Page:Harvard Law Review Volume 32.djvu/391

355 MILITARY LAW — A STUDY IN COMPARATIVE LAW 355 they form a part of the Federal Statutes, being section 1342 of the Revised Statutes of the United States. From the time of the earliest royal Articles of War down to the Articles of War which were enacted by Congress in their present form on August 29, 1916, and which, with the exception of certain specified Articles, took effect on March i, 191 7, the constant tendency has been to express military law in the form of legislation. Customs have been incorporated in legislation. New problems which arose from time to time under changed conditions have been solved, omis- sions and gaps in the existing law have been filled, and the elim- ination of provisions which had become obsolete have all been made, for the most part, by legislation. MiHtary law in its pres- ent form consists, to a large extent, of the Articles of War and of the commentaries written upon these Articles by the different authorities upon this subject. In this respect the development of miUtary law has been far more like the development of Rornan law than like the development of EngHsh law. It must be admitted that the development of criminal law in the United States and in some of the states of the Union has been, to a large extent, statutory. This is a peculiarity due to consti- tutional and statutory provision, however, and is a rather acci- dental phenomenon. While some states have no substantive common law of crimes, it is because their legislatures have shown an intention to make legislation exclusive on the subject of crimes; although even in such states the legislatures' may forbid common- law crimes by name and thus make them statutory crimes with- out any eniuneration of their elements.^^ While the United States courts have no substantive criminal jurisdiction over common- law crimes, this grows out of the fact that the inferior federal courts are limited to such jurisdiction as is conferred upon them by Federal Statute.^' Congress may forbid common-law crimes by name and thus make them statutory crimes without any enum- eration of their elements." This may in part account for the " Such as assault, Baker v. State, 12 Ohio St. 214 (1861); disturbance of the public peace, Stewart v. State, 4 Okla. Crim. 564, 109 Pac. 243 (1910); and nuisances, State V. De Wolfe, 67 Neb. 321, 93 N. W. 222 (1903). " United States v. Hudson, 7 Cranch (U. S.) 32 (181 2); Manchester v. Massachusetts, 1-39 U. S. 240 (1890); United States v. Eaton, 144 U. S. 677 (1892). " Such as murder and robbery, United States v. Pahner, 3 Wheat. (U. S.) 610 (1818).