the militia, save so far as has been otherwise provided by the Reserve Forces and Militia Act, 1898, s. 2, can only be drawn out and embodied in case of imminent national danger or great emergency; the occasion being first communicated to parliament, if sitting, or, if not sitting, proclaimed by order in council (i). At present the militia is raised by voluntary enlistment under the Militia Act, 1882; and the compulsory levy by way of ballot remains suspended under the Militia (Ballot Suspension) Act, 1865 (k), but may be at any time revived by Order in Council. The men are entitled to pay, while on service and during the period of training.

Besides the militia, we are to take into account our unpaid yeomanry and volunteer forces. These in their present form, originated under fears of a French invasion in 1859, the volunteers which were called into existence by the Napoleonic wars (1), having been disbanded in 1815. By means of such volunteers, the defensive military force of the country has been immensely increased ; and the necessity for maintaining this voluntary army appears to be now universally acknowledged, in consequence of the very large and constant additions made to the armaments of the continental powers (m).

[The occasions of war, however, require soldiers more completely and perfectly disciplined than those of the militia or volunteers; our military establishment consequently comprises, besides these, a large body of regular forces who are raised by voluntary enlistment. Our constitution indeed looks with jealousy upon levies of this

(i) Militia Act, 1882, s. 18. See further as to the militia, the Reserve Forces and Militia Act, 1898, and Militia and Yeomanry Acts, 1901 and 1902.

(k) Expiring Laws Continuance Act, 1902.

(1) Yeomanry Act, 1804, since repealed, so far as relates to

volunteer infantry in England, by the Volunteer Act, 1863.

(m) By the Volunteer Act, 1863, amended by the Volunteer Acts, 1869, 1895, 1897, and 1900, the previous Acts relating to the volunteer force in Great Britain were consolidated, with amend

ments.

[description; and King Charles the Second having, after the Restoration, kept up by his own authority, for guards and garrisons, about five thousand regular troops (which King James the Second by degrees increased to no less than thirty thousand, all paid from his own Civil List), it was made one of the articles of the Bill of Rights (1689), that the raising or keeping a standing army within the kingdom in time of peace, unless with the consent of parliament, is against law. But, as the fashion of keeping standing armies, first introduced by Charles the Seventh of France, in the year 1445 (n), came afterwards to prevail universally over Europe, it has also for a long time been judged necessary by our legislature, for the safety of the kingdom, the defence of the realm, and the preservation of the balance of power in Europe, to maintain, even in time of peace, a standing body of troops, under the command of the Crown.] And after 1689 it became the practice for an Act, known as the Mutiny Act, to be passed in every year, whether in peace or war, which authorizes. from year to year the maintenance of the regular forces deemed necessary for the service of the state, and contains temporary provisions as to their enlistment, discipline, and regulation (o).

In the year 1879, however, it was thought desirable to obviate the necessity for passing an elaborate annual

(n) Robertson, Hist. of Charles V. i. 24.

(0) The paid forces, now authorized, consist of 420,000 men, exclusive of the forces actually serving in India. By the Royal Naval Reserve (Volunteer) Acts, 1859 and 1896, and the Naval Reserve (Mobilization) Act, 1900, provision is made for the establishment of a reserve force of seamen volunteers; and see further the Naval Reserve Act, 1900, and the Royal Naval Reserve Act, 1902. By the Reserve Forces Act, 1882,

as amended by the Reserve Forces Act, 1890, Reserve Forces and Militia Act, 1898, and the Reserve Forces Act, 1900, provision is made for establishing a reserve force of men who have been in her Majesty's service, to be called the Army Reserve, and also a reserve force of militia, to be called the Militia Reserve; and by the Merchant Shipping (Mercantile Marine Fund) Act, 1898, s. 6, provision has been made for securing a supply of boy-seamen for the Naval Reserve.

statute for this purpose, by enacting a code on this subject, of a more permanent character, which was embodied in the Army Discipline and Regulation Act, 1879, amended by the Regulation of the Forces Act, 1881, and repealed and re-enacted with amendments by the Army Act, 1881. This last-mentioned Act is directed to come into force by, and during the continuance of, an annual Act, to be passed for that purpose, but for no longer period, and to be subject to such provisions as may be specified or referred to in the annual Act. Accordingly, a short annual Army Act has been passed in each year from 1882 to the present time, specifying the number of soldiers which the Crown may lawfully keep on foot during the current

year.

