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MILITARY LAW

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Originally appearing in Volume V18, Page 447 of the 1911 Encyclopedia Britannica.
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MILITARY LAW, " the law which governs the soldier in peace and in war, at home and abroad. At all times and in all places the conduct of officers and soldiers as such is regulated by military law." The above is the definition as given in the opening chapter of the Manual of Military Law, which is issued under the authority of the English War Office, and which is the text-book used by all English courts martial. The definition is, however, somewhat too wide, as the British system does not exclude in time of peace the action of the civil courts. In time of peace all persons who belong to the military class in most European continental countries are judged by military law and by military courts. There is also in most continental countries an intermediate stage between war and peace, known as in etat de siege, which may be declared for a fixed period for a district, or even a city, by reason of domestic insurrection or the presence of an enemy. It requires legislative enactment. Thirdly comes a state of war, when the military authorities are supreme; and whilst they can call upon the civil power to act in concert with them, the military authority is final. This is a brief summary of the system of military law that prevails in most countries of the continent. The cardinal point of difference between the British and the continental systems lies in the fact that in the United Kingdom the soldier is not only a soldier, but a citizen also; and although he may be tried for civil offences by a military tribunal, the power is not exercised in all cases. Thus treason, treason-felony, murder, manslaughter, rape, are brought before a civil court in times of peace, if the offence is committed in the United Kingdom, or if it is committed anywhere else in the king's dominions, except Gibraltar, within a hundred miles from a place where the offender can be tried by a civil court. Minor civil offences, when not committed within military lines, or when the person affected by the offence is a civilian, or when it is a case for a jury, or where intricate questions of law may arise, may also be brought before a civil tribunal. But an offence, of whatever nature, committed on active service would be brought before a military tribunal. The military law of England in early times existed, like the 1 By 1848 the following had come to be the division of the Military Frontier: (1) The Carlstadt (Carlowatz), Warasdin and Banal Generalate; corresponding to the original three generalates. (2) The Slavonian Generalate; (district of Mitrovica). (3) The Banat Generalate; south and east of Temesvar, and (4) The Transylvanian Generalate. Twelve towns, known as " military communities," had communal constitutions not unlike those of the free towns of Hungary-Carlopago, Zengg, Petrinia, Kostajnica,. Belovar, Ivanie, Brod, Peterwardein, Carlowitz, Semlin, Pancsova and Weisskirchen. Jones to which it applied, in a period of war only. Troops were raised for a particular service, and were disbanded upon the cessation of hostilities. The crown, of its mere English prerogative, made laws known as Articles of War, Law. for the government and discipline of the troops while thus embodied and serving. Except for the punishment of desertion, which offence was made a felony by statute in the reign of Henry VI., these ordinances or Articles of War remained almost the sole authority for the enforcement of discipline until 1689, when the first Mutiny Act was passed and the military forces of the crown were brought under the direct control of parliament. Even the Parliamentary forces in the time of Charles I. and Cromwell were governed, not by an act of the legislature, but by articles of war similar to those issued by the king and authorized by an ordinance of the Lords and Commons, exercising in that respect the sovereign prerogative. This power of law-making by prerogative was, however, held to be applicable during a state of actual war only, and attempts to exercise it in time of peace were ineffectual. Subject to this limitation it existed for considerably more than a century after the passing of the first Mutiny Act. From 1689 to 1803, although in peace time the Mutiny Act was occasionally suffered to expire, a statutory power was given to the crown to make Articles of War to operate in the colonies and elsewhere beyond the seas in the same manner as those made by prerogative operated in time of war. In 1715, in consequence of the rebellion, this power was created in respect of the forces in the kingdom. But these enactments were apart from and in no respect affected the principle acknowledged all this time—that the crown of its mere prerogative could make laws for the government of the army in foreign countries in time of war. The Mutiny Act of 1803 effected a great constitutional change in this respect: the, power of the crown to make any Articles of War became altogether statutory, and the prerogative merged in the act of parliament. So matters remained till the year 1879, when the last Mutiny Act was passed and the last Articles of War were promulgated. The Mutiny Act legislated for offences in respect of which death or penal servitude could be awarded, and the Articles of War, while repeating those provisions of the act, constituted the direct authority for dealing with offences for which imprisonment was the