(Statutes of the Realm, v. 6, pp. 55–56; 1 Wm. & M. c. 5.)

An Act for punishing Officers or Soldiers who shall Mutiny or Desert Their Majestyes Service.

Whereas the raising or keeping a Standing Army within this Kingdome in time of Peace unless it be with Consent of Parlyament is against Law. And whereas it is judged necessary by Their Majes

1 INTRODUCTORY HISTORICAL NOTE

By Colonel H. C. Carbaugh, U. S. A., Judge Advocate, Central Department The Genesis of Anglo-American Military Law. The military powers given to Congress by the Constitution of the United States were intended to authorize and empower it to bring into existence and maintain for the Army such a system of military law as was then existing in England as a separate institution from the common-law system existing there. It was intended that this military system should in a like manner be a separate institution from the system of law by which the personal liberty and rights guaranteed by the amendments to the Constitution were to be enforced.

1. These principles were announced in the Esmond Case, 5 Mackay, 73, in which the Supreme Court of the District of Columbia, sitting as an appellate court, said: "These provisions of the Constitution] contemplate the establishment by Congress of two distinct systems of jurisdiction for the punishment of crimes and that each should be complete and sufficient. In other words, they import that the power of Congress to make rules for the government of the land and naval forces includes powers to establish institutions for the trial and punishment of crimes committed by persons in the land and naval forces, whose action and judgments shall be as conclusive for all purposes as the action and judgments of any other tribunals can be. If such tribunals have actually been established, their judgments must be treated precisely as the judgments of the court of the other system of jurisdiction are treated."

2. The constitutional history of England is a history of a struggle beMILL-1

tyes and this present Parliament That dureing this time of Danger severall of the Forces which are now on foote should be continued and others raised for the Safety of the Kingdome for the Common Defence of the Protestant Religion and for the reduceing of Ireland.

And whereas noe Man may be forejudged of Life or Limbe or subjected to any kinde of punishment by Martial Law or in any other

tween the people and the Crown. The Crown sought to obtain or to exercise military law, both as to the Army and as to civilians in time of peace. The people sought to enforce the common law, and their victories are found in the Magna Carta, the Petition of Right, the Bill of Rights, and the preservation of the rules of common law favoring individual liberty.

The dispute went to the very existence of military law in England in time of peace by the sovereign's prerogative as to members of the Army or any one else, and even as to the possibility of its existence there in time of peace by the sovereign's prerogative.

3. It would appear that by the approval of the Petition of Right the Crown admitted that military law was not in force, and that it could not be brought into existence by prerogative of the Crown in time of peace as to the Army or at all. As a matter of fact, there was but little contention thereafter that it could be. No one doubted, of course, that it could be brought into existence by act of Parliament, because Parliament was the law-making body.

The Ipswich Mutiny in 1689 was the cause of bringing into existence military law in time of peace in order to preserve discipline in the Army. The common law gave the sovereign no power to control his troops. The deserter was treated as an ordinary felon, and was tried at the assizes by a petty jury on a bill found by a grand jury. At this time the King and the House of Commons were united, and both were menaced by a great military power from the ports of Normandy and Britanny. They decided that regular soldiers were indispensable, and that their efficiency and security of every other class must be maintained by keeping them under strict discipline. For the sake of public freedom they must, in the midst of freedom, be placed under a despotic rule. They must be subject to a sharper penal code and to a more stringent code of procedure than was administered by the ordinary tribunals.

4. A short bill was brought in the House of Commons, which began by declaring in explicit terms that standing armies and courts-martial, were unknown to the law of England; and it was then and there enacted that any man who deserted his colors or mutinied against his commanding officer should be subjected to the pain of death or such lighter punishment as a court-martial should deem sufficient.

The first step was made without one dissentient voice in Parliament and without one murmur in the nation toward a change which had become necessary toward the safety in the state, yet which every party in the state then regarded with an extreme dread and aversion. Six months after, the power necessary for the maintenance of military discipline was a second time intrusted to the Crown for a short term, and by slow degrees finally reconciled the public mind to the names once so odious, viz. a standing Army and Courts-Martial. Thereafter not a session passed without a Mutiny Bill.

5. The Mutiny Act was in a nature of a concession to the Crown. It was granting the sovereign by law a part of what he had for centuries been insisting upon under his prerogative.

