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MILITARY LAW
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MILITARY See also:LAW , " the law which governs the soldier in See also:peace and in See also:war, at See also:home and abroad. At all times and in all places the conduct of See also:officers and soldiers as such is regulated by military law." The above is the See also:definition as given in the opening See also:chapter of the See also:Manual of Military Law, which is issued under the authority of the See also:English War See also:Office, and which is the See also:text-See also:book used by all English courts See also:martial. The definition is, however, somewhat too wide, as the See also:British See also:system does not exclude in See also:time of peace the See also:action of the See also:civil courts. In time of peace all persons who belong to the military class in most See also:European See also:continental countries are judged by military law and by military courts. There is also in most continental countries an intermediate See also:stage between war and peace, known as in etat de See also:siege, which may be declared for a fixed See also:period for a See also:district, or even a See also:city, by See also:reason of domestic insurrection or the presence of an enemy. It requires legislative enactment. Thirdly comes a See also:state of war, when the military authorities are supreme; and whilst they can See also:call upon the civil See also:power to See also:act in See also:concert with them, the military authority is final. This is a brief See also:summary of the system of military law that prevails in most countries of the See also:continent. The See also:cardinal point of difference between the British and the continental systems lies in the fact that in the See also:United See also:Kingdom the soldier is not only a soldier, but a See also:citizen also; and although he may be tried for civil offences by a military tribunal, the power is not exercised in all cases. Thus See also:treason, treason-See also:felony, See also:murder, See also:manslaughter, See also:rape, are brought before a civil See also:court in times of peace, if the offence is committed in the United Kingdom, or if it is committed anywhere else in the See also: The military law of See also:England in See also:early times existed, like the
1 By 1848 the following had come to be the See also:division of the Military Frontier: (1) The See also:Carlstadt (Carlowatz), See also:Warasdin and Banal Generalate; corresponding to the See also:original three generalates. (2) The Slavonian Generalate; (district of See also:Mitrovica). (3) The See also:Banat Generalate; See also:south and See also:east of See also:Temesvar, and (4) The Transylvanian Generalate. Twelve towns, known as " military communities," had communal constitutions not unlike those of the See also:free towns of See also:Hungary-Carlopago, See also:Zengg, Petrinia, Kostajnica,. Belovar, Ivanie, See also:Brod, See also:Peterwardein, Carlowitz, See also:Semlin, Pancsova and Weisskirchen.
See also: 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 See also: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 See also:army in See also:foreign countries in time of war. The Mutiny Act of 1803 effected a See also:great constitutional See also: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 See also: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 See also:death or penal See also: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 See also:relating to trial and See also:procedure. The act and the articles were found not to harmonize in all respects. Their See also:general arrangement was faulty, and their See also:language sometimes obscure. In 1869 a royal See also:commission recommended that both should be recast in a See also:simple and intelligible shape. In 1878 a See also:committee of the See also: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 See also:foundation and the See also: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 See also: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 See also:practical effect. Thus the See also:history of English military law up to 1879 may be divided into three periods, each having a distinct constitutional aspect: (1) that See also:prior to 1689, when the army, being regarded as so many See also: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 See also: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 See also: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 See also: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 See also:maintenance of a See also: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 See also:line by line. The Army Act, on the other See also:hand, is a fixed permanent See also:code. But constitutional traditions are fully respected by the insertion in it of a See also:section providing that it shall come into force only by virtue of an See also: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 See also:necessity nevertheless of maintaining a certain number of See also:land forces (exclusive of those serving in See also:India) and a See also:body of royal marine forces on See also: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 See also:Militia Acts, the Reserve Forces Acts and the Volunteer Acts, together with certain acts relating to the See also: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 See also:barracks. The change, while principally one of nomenclature, removed an undoubted grievance. The Army Act itself is, however, the See also: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 See also: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 See also: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 See also:fine not exceeding 1os. for See also: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 See also:absence without leave for a period exceeding seven days, the commanding officer may See also:award a See also: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 See also:evidence before the commanding officer is taken on See also: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 See also:kind of offences, but his legal See also: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 See also:deduction from pay, the accused may claim a district court martial instead of submitting to the award. See also:Ordinary courts martial are of three kinds, viz. (1) a regimental court martial, usually convened and confirmed by the commanding officer of the See also:regiment or detachment, presided over by an officer not under the See also:rank of See also: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. See also: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, See also: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 See also: 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 See also:post, or when sentry sleeping or being drunk on a post, plundering or committing an offence against the person or See also: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 See also:superior officer when in the See also: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 See also: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 See also:escape, enlisting when previously discharged from the service with disgrace without disclosing the circumstances of such See also: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 See also:parade, going beyond prescribed See also:bounds, absence from school, malingering or producing disease or infirmity, See also:maiming with See also: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, See also:ill-treating a See also:horse used in the service, making false or fraudulent representations in public documents, making a wilfully false See also:accusation against an officer or soldier, making a false See also:confession of desertion or fraudulent enlistment, or a false statement in respect of the prolongation of furlough, misconduct as a See also:witness before a court martial or contempt of such court, giving false evidence on oath, any offence specified in relation to See also:billeting or the See also:impressment of carriages, making a false See also:answer to a question put upon See also:attestation, being concerned in unlawful enlistment, using traitorous or disloyal words regarding the sovereign, disclosing any circumstance relating to the See also:numbers, position, movements or other circumstances of any See also:part of His See also:Majesty's forces so as to produce effects injurious to His Majesty's service, fighting or being concerned in or conniving at a See also:duel, attempting See also:suicide, obstructing the civil authorities in the See also:apprehension of any officer or soldier accused of an offence, any See also:con-duct, disorder or neglect to the See also:prejudice of See also:good See also: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 See also: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 See also:peculiar to officers and non-commissioned officers, that of striking or ill-treating a soldier or unlawfully detaining his pay. A See also: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 See also:forfeiture of seniority of rank and to reprimand or severe reprimand. A non-commissioned officer may be sentenced to be reduced to a See also: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 See also:Council in England, or the See also: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 See also:short See also: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 See also: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 See also: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 See also: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. See also: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 " (See also:bad character), in order to prevent his re-enlistment, was abolished in 1879 in deference to public See also:opinion, which erroneously adopted the See also:idea that the " marking " was effected by red-hot irons or in some other manner involving See also: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 See also:list of the officers appointed to See also: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 See also:interest in the case. The prisoner may also See also:object to any officer on the ground of See also:bias or prejudice, similarly as a civilian might See also: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 See also:admission or rejection of evidence being nearly identical. At a general court martial, and sometimes at a district court, a See also:judge See also:advocate representing the judge advocate general officiates, his functions being very much those of a legal See also: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 See also: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 See also: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 See also: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 See also: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 See also: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 See also: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 See also: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 See also:appeal to the king's See also:bench division of the high court of See also: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. Additional information and CommentsThere are no comments yet for this article.
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