usually found entered (1) "the Royal Sign Manual Warrant for holding the Court; (2) the Proceedings thereunder; and (3) the Sentence." It was generally the practice to issue a separate Warrant for each particular case; but in February, 1687-8, James II. appears to have contemplated the establishment of a permanent Court for the trial of all matters, not only of discipline but of legal wrong, in which any members of the Army were the defendants.

14. A Royal Sign Manual Warrant, under Sunderland's countersign, was therefore issued, appointing a Council of the Chief Officers of the Army, or a General Court-martial, consisting of fifteen members and a President, of whom any five, with the President, should form a quorum, to meet constantly every week. Twelve General Officers were appointed to act each as President for one month together, according to the order of rank, and thirteen other Officers as Members or Judges of the Court.

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15. This Court so constituted was authorized (as was then usual with ordinary Courts-martial) to hear and examine, by affidavit or otherwise, all such matters and informations as should be brought before it touching any misdemeanour or misbehaviour of any Officer or Soldier, as also such witnesses, upon oath, as might be able to give testimony concerning the same. After the hearing the Court was authorized to give judgment and sentence according to the Articles of War, and to put the same in execution according to Military Discipline or in extraordinary cases to report the same that the pleasure of the Crown might be declared.

16. The same Court was given authority to inquire in like manner into all disputes and differences arising between an Officer or Private Soldier, or any other person not being in the Military Service, or touching any injury, hardship, or disorder whereof complaint should be made against any Officer or Soldier by such other person; and the Warrant directed the Court, after full examination and hearing of the said matters

See entry under date of 12 March 1685-6, on the Articles of War before referred to in C. M. Bk. (114), p. 46. 2 C. M. Bk. (114), p. 80. The Court proceeds on the best evidence it can obtain. King v. Suddis, 1 East. Rep. p. 310.

and persons, to report to the King, that he might give such further order thereon as to justice should appertain. The Judge Advocate General or his deputy (approved by the Court) was always to attend the Council or Court, and to receive and observe the directions of the Court or its President ("as in all things he was bound to do according to the duty of his place").

17. This Court appears to have commenced its sittings" in the Great Room of the Horse Guards," on the same day on which the Warrant was dated, viz. 27th February, 1687-8, and had five recorded sittings on various subjects; the last entry being of a Court held on the 20th of April, 1688, in which a supposed religious difference between a Roman Catholic and Protestant appears to have been brought to the notice of the Court. I am not aware that it ever caused any practical grievance to the Civil Community, but in adjudicating upon or seeking to redress the wrongs of the Citizen against the Soldier by remitting the case to the King instead of the Judges,-a departure was made from the fundamental principles of the Constitution, and the rule which the King himself laid down for the guidance of the Army after the Rebellion of Monmouth was violated.1

18. The Mutiny Act, as I have before observed, gave statutory authority to Military Tribunals for the trial of certain specified offences without making any organic change in their method of procedure. This is apparent from the entries in the War Office books, which (notwithstanding a revolution had intervened) are continuous. For the trial of offences, made capital, the Act was, in the first instance, recited2 and in later practice annexed to the Court-martial Warrant, for the guidance of the General Officer, to whom the Warrant was addressed. To the Court, as theretofore, a discretion was given in criminal cases to take evidence, either vivâ voce, by affidavit, or otherwise, and power was originally given to inflict immediate punishment according to the provisions of the

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1 Vol. I. p. 478, Letter to Col. Kirke, of July 1685, and Chap. IV. par. 9, ante. * Warrant of 29 April, 1689.

3 Warrant of 9 February, 1696-7; and Vol. I. p. 503.

✦ Warrant to the Duke of Marlborough for Court-martial, (1) at Blackheath, 21 July, 1690, (2) at Portsmouth, 22 August, 1690.

In cases of false Musters, the Judge Advocate General took the Affidavit at his Office, C. M. Bk. (114), p. 127.

Statute. Articles of War were, however, soon put forth by William III.,1 restraining the execution of Capital Punishment until the proceedings of the Court had been submitted to the King, and his directions declared thereon.

19. For the trial of other offences, made punishable by "the Rules and Articles of War," Court-martial Warrants were issued as formerly; and six-not thirteen-Officers were declared to be a quorum for such Courts. In course of time—as in 1695, when the King left for Holland-General Warrants3 were issued for the summoning of Courts-martial for the trial "of all such matters and informations touching any crimes, misdemeanours, or misbehaviours amongst our Forces;" and authority was granted to these Courts "to give Judgment and Sentence therein according to the Mutiny Act (as far as it might relate thereto) or otherwise" according to "the Rules declared and applied for the better government of our Land Forces," leaving the proper constitution of the Court to the knowledge of those Officers who should act as Judges, and sanction the infliction of punishment. In this manner, the Military Code (whether under the Act or Articles) became one in its adminis tration-varying from the purely prerogative Code in the increased severity of its punishments; for as death could be legally-so, in practice, it was frequently-inflicted under the Mutiny Act for offences which never should have been so punished.5

20. The only practical effect of the Act during the reign of William III. was to give legal sanction to the infliction of Capital and Corporal Punishments by Courts-martial in time of Peace on Soldiers for political offences, quasi-military in their character. There was, certainly, no intention to alter the nature or constitution of those Courts, nor in any degree to assimilate them to the ordinary (Legal and Equitable) Courts of the Realm. The well-known Commentator, 'On the Laws of England,'

1 The 52nd Article. See C. M. Warrant, 15 July, 1690, C. M. Bk. (114), p. 105. Articles were also issued for the Troops in Holland, ib. p. 114.

