Standing Armies and Martial Law.
Maitland on the Revolution of 1688.
The Constitutional History of England.
Cambridge University Press 1909.
“Turning now to military affairs we have to recall the fact that before the days of Charles I proclamations of martial law had not been utterly unknown. Not to go back to the Wars of the Roses, Elizabeth had issued such a proclamation ^. in 1588 and again in 1595. James had followed the example in 1617, 1620, 1624. Probably we ought to say of them that they were illegal, though in this matter we may be prejudiced by what then was future history. Charles I early in his reign had recourse to such commissions. It became always clearer that there must be a standing army and that a standing army could only be kept together by more stringent rules and more summary procedure than those of the ordinary law and the ordinary courts. Another grievance was the billeting of soldiers. In 1628 the king had to assent to the Petition of Right. After dealing with the forced loan and the imprisonments by the king's command, it recited that * of late great companies of soldiers and mariners have been dispersed into divers counties of the realm and the inhabitants against their wills have been compelled to receive them into their houses... against the laws and customs of this realm.' Then it recalled the words of Magna Carta, Nulliis liber homo, and recited the commissions of martial law; these it declared to be wholly and directly contrary to the laws and statutes of the realm. It prayed that the king would be pleased to remove the said soldiers and mariners, ' and that your people be not so burdened in time to come, that the commissions of martial law might be revoked and annulled and that no such commissions might be issued for the future.' This of course settled the law, and no expedient for evading it could be discovered. The judges had to inform the king's generals that soldiers who offended must be tried by the ordinary courts; that only when an army of the king was in presence of the enemy could there be any place for martial law. Coke, in one of his latest books lays down that to put a man to death by martial law is murder^
Meanwhile the king and parliament began to quarrel about another and a still more vital point. In whom was the command of the military forces of the kingdom vested? I think that historians and lawyers must agree that it was in
^ 3 Inst. 52. Reference may be made to Dicey, Laiv of the Constitution, 6th ed. c. vni, and App. Xii; also to The Charge of the Lord Chief justice to the Grand Jury in the case of the Queen v. Nelson and Brand, ed. F. Cockburn, 1867.
the king. It would have been necessary to go back to very remote and revolutionary times for a precedent of an attempt by parliament to wrest this power from the king's hands. However Charles was suspected, and perhaps justly suspected, of desiring to use the army for the overthrow of the parliamentary constitution; and in 1642 the Houses asserted that the power of the militia (as it was called) was or at all events ought to be in their hands. This, as is well known, was one of the immediate causes of the Civil War; the king was required to consent to a bill putting the militia, as the old county forces were now called, beyond his control. That the militia and all fortified places should be in such hands as parliament should appoint was one of the Nineteen Propositions tendered to him at York in June, 1642. During the war which followed both sides had recourse to martial law for the government of their armies army, parliament itself becoming the despised slave of the force that it had created. At the Restoration the very name of a standing army had become hateful to the classes which were to be the ruling classes. In 1661 a statute (13 Car. II, c. 6) declared that the *sole supreme government of the militia and of all forces by sea and land is, and by the laws of England ever was, the undoubted right of the king and his predecessors, and that neither house of parliament could pretend to the same.' The old county force was remodelled by this act. But loyal as the parliament might be, it would not trust even a king with such an engine of tyranny as a standing army. The Convention Parliament passed an act disbanding the army; the king assented; he also had some reason to dread a standing army. The act of disbandment, however, sanctioned the continuance of * the Guards and Garrisons.' The garrisons were to be placed in the condition in which they existed in, and out of the residue of the soldiers the king was to be at liberty to retain a guard. The number of this guard was not specified. Throughout the reign and on to the Revolution no more than this was legalized. Controversy constantly broke
* Gardiner, Constitutional Documents^'^'^. 245—61.
