instead of making all obey the Constituted Authorities of the State." 12. But one obligation of paramount importance is submission to the Military Code and those Tribunals under which the Officer or Soldier is amenable to punishment for any Military offences. These Courts, when acting within their jurisdiction, are supreme over the Officers and Soldiers in the Army, and they cannot rightfully complain that as such they are arraigned before them. It will be seen, from the earliest and the latest Codes, that for the adjudication of all matters relating to Officers or Soldiers inter se, these Tribunals have been specially constituted; and that an appeal for pecuniary damages to a Civil Tribunal for a Military injury would be a direct violation of that obligation to obedience which every one accepts by his Commission or Enlistment.1 13. The Articles of War, supplemented by the Queen's Regu lations, provide a method for the redress of grievances, by giving to the Inferior the right of personal complaint to the General Officer on his half-yearly Inspection for wrongs suffered at the hands of a Superior Officer. It has elsewhere been pointed out that the Articles of 1672 permitted a reasonable complaint of this nature to be urged, and those of 1717 expressly provided the same remedy. The Officer wronged was first to complain to his Colonel, then (if refused redress) to his General, that justice might be done upon his report of the case to the Crown. When the complaint was against the Captain, the Colonel was to summon a Regimental, with an ultimate appeal to a General Court. In either case, if the appeal should appear vexatious or groundless, the appellant was liable to punishment by the General Court, or if the Superior Officer had to make restitution, then he was also to be punished. 14. The present Code, so far as it relates to Soldiers, varies 1 See the admirable Judgment of Mr. Justice Willes in Dawkins v. Rokeby (infra), and Ch. Bar. Kelly in ib. 8 L. R. (Q. B.) 262. 2 Sec. 198-9 of 1868. 3 As to the Navy N. D. A. (Sec. 28) and Ad. Reg. p. 105. 4 Art. 19. somewhat from that of 1717. The complaint is now confined to matters affecting" pay or clothing," and where made, obliges the Colonel to summon a Regimental Court of Inquiry, from which either the Captain or the Soldier may appeal to a General Courtmartial, with liberty to be heard by himself and witnesses, though at the risk of incurring such punishment as a Court-martial shall award, should the appeal be pronounced groundless and vexatious. This is the only remaining instance under the Military Code in which a General Court-martial is recognized as one of appeal from the findings of any Inferior Court.2 3 15. This provision, as relating to Officers, came under the notice of Parliament in 1810, when it appeared to be admitted that the Commander-in-Chief (to whom the General's Report should be sent) had a discretion in submitting to, or withholding from, the Sovereign a report of the case. The Article is found in the present Code, and came under discussion before a Court of Law, probably for the first time, in 1866. The object of this Article is to establish a domestic forum 5 to settle those professional disputes incident to, and which are to be governed by the rules and customs of, the Military Service. If the torts and wrongs "sounding in damages" were to be subjects of legal controversy before the Common Law Courts, great evils would arise; for not only would the position of a Commanding Officer be attended with personal risk (not exaggerated in the judgment pronounced in Sutton and Johnstone), but, what is far worse than this, "the spirit of party-the bane of all armies "—would arise, and then, to use the words of the great Duke, "we should be in a bad way indeed." The essential purpose of the Military Code is to prohibit all personal and acrimonious controversy.8 16. Military Tribunals are part of the Constitutional Law of the Realm, not for the welfare of the Army alone, but for the protection of the Civil Community. Given a Standing Army, and Military Tribunals are a necessity. "The Army being esta Art. 13. * Compare sec. 16 of Mutiny Act, 6 Vic. c. 3, and 7 Vic. c. 9, and Chap. XII. 'Captain Foskett's Case, 16 H. D. (O.S.), p. 746. 4 Art. 12. Timms v. Williams, 3 Q. B. Rep. p. 422; Dawkins v. Rokeby, 4 Fos. and Fin. p 833. 