1902 Encyclopedia > Military Law

Military Law




MILITARY LAW consists of the statutes, rules of procedure, royal warrants, and orders and regulations which prescribe and enforce the public obligations of the officers, soldiers, and others made subject to its provisions. Its essential purpose is the maintenance of discipline; but it also includes the administrative government of the military forces of the state, more especially in the matters of enlist-ment, service, and billeting. The term "martial law" sometimes applied to it is, as regards modern times at least, a misnomer. For martial law as it is now understood applies not only to military persons but to the civil community, and may be described generally as the abrogation of ordinary law and the substitution for it of military force uncontrolled save by what, in the discretion of the commanding general, may be considered the necessity of the case.

The military law of England in early times existed, like the forces to which it applied, in a period of war only.

Troops were raised for a particular service, and were dis-banded upon the cessation of hostilities. The crown, of its mere prerogative, made laws known as Articles of War, 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 enforce-ment 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. Prom 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 pre-rogative 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 punish-ment 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 wa.s 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 con-stitutional 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 per-manent 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 con-stitutional 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 Act, 1882, the Reserve Forces Act, 1882, and the Volunteer Act, 1863, together with certain Acts relating to the yeomanry, and various royal warrants and regulations. 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 accom-plish 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.

The persons subject to military law are the officers on the active list and the soldiers of the regular forces (includ-ing the royal marines), the permanent staff of the auxiliary (i.e., the militia, volunteer, and yeomanry) forces, and the officers of the militia. The above persons are amenable to its provisions at all times except while embarked on board a commissioned ship of the royal navy, when they become subject to the Naval Discipline Act and certain orders in council made under its authority. Those who are subject to military law in certain circumstances only are—officers and men while serving in a force raised out of the United Kingdom and commanded by an officer of the regular forces; pensioners when employed in military service under the command of a regular officer; the non-commis-sioned officers and men of the militia, during training, when attached to the regulars or when permanently embodied; the officers of the yeomanry and the volunteers when in command of or attached to a body of men subject to military law, or when their corps is on actual military service, or when ordered on duty with their own consent; the men of the yeomanry when they or their corps are being trained, when they are attached to or acting with the regular forces, when their corps is on actual military service, or when serving in aid of the civil power; the men of the volunteers when they are being trained with or are attached to any body of troops, or when their corps is on actual military service ; the men of the army reserve and the militia reserve when called out for training or on duty in aid of the civil power; any person who in an official capacity equivalent to that of an officer accompanies a body of troops on active service beyond the seas; any person accompanying a force on active service holding a pass from the general entitling him to be treated on the footing of an officer. In this last category would of course be included newspaper correspondents, also sutlers and followers. In one or two cases persons are subjected to military law to a limited extent and in respect only of certain offences. Thus a militiaman even when not out for training or not embodied is liable to a military trial and punishment for fraudulent enlistment or making a false answer on attestation. In the same manner an army reserve man may be tried and punished by court martial for neglect to appear at the place where he is bound periodically to report himself, or for insubordination to his superiors on these occasions, or for any fraud in connexion with the receipt of his pay. A man of the army reserve or the militia reserve has the legal status of and in fact becomes a regular soldier when called out on occasions of national danger or emergency under the sovereign's pro-clamation.

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' imprison-ment with hard labour, fines not exceeding 10s. 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 com-manding 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 where the 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' imprisonment with hard labour; (2) a district court martial, usually convened by the general of the district, consisting in the United Kingdom. India, Malta, and Gibraltar of not less than five and elsewhere of not less than three officers, each with two years' service or more, and having a maximum power of punishment of two years' imprisonment with hard labour; (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 over three years' service, five being not under the rank of captain. There is another kind of tribunal incidental to service in the field, or where, in the case of an offence against the person or property of an inhabitant, an ordinary court martial cannot be held, namely, a field general court martial. This court may consist of three officers only, and it has the power of sentencing to death. Another kind of court, called a summary court martial, may be held where an offence has been committed upon active service and an ordinary court cannot be conveniently assembled. In the event of three officers not being available it may consist of two. When thus constituted it can award only a "summary punishment" or imprisonment; where it consists of three officers, however, it can sentence to death. In the case of a field general or a summary court martial many forms and precautions prescribed in the case of ordinary courts are not necessarily observed, the whole proceeding being from the necessity of the case a somewhat rough and ready means of dealing promptly with crime.

