Page:Harvard Law Review Volume 32.djvu/390

354 354 HARVARD LAW REVIEW set, in the form of legislation, whether it was in writing or not, in the popular sense of the term," By virtue of his prerogative, the King ordained the Articles of War for the Royal Army during the continuation of the war for which they were ordained. By a delegation of royal authority the commanders of armies from time to time proclaimed similar articles. Cromwell assumed this power as a part of the inherent power of the head of the Enghsh state. Legislation by ParHament proved necessary to supple- ment the royal prerogative in cases in which it was found neces- sary to impose restrictions and to inflict punishments which were in excess of the royal prerogative alone. The early English Army was a temporary force raised in each war for the continuation of that war and dissolving when the war had come to an end. When the Army had become a permanent national force, the Articles of War by which it was governed in England in time of peace were enacted by Parliament, while outside of England the royal prerogative was still sufficient to ordain Articles of War and to enforce them. The growth of the power of Parliament and the gradual disappearance of the personal authority of the King grad- ually led to legislation by Parliament which superseded, while it adopted, the Articles of War ordained by royal prerogative; although the prerogative was nominally exercised by the minis- try long after the subordination of the King to Parliament had become thoroughly established. The usages and customs of the Army undoubtedly furnished much material for the content of the Articles of War but the constant tendency was to reduce them to definite form and to promulgate them as royal or parlia- mentary Articles of War. With the outbreak of the American Revolution the English Articles of War, with sHght modifications, were enacted by the Congresses and Assemblies of the different colonies and by the Continental Congress. The Congress of the United States under the Constitution of 1787 has reenacted these Articles from time to time with various additions and amendments and at present " For the scope and extent of Military Law in England and the relation between Military Law and Martial Law see W. S. Holdsworth, "Martial Law Historically Considered," 18 L. Quart. Rev. 117; H. Erie Richards, "Martial Law," 18 L. Quart. Rev. 133; Cyril Dodd, "The Case of Marais," 18 L. Quart. Rev. 143, and Frederick Pollock, "What is Martial Law?" 18 L. Quart. Rev. 152, in which however, special emphasis is laid on the nature of Martial Law.