The history of the English Army, from the time the first Mutiny Act was passed to the present, shows that the military law applicable to the Army was understood and allowed by every one, and that the adoption of the Mutiny Acts authorized the King to enforce the whole body of the rules and principles in the Army, subject to certain exceptions made in the Mutiny Acts themselves.

6. When the American Revolution came on, the Articles of War were

manner then by the Judgement of his Peeres and according to the knowne and Established Laws of this Realme. Yet neverthelesse it being requisite for retaineing such Forces as are or shall be raised. dureing this Exigence of Affaires in their Duty an exact Discipline be observed. And that Soldiers who shall Mutiny or stirr up Sedition or shall desert Their Majestyes Service be brought to a more those made by the King under his prerogative so to do, expressly recognized by the annual Mutiny Acts. When the colonies began to act the part of absolute sovereignty, their Legislatures, assuming all powers exercised in England by both the King and Parliament, proceeded to enact Articles of War for the government of their respective armies, and thus to bring into existence, so far as their armies were concerned, that part of military law which had in England been applied to the Army in time of peace.

These enactments of the colonies have been followed by successive enactments of Articles of War by the Congress of the United States. These powers were invested in Congress by the eighth section of the Constitution of the United States. As Parliament and the Crown had, in England in time of peace under the English Constitution, maintained a military law system which was necessary to secure discipline in the Army coexistent with the common-law system and without improperly interfering with its principles relating to personal liberty, so our Constitution was framed to secure the same end under the legislative authority of Congress.

Petition of Right.-The Petition of Right (1627, 3 Car. I) contained the following clauses:

"The petition exhibited to his Majesty by the lords spiritual and temporal, and commons, in this present parliament assembled, concerning divers rights and liberties of the subjects, with the King's majesty's royal answer thereunto in full parliament.

"To the King's most excellent majesty: Humbly shew unto our sovereign lord the King, the lords spiritual and temporal, and commons in parliament assembled. *

*

"And whereas also by authority of parliament, in the five and twentieth year of the reign of King Edward the Third, it is declared and enacted, That no man should be forejudged of life or limb against the form of the great charter and the law of the land; and by the said great charter and other the laws and statutes of this your realin, no man ought to be adjudged to death but by the laws established in this your realm, either by the customs of the same realm, or by acts of parliament; and whereas no offender of what kind soever is exempted from the proceedings to be used, and punishments to be inflicted by the laws and statutes of this your realm; nevertheless of late time divers commissions under your Majesty's great seal have issued forth, by which certain persons have been assigned and appointed commissioners with power and authority to proceed within the land, according to the justice of martial law, against such soldiers or mariners, or other dissolute persons joining with them, as should commit any murder, robbery, felony, mutiny or other outrage or misdemeanor whatsoever, and by such summary course and order as is agreeable to martial law, and as is used in armies in time of war, to proceed to the trial and condemnation of such offenders, and them to cause to be executed and put to death according to the law martial:

"By pretext whereof some of your Majesty's subjects have been by some of the said commissioners put to death, when and where, if by the laws and statutes of the land they had deserved death, by the same laws and statutes also they might, and by no other ought to have been judged and executed: And also sundry grievous offenders, by colour thereof claiming an exemption, have escaped the punishments due to them by the laws and statutes of this your realm, by reason that divers of your officers and ministers of justice have unjustly refused or forborn to proceed against such offenders according to the same laws and statutes, upon pretence that the

Exemplary and speedy Punishment then the usuall Forms of Law will allow.

Bee it therefore Enacted by the King and Queenes most Excellent Majestyes by and with the Advice and Consent of the Lords Spirtuall

said offenders were punishable only by martial law, and by authority of such commissions as aforesaid; which commissions, and all other of like nature, are wholly and directly contrary to the said laws and statutes of this your realm:

"They do therefore humbly pray your most excellent Majesty, that your Majesty would be pleased to remove the said soldiers and mariners, and that your people may not be so burthened in time to come; and that the aforesaid commissions, for proceeding by martial law, may be revoked and annulled; and that hereafter no commissions of like nature may issue forth to any person or persons whatsoever to be executed as aforesaid, lest by colour of them any of your Majesty's subjects be destroyed, or put to death contrary to the laws and franchise of the land.