1 Te. Rep. Gur. Desp., Vol. iii. pp. 620 and 671, Vol. iv. p. 180. Vol. ii. p. 346. blished by the authority of the Legislature, it is an indispensable requisite," said Lord Loughborough, "that there should be order and discipline kept up in it, and that the persons who compose the Army, for all offences in their Military capacity, should be subject to trial by their Officers. That has induced the absolute necessity of a Mutiny Act, accompanying the Army. One object of that Act is to provide for the Army, but there is a much greater cause for the existence of that Act, viz., the preservation of the peace and safety of the kingdom. The object therefore is to create a Court invested with authority to try those who are part of the Army, in all their different descriptions of Officers and Soldiers, limited to breaches of Military duty." 17. The State in its Civil aspect delegates Judicial functions to Military Officers-places them in command over and holds them responsible for the good order and discipline of their subordinates. It would be most unreasonable, therefore, to deprive Officers acting in the Military Administration of Justice of that established rule of Law which grants immunity from civil actions to those who as Judges, Juries, or Witnesses, are acting in the Civil Administration of Justice. And the Common Law Courts have uniformly refused to do so,3 for the case of Sutton v. Johnstone (which goes beyond this) shows that an Inferior Officer cannot rightfully appeal for pecuniary compensation to a Court of Civil Judicature against his Superior Officer for initiating Courtmartial proceedings against him without reasonable or probable cause. "The occasion," said the learned Judges," has often arisen when men put upon their trial before a Court-martial have thought the charge without a probable cause, and have warmly felt the injury of such an act of malice or oppression; yet, till this experiment (in 1786), it never entered into any man's head that such an action as this would be brought. What condition would a Commander be in if, upon exercising his authority, he is liable to be tried by a Common Law Tribunal ? If this action Grant v. Gould, 1 H. B. p. 100. The same rule equally applies to the Navy. See Sutton v. Johnstone, ante. 3 Grant e. Gould, ut sup. Dawkins r. Rokeby, 4 Fos. and Fin. p. 831; Same v. Paulett, 9 B. & S. p. 769 be admitted every acquittal before a Court-martial will produce one. The person unjustly accused is not without a remedythat which is best among Military men: reparation is done him. by his acquittal, and he who accused him unjustly is dismissed the Service and blasted for ever." 1 18. The current of legal authority has been consistent with this ruling of Lords Mansfield and Loughborough in this celebrated case. The Common Law Courts have uniformly refused to sit as Courts of Error or Appeal in matters over which they exercise no original jurisdiction." "It is clear," said Mr. Justice Willes, in a very recent case, "that with respect to those matters placed within the Jurisdiction of the Military Forces, so far as Soldiers are concerned, Military men must determine them. Persons who enter the Military state-who take Her Majesty's pay, and who are content to act under her Commission-although they do not cease to be citizens in point of responsibility, yet they do by a compact (which is intelligible and requires only the statement of it to recommend it to the consideration of any one of common sense) become subject to Military rule and Military discipline;" adding, with some emphasis, that an appeal against the authority of those tribunals, by one subject to them, is a course which cannot be pursued in the Civil Courts. 19. In later passages reference will be made to other decided cases, in which the aid of the Common Law Tribunals has been invoked to restrain the proceedings of Courts-martial to the limits of their Jurisdiction; therefore, to pursue the subject here would oblige a repetition hereafter; but, before closing this chapter it may be remarked that as no one is entitled to require the Crown to prosecute him in the ordinary courts of the kingdom, neither has an Officer any manner of right to call 1 1 Te. Rep. pp. 548-550. In a somewhat earlier and analogous case (1781), where trespass was brought by a person seized in a prize ship, which was restored by the Court of Admiralty, the Court of King's Bench refused to aid the plaintiff to recover damages for this exercise of authority. "The inconvenience of entertaining such causes would be intolerable," said Mr. Justice Ashurst, "and the Admiralty having jurisdiction in the original matter, ought also to have jurisdiction in everything necessarily incident."-Le Caux v. Eden, 2 Dougl. Rep. p. 601. 2 Grant v. Gould, sup., 1866; Dawkins v. Rokeby, 4 Fos. and Fin. p. 831, and in error (1873), 8 L. R. (Q. B.) 262. G on the Crown to arrest him, or after arrest to incur the waste of public time and money by assembling a Court-martial for his arraignment on any charge that may free his character from doubt or suspicion. "Every one," said Mr. Villiers (as Judge Advocate General), "might ascertain, by searching the most elementary works upon the military system of this country, that an officer has no right whatever to a Court-martial as a means of inquiry into his conduct."1 1 Vol. I. p. 177; Vol. i. M'Ar. C. M., p. 433, citing G. O. of 1st Feb. 1804. Dawkins v. Rokeby, 8 L. R. (Q. B.) 262. Where a Naval Officer refused to return to his duty without a trial, he was tried for disobedience to orders and dismissed the Service (1810). Vol. ii. Ad. Op. 294. 1 |