any ways be construed to extend to or concern any of the Militia Forces of the Kingdom."

5. Thus limited, the Act operated (1) only on "the Standing Army within the Kingdom," and (2) for the punishment of certain specific offences enumerated. When abroad, or for smaller offences at home, the Army was punished under the Articles of War put forth by the King or by the General Officer in Command. I cannot agree with the evidence, recently laid before Court-martial Commissioners to the effect, "that for the first twenty-eight years, from 1689 to 1717, there was a Mutiny Act alone, without Articles of War." The Royal Sign-Manual Warrants of William III. show the contrary, while it is clear that Bruce, when he wrote his 'Military Institutes' in 1717, had before him a printed copy of Queen Anne's Articles of War for his quotation from the 52nd-" that the Officers on Court-martial duty should be sworn not to receive any present or gratuity, directly or indirectly," for the discharge of their Office-is precise, and not to be found in the Military Code of the succeeding Reign. During these twenty-eight years, the Mutiny Act was not always in force; and even when in force, provided only partially for the Military discipline of the Army by six disciplinary sections which could not either supersede or answer the necessity for the more complete Code laid down in the Articles of War.

6. Clauses relating to other matters than those of Military Discipline were from time to time added, until, at the close of Queen Anne's Reign, the Act contained enactments for Mustering the Army and for punishing false musters, for Billeting the Troops and payment for their quarters, for

1 Questions 4085 and 4136. The Witness was under the impression that the Military Code, or rather the Mutiny Act, had never been revised or re-written. * See p. 308, and Chap. III. par. 12. 3 Vol. I. p. 389.

Impressment of carriages, and for many other miscellaneous necessities which had previously been regulated by Royal Warrants and enforced by Court-martial punishment without Statutory Authority. These it is not intended here to discuss, but it may be well to follow those Enactments which relate to Military Discipline until Articles of War for the Government of the Army at home-first during the Rebellion in 1715, and then in 1717-were put forth with Statutory Authority.

2

7. Viewed in this aspect, the Act underwent little alteration during the Reign of William III. In the sixth,' but in no later one, a prohibition was inserted that no Officer of the President's Regiment should sit or vote on a Statutory Courtmartial; and in the ninth and last Act, the Sections relating to Mutiny and Desertion were extended "to such Forces as the King had then on Foot in Ireland." At the close of his Reign, the Duke of Marlborough was appointed to the command of the Army in Holland; and, by his Commission of June, 1700,3 he had that authority which the King himself had formerly exercised, of making "Rules and Ordinances for the Government of the Army," and of punishing all convicted offenders against the same by Courts-martial. The Officers forming these Courts were to be Field Officers or Captains, "whereof seven at the least were to be a quorum, and to judge of all crimes against the said Ordinances by a majority of voices." The Sentence of the Court was to be put into immediate execution or to be suspended at the discretion of the General. The Army abroad was governed under Royal, and not under Statutory Authority, and throughout this Reign the Law remained substantially the

same.

8. When Anne ascended the throne, amendments were introduced into the Act which must be noticed, as several of these in the Preamble are of Constitutional importance. In the first place, each Mutiny Act-after the first of Anne's Reign

1 6 & 7 Will. and Mary, c. 8, sec. 3.

2 13 & 14 Will. III. c. 2, sec. 33. The Mutiny Act of 1846 (sec. 6), prohibited the Commanding Officer of the prisoner's regiment from being President of the Court-Martial which tried him. It was withdrawn in 1854 (see sec. 13).

3 Vol. I. p. 490.

4 Vol. I. pp. 187, 510; Vol. II. pp. 176-7.

was, by the insertion of an Introductory Clause, made both to define the purposes and to limit the numbers of the Standing Army. The purposes originally assigned in the Preamble1 were (a) "the Present War, (b) the Safety of the Kingdom, (e) the Common Defence of the Protestant Religion, and (d) the Reduction of Ireland." Ireland being reduced, the (e) "War with France" was assigned for (d), and continued in the Preamble till 1701, when (f) "the Preservation of the Liberties of Europe" was placed in it. In 17053 and until 1710, "the time of War" justified the continuance of the Army for the purposes previously alleged; but in 1711, as War could not be referred to, the original purposes (b, c, d, f) were retained. In 1712 the necessity for the continuance of the Army was placed on more intelligible grounds, as (g) “a Guard to Her Majesty's Royal Person, (b) the Safety of this Kingdom, and (h) the Defence of Her Majesty's Dominions beyond the Seas.” During the Rebellion of 17155 (i) its suppression was substituted as the reason for the continuance of the Army, but in the Act of 1716, the Rebellion being suppressed, was of necessity abandoned, leaving (g) "the Guard" and (b) "the Safety" as the only reasons for the Army, until, from 1726 up to 1812, Parliament settled down "to the Preservation of the Balance of Power in Europe."

9. The limitation of numbers was first introduced when the Preamble, in the Act for 1712, affirmed "it was judged necessary that a number of Troops, not exceeding 8000 men, be kept on Foot" for Guard and Safety, "and also a certain number (which was undefined) be kept for the Defence of His Majesty's Dominions beyond the Sea." This limitation created a Parliamentary Compact, that no larger number of Soldiers than was here stated should be continued on foot by the Crown during the period of time to which the Act had reference.1o Nor was it till the year 1814 that all the several Establishments

1 1 Will, and Mary, Sess. 2, c. 41.

3 4 & 5 Anne, c. 22, and 9 Anne, c. 9.

5 1 Geo. I. and II. c. 34.

813 Geo. I. c. 4.

2 1 and 14 Will. III. c. 2.
12 Anne, c. 13.

6 In lieu of (h).

3 Geo. I. c. 2.

12 Anne, c. 13.

10 Vol. I. pp. 86, 94; p. 262, note; Vol. II. p. 128.

for Troops abroad or elsewhere were thrown into one Establishment available at any part of the Empire.

10. The next amendment in the same Act has an important bearing on the general powers of the Crown to declare Martial Law, for in the second paragraph of the Preamble,' the words "in the time of Peace" were inserted after "subjected," and "within the Realm " after "punishment." The Crown, therefore, was no longer restricted by Statute from exercising the power (if otherwise valid) of declaring Martial Law in times other than those of Peace, or in places other than within the Realm. As the Act was also extended to Ireland, the Preamble was further amended by inserting after "Service" the words "within this Realm or the Kingdom of Ireland," and a Section added to the Enactments for carrying out this object.

11. Hitherto no statutory provisions had been enacted for the Government of the Army out of England, but, to effect this object, Sections (36 to 38) were introduced into the same Act, which enabled the Court of Queen's Bench or the Justices of Assize (with a Jury of the County in which the Court happened to be sitting) to punish any Officer or Soldier who out of England or on the high seas should (1) hold correspondence with any Rebel or Enemy, or (2) raise Mutiny or Sedition in the Army, or (3) refuse to obey his Superior, or (4) resist any Officer in the execution of his Office-the offence first mentioned as high treason, and the others as felony.

12. Neither had any reference whatever been made in prior Acts to the power which the Crown had exercised of issuing Articles of War, though it must have been within the cognizance of Parliament that such had been issued, and that the Army was in fact governed by them. In the Act which we have now under consideration, this reserve was broken, and a Declaration inserted that nothing in it should be held to abridge His Majesty's power to establish Articles of War, erect Courtsmartial, and inflict penalties thereunder, as might have been done beyond the seas in time of War before the Act was passed.2 To enforce these Articles in this country, and for the punishment of crimes and offences committed against them abroad,