maximum punishment as well as with many matters relating to trial and procedure. The act and the articles were found not to harmonize in all respects. Their general arrangement was faulty, and their language sometimes obscure. In 1869 a royal commission recommended that both should be recast in a simple and intelligible shape. In 1878 a committee of the House of Commons endorsed this view and made certain recommendations as to the way in which the task should be performed. In 1879 the government submitted to parliament and passed into law a measure consolidating in one act both the Mutiny Act and the Articles of War, and amending their provisions in certain important respects. This measure was called the " Army Discipline and Regulation Act 1879." After one or two years' experience of its working it also was found capable of improvement, and was in its turn superseded by the Army Act 1881, which now forms the foundation and the main portion of the military law of England. It contains a proviso saving the right of the crown to make Articles of War, but in such a manner as to render the power in effect a nullity; for it enacts that no crime made punishable by the act shall be otherwise punishable by such articles. As the punishment of every conceivable offence is provided for by the act, any articles made thereunder can be no more than an empty formality having no practical effect. Thus the history of English military law up to 1879 may be divided into three periods, each having a distinct constitutional aspect: (1) that prior to 1689, when the army, being regarded as so many personal retainers of the sovereign rather than servants of the state, was mainly governed by the will of the sovereign; (2) that between 1689 and 1803, when the army, being recognized as a permanent force, was governed within the realm by statute and without it by the prerogative of the crown; and (3) that from 1803 to 1879, when it was governed either directly by statute or by the sovereign under an authority derived from and defined and limited by statute., Although in 1879 the power of making Articles of War became in effect altogether inoperative, the sovereign was empowered to make rules of procedure, having the force of law, which regulate the administration of the act in many matters formerly dealt with by the Articles of War. These rules, however, must not be inconsistent with the provisions of the Army Act itself, and must be laid before parliament immediately after they are made. Thus in 1879 the government and discipline of the army became for the first time completely subject either to the direct action or the close supervision of parliament. A further notable change took place at the same time. The Mutiny Act had been brought into force on each occasion for one year only, in compliance with the constitutional theory that the maintenance of a standing army in time of peace, unless with the consent of parliament, is against law. Each session therefore the text of the act had to be passed through both Houses clause by clause and line by line. The Army Act, on the other hand, is a fixed permanent code. But constitutional traditions are fully respected by the insertion in it of a section providing that it shall come into force only by virtue of an annual act of parliament. This annual act recites the illegality of a standing army in time of peace unless with the consent of parliament, and the necessity nevertheless of maintaining a certain number of land forces (exclusive of those serving in India) and a body of royal marine forces on shore, and of keeping them in exact discipline, and it brings into force the Army Act for one year. Military law is thus chiefly to be found in the Army Act and the rules of procedure made thereunder, the Militia Acts, the Reserve Forces Acts and the Volunteer Acts, together with certain acts relating to the yeomanry, the Territorial and Reserve Forces Act 1907, and various royal warrants and regulations. In the Army (Annual) Act 1906 important amendments were made to the Army Act for the purpose of preventing soldiers convicted of offences against discipline under the act, and not discharged with ignominy, being subjected to the stigma attaching to imprisonment. This was effected by creating a new punishment, termed detention, the places in which soldiers undergo detention being termed detention barracks. The change, while principally one of nomenclature, removed an undoubted grievance. The Army Act itself is, however, the chief authority. Although the complaint has been sometimes made, and not without a certain amount of reason, that it does not accomplish much that it might in point of brevity, simplicity and clearness of expression, it is a very comprehensive piece of legislation, and shows some distinct improvements upon the old Mutiny Acts and Articles of War. When a person subject to military law commits an offence he is taken into military custody, which means either arrest in his own quarters or confinement. He must without unnecessary delay be brought before his commanding officer, who upon investigating the case may dismiss the charge, if in his discretion he thinks it ought not to be proceeded with, or may take steps to bring the offender before a court martial. Where the offender is not an officer he may dispose of the case summarily, the limit of his power in this respect being seven days' imprisonment with hard labour, a fine not exceeding 1os. for drunkenness, certain deductions from pay' confinement to barracks for twenty-eight days, this involving severe extra drills, deprivations and other