*

"All which they most humbly pray of your most excellent Majesty as their rights and liberties, according to the laws and statutes of this realm; and that your Majesty would also vouchsafe to declare, That the awards, doings and proceedings, to the prejudice of your people in any of the premises, shall not be drawn hereafter into consequence or example; and that your Majesty would be also graciously pleased, for the further comfort and safety of your people, to declare your royal will and pleasure, That in the things aforesaid all your officers and ministers shall serve you according to the laws and statutes of this realm, as they tender the honour of your Majesty, and the prosperity of this kingdom.

"Qua quidem petitione lecta et plenius intellecta per dictum dominum regem taliter est responsum in pleno parliamento, viz. Soit droit fait come est désiré."

Bill of Rights.-The Bill of Rights (1688, 1 Wm. & M. cap. II) contained the following clauses:

"Whereas the late King James the Second, by the assistance of divers evil counsellors, judges, and ministers employed by him, did endeavour to subvert and extirpate the protestant religion, and the laws and liberties of this kingdom.

"1. By assuming and exercising a power of dispensing with and suspending of laws, and the execution of laws, without consent of parlia

5. By raising and keeping a standing army within this kingdom in time of peace, without consent of parliament, and quartering soldiers contrary to law.

"6. By causing several good subjects, being protestants, to be disarmed, at the same time when papists were both armed and employed, contrary to law. ** **

“All which are utterly and directly contrary to the known laws and statutes, and freedom of this realm.

"And whereas the said late King James the Second having abdicated the government, and the throne being thereby vacant,

*

"And thereupon the said lords spiritual and temporal, and commons, pursuant to their respective letters and elections, being now assembled in a full and free representative of this nation, taking into their most serious consideration the best means of attaining the ends aforesaid; do in the first place (as their ancestors in like case have usually done) for the vindicating and asserting their ancient rights and liberties, declare:

"1. That the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal.

"6. 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."

and Temporall and Commons in this present Parlyament Assembled and by Authoritie of the same That from and after the Twelfth day of April in the Yeare of our Lord One thousand six hundred eighty nine every Person being in Their Majestyes Service in the Army and being Mustered and in Pay as an Officer or Soldier who shall at any time before the Tenth Day of November in the Yeare of our Lord One thousand six hundred eighty nine Excite Cause or Joyne in any Mutiny or Sedition in the Army or shall desert Their Majestyes Service in the Army shall suffer Death or such other Punishment as by a CourtMartial shall be Inflicted.

And it is hereby further Enacted and Declared That Their Majestyes or the Generall of Their Army for the time being may by vertue of this Act have full Power and Authority to grant Commissions to any Lieftenants Generall or other Officers not under the Degree of Collonells from time to time to Call and Assemble Court Martialls for Punishing such Offences as aforesaid.

And it is hereby further Enacted and Declared That noe Court Martiall which shall have power to inflict any punishment by vertue of this Act for the Offences aforesaid shall consist of fewer than thirteene whereof none to be under the degree of Captaines.

Provided alwayes That noe Field Officer be Tryed by other than Field Officers And that such Court Martiall shall have Power and Authoritie to administer an Oath to any Witnesse in order to the Examination or Tryall of the Offences aforesaid.

Provided alwayes that nothing in this Act contained shall extend or be construed to Exempt any Officer or Soldier whatsoever from the Ordinary Processe of Law.

Provided alwayes That this Act or any thing therein contained shall not extend or be any wayes construed to extend to or concerne any the Militia Forces of this Kingdome.

Provided alsoe that this Act shall continue and be in Force until the said Tenth day of November in the said Yeare of our Lord One thousand six hundred eighty nine and noe longer.

Provided alwayes and bee it enacted That in all Tryalls of Offenders by Courts Martiall to be held by vertue of this Act where the Offence may be punished by death every Officer present at such Tryall before any Proceeding be had thereupon shall take an Oath upon the Evangelists before the Court (and the Judge Advocate or his Deputy shall and are hereby respectively Authorized to Administer the same) in these words That is to say

You shall well and truely Try and Determine according to your Evidence the Matter now before you betweene Our Soveraigne Lord and Lady the King and Queens Majestyes and the Prisoner to be Tryed. Soe helpe you God.

And noe Sentence of Death shall be given [against any Offender in such Case by any Court Martiall unlesse nine of Thirteene Officers present shall concurr therein And if there be a greater number of Officers present then the Judgement shall passe by the concurrence of the greater part of them soe Sworne and not otherwise and noe

2 Interlined on the roll.