Page:Encyclopædia Britannica, Ninth Edition, v. 16.djvu/314

Rh 296 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. 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 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 &quot;Army Discipline and Regulation Act, 1 879.&quot; 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 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. AH 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 Keserve 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