CHAPTER VII.

Laws, Rules, Regulations and Customs connected with the administration of Military Law.

Courts Martial,

COURTS MARTIAL are governed by the mutiny Written law of act and the articles of war, together with the general orders of her majesty relating thereto, and extant at the time; their practice is moreover regulated, in points where the written law is silent, and chiefly, as affects the forms adhered to, by the custom of war: by which expression, and custom for as here applied, must be understood the customs and usages of the British army.

their guidance.

Articles of War;

It may be more particularly observed, that the Mutiny Act and mutiny act and the articles of war constitute the letter of military law, and are necessarily recognised, both in military courts and courts of civil judicature, without the statute or article being particularly pleaded or formally set forth. The

mutiny act takes effect and continues in force, Continuance of; within Great Britain, from the twenty-fifth of April of one year to the same date in the following year; in Ireland, Jersey, Guernsey, Alderney, Sark and Man, from the first of May to the first of May; in Gibraltar and the Mediterranean, Spain and Portugal, from the first of August to the first of August; in all other parts of Europe where her majesty's forces may be serving, in the West Indies and America, from the first to

published in

General Orders.

Continuance of the Articles of War;

the first of September; at the Cape of Good Hope, the Isle of France and its dependencies, St. Helena, and the western coast of Africa, from the first to the first of January; in all other places, from the first of February of one year to the same date in the ensuing year; but, notwithstanding these specifications, it becomes in full force, in any part of her majesty's dominions beyond the seas, from and after its receipt and promulgation in general orders.' This last provision renders it necessary to publish, in general orders, each succeeding mutiny act; a form not customary previous to the alteration of the mutiny act in 1829.

The articles of war continue in force from their receipt and publication, until revoked or superseded by others. Her majesty affixes her royal signature to these rules and articles, without the superscription of a date. Thus authenticated, and printed by her printer, they are published in general orders to the army. Their annexation to the mutiny act, in the form to which military men are accustomed, is for their convenience, and to facilitate reference. They are not essentially not dependent inseparable. The mutiny act of 1831, expiring in the United Kingdom on the 24th March,

on Mutiny Act.

1832, was, by an act of parliament of that date, extended for one month at the several stations respectively. The articles of war were not again published to the army, but continued in force without any express declaration of his majesty. The general officers in command were informed, by letter from the adjutant general, that an act had passed for continuing the mutiny act for one (1) Mut. Act, Sec. 80. Circular, (6062) War Office, 8th April, 1829.

e;

month, up to which period the court martial warrant in their possession would remain in force but no mention was made of the articles of war, nor was this act ever communicated to the army. It is remarkable, that it declared that any articles of war formed, made, &c., and any court martial warrants signed and issued by virtue of said act, should remain in force within Great Britain, and the several other parts and places, and for the several terms therein mentioned, during the continuance of this act.-During the continuance of the act, therefore, the power of the crown to publish supplementary articles superseding those in force, both at home and on foreign stations, was suspended ;-for the time, the published articles were irrevocable.'

The question of law has been agitated: Were Question of law, the mutiny act permitted by inadvertence to expire, would the articles of war expire also, and the army be ipso facto disembodied? or, would the articles still be obligatory on the forces of his majesty, and the individuals composing the army be bound in law to serve till regularly discharged?

The supposition has also been put: Were the new mutiny act not to be received or the passing of it known, at a station, at the period when the old one expires; are the articles of war in consequence inoperative, and the supreme military

(1) This indeed, as a question of law, may be said to have anticipated the necessity, had any existed, for the republication by his majesty, of the rules and articles for the government of his forces; but to the troops, the existence of the provision was unknown; nor is its accordance with the old constitution very apparent: "It is contrary to all reason and precedent, that parliament should dispute the undoubted right of his majesty to govern his armies."-1 Blackstone, 202. The soldier refers to the military oath, and there finds the best warrant for his continued obedience.

as laid down in Blackstone.

authority without the power of enforcing discipline?

The latter question is one of moment to practical men-to officers who are responsible for the discipline of the troops under their orders, the case having frequently occurred abroad, and having recently happened within the United Kingdom.'

Blackstone lays it down as the law, that the standing army is ipso facto disbanded at the expiration of every year, unless continued by parliament. The first paragraph of the first clause of the mutiny act declares: "Whereas the raising or keeping a standing army within the united kingdom of Great Britain and Ireland, in time of peace, unless it be with the consent of parliament, is against law." The dictum of the learned judge, as applied to standing armies within the United Kingdom, cannot therefore be questioned; .but it is not asserted, nor to be inferred, that the army would be disbanded for want of a mutiny act, if the consent of parliament to its continuance were expressed, either by granting funds for its support, or in any other The recruit is required by the law to swear that he will serve till legally discharged; so long, therefore, as the keeping up that part of the army to which the individual is attached, is not against law, so long does that law bind him

way.

3

(1) The mutiny act of 1831 expired in England on the twentyfourth of March, 1832, and in Ireland and the Channel Islands on the last day of that month. The act for continuing the mutiny act is dated twenty-fourth of March; and was communicated to the army, by letter from the adjutant general, on the second of April. Both in England and Ireland the troops, therefore, were for all practical purposes without a mutiny act.

(2) 1 Blackstone, 414.

(3) 8th Question. Schedule to Mutiny Act.

reigns subse.

Revolution.

to serve. Until the revolution, the unlimited prerogative of the crown, as to the government of the army, was not interfered with by any enactment; and, although the mutiny acts of William and Mary, and of Ann, recited, as the mutiny act now does, that clause from the bill of rights, which declares, that the keeping up a standing army within this kingdom, in time of peace, unless it be with consent of parliament, is against law; yet, in these reigns the mutiny act Practice during was repeatedly suffered to expire; and, for the quent to the intervening periods, the army, in time of peace, was governed by an exertion of the royal prerogative expressed in the articles of war. This is the more observable in the reign of William, during which the commons were especially jealous of a standing army, and when the parliament, in a great degree, abstracted from the jurisdiction of military courts the cognizance of military crimes, by declaring that many of them should be tried by civil courts,-an assumption of power which is now unknown.

the Army

To carry this argument out, as it affects the Law as regards army in the United Kingdom, can be productive abroad, of no practical result; and as it concerns that portion of the army which is serving abroad and where the question may arise, it does not admit of even legal difficulty, since the very declaration of the legislature, that within the United Kingdom, it is against law to keep a standing army, is an indirect admission that it is legal to do so out of the United Kingdom. Some of the earlier mu

(1) There appears to have been no mutiny act during the reign of William the Third, from 20th December, 1691, to 10th March, 1692; from 1st March, 1694, to 10th April, 1696; from 10th April, 1698, to 1701; and from the 12th to the 13th of Queen Ann.