CHAPTER VII.

MILITARY PROCEDURE AND JURISDICTION.

1. MILITARY obligations are, as I have already observed, to be enforced by Military Tribunals, and the Marshal's Court, referred to in the several Codes of Charles I.'s reign, appears to have been created for this purpose in analogy to the Court of the Constable and Marshal, which the Statute of Richard II. c. 2, expressly recognised "as having cognizance of contracts touching deeds of Arms and War out of the Realm;1 and also of War within the Realm which cannot be determined nor discussed by the Common Law, with other usages and customs to the same matters pertaining."

2. The summary power of the Marshal, and of his deputies, in matters within his Jurisdiction was alleged to be absolute, even in life or death. His judicial proceedings were unfettered by forms, and his powers of punishment both plenary and summary. His sentences were executed in the King's name, and no appeal could be made against his decrees, save to the person of the Sovereign. The office of Constable having lapsed on the attainder of the Duke of Buckingham in 1521, this Jurisdiction (as some doubt appears to have been entertained whether the Marshal alone could exercise it) was permitted to fall into desuetude until sought to be revived in 1639: whereupon the Commons declared the Marshal's Court to be a grievance.'

3. The difficulties which beset the adoption of a Military Code with Military Tribunals may be gathered from the Petition

1 A writer of 1602 describes their Jurisdiction as including trespasses and hurts done by one Soldier to another; that for any Soldier to arrest another, but by the Marshal, was punishable; to punish Sutlers and those who failed in watching and warding.* 2 Vol. I. p. 23.

* Tytler's Essay, p. 379, note.

of Right and the letter of Lord Conway already printed. The contention of Parliament was that the Soldier should never be withdrawn from the protection, nor from the punishments, of the Common Law Tribunals. The Generals, whether in command of the Royal or of the Parliamentary Armies, were on the other hand equally agreed that "the Soldier must be punished by his Officer," or, in other words, that the discipline of the Army could only be maintained by absolute power being vested in the supreme Military Chiefs and in the Military Tribunals constituted under their authority. A Commission of Oyer and Terminer under the Great Seal directed to the Officers in the Field and some country gentlemen for the trial of the members of the Army in pay was suggested by the Commons during the Rebellion,' but Lord Essex replied, that "if Parliament allowed him no Commission of Martial Law, he could not be answerable for what mischief might happen or disorder that might ensue.” So that at last this concession was made to him, and the Articles of War known by his name were put forth in 1642, with the sanction of both Houses of Parliament.

4. In tracing the Articles of War during the reigns of the Stuart kings, the reader will have noticed that provision was there made with more or less particularity for the "administration of justice" in the Army. Towards the close of James II.'s reign, the method of proceeding was formulated; but the adoption of this system in the English Army was severely criticised in Parliament. By a comparison of the contents of a work styled 'The Art of War and Way as it is practised in France, by Louis de Gaya, an expert Officer in the French Army,' translated into English and published at London in 1678, with the directions put forth by James II. in 1686, with regard to "Military Discipline," the reader will be able to judge how far the objection to the military system as coming from France was well founded.2

5. The work is divided into two parts. The arrangements described in the first are those of an Army generally, and the various Staff Officers commanding it; in the 2nd, those of a Regiment, and of the Officers composing it. In the 1st

1 Vol. I. p. 23.

2 Parl. Hist. 605-9.

part--after the passage which I have transcribed on the title page of this work-the author goes on to describe 1"the duties of the Provost Marshal of the Army and his way of Justice." "He hath a troop of Officers on horseback with a Lieutenant Exempt, a Clerk to record his processes, and an executioner to punish those that offend against the orders of the King and General." In the 2nd part2 he treats of "the Provost Marshal of a Regiment," as having under him Officers similar to those under the Provost Marshal of the Army. His duty is to pursue and apprehend deserters and delinquents, to bring in indictments, interrogate and confront witnesses; and the process being drawn up, he carries it to the Major, who gives the conclusions for the Colonels and Captains afterwards to judge.

6. The author then proceeds3 to treat of "Councils of War," dividing them into "General Councils of the Army" held at the General's lodgings or tent, and "Private Councils" held at the Governor's quarters in Garrison, or at the Colonel's tent in Camp. The proceedings of the latter Council he describes thus, that the Colonel sits as "President" at the top; the Major, as King's Proctor or Solicitor, at the end; and the Captains, according to seniority, at the sides of the table. The Subaltern Officers had a right to stand uncovered at the Captain's backs, but had no vote. After deliberation, and at the request of the President, each Captain gave his opinion, beginning with the youngest till it came to the President, who pronounced last. The Clerk-taking down their votes, and according to the plurality of votes-drew up the Sentence, which was signed by the President and Captains.

