tion as the reader may possibly desire for reference. As each Military Student is desired to make himself familiar with the contents of the Act and Articles "so far as it is necessary for the performance of the duties of members of a Court-martial," these extracts are limited to that object. The form of Courtmartial proceedings is also given,2 with those Sections of the Queen's Regulations3 which prescribe the mode in which these shall be conducted. 38. Before closing this history I cannot forbear this remark that one characteristic-which is worthy of being specially noted-has been preserved in every Code, viz., the allegiance enjoined upon the Soldier towards the Supreme Being. 5 The primary duty traced in all the Codes, from that of 1639 was, and is, that of "Divine Worship;" and though, in the year 1847, this section was transposed to another part of the Code, yet the words remain nearly the same. In the earlier Treatises upon the Art of War, those authors thought it not unimportant to press this subject home to the attention of the Soldier; nor in later times have great Captains been silent upon it. When engaged in the struggle of the Peninsula, the Duke of Wellington wrote, "I am very anxious upon this subject, not only from the desire, which every man must have, that so many persons as there are in this Army should have the advantage of religious instruction, but from a knowledge that it is the greatest support and aid to Military discipline and order;" and those readers who may be familiar with the writings of the late Sir Charles Napier will recall his testimony to the same purport.7 39. Whatever party-strife hitherto hinged on the yearly renewal of the Act has now ceased. Did the Bill precede or form one of supply, a successful opposition would disband the Army; but this is not so, for when the resolution which defines 1 War Office Circulars of 1st April and 28th May, 1872, for Reserve Forces. App. F. 3 App. D and E. 2 4 Extract from Articles of 1639 :-" No enterprise shall be taken in hand, but the Company that are to execute the same shall first commend themselves to God and pray to Him to grant them good successe."-Vol. I. p. 421. In Naval Discipline Act this is the 1st Section. 6 Vol. iv., p. 584, February 1811. Life, Vol. ii. p. 458. the number of men has been brought up and read a second time, then leave is given to bring in, and this number is stated in the Preamble of, the Mutiny Bill.' The Army, therefore, would be paid out of the supply, and its discipline be imperfectly maintained under the prerogative if the Mutiny Act were not passed. The effectual opposition is that made in the Committee of Supply either to the number of men, or to the period for which the vote is taken. The supply has therefore been granted for shorter periods than a year to oblige the Ministry to meet Parliament within that interval, and as the Mutiny Act follows upon supply its operation has been restricted to the same period.2 40. It is a rule established by Parliamentary usage, that nothing foreign to the subject or novel in principle, so as to lead to great delay or controversy, should be introduced into the Bill; for, if passed, the Act should come into immediate operation when the old one expires. The Roman Catholic Question was raised by Clauses in the Mutiny Bill, but withdrawn. In the same year (1806) the House objected to the principle of limited enlistment being so raised. In 18473 when the latter subject was again brought before Parliament, a Bill was presented in which the purposes of the Government were fully discussed, and, being adopted, were incorporated into the Mutiny Act of 1848. 41. From what has been written, it will be understood that the Bill always originates in the Commons; and so inflexible is the rule, that the amendments of the Lords on a Penalty Clause have been objected to, and their vote, either affirmative or negative, insisted upon. The first Bill was referred, after the second reading, to a Select Committee, and in later periods it has been introduced by and carried through the House under the charge of the Civil Ministers of the Crown. The Articles of War, on the contrary, were prepared by or under the advice of a Board of General Officers, and were issued as Military Orders under Royal Sign Mannal, but without the countersign of a responsible Minister. In 1794,' Parliament provided that 1 Vol. I. p. 86. 3 Ib. • Letters of 1715, Vol. I. 2 Instances quoted, Vol. I. pp. 86, 190, 399. 410 Com. Journ. p. 53. Vol. I. p. 144. p. 505. 33 Geo. III. c. 9, s. 55. they should be judicially noticed, and in 18101 that they should be sent "by the hand of the Secretary at War to the several Judges of the Common Law Courts." Both the Acts and Articles are evidenced (as ordinary Statutes) by the type of the Queen's printer.2 42. Leaving the Militia and Auxiliary Forces to be dealt with in a separate chapter, it appeared to me to be better to complete in outline the history of the Military Code as applicable to our Regular Army before referring, as I propose to do, to the discipline of the Royal Navy after tracing the general adoption of the Court-martial system for the Government of other Forces; such as (1) The Royal Marines, (2) The East Indian, and (3) The United States Army. 43. I. The Marine Regiments were originally raised (as elsewhere shown 3) in 1694, and governed when on board ship under the Navy Discipline Act, and when on land under the Army Mutiny Act. This continued until the year 1756, when the Marine Regiments were reorganized under the Command of the Lords of the