the Crown was authorized to erect Courts-martial1 here; and as Desertion from the Army abroad was not a Statutory offence under any prior Mutiny Act, this one provided that, upon sworn information, a Justice might "for example's sake" send any such Deserter before a Court-martial to be transported to his Regiment for punishment.

13. The Law, as I have here defined it, remained without alteration during the Wars of Marlborough, but after the Peace of Utrecht the Mutiny Act needed several revisions. The tenth Act of this Reign' was the first ever passed for the Government of the Army in time of Peace, and was intituled "An Act for the better Regulation of the Forces." Death as a punishment was altogether withdrawn from the Military Code; and this leniency was the chief cause (if we may believe the Duke of Newcastle speaking before Parliament in 17493) of the Rebellion of 1715. The theory which this Act (the 12th Anne) originated with an intention of mercy became in effect, by the substitution of punishment in the next Reign, a means of cruelty. It placed all crimes in one class or category, and for any offence limited the punishment to such as should "not extend to life or limb." Therefore for Mutiny, Sedition, or Desertion (theretofore punishable by death with a discretion to inflict a lighter punishment), or for refusal to obey, drawing or lifting a weapon against, or resisting an Officer, the same measure of punishment was declared, viz., such as should not "extend to life or limb" of the offender. The Crown thus became powerless to suppress the political action of the Army in favour of the Pretender, through the Agency of Military Tribunals.

4

By the same Act, a general power was given to inflict Corporal Punishment by a Court-martial "for immorality, misbehaviour, or neglect of duty "-words which enabled the Crown to enforce against the Soldier the obligation which by the terms of his enlistment was laid upon him to serve the Crown faithfully.

14. The discipline of the Army abroad was left entirely in the hands of the Crown (those Sections giving a Jurisdiction

1 Sec. 41. 2 12 Anne, c. 13. 3 11 Parl. Hist. p. 441.

4 Sec. 3.

to the Queen's Bench and Justices of Assize being withdrawn), and an express legislative power-though limited-was conferred upon the Crown to make Articles of War; to constitute Courts-martial for the trial of any crime or offence by such Articles, and to inflict penalties by sentence of such Courts: the power being expressly limited in its terms to the Dominions. of the Crown beyond the sea (Ireland excepted), and was to be exercised-as theretofore it had been exercised-beyond the seas in time of War.

15. The Reign of George I. was the advent to Civil Commotion, and in the year three separate Mutiny Acts were passed. The first Act,' which received the Royal Assent on the 3rd June, bore the same title as, and was a renewal of, the mild Code of the 12th Anne; but, after a message from the Throne had announced to both Houses that a Rebellion was imminent, a Bill for "the better preventing Mutiny and Desertion" was passed, and received the Royal Assent on the 2nd of August. This second was the re-enactment of the original Act of 1689, with a protecting clause against actions at Law, and another giving express authority to the Crown (in wider terms than would now be sanctioned) to make Articles of War under Royal Sign Manual for the better Government of the Forces at home.

16. The third Act, which received the Royal Assent on the 23rd March 1715 (O.S.), stamped upon the Military Code that penal character which for some years made it a reproach to an Englishman to be a Soldier. Under the previous Acts two separate Codes existed: the mild one of the 12th of Anne, and the severe one of 1689-made more severe by the almost unlimited power of the Crown to declare new offences by Articles of War. This (third) Act adopted one classification of crime, and one measure of punishment; but, in lieu of that contained in the 12th of Anne, substituted Capital Punishment for every offence, but with a discretion to award such other punishment as the members of the Court-martial should see fit. Thus "one of the glories of our English Law," as Blackstone terms it-viz., an ascertained quantum of punishment

1 1 Geo. I. sess. 2, c. 3.

2 Ib. c. 9.

3 Cap. 34.

for every offence imposed according to the rule of Law, and not at the caprice of the Judges'-was extinguished, for, as he adds, if punishments are to be the private opinions of the Judge, then "men would be slaves to their Magistrates, and would live in Society without knowing exactly the conditions which it lays upon them." Such, however, was the condition of the Army, so long as this Statute remained in force.

17. After the Rebellion had been crushed, it was the duty of Parliament to take under review the powers which in an emergency had been conceded to the Crown for the government of an Army, the main body of which had disappointed the rebels by their faithful discharge of duty, though some members had been found guilty of desertion and punished with death. At that period many Constitutional objections were urged which have prevailed against the Military Code as embodied in the Mutiny Act and Articles of War; but as it would be tedicus to carry down in detail the history of each modification as and when made, I propose here to state briefly a few of the principal subjects of controversy, and to show how these difficulties were either then or subsequently disposed of.

