23. The alterations made in the Act of 1718 placed some limitation upon this penal obedience by using the words "who shall refuse to obey any lawful command of his Superior Officer." In 1733 the increase of the Army was opposed by several speakers, mainly from the danger to which this authority over the Army exposed the State. Discontent continued to be expressed until, in the year 1749, after an angry debate, the words were altered thus: "To disobey any lawful command of his Superior Officer," which now stand in the Military Code1a slender security in itself against the perpetration of an irremediable act of violence, should the lawfulness of the command be of a doubtful or controversial character,2 and one of little practical value should the Officers who give the commands be desperadoes instead of gentlemen. 24. It need not be a matter of surprise to learn that the extension of the Military Code to persons other than Officers and Soldiers in pay was most narrowly watched in Parliament until the punishments were mitigated and the Administration of Justice settled in public confidence. The first Extension was in 1708, when those serving as "Volunteers" without pay were brought under the Act,3 then in 1715, by the 3rd Act the "Invalids"-that is, Corps or Regiments composed of Pensioners acting under the command of retired, reduced, or half-pay Officers, who thus originally became liable to trial by Court-martial and so continued until 1783-were included. In 1754, the Local Army of the East India Company was brought under a special Mutiny Act, and in the same year the Local Troops raised to serve with the British Army by the Governors of the American (in 18076 extended to all) Colonies, were brought under the Imperial Act. Within two years, by the Militia Code of 1756, the English Militia, hitherto exempt, were made liable to the Act, and the last great Constitutional struggle was on Mr. Fox's opposition, in 1788, to 1 Mutiny Act, s. 15, Art. of War 38. 8 2 Vol. I. p. 159, and Vol. II. p. 143. Mitchell v. Harmony, 13 How. (S.C.) 115. 3 Vol. I. Chap. VIII. par. 98. 5 27 Geo. II. c. 9. Sec. 74 of 28 Geo. II. c. 4. 4 Ib. par. 99. 6 47 Geo. III. c. 32, s. 100. $ 30 Geo. II. c. 25. the enactment making the Civil Artificers-then to be enlisted as Sappers-liable to Military Law. From this period Parliament has manifested what by contrast appears to be a singular indifference to the extension of the Act. 66 25. It is a matter of surprise that no more effectual effort was made to frame and enact a classification of crime or punishment other than that laid down in the 3rd Act of 1715; for one of the greatest advantages of our English Law is that not only the crimes themselves which it punishes, but also the penalties which it inflicts, are ascertained and notorious-nothing is left to arbitrary discretion-the King by his Judges dispenses what the Law has previously ordained, but is not himself the Legislator." No such attempt has been made, nor has Capital Punishment been withdrawn from the Statute Book, to the same extent with regard to Military as it has for Civil Crimes. The reform of the Criminal Law has not reached the Military Code. 26. But the punishment of death, though often awarded by Courts-martial for Desertion and sometimes for Sedition (as cursing his Majesty 2) was not always carried into execution. When several men were sentenced for one common offence, an expedient was resorted to-as early as the reign of William and Mary, and continued in the Service during the Peninsular War -of ordering the condemned criminals to draw lots for their lives. Thus, in 1696-7, William III. extended his mercy to two out of three prisoners, by "ordering the three condemned Soldiers to draw lots, and that he only on whom the lot of death do fall be executed;" 3 and the Duke of Wellington, in 1813, having pardoned some and ordered others for execution, added to his orders, "That the remainder of the prisoners should draw lots for one more to be executed by being shot according to the Sentence of the Court-martial." 4 27. Again, by the Sovereign or the General in Command, "Corporal" was substituted for "Capital" Punishment awarded by the Court, the prisoner escaping with his life after a thrashing. For many years there was no legal sanction for this course, and the Crown was advised in George I.'s reign that 1 Blackstone (1756), Vol. i. p. 415. 2 Vol. I. p. 519. Desp., Vol. vii. p. 177. 5 Vol. I. p. 518. though the Sentence might be remitted it could not be changed.1 "Let the prisoners," wrote the Duke of Wellington, “have the choice of suffering Corporal Punishment, or to be executed according to sentence. Those who prefer to be executed are to be shot; those who prefer corporal punishment are to receive a punishment not exceeding 300 lashes.” 