CHAP. III.

I.

IN

Of Soldiers.

$1.

IN GEN

N former times there were no regular armies in the country, wars being carried on by the feudal army, ERAL. commonly called the king's hoft, which were raised occafionally by proclamation; brought provifions with them for In feudal

a certain time, took the field at once, and encamped; and when the time of their fervice was over, difbanded, every man returning to his own refidence.

times.

modern

BUT in the progress of the feudal governments, the military fervice, both of the great barons and of their immediate dependants, came to be almoft univerfally exchanged for a First standpayment in money, which was employed to maintain thofe ing army in who ferved in their ftead. Hence, in procefs of time, a Europe. standing army was introduced, first in France in the reign of Charles VII, afterwards in England in the reign of Charles II.

UNDER the conftitution of Great Britain, indeed, theoretically fpeaking, there is no ftanding army; for although,

$ 1.

IN GEN

IRAL.

Mutiny act.

First one.

Its object.

in reality, the army is not annually disbanded, yet the annual confent of parliament is required to keep it in existence 2; it being exprefsly stated in the declaration of rights, "that the raifing and keeping of a standing army in time of peace without confent of parliament, is contrary to law."

It is an indifpenfable requifite to the establishment of an army, that there fhould be order and discipline maintained therein, and that the perfons who compose it should, for all offences in their military capacity, be subject to a trial by a court martial, that is, a court compofed of officers.

To keep the army, therefore, in order, an act of parliament annually paffes "to punish mutiny and desertion, and for the better payment of the army and their quarters." The first regular mutiny act was paffed in the reign of king Wil liam, for the endurance only of fix months. It has, however, from that time, with the exception of a fingle interval only of three years during the reign of king William, been annually renewed by parliament.

THE object of the mutiny act, therefore, is to create a court invested with authority to try those who are a part the army, in all their different defcriptions: and the object of the trial is limited to breaches of military duty, which, in all cafes of capital punishment, are strictly defined; while, in other cafes, where the degree of the offence may vary exfrom mar ceedingly, more is intrufted to the difcretion of the court; but the jurifdiction extends to no cafes not relating to the difcipline of the army, leaving other offences and questions to the determination of the ordinary courts. Thus the prefent military law is totally diftinct from martial law, proper

Different

tial law.

a Tytler's Military Law, p. 7.
b3d April 1689.

Tytler's Military Law, p. 111.

d Lord Loughborough (earl Rofslyn, apud Tytler's Military Law.)

IN GEN

ly fo called; by which every fpecies of offence, committed $1. by any person who appertains to the army, is tried, and even ERAL. their debts fubject to inquiry, not by the civil judicature, but by the judicature of the regiment or corp to which he belongs.

war.

THE mutiny act empowers the king to "form articles of Articles of war and conftitute courts martial, with power to try any crime by fuch articles, and inflict penalties by fentence or judgment for the fame." This extenfive power, however, is limited to the making of articles" for the better government of the forces ;" and, of course, can extend to no other cafes than fuch as are thought neceffary for the regularity and due compofition of the army.

MILITARY law, however, and the powers and duties of courts martial, are foreign to our subject. It will be neceffary, therefore, to confider only fuch parts of the mutiny act as impofe duties on the civil magiftrate.

II. 1ft, THE king may form articles of war for better government of the forces, and conftitute courts martial with power to try any crime by fuch articles of war; but no perfon fhall be adjudged to fuffer any punishment extending to life or limb by the faid articles, except for crimes expreffed to be fo punishable by the mutiny act.

§ 2.

MUTINY

ACT

--ARTICLES,

2dly, CARE is taken to prevent any person from being in--INLISTlifted without his deliberate confent.

ING SOL

DIERS.

Ir is provided," that, when any perfon fhall be inlifted Within four as a foldier for his majesty's land fervice, he fhall, within four days, but not fooner than twenty-four hours, be carried hours.

days. After 24

с

Lord-chief-juftice Loughborough, apud Tytler's Military Law, p. 25.

$2.

MUTINY

ACT

MENT.

before the next juftice, or chief magiftrate of a town corporate, (not being an officer of the army), and, before him, fhall INLIST be at liberty to declare his diffent to fuch inlifting; and, on fuch declaration, and returning the inlisting money, and paying 20s. for the charges expended on him, he shall be forthwith difcharged in prefence of fuch magiftrate; but, if he fhall refuse or neglect, within twenty-four hours, to return fuch money, he shall be deemed to be inlifted, as if he had given his affent thereto before fuch justice or chief magiftrate. And, if the perfon declare that he voluntarily inlifted himfelf, the justice shall read over to him (or cause be read over to him in his presence) the second and fixth sections of the articles of war against mutiny and defertion, (or fuch atti

F (SECT. II.)

Art. 1, Whatsoever officer or foldier fhall prefume to ufe traitorous or difrefpectful words againft our royal perfon or any of our royal family, if a commiffioned officer, he fhall be cafhiered; if a non-commiffioned officer or foldier, he fhall fuffer fuch punishment as shall be inflicted upon him by the fentence of a court mar

tial.

->tence whatsoever, shall suffer derth, or such other punishment as by a court martial shall be inflicted.

4, Any officer, or non-commiffioned officer, or foldier, who being prefent at any mutiny or fedition, dots hot use his utmost endeavour to suppreís the fame, or coming to the knowledge of any mutiny, or intended mutiny, does not without delay give inform:ation thereof to his commanding of ficer, fhall be punished by a court martial with death, or otherwife, zcording to the nature of the offence.

2, Any officer or foldier who fhall. * behave himself with contempt or dif, respect towards the general, or other commander in chief of our forces, or fhall speak words tending to his hurt or dishonour, fhall be punished according to the nature of his offence, by the judgment of a court martial.

3, Any officer or foldier who fhall begin, excîte, caufe or join in any mutiny or fedition, in the regiment, troop, or company, to which he belongs, or in any other regiment, troop, or company, either of our land or marine forces, or in any party, poft, detachment, or guard, on any pre

3, Any officer or foldier who shali ftrike his fuperior officer, or draw, or offer to draw, or fhall lift up any weapon, or offer any violence againf him, being in the execution of his of fice, on any pretence whatsoever, of fhall difobey any lawful command of his fuperior officer, shall suffer death, or fuch other punishment as fhall, according to the nature of his offence, be inflicted upon him by the fentence of a court martial.

cles of these sections as the particular mutiny act may order); and administer to him, not only the oath of fidelity ACT mentioned in the faid articles of war, but also the oaths an- MENT. nexed to the mutiny act *.

THE juftices are thereafter to certify the inliftment in the form annexed to the refpective mutiny acts ».