out between king and parliament as to military matters. It was extremely difficult to prevent the king's guards living at free quarters, though the billeting of them was undoubtedly illegal. This practice had been declared illegal by the Petition of Right, and the old prerogatives of purveyance and pre-emption with which it was nearly connected had been abolished along with the military tenures. The king could impress no cart for military transport, he could buy no hay, straw, victual, or other thing save by free bargain. Anyone who attempted to exercise these old prerogatives was liable to an action for treble damages at the suit of the party grieved ; anyone who attempted to stop such an action was liable to the punishments denounced by the statute of prae-mimire. Also it was difficult for the king to keep his soldiers in hand. In time of peace no punishment, at least no punishment extending to life or member, could be inflicted on them except in the ordinary course of the common law. On the other hand it was practically very difficult to prevent the officers from proceeding according to what they conceived to be the justice of martial law. However, in 1666, articles of war were issued providing for the trial of even capital offences by court martial; also forbidding that any civil magistrate should imprison a soldier save for treason, or for killing or robbing a person not being an officer or soldier. Seemingly the officers who sat on such courts martial must have risked their necks.
Soon after this Clarendon was impeached, ' for that he hath designed a standing army to be raised and to govern the kingdom thereby; and advised the king to dissolve parliament and to lay aside all thoughts of parliament for the future, to govern by a military power and to maintain the same at free quarters and contributions.' But to keep a standing army of any considerable size without supplies from parliament was impossible, and parliament was beginning to appropriate its supplies and to impeach those who infringed the clauses of appropriation. Already, in 1666, a subsidy was granted ; £30,ooo and no more was appropriated to the pay of the guards, the residue was to be spent in the war. In 1676 Charles declared that he was going to war with France; parliament granted but appropriated; war was not made; parliament passed an act for disbanding the army, an act which contains an important clause directed against the practice of billeting—important because it shows that the Petition of Right was not observed. Money was appropriated for the disbanding of the army. Seymour was impeached for having misappropriated these supplies—using them to retain instead of to disband the soldiers. Danby, the Lord Treasurer, was impeached ' for that he had traitorously endeavoured to subvert the ancient and well-established form of government in this kingdom, and the better to effect that his purpose, he did design the raising of an army upon a pretence of war against the French king, and to continue the same as a standing army within this kingdom ; and to that end he has misappropriated money, whereby the law is eluded, and the army is yet continued.' Nevertheless Charles and James after him in one way and another kept the army on foot. James seems to have had above 16,000 men. After Monmouth's rebellion courts martial sat to administer martial law upon the soldiers. I have before me^ the record of one of these courts martial. Peter Teat and Peter Innes of Captain Bedford's regiment are tried by eighteen officers under one of the articles of war lately issued which says that ' No officer or soldier shall use any traitorous words against the sacred person of the king's most excellent majesty upon pain of death.' They are condemned to be hanged.
The Bill of Rights declared that one of James's offences had been that he had raised and kept a standing army in time of peace without consent of parliament, and quartered soldiers contrary to law; and further that the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law. The words ' in time of peace' should be noticed ; they certainly seem to imply that in time of war the king may keep a standing army even without the consent of parliament.
But before the Bill of Rights the first Mutiny Act had already been passed (i William & Mary, c. 5). The troops favourable to James were to be shipped off to the Low Countries. When they reached Ipswich, a mutiny broke out. It was
^ Clode, Military Forces of the Crozvji, vol. I, p. 477.
necessary to take rapid action, and a bill was hurriedly passed through parliament. It is a very brief affair to this effect: any soldier in the king's service who shall excite or join in any mutiny or sedition in the army or shall desert shall suffer death or such other punishment as by a court martial shall be inflicted. Then follow a few sentences as to the constitution of courts martial. It is provided that nothing in this act shall exempt any officer or soldier from the ordinary process of law; also that it shall not affect the militia forces, that it shall only be in force until the lOth Nov. next, that is for about half-a-year, that nine out of thirteen officers constituting a court martial must agree in passing sentence of death. That is the whole sum and substance of the first mutiny act. The only crimes that it sends to a court martial are mutiny, sedition, desertion ; and in no case is an officer or soldier exempted from the ordinary law. It should be added that though parliament was in haste, it was careful to state in the preamble that the raising or keeping a standing army within this kingdom in time of peace, unless it be with consent of parliament, is against the law. Also that no man may be forejudged of life or limb or subjected to any kind of 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. By this time of course it was the orthodox belief of all men that trial by jury was the judicium parium of the Great Charter.
