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XIII

THE MUTINY ACT

1 Will. and Mar. Cap. 5, 1689

[The text printed below is that of the First Mutiny Act, the passages printed in brackets or appended in the notes being additions made between 1689 and 1832, to illustrate the growth of this important Statute. Only those additions which imply either a new principle or an important extension of the scope of the Act are noted. Purely administrative details, which run to great lengths in the later forms of the Statute, are passed See especially Clode, The Military Forces of the Crown, i. and appendices, and the same author's Military and Martial Law, ch. ii., and the introduction to the Manual of Military Law, ch. ii., by Lord Thring. Other authorities: Ranke, H.E. iv. 502–579; Macaulay, H.E. i. 674 et seq.; Hallam, C.H. iii. 149; Dicey, L.C. ch. ix.; Stephen, H.C.L. i. 204 et seq.]

over.

An Act for punishing Officers and Soldiers who shall Mutiny or Desert their Majesties' Service [in England or Ireland] (and for punishing false Musters)1 (and for payment of (the Army and) Quarters).2

Whereas, the raising or keeping a standing Army within this Kingdom in time of peace unless it be with the consent of Parliament is against law. And whereas, it is judged necessary by their Majesties and this present Parliament That [during this time of danger] several (5) of the Forces which are now on foot should be continued and others raised for the safety of the Kingdom, for the Common Defence of the Protestant Religion and for (the reducing of Ireland) (carrying on the War with France)" (the preservation of the liberties of Europe)8 (a Guard to his Majesty's Royal Person,

1 Added 1 Will. and Mar. Sess. 2, c. 4. Omitted 13 and 14 Will. III. c. 2. 2 Added 1 Anne, Stat. 2, c. 20.

Bill of Rights (1 Will. and Mar. Sess. 2, c. 2).

4 Omitted 13 and 14 Will. III. c. 2.

"A number of troops, not exceeding 8,000 men henceforward the number is always specified.

6 Omitted 13 and 14 Will. III. c. 2.

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72 Will. and Mar. Sess. 2, c. 6.

8 Inserted 13 and 14 Will. III. c. 2, and retained 1 Anne, Stat. 2, c. 20. Formula first adopted in 12 Anne, c. 13, the first Act passed in time of

the safety of this Kingdom [and of suppressing this present Rebellion]10 and the Defence of her Majesty's Dominions beyond the seas) (the preservation of the Balance of Power in Europe).11

And, whereas, no man may be forejudged of Life or Limb,12 or subjected (in time of peace) 13 to any kind of punishment (within this Realm) 14 by Martial Law, or in any other manner than by the judgment of his Peers, and according to the known and established Laws of this Realm.15 Yet nevertheless it being requisite for retaining such forces as are or shall be raised during this exigence of Affairs in their duty an exact Discipline be observed. And that Soldiers who shall Mutiny or stir up Sedition or shall desert their Majesties' Service (within this Realm or the Kingdom of Ireland) 16 be brought to a more exemplary and speedy Punishment than the usual forms of Law will allow.

II. Be it therefore enacted by the King and Queen's most excellent Majesties by and with the Advice and Consent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled, and by the authority of the same, That from and after the 12th day of April, A.D. 1689,17 every person being in their Majesties' Service in the Army, and being mustered and in pay as Officer or Soldier, who shall at any time before the 10th day of November, A.D. 1689, excite, cause or join in any mutiny or sedition in the Army or shall desert Their Majesties' Service in the Army, shall suffer death or such other Punishment as by a Court-Martial shall be inflicted.

III. And it is hereby further enacted and declared, That Their Majesties or the General of their Army for the time being, may by virtue of this Act have full power and authority to grant Commissions to any Lieutenants General or other Officers, not under the degree of Colonels, from time to time to call and assemble Court-Martials for punishing such offences as aforesaid.

IV. And it is hereby further enacted and declared, That no Court-Martial which shall have power to inflict any punishment by

10 Inserted 1 Geo. I. Stat. 2, c. 34.

11 13 Geo. I. c. 4.

12 25 Edw. III. Stat. 5, c. 1; 3 Cha. I. c. 1 (Petition of Right).

13 1 Will. and Mar. Sess. 2, c. 4.

14 Ib. st. cit.

16 1 Anne, Stat. 2, c. 20.

15 Magna Carta, Art. 39; 25 Edw. III. St. 5, c. 1; 3 Cha. I. c. 1. By 7 Anne, c. 4, "this realm " implies the extension of the Act to Scotland. See § 39 of the Act. But special provision for Scotch law is provided by 4 Geo. I. c. 4, § 19.

17 The date is inserted annually in each Act.

virtue of this Act for the offences aforesaid shall consist of fewer than thirteen, whereof none to be under the degree of Captains.

V. Provided always, That no Field Officer be tried by other than Field Officers. And that such Court-Martial shall have power and authority to administer an oath to any witness in order to the examination or trial of the offences aforesaid.

VI. Provided always, That nothing in this Act contained shall extend or be construed to exempt any Officer or Soldier whatsoever from the ordinary process of Law.