2 Warrant of 26 February, 1693-4, p. 119. 3 C. M. Bk. (114), pp. 132-133. Attorney-General's Opinion, 1694, Vol. I. p. 502.

3 Col. Gibson's Letter to Queen Mary, 1693, Vol. II. p. 41, and see Vol. I. p. 503.

described these Military Tribunals as "sui generis:" originally they were no Courts, except "of discipline and honour," but by the Act they became legally constituted Tribunals for the public safety-so far as the maintenance of the Army within the strict rules of discipline conduces to that object. Hitherto they have admirably fulfilled their end: for where, but in England, has an Army been found which at all times has been loyal to the Throne, and yet subservient to the Common Welfare of the People?

21. Further it must be noticed that in all the ordinary Courts of the Realm, the Crown has delegated its whole Judicial Power to the Judges; but this is precisely what the Crown has not done, or ever yet been advised to do, in the case of Military Tribunals. As responsible to the Civil Community for discipline, the Crown and the Military Officers under the Crown must hold supreme power over the Army, and hence "the discretionary power of Courts-martial is guided," as Blackstone remarks, "by the directions of the Sovereign." To aid rather than control this authority, these Courts have been instituted; and hence no Sentence of a Military Tribunal can be carried into effect without a prior confirmation of all its proceedings by the author of its Jurisdiction, from whom (either as King, General, or Colonel) the delegation came.

22. But this method of administering Justice has at various periods of our history given rise to much controversy. “The first maxim of a free State," wrote Paley, "is that the laws be made by one and be administered by another set of menin other words, that the Legislative and Judicial characters be kept separate. The next security is the independency of the Judges;" but in the Military system the political virus was to be found not only in implicit obedience to the law made by the Royal Command, but in the facility for the punishment

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1 "And the Judges informed the King [James I.]," wrote Lord Coke, "that no king after the Conquest assumed to himself to give any judgment in any cause whatsoever which concerned the administration of Justice within the Realm. And the King cannot arrest any man, for the party cannot have a remedy against the King; so, if the King give any judgment, what remedy can the party have? Prohibitions del Roy, 12 Co. Rep. p. 63; and Chap. X. par. 6, post. Surely the Crown can order a Military arrest? King v. Browne 2 Show Rep. 484.

* See Sir Charles Napier's definition of "Martial Law," Chap. XI. par. 14, post.

of disobedience, and of quasi-political crimes, by Military Tribunals convoked under the same Royal authority, a Commission was issued thus in the first year of William III.'s reign to several General Officers attached to his dynasty to visit and review the Regiments quartered throughout the country, with instructions to enquire of the gentlemen of the county "what Officers and Soldiers have given any cause of being suspected of being disaffected to our Government," and should they be found "unfit to serve in respect of their disaffection to our service," they were to be disbanded, this Commission (dated the 10th) was on the 22nd of May, 1689, supplemented by another to the same Commissioners, enabling them to summon Courts-martial under the Mutiny Act to hear and examine all such matters and informations as should be brought before them touching the misbehaviour of any Officer or Soldier by Mutiny or Desertion. 2

23. The records of Courts-martial 3 both before and after the passing of the Act, show that offenders were brought before these Courts for offences of Sedition which might reasonably have been punished by the Common Law Tribunals, had the evidence and crime been such as to satisfy the Jury that the accused deserved punishment. Parliament was therefore very jealous of extending a system of Judicature which had a political significance, and (if the Army increased, or the operation of the Act was extended beyond the Army) placed a large number of their fellow-citizens under a political interdict.

24. But the legitimate purpose for which the Jurisdiction of Military Tribunals should be evoked, is to enforce Military duties or obligations; especially discipline or obedience to the authority of the Military Superior giving lawful orders to those subordinates to the Army placed under his command. On this principle of the Mutiny Act no better legal commentary is to be found than in the Judgment of Lord Loughborough in the great case of Grant v. Gould, already quoted; nor can anything be clearer than that the equality of right or status, which is justly upheld before the Civil, does not exist before

1 Vol. II. p. 356.

2 C. M. Bk. (114), p. 89.

* James II., Vol. I. p. 476; Geo. I., ib. p. 519; and see the Jamaica Courtmartial at Morant Bay, Vol. II. pp. 177, 490-497.