2 28. Death for Desertion-which might not be too severe a punishment where the Soldier went over from the Army of the House of Orange or of Hanover to that of Stuart during the last century-was gradually withdrawn from the Code. First, in 1766, a discretion was given to Courts-martial, in cases where they thought death too severe a punishment, to award transportation for life or for years in Regiments serving abroad; and then, in 1803, Desertion was declared Felony, punishable with transportation. If the man wrongfully returned to this country, the Capital Punishment was then to be inflicted; but, as a rule, such punishment for ordinary Desertion ceased to be inflicted.3 29. Corporal punishments of various kinds, "not extending to life or limb," could, as we have seen, be inflicted by Courtsmartial for "immoralities, misbehaviour, or neglect of duty;" but first the commutation, and later the abolition of this punishment was steadily sought from Parliament. In 1812 both Houses accepted the principle that "imprisonment might be inflicted as an alternative punishment for minor offences," and a limitation was first imposed upon the number of lashes to be inflicted,-300 being fixed upon as the limit. From that time the controversy raged with more or less earnestness, until in the year 1868 the power to sentence any Soldier to Corporal Punishment for any offence whatever committed during the time of Peace within the Queen's Dominions was withdrawn from the Act.5 30. The Military Code continued for many years without material alterations, other than those which have been already 1 Desp., Vol. vii. p. 510. 2 Desp., Vol. vii. p. 177. * Vol. I. pp. 154, 503; Vol. II. pp. 3-41. James II. endeavoured to revive the old Law of Felony. King v. Dale, 2 Show Rep. p. 511 and 12 Sta. Tri. p. 262. 4 See Sec. 22-4 of the Mutiny Act, 1812. 5 31 Vic. c. 14, s. 22. D mentioned in 1717. Many of the severer enactments were then withdrawn from the Act and placed in the Articles, the disciplinary Sections of which (so amended) are given in the Appendix (A), and the Articles of War, laid upon the table, will be found printed at length in the Journals of the House of Commons. This year, therefore, will furnish a starting-point from which to review the Military Law in the practical portion of this Work. 31. Until the year 1828 the Mutiny Act underwent very little organic change. In the year 1717 it numbered 53, but in the year 1828 163 Sections. The order in which the Act was originally framed was but little altered, and the Sections that were from year to year added, related rather to the Administration than to the Discipline of the Army. 32. The Articles, so far as I can trace, stood upon the model of those of 1717 until 1742; but from this year till 1828, they were (as those of 1672 and 1686) grouped under different Sections, which in 1748 were twenty, and in 1828 twenty-four in number. They stood thus in 1748 as 111 in number:-(1) Divine Worship, 6; (2) Mutiny, 5; (3) Enlisting Soldiers, 2; (4) Musters, 7; (5) Rations, 4; (6) Deserters, 4; (7) Quarrels and sending Challenges, 5; (8) Sutling, 3; (9) Quarters, 5; (10) Carriages, 1; (11) Crimes punishable by Law, 2; (12) Redressing Wrongs, 2; (13) of Stores, 4; (14) Duties in Quarters and in Field, 26; (15) Administration of Justice, 25; (16) Entry of Commissions, 1; (17) Half-pay Officers, 2; (18) Effects of the Dead, 2; (19) Artillery, 2; (20) Relating to the foregoing Articles, 3; the concluding being the Devil's Article-which is not to be found in the Articles of 1717-42. 33. In 1828 they stood as 135 in number, thus:-The Sections 1 to 14 as before set out, except that Section (4) had only 5 Articles, (6) was increased to 7, (8) to 5, (13) to 6, and (14) was reduced to 22 Articles. From [15] to [24] Sections the order stood thus:-[15] Rank,2 added in 1784 and 1794 as 7 Articles; [16] Administration of Justice, 30; [173] Accounts, added in 1784 as 3 Articles; [18] Entry of Commissions and Leaves of 1 Vol. xviii. p. 910. 2 Articles as to Militia and Yeomanry added in 1798. 3 The Section relating to Half-pay Officers was omitted in 1750; Vol. I. p. 178. Absence, as 1 Article; [19] Effects of Dead and Deserters, as 4 Articles; [20] Artillery, as 3 Articles; [21] American or Colonial Troops, first added in 1755 as to American Troops, 2 Articles; [22] Troops in the East Indies, added in 1785 as 2 Articles; [23] Troops on board ship, added in 1795, as 1 Article; [24] As to the foregoing, as 5 Articles. 34. In the year 1829 the Military Code underwent entire revision, the Mutiny Act being remodelled and reduced to 78 Sections, while the Articles were re-cast and thrown into 7 Sections only, as-(1) Public Worship, 6; (2) Crimes and Punishments, 7 to 67; (3) Courts-martial, 68 to 93; (4) Miscellaneous Duties and Obligations, 94 to 112; (5) Returns and Accounts, 113 to 123; (6) Rank, 123 to 129; (7) Application of the Articles, 130 to 135, the total number of the Articles. In 1830 the place of some few Articles was changed and 9 others added,1 relating to malingering and self-mutilation and disgraceful conduct. 35. Numerous alterations were made in 1844, and in 1817 the Military Code was again revised, and the Act increased as from 83 Sections in 1816, to 103 Sections in 1817.2 In 1848 the provisions relating to Limited Enlistment were added, and the Articles of 1847 were re-arranged, and the Sections increased in number thus:-(1) Duties and Obligations, 1 to 34; (2) Crimes and Punishments, 35 to 108; (3) Courts martial, 109 to 146; (4) Rank, 147 to 153; (5) Application of the Articles, 154 to 159. 36. The Code continued in this shape until the year 1860, when it was again re-cast, the substance of it being the same. The Act was reduced from 105 Sections in 18593 to 97 in 1860, and the Articles-the same Sections being preserved-were increased from 161 in 1859, to 195 in 1860. But the shifting of Sections and Clauses was such as to puzzle the readers of the earlier and later Codes. 37. The present Code, in regard to the Disciplinary Clauses thereof, is printed in the Appendix. At the foot of each Section of the Act and Articles there will be found such detailed informa |