VII. Provided always, That this Act, or anything therein contained, shall not extend or be any ways construed to extend to or concern any of the Militia Forces of this Kingdom.18

VIII. Provided also, That this Act shall continue and be in force until the said 10th day of November, A.D. 1689.

IX. Provided always, and be it enacted, That in all trials of offenders by Courts-Martial to be held by virtue of this Act, where the offence may be punished by Death, every officer present at such trial, before any proceeding be had thereupon, shall take an oath upon the Evangelists before the Court (and the Judge Advocate or his Deputy shall, and are hereby respectively authorized to administer the same) in these words, that is to say :—

"You shall well and truly try and determine according to your evidence now before you between Our Sovereign Lord and Lady the King and Queen's Majesties and the Prisoner to be tried,

So help you God."

X. And no sentence of Death shall be given against any offender in such case by any Court-Martial, unless nine of thirteen Officers present shall concur therein. And if there be a greater number of officers present, then the judgment shall pass by the concurrence of the greater part of them so sworn, and not otherwise; and no Proceedings, Trial or Sentence of Death shall be had or given against any Offender, but between the hours of eight in the morning and one in the afternoon.

18 The Militia were included by 47 Geo. III. c. 32, § 100, by which "all troops in Pay" under a commissioned officer in any of the Dominions of the Crown or in places "in possession of subjects of the Crown" are brought under the operation of the Act. The Volunteers and Yeomanry were organised by 44 Geo. III. c. 54 (1804). For various statutes dealing as occasion required with both and the reserve forces see Clode, op. cit.

(XI. [19] [20] [21] [22] [23] [24] [25] [26] [27] [28] [29] [30] [31])

19 Clauses added here as to mustering. 1 Will. and Mar. Sess. 2, c. 4, and in subsequent Acts.

20 13 and 14 Will. III. c. 2, recites the Petition of Right and 31 Cha. II. c. i. § 32, and adds clauses as to power to billet soldiers.

113 and 14 Will. III. c. 2, § 24, extends the Act to Jersey and Guernsey, but as to payment and mustering only. The Channel Islands were not included till 30 Geo. II. c. 6 (1757).

22 13 and 14 Will. III. c. 2, § 33, extends the Act as to punishment of Mutineers and Deserters to Ireland.

23 Correspondence with the enemy "out of England or upon the Sea" punishable as High Treason by 1 Anne, Stat. 2, c. 20, § 36.

24 Power given to make articles of war, etc., "as might have been done by her Majesty's authority beyond the Seas in the Time of War before the making of this Act" by 1 Anne, Stat. 2, c. 20, § 39.

25 The Marines whilst on shore to be under the Act by 1 Anne, Stat. 2, c. 20, § 46. They were furnished with a separate annual Act-the Marine Mutiny Act -28 Geo. II. c. 11.

26 Power to plead the general issue for executing the Act by 1 Anne, Stat. 2, c. 20, § 52.

27 No volunteer liable to Process. 1 Geo. I. Stat. 2, c. 34, Art. 47.

28 Power to constitute Courts-Martial in any of the Crown's dominions beyond the seas or elsewhere beyond the seas by 12 Anne, c. 13.

29 Power to make Articles of War and constitute Courts-Martial "as well within the Kingdoms of Great Britain and Ireland, as in any of his Majesty's dominions beyond the seas" (4 Geo. I. c. 4). [But Ireland was excluded between 1782 and 1801, a separate Mutiny Act being passed by the Irish Parliament.] This power was extended to include the army without the dominions, but the Articles of War for troops without the dominions of the Crown by 43 Geo. III. c. 20 still rested on prerogative,

30 The British Army in India was brought under the Act by 26 and 27 Vict. c. 48 (1863).

31 The Act and the statutory Articles of War were extended to troops without as well as within the dominions of the Crown by 53 Geo. III. c. 17, § 146, i.e. the prerogative Articles of War were now made statutory.

MODERN FORM

1 Edw. VII. Cap. 2, 1901.

An Act to provide, during Twelve Months, for the Discipline and Regulation of the Army.

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Whereas . (as in preamble to Act of 1689 reciting clause of the Bill of Rights) a body of forces should be continued for the safety of the United Kingdom and the defence of the possessions of His Majesty's Crown . . . (number of forces specified) but exclusive of the numbers (in India) and whereas (Marines when not in the vessels of the Royal Navy included) and whereas no man can be forejudged (etc.) . . . and whereas the Army Act will expire (date specified) be it therefore enacted. (Then follows the Army Act 44 and 45 Vict. c. 58, i.e. the Code of Military Law, which with any amendments required since its last enactment is then enacted for a certain period with specified dates.)

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(The annual enactment of the Mutiny Bill occasioned at different times various Protests from dissentient peers. The Protest cited below has been selected because it sums up most tersely and completely the views of objectors, not merely in the Lords, but in the nation, views which have an important historical and constitutional value. See Rogers, P.L. i. 233, 238, 240, 241, 269, 322, 355, 356, 405, 413, 419, 431; ii. 19, 256.)

PROTEST

1st, Because the number of sixteen thousand three hundred and forty-seven men is declared necessary by this Bill; but it is not therein declared, nor are we able, any way, to satisfy ourselves from whence that necessity should arise, the Kingdom being now (God be praised) in full peace, without any just apprehensions, either of insurrections at home, or invasions from abroad.

2ndly, Because so numerous a force is near double to what hath ever been allowed within this Kingdom, by authority of Parliament, in times of public tranquillity; and being, as we conceive, no ways necessary to support, may, we fear, endanger our constitution, which hath never yet been entirely subverted but by a standing army.

3rdly, Because the charge of keeping up so great a force ought not unnecessarily to be laid on the nation, already over-burthened with heavy debts; and this charge we conceive to be still more un

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