THE LAW MAGAZINE.

ART. I.-MILITARY LAW.

THE utmost reductions effected by successive ministries in our military establishments have left us, in the twentieth year of a peace, unexampled for its security, with a larger force than this country ever possessed (the late war excepted) at any former period. The unavoidable inference is, that no further reductions, to any material extent, can be made, with due regard to the general interests of the empire; that, in effect, a considerable standing army must henceforth be reckoned amongst our positive institutions. Whatever others may af fect to believe, we certainly do not feel any alarm on this account. The time is gone by when the army could be effectually employed to further the designs of an arbitrary minister, even if its composition allowed the slightest apprehension that it would submit to be so used. The great characteristic of the British army, as distinguished from other armies, is its profound submission to the civil laws of the country, a submission inculcated in every part of its peculiar code, and recognized in every order emanating from the superior military authorities. "The English (says M. Dupin) have discovered the secret of constituting an army formidable to foreigners alone, and which considers obedience to the laws of the country a part of its glory."***"Notwithstanding (he adds) the declamations of demagogues who seek to overturn the constitution, the citizens, the most jealous of their liberty, do not fear the English army. The officers possessing most influence, the most celebrated generals, however

great their services, or glorious their victories, are not more dangerous to liberty than the most obscure zealots." But independent of the disposition of the troops, their inconsiderable numbers as compared with the rest of the population, (the greater part being constantly employed in the colonies,) and their entire dependence on the popular branch of the legislature, not only for their maintenance but their legal existence, render all apprehension of danger to the constitution from that quarter to the last degree idle and absurd.

But though this be so, it is nevertheless desirable that the laws in force for the government of so important and singularly constituted a body as the army, or at least the principles on which these are based, should be more generally known than they confessedly are, even to those whose profession it is to make themselves acquainted with the laws affecting every class of the community. It must however be granted that the facilities for acquiring information on this subject, are not so numerous as those in most other departments of legal research. The few works which treat of the military law are confined to meagre details of the forms and procedure of courts-martial, and therefore little calculated to interest those who are not likely to become either amenable or assistant to such tribunals. To this remark the Essay on Military Law by the late Lord Woodhouslee is perhaps the only exception; but the omissions in the work, and the vast alterations since effected in the military code, render it a very inadequate authority on the subject. As to the notice bestowed on the military law by Blackstone, it is infinitely more calculated to mislead than instruct. He represents it as built upon no settled principles, and entirely arbitrary in its nature; and actually quotes Sir Matthew Hale to prove "that it is in truth and reality no law, but something indulged, rather than allowed as law," forgetting that what might perhaps be said with some truth by Sir. Matthew Hale, who died many years before the Mutiny Act was in existence, was totally inapplicable after the first passing of that act in 1689, and its annual renewal up to the very year in which the learned judge was writing. He further informs us, that according to Sir Edward Coke, it is one of the marks of servitude, "to have the law which is our rule of action, either concealed or precari

ous," "misera est servitus ubi jus est vagum aut incognitum," and thence takes occasion to deduce that the British soldiery are in a state of slavery in the midst of a nation of freemen! Had the learned judge looked into the Mutiny Act he would have seen, that not only the jurisdiction and powers of the military courts are accurately defined, but that the graver crimes, with the penalties attached to them, are distinctly specified, so as to leave nothing in such cases to the discretion of the Court, while those which do not admit of such exact definition, are left to the decision of judges sworn to decide according to evidence, and to known usage and custom. It should be recollected also, that the articles of war which embody the principal parts of the Mutiny Act, and may be considered as the substance of the military code, are read once in three months at the head of every corps. Will any one say that the mass of the people of this country have equal facilities for obtaining a knowledge of that Draconic code which it so much concerns them to know, and in relation to which the learned commentator, in another place, justly observes, "ignorantia juris quod quisque tenetur scire neminem excusat." These misrepresentations of this celebrated writer were very properly treated by Lord Loughborough, when presiding in the Common Pleas, on the occasion of a motion made in that Court, in behalf of Serjeant Grant, to obtain a prohibition against the execution of the sentence of a general court martial awarded against him. "Martial law," said his lordship, "such as it is described by Hale, and such also as it is marked by Sir William Blackstone, does not exist in England at all." He afterwards added, "that nothing is so dangerous to the civil establishment of the state, as a licentious and undisciplined army; and the object of the Mutiny Act therefore is to create a court invested with authority to try those who are a part of the army, in all their different descriptions."

We have made these remarks to show, that, however the military law may have been misrepresented by so great an authority, it is based upon settled principles and positive enactments, and has, in fact, precisely the same sanction as the other statutory laws of the realm. The subject has lately acquired a new interest, from the commission recently issued by the King, appointing several distinguished persons, civil as

well as military, "Commissioners for inquiry into the several modes of punishment now in use in the army, with a view of ascertaining what changes and ameliorations may be made therein, with a due regard to the maintenance of the discipline of the service." It is not, however, supposed that any alterations, which may be suggested by the commissioners, will extend to the constitution of the military courts, or the principles by which they are governed. What that constitution and those principles are we shall presently show, after briefly tracing the circumstances which led to the passing of the first Mutiny Act.

From the earliest period, the absolute command of the army appears to have been always vested in the sovereign. This undoubted right of the crown is stated, in the clearest and most unrestricted terms, in the preamble of the statute of the 13 & 14 Car. 2, which was passed for settling all disputes on this important subject,-the immediate cause of the first outbreak of the struggles in the preceding reign. The words of the preamble are, "Forasmuch as within all his majesty's realms and dominions, the sole and supreme power, government, command, and disposition of the militia, and of all the forces both by sea and land, and of all forts and places of strength is, and by the laws of England ever was, the undoubted right of his majesty and his predecessors, kings and queens of England, and that both, or either, of the houses of parliament cannot, and ought not to pretend to the same," &c. It was by virtue of the regal authority thus recognised, that James the Second drew up a military code, which was published in 1686, under the title of "The English Military Discipline printed by especial Command for the use of his Majesty's Forces." Many of the articles of that code were exceedingly judicious. Some are yet retained in the mutiny act; among them we may instance the mode of collecting the opinions of the members of courts-martial, which requires the junior officer to give his opinion first, the others following in that order, and the president last, in order to preserve the juniors from the influence of their superiors.

Upon the accession of William, it was found that the condition of Europe rendered the existence of a regular army absolutely indispensable,—a necessity which has never since