From this time forward it became the regular practice to pass temporary mutiny acts. For a while this was not done with perfect regularity. On several occasions during the reigns of William and Anne there was for a few months no mutiny act in force. Sometimes on the other hand the act was to endure for two years. But very soon the practice became settled of passing the act for one year only and of passing such an act in every year. All along through the last century it was regarded as something exceptional, an evil of which we should get rid, if once we had a settled peace. And so, for two centuries, year by year, the statute book was burdened by annual mutiny acts which always tended to become longer and longer…”.
“In connexion with this subject a few last words should be said of martial law. We have already seen that under the provisions of the Army Act which is called into force year by year we have among us a large number of persons who are living under a special law. This law is to be found partly in the Army Act itself, partly in articles which can be made from time to time by the queen in exercise of powers given by that act; and it seems probable that, apart from the act, the queen has some, not very well defined, power of making Articles of War for any troops that she is lawfully keeping. This special law for soldiers is administered by tribunals known as courts martial, and is frequently spoken of as martial law; but in the fact it is called ' military law,' and it seems very desirable that we should adopt that term rather than the other. For at times the belief has prevailed that there is some other body of rules known as martial law, some body of rules that the king or his officers could in cases of emergency bring into force by way of proclamation and apply to persons who are not soldiers and who therefore are not subject to that special code of military law of which we have just been speaking.
^ Charge to the Grand Jury of Bristol in 1832. State Trials, N.S., vol. in» p. 5. See also Dicey, Law of the Constitution, 6th edn.. Note VI, pp. 460—2.
Now it may, I believe, be pretty confidently denied that there is any such body of rules. In the first place, you will remember that the Petition of Right, after reciting that commissions under the great seal had of late been issued to certain persons to proceed ' according to the justice of martial law’ declared that such commissions were illegal, and prayed that no commissions of the like nature should issue in the future. Then again our annual acts legalizing the army declare that *no man can be forejudged of life or limb or subjected to any punishment within this realm by martial law in time of peace.' The words * in time of peace,' which were not in the earliest Mutiny Acts, certainly seem to suggest that in time of war men may be punished by martial law. But we can find a sufficient meaning for them by saying that in time of war soldiers may be punished by martial law; that is to say, apart from the Army Acts the crown would have some power in time of war of maintaining discipline in its troops by regulations similar to those of our present military code. It must be confessed however that a parliament—an Irish parliament after the rebellion of 1798—has spoken of martial law as though it were some known body of rules that might in times of great emergency be applied to persons who are not soldiers—that there can be such a thing as a proclamation of martial law. If however we ask, where are we to find this body of rules ? what is martial law ? we shall hardly get an answer to our question. When considered the matter seems to resolve itself into this—it is the right and duty of every subject to aid in the suppression of unlawful force; it is more especially the right and duty of magistrates and peace officers of all degrees to do so. The common law defines, though from the nature of the case not very exactly, the occasions on which force may be repelled by force, and the amount of force that can be used ; and in great emergencies it may become necessary that even death should be inflicted^ and deliberately inflicted, for the suppression of disorder. A proclamation of martial law can have no other legal effect than this—it is a proclamation by the king, or by persons holding office under the king, announcing that a state of things exists in which it has become necessary that force shall
be repelled and suppressed by force; it is a warning that the part of our common law which sanctions such repulsion and suppression, has come into play. A court of law, an ordinary court of law, may afterwards have to judge whether really there was a legal justification for these high-handed acts which were done in the name of peace and order; but doubtless it might, and in appropriate circumstances would, take into consideration the fact that those who suffered by such acts had had full notice that they were about to be done. But suppose one of the rebels captured, there is no court that can try him save the ordinary criminal courts of the country. In particular circumstances it might perhaps become necessary to shoot him in order that he might not escape or be rescued, and undoubtedly in such a case, if time permitted, it would be well for those who had him in custody to satisfy themselves that he was a rebel. But any inquiry that they might make about this could not have the effect of a trial before a competent tribunal; it would be a wise precaution, but not a judicial proceeding having force as such. He would not really be tried and condemned b}^ any body of rules known as martial law—we know not where to look for any such body of rules—if lawfully put to death, he would be put to death under a rule of our common law, which justifies the suppression by force of unlawful force. As to the whole of this matter see the opinion of Edwin James and Fitzjames Stephen in the case of Governor Eyre (Forsyth, Cases and Opinions on Constitutional Law, p. 55i)\
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