minor punishments. Where the offence is absence without leave for a period exceeding seven days, the commanding officer may award a day's imprisonment in respect of each day of such absence up to twenty-one. It is only in the case of the imprisonment exceeding seven days that the evidence before the commanding officer is taken on oath, and then only in the event of the accused so desiring it. The commanding officer is enjoined by regulation not to punish summarily the more serious kind of offences, but his legal jurisdiction in this respect is without limit as regards any soldier brought before him, and when he has dealt summarily with a case the accused is free from any other liability in respect of the offence thus disposed of. In any instance wherethe commanding officer has summarily awarded imprisonment, fine or deduction from pay, the accused may claim a district court martial instead of submitting to the award. Ordinary courts martial are of three kinds, viz. (1) a regimental court martial, usually convened and confirmed by the commanding officer of the regiment or detachment, presided over by an officer not under the rank of captain, composed of at least three officers of the regiment or detachment with not less than one year's service, and having a maximum power of punishment of. forty-two days' detention; (2) a district court martial, usually convened by a general officer having authority to do so, consisting of not less than three officers, each with not less than two years' service, and having a maximum power of punishment of two years' imprisonment; (3) a general court martial, the only tribunal having authority to try a commissioned officer, and with a power of punishment extending to death or penal servitude, for offences for which these penalties are authorized by statute; it consists of not less than nine officers in the United Kingdom, India, Malta and Gibraltar and of five elsewhere, each of whom must have had over three years' service, five being not under the rank of captain. There is another kind of tribunal, viz, a field general court martial. It is convened (r) by any officer in command of a detachment or portion of troops beyond the seas when not on active service, or by any officer in immediate command of a body of forces on active service where it appears to him on complaint or otherwise that a person subject to military law has committed an offence. The officer must be satisfied that it is not practicable, with due regard to the public service, to try the person by an ordinary court martial. The quorum of the court is three, if consistent with military exigencies, and each member must have held a commission for not less than a year. The quorum may be reduced when the public service requires it. The procedure of ordinary courts martial is observed as far as possible, and the proceedings always should be in writing when possible. But in the circumstances in which these courts are assembled, it is not always possible to adhere to the technical rules which obtain in the ordinary tribunals, although the broad principles are not violated. The evidence on a field general court martial is taken on oath. The prisoner may cross-examine the witnesses for the prosecution, and may call any available witnesses for his defence. The prisoner is allowed to address the court in his own defence. The Army Act prescribes the maximum punishment which may be inflicted in respect of each offence. That of death is incurred by various acts of treachery or cowardice before the enemy, or by, when on active service, interfering with or impeding authority, leaving without orders a guard or post, or when sentry sleeping or being drunk on a post, plundering or committing an offence against the person or property of an inhabitant, intentionally causing false alarms, or deserting. Whether upon active service or not, a soldier also becomes liable to the, punishment of death who mutinies or incites to or joins in or connives at a mutiny, who uses or offers violence to or defiantly disobeys the lawful command of his superior officer when in the execution of his office. Penal servitude is the maximum punishment for various acts and irregularities upon active service not distinctly of a treacherous or wilfully injurious character, for using or offering violence or insubordinate language to a superior, or disobeying a lawful command when upon active service. The same punishment is applicable when not upon active service to a second offence of desertion or fraudulent enlistment (i.e. enlistment by one who already belongs to the service), certain embezzlements of public property, wilfully releasing without authority a prisoner or wilfully permitting a prisoner to escape, enlisting when previously discharged from the service with disgrace without disclosing the circumstances of such discharge, or any other offence which by the ordinary criminal law of England is punishable with penal servitude. Imprisonment for two years is the maximum punishment for minor forms and degrees of those offences which if committed upon active service would involve death or penal servitude, such as using or offering violence or insubordinate language to a superior or disobeying a lawful command, and for the following offences: resisting an escort, breaking out of barracks, neglect of orders, a first offence of desertion or attempted desertion or aiding or conniving at desertion, or of fraudulent enlistment, absence without leave, failure to appear at parade, going beyond prescribed bounds, absence from school, malingering or producing disease or