18. Unfortunately the very existence of the Army was a subject of controversy; for, had the necessity of its continuance been admitted, the difficulties incident to legislation would have been materially lessened. As it was, a strong minority would have gladly seen the Military strength of the Crown first diminished, and then altogether extinguished. To legislate for Army Government was therefore distasteful to many, who were apprehensive a that in giving Statutory powers to the Crown for the punishment of the Soldier they were incidentally both sanctioning and perpetuating the principle that a Standing Army was essential for the protection of a free maritime State.

19. But, waiving these considerations and accepting for some time at least the incubus, first of 7000, and ultimately of 17,000 men, dispersed as Guards and in Garrisons throughout the kingdom, were they to be organized in localities and governed by the

1 Vol. iv. Com. p. 371; and Debate of 1749, in Vol. I. p. 163.

2 Vol. II. p. 164. 3 Vol. I. pp. 179, 372; Vol. II. P. 258. 4 Vol. I. p. 196,

Civil Magistrate as the Militia; or were they to have "Articles and Orders" enacted' by Parliament for their discipline, as was the case with the Royal Navy? These were the preliminary difficulties needing solution. The localization of Regiments was urged by those statesmen who objected to our keeping up the Army as a separate caste, alienated from the habits and sympathies of their fellow citizens, and moved about from month to month, that no attachment might spring up between them. It was, however, opposed successfully by the Duke of Marlborough, and abandoned. The government by the Civil Magistrate was for some time held in abeyance, but the vote in supply (which always precedes the Act) having established the Army for one year, Sir Robert Walpole used his influence in favour of the renewal of the Mutiny Act, pointing out that, as the Army existed, it ought, for the welfare of the State, to be kept in discipline by the Military, and not punished by the Civil Magistrate. The analogy of the Navy, as a force permanent and constitutional, was not adopted; and therefore the proposal to enact Articles of War for the Army met with little encouragement, and failed.

4

20. These points being settled, the real difficulties of the case presented themselves. Was Parliament to concede to the Crown legislative power to declare offences-to erect tribunals -and to inflict punishments, contrary to the fundamental principles of English justice? A precedent could certainly be cited, where an English Sovereign had obtained such powers from a "servile" Parliament, but only in the time of arbitrary power and when Parliament scarcely existed for any other purpose than that of registering the ordinances of the Sovereign. The Articles of War hitherto made by the King had been (as we have seen) issued as Military Orders which, under his oath of allegiance and service, the Soldier was held bound to obey; great caution was therefore needed in giving legislative sanction to such rules.

21. No such caution was, however, exercised; for Parliament enacted that the King might establish Articles of War, and

6

113 Car. II. c. 19. 2 Vol. I. p. 218.

5

31 Henry VIII. c. 8, and see Hallam,
Vol. I. p. 146.

3 Vol. I. p. 153. ♦ Vol. I. p. 147.

Const. Hist.,' Vol. i. p. 35.

constitute Courts-martial, with power to try any crime or offence and to inflict any penalties. It is therefore scarcely to be wondered at that a power so unlimited in its extent and meaning should have formed a subject of Parliamentary controversy until restrained. This was done in the year 1749, when a proviso1 was inserted "that within Great Britain and Ireland" no person should be adjudged to suffer any punishment extending to life or limb except for such crimes as are so expressly punishable by the Mutiny Act-a protection which, limited as originally framed,2 is still to be found therein.3

22. But further: the 3rd Act not only too frequently and for trifling offences awarded the punishment of death, but a provision (which was to be found in it), enabling the Crown, or Military Officers, to declare the causes of death, presented a far more serious objection, thus: "Every Officer or Soldier who should refuse to obey the Military orders of his Superior Officer" was liable to capital punishment. The Army being then under the personal command of a Sovereign, absolutely irresponsible-for, according to our Constitutional theory, he could do no wrong—the danger of this enactment was not exaggerated by the Lords, when, in their protest, they declared it to be a violation of the fundamental Laws of the Realm, "by which the commands or orders of the Crown are bound and restrained within the compass of the Law; no person being obliged to obey them if illegal, but punishable by the Law should he do so, notwithstanding such orders or commands proceed from the King."4 However oppressive to the Civil Community, or coercive against Municipal rights or institutions, the Inferior must obey the orders of his Superior Officer at the peril of Capital Punishment by a Court-martial summoned at his instance. And his injured fellow-subjects were left without legal redress, because the same Act contained, as we have seen, clauses which practically exempted the Soldier from trial by the Civil Tribunals.

1 22 Geo. II. c. 5, s. 57; Vol. I. p. 147.

2 See King v. Suddis, 1 East. Rep. p. 310.

4 Vol. I. pp. 157-164; Vol. II. pp. 66, 144, 154. 51 Geo. I. c. 9, s. 10, and c. 34, s. 40.

3 Sec. 1.