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grity, and submit to the operation of the institutions of his country; but why does he so venerate her laws? It is that he believes them to be superior to all others, to be more conducive to real liberty, to control the vicious with the least restraint upon the well conducted, to afford the fairest trial to the accused, and to offer the most effectual remedy for restoring to liberty him who may be unjustly subject to restraint. Moreover, they are the laws which from his infancy he has been tutored to respect, and in favour of which his prejudice is engaged. Can it, therefore, I would ask, be good policy to render a british soldier indifferent to every form of civil jurisdiction, by subjecting him to all ?
If it were designed to prepare an army for the subversion of the laws, the civil authorities and constitution of our country, and to meet the views of those men who M. Dupin designates as demagogues and pretended radical reformers, could a better plan be devised, or one more suited to the end, than to subject british soldiers to various codes of foreign law and various foreign judicatures ? Is it not a natural result, that the soldier should speedily become indifferent to the preservation of institutions from which, by the policy of his country, he has ceased to derive advantage, except for the limited periods during which he may serve at home? Can interest actuate him to desire the preservation of laws, from a participation in which, for the greater part of his life, he is cut off in deference to the prejudice of foreigners ? Must he not be convinced that, in the estimation of the government, the boasted superiority of british law is but ideal, or that his birth-right as an
englishman, to be tried by those laws, has been sacrificed to the expediency of gratifying newlyacquired colonies ? Respect for the civil authorities of his country is at present characteristic of the british soldier: can that feeling be perpetuated if he become indifferent to the laws of Great-Britain ? Should he still retain a prejudice in favour of its institutions, will he not eventually feel jealous of privileges from which he is cut off, and is it not a consequent that he should, with less reluctance, lend his aid to the subversion or annihilation of the objects of his jealousy? M. Dupin said rightly, that a part of the glory of a british soldier consists in obedience to the civil authorities of his country; but the soldier can never be convinced that his glory or his honour is concerned in any obedience claimed for a foreign judicature. His feelings, as a soldier, will indeed lead him to submit, where submission is required by his military superior, but he will do so sullenly, and under the impression that the ties of military discipline have been perverted to deprive him of his birth-right as a briton.
As the preamble of the mutiny act specifically declares the illegality of martial law in time of peace, by reciting from the Petition of Rights that no man can be forejudged of life or limb, or subjected in time of peace to any kind of punishment within this realm by martial law, or in any other manner than by the judgment of his peers, and according to the known and established laws of the realm ; it evidently, though indirectly, recognises the legality of resorting to that expedient in time of war and intestine commotion; no legal dogma can be clearer, and being annually recog
nised by parliament, it is entitled to all the deference which may be due to an act of the legislature so repeatedly revised and considered.
It is not here necessary to descant on her need not be majesty's undoubted prerogative to punish rebels or other enemies in arms against her, though within the realm, by the aid of courts martial ; the object in this place is to ascertain that part of martial law only which is commonly designated the law military. The copy of a statute passed in Ireland, on the occasion of the rebellion of 1798, may be seen in the appendix, wherein the constitutional power of her majesty, or her representative, to proclaim martial law, and the legality, or more properly necessity, of it, under certain circumstances, is fully set forth. The prerogative of her majesty to resort to the exercise of martial law against open enemies or traitors, was also expressly declared in the irish disturbance act which expired in August, 1834.
Definition, Composition and Distinctive Jurisdiction
of Courts Martial.
Courts MARTIAL, as defined by the mutiny act and articles of war, are either general ; detachment, having similar power with general courts martial ; district or garrison ; regimental ; detachment, having identical power with regimental courts martial; or district, for the trial of warrant officers.
Field, or drum-head, courts martial, so called from being held in the field, or at the drum-head, were formerly frequently held in cases supposed to require an immediate example ; but since it has been requisite to administer an oath to the members of, and witnesses before, courts martial other than general, they have gradually fallen into desuetude, and are now seldom or never resorted to. The mutiny act and articles of war, however, still authorize a deviation from the prescribed hours, in cases requiring immediate example ; it is therefore perfectly regular, in such cases, to assemble a court martial on the spot, at any hour; but the ordinary rules must be adhered to, both in the convention and composition of the court, in the administration of oaths, and in the reducing the proceedings to writing. In the event of mutiny or gross insubordination on the line of march, a regimental court martial is armed with special jurisdiction over those crimes; the sentence, however, is not to exceed that which such court is ordinarily competent to award."
Courts martial are composed of a number of Composition. officers varying with every denomination they may assume and according to the part of the world in which they may be assembled.
The minimum in each case appointed is abso- Minimum fixed, lute, except for regimental and detachment courts martial, when the impracticability of assembling this number is a sufficient reason for diminishing it. A number exceeding that strictly required is exceeded. usually sworn in, to guard against the contingencies which may arise from death and sickness, and generally an odd number is preferred; but this is by no means necessary, nor does it seem particularly desirable.
Of this number one is styled president, he is President. necessarily senior to all the other members and is nominated by the warrant or appointment in orders of the authority convening the court.
Neither the commander in chief, nor governor who may be of the garrison where the offender may be tried, can be president of the court, nor can any officer under the degree of a field officer, unless a field officer cannot be had ; the president of a district court martial for the trial of a warrant officer must be at least a field officer; and in no case can the president be under the rank of a captain.?
All commissioned officers of the army, on full who may be pay; all officers of the general staff of the army, in the receipt of full pay on the staff, though on (1) 80 Art. War.
(2) 71 Art. War.