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, leav- ing 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 ser- vitude. Imprisonment with hard labour 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 produc- ing 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 her majesty's forces so as to produce effects injurious to her majesty's service, fighting or being concerned in or conniving at a duel, attempting suicide, obstructing the civil authorities in the apprehen-sion of any officer or soldier accused of an offence, any conduct, disorder, or neglect to the prejudice of good order and military dis-cipline, any offence which if committed in England would be punish-able 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 is deemed to be reduced to the ranks. The commander-in-chief at home 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 com-mitted 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 alternative 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 with hard labour. 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 her 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 100 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 subor-dinate 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 insubordina-tion 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. This summary punishment includes the liability for a term of three months to be kept in iron-fetters and handcuffs, and while so kept to be attached to a fixed object so that the offender may remain in a fixed position for a period not exceeding two hours in the day for not more than three out of any four consecutive days and for not more than twenty-one days in the aggregate. The offender may also be subjected to the like labour and restraint, and may be dealt with in the same manner as if sentenced to hard-labour imprison-ment. But these summary punishments are to be inflicted so as not to cause injury to health or leave a permanent mark on the offender. The first instances in which this kind of punishment was inflicted occurred during the campaign of 1882 in Egypt. Estimated by the results, the abolition of flogging does not appear to have injuriously affected discipline, the conduct of the troops in Egypt having been exceptionally good. The practice of marking a soldier with the letters "D" (deserter) or "BC" (bad character), in order to prevent his re-enlistment, was abolished about a dozen years ago 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. Military men for the most part regret its abolition, and maintain 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 sum-mary of evidence), is furnished to him, and he is given proper oppor-tunity of preparing his defence, of communicating with his witnesses 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 inqury 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 repre-senting 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 accord-ingly, 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 the general officer commanding the district, and in that of a general court, if held in the United Kingdom her majesty, and if abroad in most cases the general officer commanding. The confirming 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 queen his opinion as to the legality of the trial and sentence. If they are legal in all respects he sends the proceedings to the commander-in-chief, upon whom rests the duty of advising the queen 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 con-sequences. 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 command-ing the district or brigade, 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 pro-vides 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 Queen'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 queen and the military authorities that the law shall be complied with. As a privy councillor and member of the House of Commons that officer is responsible both to the queen and to parliament for the right and due administration of military law; and, notwithstanding his want of direct executive authority, it is not to be contemplated that any military officer would hesitate to act upon advice given by him with reference to a legal question connected with a court martial. The department of the judge advocate general consists of the judge advocate general, who is a lawyer, a privy councillor, and a member of parliament, of a permanent deputy judge advocate general who is also a lawyer, and of three military officers as deputy judge advocates having special experience in the working of military law.

The Army Act applies to European officers and soldiers serving in India in the same manner as to the rest of the army, but natives of India are governed by their own Articles of War, and in the case of civil offences they are dealt with according to the provisions of the Indian penal code. The department of the judge advocate general in India is distinct from and independent of that of the judge advocate general of the army, and courts martial held in that country are not subject to the supervision of a professional lawyer. Certain prominent irregularities led to the appointment of a barrister as judge advocate general in India in 1869, but after a few years that appointment again became filled by a military officer. The staff of the department is, however, far more numerous in India than elsewhere. There are judge advocates general for each of the presidencies, and a deputy judge advocate at each of the more important military centres.