7. In Criminal cases, more care was to be taken to secure the attainment of Justice. The Council should never consist of less than seven Officers; and if Captains could not be obtained, inferior Officers, even to Sergeants, were to be called in. The Officers forming the Court were to come fasting, and after Mass. The Clerk was to read out the informations, and the evidence sent up by the Major. The prisoner being then introduced,

4

1 1 Chap. xiv.

2 Chap. xiii.

3 Chap. xx.

From the perusal of the Bazaine Court-martial, it would appear that the same method of procedure still prevails in France.

and sitting on a footstool, was questioned on the facts, and then sent back to prison. The Clerk having informed the Court of the conclusions of the Major, each Officer was to give his vote according to his conscience, and the ordinances of the King. The finding and sentence were then recorded. On the execution of the prisoner, the Regiment was summoned by the Major to witness it; and the Criminal, first being degraded from the Army by the Major, then was executed under the orders of the Provost Marshal.

8. The discipline of each Company was with the Captain, who appointed, but could not degrade, the Non-commissioned Officers, that being reserved for the Council of War. Soldiers in rebellion he could kill; but no other offence could he punish, except by imprisoning the offender and delivering "him up to the Justice that is set over the Regiment."

1

9. The directions issued in 1686 by James II. with regard to "Military discipline," were to this effect:-In an Army the Council of War is always to meet at the General's quarters or tent, and none are to be called to it but the LieutenantGenerals, the Major-Generals, the Brigadiers, and the Colonels and Commanders of Bodies when the matters concern their Regiments. Private Councils of War or Courts-martial in a Garrison are either held at the Governor's house, at the Morning Guard, or where the Governor orders; in a Camp, at the Colonel's tent, who causes notice to be given to the Captains to be present.

10. When all are met, the Governor or General, or he who is to sit as President, takes his place at the head of the table. The Captains sit about, according to their seniority; that is to say, the first Captain on the right of him that presides, the second on the left, and so of the rest; and the Town Major or the Assistant Major or Quarter-master of the Regiment, who, in the absence of the Judge Advocate, discharges his office, is to sit in his place at the lower end of the table. The Lieutenants, Sub-Lieutenants, and Ensigns have a right to enter into the room where the Council of War (or Court-martial)

This is printed from Grose, Vol. ii. pp. 137, 138, but I have failed to trace the original in the War Office Records.

is held; but they are to stand at the Captain's backs, with their hats off, and have no vote.

11. If the Council be called to deliberate on some matter of consequence, the President, having opened it to the Court, asks their opinions. The youngest Officer gives his opinion first, and the rest in order, till it come to the President, who speaks last; the opinions of every one being set down in writing. The result is drawn conformable to the plurality of votes, which is signed by the President only. If the Council of War or Court-martial be held to judge a Criminal, the President and Captains having taken their places, and the Prisoner being brought before them, and the information read, the President interrogates the Prisoner about all the facts whereof he is accused; and having heard his defence, and the proof made or alleged against him, he is ordered to withdraw, being remitted to the care of the Marshal or Gaoler. Then every one judges according to his conscience and the Ordinances or Articles of War. The Sentence is framed according to the plurality of votes, and the Criminal being brought in again, the Sentence is pronounced to him in the name of the Council of War or Court-martial.

12. When a Criminal is condemned to any punishment, the Provost Marshal causes the Sentence to be put in execution; and if it be a public punishment, the Regiment ought to be drawn together to see it, that thereby the Soldiers may be deterred from offending. Before a Soldier be punished for any infamous crime, he is to be publicly degraded from his arms, and his coat stript over his ears. A Council of War or Court-martial is to consist of seven members at least, with the President, when so many Officers can be brought together; and if it so happen that there be not Captains enough to make up that number, the inferior Officers may be called in.1

13. Something of the actual mode of Judicial procedure in the same reign, is to be gathered from the Record of a General Court-martial after Monmouth's Rebellion, printed elsewhere,2 and from the Court-martial Books of that period, in which are

1 Reference may be made to 2 & 3 Edward VI. c. 2, sec. 8, and 5 & 6 Ph. and Mary, c. 3, secs. 4 and 5. Vol. I. P. 352. 2 Vol. I. pp. 475-478.