infirmity, maiming with intent to render a soldier unfit for service, an act of a fraudulent nature, disgraceful conduct of a cruel, indecent or unnatural kind, drunkenness, releasing a prisoner without proper authority or allowing him to escape,'being concerned in the unreasonable detention of a person awaiting trial, escaping or attempting to escape from lawful custody, conniving at exorbitant exactions, making away with, losing by neglect, or wilfully injuring military clothing or equipments, ill-treating a horse used in the service, making false or fraudulent representations in public documents, making a wilfully false accusation against an officer or soldier, making a false confession of desertion or fraudulent enlistment, or a false statement in respect of the prolongation of furlough, misconduct as a witness before a court martial or contempt of such court, giving false evidence on oath, any offence specified in relation to billeting or the impressment of carriages, making a false answer to a question put upon attestation, being concerned in unlawful enlistment, using traitorous or disloyal words regarding the sovereign, disclosing any circumstance relating to the numbers, position, movements or other circumstances of any part of His Majesty's forces so as to produce effects injurious to His Majesty's service, fighting or being concerned in or conniving at a duel, attempting suicide, obstructing the civil authorities in the apprehension of any officer or soldier accused of an offence, any con-duct, disorder or neglect to the prejudice of good order and military discipline, any offence which if committed in England would be punishable by the law of England. There is another offence which can be committed by officers only, namely " scandalous conduct unbecoming the character of an officer and a gentleman." It necessitates cashiering, a punishment which in the case of an officer may be awarded as an alternative to imprisonment in several other instances. There is also an offence peculiar to officers and non-commissioned officers, that of striking or ill-treating a soldier or unlawfully detaining his pay. A sentence of cashiering as distinguished from that of dismissal in the case of an officer involves an incapacity to serve the crown again. An officer may be also sentenced to forfeiture of seniority of rank and to reprimand or severe reprimand. A non-commissioned officer may be sentenced to be reduced to a lower grade or to the ranks, and where sentenced to penal servitude or imprisonment the tribunal also has power to deprive him of his seniority. The Army Council in England, or the commander-in-chief in India or in either of the presidencies, may also cause a non-commissioned officer to be reduced to a lower grade or to the ranks. An acting non-commissioned officer may be ordered by his commanding officer for an offence or for inefficiency or otherwise to revert to his permanent grade—in other words, to forfeit his acting rank. It will have been observed that persons subject to military law are liable to be tried by court martial for offences which if committed in England would be punishable by the ordinary law, and to suffer either the punishment prescribed by. the ordinary criminal law or that authorized for soldiers who commit offences to the prejudice of 'good order and military discipline. The effect of the latter alter-native is that for many minor offences for which a civilian is liable to a short term of imprisonment, or perhaps only to a fine, a soldier may be awarded two years' imprisonment or detention. A court martial, however, cannot take cognizance of the crimes of treason, murder, manslaughter, treason-felony or rape if committed in the United Kingdom. If one of these offences be committed in any place within His Majesty's dominions other than the United Kingdom or Gibraltar, a court martial can deal with it only if it be committed on active service or in a place more than too miles from a civil court having jurisdiction to try the offence. With regard to all civil offences the military law, it is to be understood, is subordinate to the ordinary law, and a civilian aggrieved by a soldier in respect of a criminal offence against his property or person does not forfeit his right to prosecute the soldier as if he were a civilian. The crimes for which soldiers are most usually tried are desertion, absence without leave, loss of necessaries, violence or insubordination to superiors, drunkenness, and various forms of conduct to the prejudice of discipline. The punishments are, generally speaking, gauged as much with regard to the character and antecedents of the prisoner as to the particular offence. For a first offence of an ordinary kind a district court martial would give as a rule fifty-six days' imprisonment with hard labour, for a second or graver crime eighty-four days. There are not many instances in which the period of imprisonment exceeds six months. Corporal punishment, which had been practically limited to offences committed upon active service, and in 1879 to crimes punishable with death, was finally abolished in 1881, and a summary punishment substituted. The practice of marking a soldier with the letters " D " (deserter) or " BC " (bad character), in order to prevent his re-enlistment, was abolished in 1879 in deference to public opinion, which erroneously adopted the idea that the " marking " was effected by red-hot irons or in some other manner involving torture. Many military men regretted its abolition, and maintained that if the practice were still in force the army would not be tainted