Admiralty, who, by Commission from the Crown, exercise over the Marines the same powers as are directly exercised over the Army by the Crown. To meet this peculiarity, a separate Marine Mutiny Act (originally framed on the model of the Army Act) and Articles of War (similar to those for the Army) have been annually passed by Parliament and issued by the Lords of the Admiralty. This Code comes into operation by order of the Senior Naval Officer whenever the Marines leave Her Majesty's Ships to join the Army upon a joint expedition on land.5 44. All that has been written with reference to the Military Code up to 1756, is therefore applicable by express terms to the Royal Marines; and as their Code has always been from that period substantially the same as it now is with the Army Code, little qualification to the text is needed. When asked to explain to the Royal Commissioners on Courts-martial how the Marine differed from the 150 Geo. III. c. 71, s. 31. Vol. I. pp. 75, 264-265, 398. 2 King v. Holt, 5 Te. Rep. p. 442. 5 Report of C.-martial Comrs. 1868, Q. 3885, and Sec. 6 Marine Mutiny Act. Army Act, the Adjutant-General of the Marines1 said "it was assimilated to the Army Act in every possible way: as regards the punishment of offences and Military economy generally, it was very nearly similar to the Army Act, and from year to year the alterations of the Army' were adopted into the 'Marine' Act." In the year 1871, to make the assimilation of discipline more complete, the Marine Articles of War 2 made the "Queen's Regulations for the Army" binding on the Royal Marines when serving on shore in England, and at all other times and places when under the Mutiny Act, in matters connected with Discipline, Drill, and exterior economy generally, and in all questions arising when serving in garrison or quarters with the Army, "except where special Regulations have or may be issued by the Admiralty," or where the form of procedure laid down in the "Queen's Regulations for the Army" is not applicable to the Royal Marines. 45. II. The Indian European Army (formerly of the Company)3 was from 1754 to 1863 governed by a separate Code, framed on the model of the Mutiny Act. In the latter year this was repealed," and the Army in India was made subject to the Mutiny Act, several sections (now sections 99, 100, and 101) being transferred from the Indian Code to the Mutiny Act. The Native Army is not governed by the Mutiny Act, but by Articles of War enacted by the Legislative Council of India (who it may be noticed cannot repeal or in any way affect the provisions of the Mutiny Act); those of 1869 (Feb. 26th) being the Code at present in force, and of which more will be written hereafter. 46. III. The American-though now unfortunately in legal parlance an alien-Army is governed by a Military Code "mainly derived" (as we are informed by a competent authority) from the English Code. We have already seen how, in our domestic 1 Evidence of Col. Lowder, C.B., Question 3881. 2 Sect. vi. Art. 157. 3 As to this, see Vol. I. pp. 268–270; Vol. II. p. 435; and Chap. X. par. 26–29. The first and last were 27 Geo. II. c. 9, and 20 & 21 Vic. c. 66. The Indian Officers holding Brevet Rank from the Crown were liable to both Codes in 1823. India Office Record (666). 26 & 27 Vic. c. 48. 7 Benét, p. 20. 6 See 24 & 25 Vic. c. 67, sec. 22. troubles of the 17th century, the opposing Armies of the King and of the Parliament were governed under the same Military Code:-how, in fact, the Articles of War put forth by the Earl of Northumberland in 1640 were adopted, in substance always and in words often, by Lord Essex in 1642. So, in 1775, the same thing happened in America. At that time the "Ministerial" Army, as our then fellow-subjects called Gage's and Burgoyne's force, was governed by our Mutiny Act and Articles of War. When the "Continental Congress" raised an Army in defence of the liberty of America, that Assembly could find no Military Code better suited to their requirements than the then current Articles of War by which this Ministerial Army was governed, and accordingly, on the 30th of June in that year, they put forth Articles of War (sixty-nine in number) for the government of their Army, which were framed ("with the Devil's Article "2) on the model of the English, but with this marked difference-that by the American Code death was only three times named as a punishment-viz., as for the breach of Articles, which were 25, 26, and 31, in theirs, and are 52 and 54 in our Code.3 47. The present American (which is so similar to our own Military) Code, was enacted by Congress on the 10th of April, 1806; and, in illustration of it, the able writers upon Military Law and the Judges of the Supreme Courts in that country have not failed to draw largely from Works that have been here put forth upon our Mutiny Act and Articles of War. The decisions of the American Courts of Law and the opinions of their highest Law Officer-the Attorney-General-upon State documents have furnished me with additional materials for this Work; for, where (as not unfrequently is the case) the words or principles of the two Codes are the same, I have given my readers the advantage of knowing what, by competent authority, in America has been ruled to be the Law or Practice of Courtsmartial Jurisdiction. Chap. I. par. 18, note. 2 Art. 49. 3 See them printed verbatim, Vol. ii. American Archives (4th Series) p. 1856. In April (1775) the State of Massachusetts put forth fifty-three Articles of War, printed Vol. i. ib., p. 1350. These are published in 12 vols. 8vo. |