Officers therefore required

to have sore knowledge of criminal law.

of the parallel article1 to be, that courts martial, exercising jurisdiction under it, were bound to award such punishments only as are known to the laws of England, and that they were bound also to apply to each particular offence, the same punishment, both in kind and degree, that is applied by the common or statute law of England. It is, therefore, certain, that every british officer, to be prepared to meet the duty which frequently awaits him in foreign garrisons, ought to have such a general knowledge of the criminal laws of England as may enable him, when required to dispense them, to make the distinction between crimes which the law recognises; and, by being in some measure familiarized with the subject, to have little difficulty in seeking for authorities to guide him in particular cases, or of profitably using those which a judge advocate may bring to his notice. It has been questioned, whether courts martial, exercising jurisdiction under martial conies, to law in conquered or ceded colonies, ought not, law of the place, on the trial of non-military persons, to be guided,

Whether Courts Martial, in case of

martial law, in

be guided by the

or the law

England?

as to the sentence, by the laws ordinarily prevailing in those countries, though opposed to english law; and an opinion to this effect is said to have been given in the house of commons, by sir Robert Gifford, attorney general, on the debate respecting the sentence awarded by a general court martial at Demerara, in 1823, in the case of John Smith, a dissenting missionary.3 It is remarkable, that though several learned

(1) 4 Art. 24 Sec. Old Articles of War.

(2) Circular, Horse Guards, December 12, 1807. See also p. 28. (3) Substance of the debate on the 1st and 11th June, 1824, published by the London Missionary Society, p. 196.

members, and especially Mr. Brougham, in a most able and eloquent reply, contended for the opposite principle, showing, that as the court martial could, from english law only, have derived a jurisdiction, so ought its sentence to have been influenced by those laws alone;1 yet he made no reference to the order of his majesty of the 12th December, 1807, notwithstanding the learned gentleman set out upon the principle, not subsequently questioned, that if Smith was amenable to the court martial at all, he was so as a soldier. Mr. Brougham stated it as an axiom, "that the proclamation of martial law renders every man liable to be treated as a soldier." If then this be the law, if an individual in civil life, under a proclamation of martial law, be amenable to courts martial as a soldier, a knowledge of his majesty's pleasure respecting the jurisdiction of such courts is indispensable to a right understanding of the question.

There can be no doubt, but that the prerogative of the crown may be constitutionally employed in providing for the trial of members of the army, accused of offences not connected with military discipline, when the ordinary tribunals are superseded by a proclamation of martial law, (itself justified by necessity,) and also in her majesty's foreign possessions, where there may be no form of english civil judicature in force. His majesty had, at the time of Mr. Smith's trial, been pleased to make such provision, by an article of war applying to places

(1) Substance of the debate, p. 236

(2) Ib. p. 18.

beyond the seas, where there was no form of british civil judicature in force; and had, by a general order, declared its true intent and meaning to be, "that courts martial exercising jurisdiction under it, were bound to award such punishments only as are known to the laws of England." The articles of war now expressly declare that which this order had previously explained to be the meaning of the articles then existing; the law, as applicable to the present question, is identically the same now as then. The words in force, similarly employed in the old and new articles, are particularly to be noticed; for though there may be a form of her majesty's civil judicature, yet, if it be not in force, an officer or soldier accused of any crime, must, by virtue of the article, be tried by a general court martial. Such a case arises on a proclamation of martial law, in a colony governed by english laws. The jurisdiction of the courts of civil judicature being necessarily suspended, the form is not in force, and consequently the jurisdiction of courts martial, over civil crimes committed by soldiers, commences. In possessions not governed by british law, and where no form of civil judicature at any time exists by her majesty's appointment or under her majesty's authority, a soldier is not amenable, under any circumstances, to the civil courts: the law, or the mode of dispensing it, so far as regards a soldier accused of civil crime, is not altered by a proclamation of martial law. If then, the statement of law by Mr. Brougham be correct, if "the proclamation of martial law renders every man liable to be treated as a

soldier," there seems to be no doubt but that the missionary Smith was amenable to english law only. The contrary position involves this apparent absurdity: in the event of the trial of two british subjects, for the same offence, under a proclamation of martial law, in a place ordinarily governed by foreign law; one individual being a soldier, the other a civilian, the same court martial is to try the one offender, being a soldier, by english law; the other, as a soldier, by foreign; and, on a finding of guilt to an equal degree, and on an identical crime, is to award to each a widely different punishment. It must be remembered that only one form of oath, to be taken by members of courts martial, exists, whether the court be held under martial law or otherwise. A member of a court martial swears that he will duly administer justice according to the articles of war and mutiny act; and, if any doubt shall arise which is not explained by the said articles or act, according to his conscience, the best of his understanding, and the custom of war in the like cases.1 Conscience, therefore, informed by the application of the understanding to the subject, and guided by the custom of war, is the only rule by which to deal with cases unprovided for in the articles and act. An officer is bound, by conscience, to make himself acquainted with the orders of his sovereign, touching courts martial, and with the articles of war; these orders and articles, in certain cases, refer him to the laws of England. With the common and statute law, therefore, a competent knowledge may be expected from an

(1) Mut. Act, Sec. 15, and Schedule. 90 Art War.

Courts held

for the trial of

army in the

field.

officer; but conscience will not impute any criminality to a want of all knowledge of dutch or any foreign law. The author cannot presume to say what may be the correct course to follow, but he is free to confess, that as a member of a court martial, so long as the oath for members, the mutiny act, the articles of war, and the orders of her majesty continue as they now are, he could not, whilst awarding punishment on any trial by a court martial, be influenced by any law or custom, not to be traced to the articles of war, the mutiny act, the common and statute law of England or the custom of war.

Courts martial held by armies in the field, for followers of the the trial of followers of the army, should also be influenced by the spirit of english law, so far as the same may be applicable; though, in many cases, the custom of war can be the only justification of the particular nature of the punishment which it may be necessary to inflict."

It is not imagined that the remarks here offered can for an instant be supposed to supersede the necessity of reference to works of legal authority, and, where statute law is concerned, to the statutes themselves; but, as this sketch may fall under the eye of military men, who may not feel inclined to pursue the enquiry at greater length, it is hoped that it may tend, in some degree, towards establishing correct ideas on the subject. What follows will, in a great measure, be extracted from Blackstone's commentaries, with such alteration as the present state of the law may dictate. The recent statutes will be also largely and, for the most (1) See page 27.