by the presence of many bad characters who find means of eluding the vigilance of the authorities and enlisting after previous discharge. The course of procedure in military trials is as follows. When a soldier is remanded by his commanding officer for trial by a district or general court martial, a copy of the charge, together with the statements of the witnesses for the prosecution (called the summary of evidence), is furnished to him, and he is given proper opportunity of preparing his defence, of communicating with his witnesses447 or legal adviser, and of procuring the attendance of his witnesses. Further, if he desires it, a list of the officers appointed to form the court shall be given him. Any officer is disqualified to sit as a member who has convened the court, who is the prosecutor or a witness for the prosecution, who has made the preliminary inquiry into the facts, who is the prisoner's commanding officer, or who has a personal interest in the case. The prisoner may also object to any officer on the ground of bias or prejudice, similarly as a civilian might challenge a juror. Except as regards the delay caused by the writing out of the evidence, the procedure at a court martial is very much the same as that at an ordinary criminal trial—the examination and cross-examination of the witnesses, addresses of the prosecutor and prisoner, and the rules governing the admission or rejection of evidence being nearly identical. At a general court martial, and sometimes at a district court, a judge advocate representing the judge advocate general officiates, his functions being very much those of a legal assessor to the court. He advises upon all points of law, and sums up the evidence just as a judge charges a jury. When the prisoner pleads guilty the court finds a verdict accordingly, reads the summary of evidence, hears any statement in mitigation of punishment, and takes evidence as to character before proceeding to pass sentence. The sentence is that of the majority of the court, except where death is awarded, when two-thirds of the members in the case of a general court martial and the whole in that of a field general court martial must concur. When an acquittal upon all the charges takes place the verdict is announced in open court, and the prisoner is released without any further proceeding. When the finding is " guilty," evidence as to character is taken, and the court deliberates in private upon the sentence, but the result is not made known until the proceedings are confirmed and promulgated. No conviction or sentence has any effect until it is thus confirmed by the proper authority. The confirming authority in the case of a regimental court is the commanding officer, in that of a district court martial an officer authorized to convene general courts martial or some officers deriving authority to confirm the findings and sentences of district courts martial, and in that of a general court, if held in the United Kingdom, His Majesty, and if abroad in most cases the general officer commanding. The con-firming authority may order the reassembling of the court in order that any question or irregularity may be revised and corrected, but not for the purpose of increasing a sentence. He may, however, of his own discretion and without further reference to the court, refuse confirmation to the whole or any portion of the finding or sentence, and he may mitigate, commute or entirely remit the punishment. In the case of a general court martial the proceedings are sent to the judge advocate general, who submits to the sovereign his opinion as to the legality of the trial and sentence. If they are legal in all respects he sends the proceedings to the Army Council, upon whom rests the duty of advising the sovereign regarding the exercise of clemency. In addition to confirmation, however, every general or district court martial held out of India has another ordeal to go through. It is reviewed and examined in the office of the judge advocate general, and any illegality that may be disclosed is corrected and the prisoner is relieved of the consequences. To a certain extent a protection against illegality also exists in the case of regimental courts martial. A monthly return of those held in each regiment is laid before the general commanding, by whom any question that might appear to him doubtful would be referred to the adjutant general or the judge advocate general for decision. It is to be noted, however, that the judge advocate general, although fulfilling duties which are in their nature judicial, is only an adviser. He is not actually a judge in an executive sense, and has no authority directly to interfere with or correct an illegal conviction. In many cases the law thus provides no remedy for an officer or soldier who may have been wronged by the finding or sentence of a court martial —for instance, through a verdict not justified by the evidence or through a non-observance of the rules and practice prescribed for these tribunals. A person who has suffered injustice may appeal to the king's bench division of the high court of justice. But, speaking generally, that tribunal would not interfere with a court martial exercising its jurisdiction within the law as regards the prisoner, the crime and the sentence. In most cases, therefore, the virtual protector of an accused person against illegality is the judge advocate general, who personally advises the sovereign and the military authorities that the law shall be complied with (see
End of Article: MILITARY LAW
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