Statistics of Crime in the Army.—Commissioned officers are rarely subjected to trial by court martial. Where an officer com-mits himself in a military sense, and his misconduct is too serious to be passed over merely with a mark of official displeasure, he is usually given and seldom fails to accept the alternative of resigning his commission. In some instances the crown is advised to exercise its prerogative and remove him from the army on the ground that her majesty has no further occasion for his services. In no circumstances can an officer or soldier claim a court martial as a right. In the result, the annual number of trials of officers does not average more than four of late years. Among the non-commissioned officers and soldiers of the army, however, the trials and summary punishments by commanding officers are exceedingly numerous, as will presently be seen. In India this observation hardly holds good, for in that country desertion is physically almost impossible except at the two or three seaports where troops are stationed. Absence without leave is for a similar reason of rare occurrence, while the fact of the troops living in their own cantonments, and being free from many temptations of life existing in the large towns and garrisons at home, places them outside the influence of certain prevalent causes of crime. For this reason mainly the proportion of courts martial held in 1881 was 107 per 1000 men at home as compared with 76 abroad. Similarly the proportion of minor punishments per 1000 was 1449 at home to 1042 abroad. It is also generally found that men engaged upon active service in the field commit less crime than those serving in ordinary circumstances. But the general criminal statistics of the army for 1881 show a formidable amount of crime and punishment. Upon an average strength of 181,186 non-commissioned officers and men there were 16,523 courts martial, of which 179 were general, 8549 district, and 7795 regi-mental courts. There were also 224,681 minor punishments by commanding officers, including 44,108 fines for drunkenness. These figures generally show an increase of crime as compared with the two years immediately preceding, but these two exhibited a decrease upon previous years. Of the offences tried by court martial in 1881 the following were the principal:—mutiny 7, desertion 1597, offences in relation to enlistment (fraudulently enlisting while already belonging to the service or making false answers upon attestation) 1190, violence to and disobedience of superiors 1650, minor insubordination and neglect of orders 1472, quitting or sleeping on post 681, drunkenness on duty 2661, drunkenness (tried by court martial when the offence has been committed on a fifth occasion within twelve months) 2147, disgraceful conduct of various kinds 660, absence without leave not amounting to desertion 3293, making away with or losing by neglect equipment or necessaries 3768, and miscellaneous offences chiefly of an ordinary criminal character or to the prejudice of discipline 4181. Upon the 16,523 trials there were 349 findings of acquittal. Regarding the punishments awarded, it appears that no soldier was sentenced to death during the year, and the other awards were as follows :—penal servitude 104, imprisonment with or without hard labour (almost invariably the former) 12,125, discharge with ignominy without other punishment 42, stoppages of pay without other punishment 65, flogging (before the abolition of that punishment by the Act of 1881) 15, and the new summary punishment (authorized as a substitute for flogging) 3. Of the non-commissioned officers 3228 were punished by reduction to a lower grade or to the ranks, while 591 more suffered imprisonment in addition to loss of grade, the former number being in the proportion of about 12 and the latter of 2 per cent, to strength. Of the men tried 305 were pardoned.

Military Law of other Countries.—The administration of military law in other countries having large armies harmonizes in many important respects with that of England. In some indeed it is a question whether their systems are not superior and in advance. They have a considerable body of "auditors" or military lawyers who expound the law and do much to secure a uniform and exact administration of justice. Thus in Austria there are about five hundred of these auditors, one being attached to each regiment. In the same country there are also courts of appeal from the courts of first instance, these latter consisting of eight persons including the auditor. Where the prisoner is a non-commissioned officer or a private, that rank is represented on the court. Here also the confirmation of superior authority is required. In the German army there are general and regimental courts. An auditor who is a lawyer is attached to each division, and it is his duty to expound the law, collect the evidence, and read it to the court in the presence of the prisoner, who is asked if he has any thing to say. The court consists of eleven members, of whom upon the trial of a private soldier or non-commissioned officer three are of the rank of the accused. The power of commanding officers in regard to disciplinary punishments is greater than in the British army, especially in relation to officers, who may be placed in arrest for fourteen days. The non-commissioned officers and privates are liable to extra guards, drills, fatigues, and different degrees of arrest, some of a very severe character. Dismissal from the army, which is re- garded as a most severe punishment, involving civil disgrace, is often awarded. In Russia there are three kinds of military courts— namely, the regimental court martial, the tribunals of military districts, and the supreme tribunal at St Petersburg. They are permanent courts, are attended by legal persons, and in certain instances have jurisdiction over the civil population as well as the army. There is a judge advocate general at St Petersburg, where the supreme tribunal consists of general officers and high war-office functionaries who have studied military law or possess a large experience of its working. In Italy there are permanent military tribunals for the trial of non-commissioned officers and soldiers, while special tribunals are appointed to try officers. The court is the absolute judge of the facts, but regarding legal errors or irregularities an appeal lies to the supreme war tribunal, which consists of four civilian judges and three general officers. The French code corresponds in many respects with those of the other great Continental armies, but it tends rather to give individual officers large powers of imprisonment graduated according to their rank. The chief distinctive feature of the French system is the institution of regiments of discipline for refractory characters. When the general officer's power of imprisonment (two months) is exhausted the offender may be sent before a court of discipline and by them drafted into a compagnie de discipline; and eases of habitual misconduct are thus dealt with, the man being struck off the strength of his original corps and transferred to one in Algeria. The military law of the United States is founded upon and proceeds much upon the same lines as that of England. (J. C. O'D.)



The above article was written by: J. C. O'Dowd, C.B., Deputy Judge Advocate General, War Office, London.



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