In this military code, provision is made for the manner in which the troops are to be enlisted and "billeted," that is, dispersed among the several innkeepers and victuallers throughout the kingdom (p); and regulations are laid down for the government of the army, and for every person subject to military law. By these regulations, the sovereign is empowered to make Articles of War, which shall be judicially taken notice of by all the judges, and in all courts whatsoever; and to erect, or grant authority to convene, courts-martial, with jurisdiction to try and punish offences according to such Articles of War, and the provisions of the Act (9). But in order to limit, as far as possible, the power thus conceded to the Crown, it is enacted, that nothing contained in the Articles of War shall exempt any officer or soldier from being proceeded against by the ordinary course of law (); and where an

(p) As to the period of enlistment (which cannot be entered into for a longer period than twelve years), see Army Act, 1881, s. 76; and Reserve Forces and Militia Act, 1898, ss. 1, 2.

(2) Army Act, 1881, ss. 69, 70; Home v. Lord Bentinck (1820), 2 Brod. & B. 130; In re Mansergh (1861), 1 B. & S. 400. See Manual of Military Law (War Office, 1899).

(r) Army Act, 1881, s. 162.

officer or soldier is accused of any offence against a subject of the realm, punishable by the known laws of the land, he is to be delivered over to the civil magistrates (s). Moreover, no person may, by such Articles of War, be subjected to suffer any punishment extending to life or limb, or be kept in penal servitude, for any crime which is not expressed to be so punishable by the Army Act, 1881, itself; nor be punished in any manner which shall not accord with the provisions of that Act. The Act itself accordingly fixes the punishments to be inflicted, and makes provision as to certain specific offences, many of which, especially when committed on active service, render the offender liable to suffer death; the death penalty attaching, in all cases, to cowardice, desertion, and wilful disobedience (t).

The system of military law thus devised for the army is by other statutes made applicable to a limited extent to the militia and volunteers also, when these are on duty (u). And no relief can be afforded by the ordinary courts of law from the sentences, however erroneous, of courts-martial, so long as they exceed not their jurisdiction; the only remedy being an application to the sovereign in council, praying for a revision of the proceedings (~).

The establishment of such a system in this country doubtless involves, notwithstanding the care with which its provisions are guarded, a partial departure from the principles of our free constitution; and this is recognized in the Act itself. For it is set forth in the preamble of the Act of 1879, and of each annual Army Act, that "no man can be forejudged of life or limb, or subjected

(8) Army Act, 1881, s. 41 (a), (b). (t) Sects. 4, 5, 41, 44.

(u) Militia Act, 1802, ss. 89, 103; Army Discipline and Regulation Act, 1879, s. 173; Army Act, 1881, ss. 175-184,

(x) Grant V. Gould (1792), 2 H. Bl. 100, 101; Marks v. Frogley, [1898] 1 Q. B. 888; and see the Army Act, 1881, ss. 54, 57.

"in time of peace to any kind of punishment within this "realm, by martial law, or in any other manner than by "judgment of his peers, and according to the known and "established laws of this realm" (y), a doctrine entirely conformable to, and apparently founded on, the Petition. of Right, which enacts, that no commission shall issue to proceed according to martial law (z). But the policy of the Army Acts may be easily defended, in that it is impossible by any other means to maintain the proper severity of military discipline: and their legality is put beyond all question by the omnipotence of parliament, -the authority of parliament being sufficient even to supersede altogether the established course of justice, and to proclaim martial law in its stead. Thus, by the statute passed in Ireland, in 1798, for the suppression of the rebellion there, it was provided, that the lord lieutenant might during the rebellion, whether the courts of justice were open or not, issue his orders to the officers of the forces and others, to take the most vigorous measures for suppressing it, and to punish all rebels by death or otherwise, as to them should seem expedient, &c., and to cause all persons arrested as rebels to be tried in a summary manner by courts-martial, &c. Upon the same principle, the Habeas Corpus Act may, upon emergency, be suspended, as has been more than once done; but save by means of such special Act authorising it, martial law cannot be proclaimed in this country (a).

On the other hand, careful provision has been made by law for the benefit of soldiers, including the allowance of pensions to those who are sick, hurt and maimed (b), and the establishment of the royal hospital at Chelsea for such

(y) Army (Annual) Act, 1902. (z) 3 Car. 1 (1627), c. 1; 31 Car. 2 (1679), c. 1; Hale, Hist. C. L. ch. 2.

(a) 4 Inst. 123; 2 Hawk. 5, 9.

On the much discussed question of what martial law really means, see Law Quarterly Review, vol. xviii., pp. 133–158.

(b) See Patriotic Funds Acts,