■ THE 
 
 IJLITABY ILA 
 
 OF 
 
 (WITH ALL THE PRINCIPAL AUTHORITIES,) 
 
 ADAPTER TO 
 
 THE GENERAL USE OF THE ARMY, 
 
 L\ ITS VARIOUS DUTIES AND RELA'nONS. 
 
 AND THE 
 
 PRACTICE OF COURTS MARTIAL. 
 
 iliura est Senitui ubi Jus est vagum aut incogiiitum^ 
 
 What can be iDore conducive to the deterring of men from committing crimes 
 than making ihem properly acquainted with the laws by which they are to 
 be governed, and the fatal consequences attending a breach of them ? 
 
 Coke. 
 
 No rank or elevation in life, no uprightness of heart no prudence, or circumspec- 
 tion of conduct, should tempt a ni:iu to conclude that he may not, at somo t' .,s 
 or other, be deeply interested in these researches. Fo i • ; u . 
 
 Men in the field are not to be »mused with arcumentative discussions ; njuick in 
 their decisions, Vhey stand in need of general . .:^ iples . v. ha:i a vtiefy of 
 cases. SuLiVAN. 
 
 LO: DON: 
 
 PRINTED FOR T. GODDARD, 
 
 UILITARY BOOKSKLI.En, 
 
 NO. 1, PALL-MALL. 
 
 1810. 
 
Calabin and MBrcliaTit, Printers, 
 Ingram-Cooit* LoudoQ. 
 
r- il 
 
 a^ 
 
 im ROYAL HIGHNESS 
 
 ADOLPHUS FREDERIC, 
 
 20uftc of CamlJrtfise, 
 
 Earl of Tipperari/, and Baron of Culloden, 
 
 Gefieral of jtiis Majesty's ForceSy 
 
 Sfc. cSr. Stx, 
 
 Sir, 
 
 Directed lo the contemplation 
 of military subjects by the goodness of 
 a nobleman equally conspicuous in the 
 annals of civil and military science, it 
 was impossible that my ' observation 
 should not be immediately attracted to 
 a2 
 
DEDICATION. 
 
 those great models^ of military glory, 
 which have perpetuated the British name. 
 Throughout this observation, may it 
 please your Royal Plighness, it has been 
 forcibly evident, that every theory upon 
 which our military constitution is found- 
 ed, including the sentiments of every 
 great commander, i§ calculate^ to form 
 a series of generals, with a soldiery equal 
 to those of any age r>r country ; and a 
 code of military jurisprudence superior 
 to that of any modern empire. There is 
 no notice on the subject which does not, 
 with a proper reference to human nature, 
 extol the amenity of the general, appre- 
 ciate the attachment of his troops, and, 
 consider the care of the S)pldi,er, and the 
 justice ^(^ the camp, as the prin^ary objects j 
 of every campaign, yet, alas !, Sir, the 
 jcsult of what has been taught has not | 
 
DEDICATION, 
 
 always been such as to prove that these 
 excellent theories have been rightly com- 
 prehended throughout the army, or that 
 they have been invariably carried into ex- 
 ecution. 
 
 This, may it please your Royal High- 
 ness, it is humbly conceived may be at- 
 tributable, in no ordinary degree, to the 
 complexity which the military law of 
 England has naturally assumed, in the 
 progress from its parental source to a 
 system, and the consequent difficulty of 
 its application to those principles of hu- 
 man nature, upon which every just law 
 for its government must be founded, 
 rather than to any failure in the charac- 
 teristic generosity of the British cha- 
 racter. 
 
 It is then, Sir, with proud exultation, 
 that I may venture to declare, in the face 
 
of warlike and polished Europe, tbat 
 your Royal Highness, while excelling in 
 all the dignified graces of society, does 
 not disdain to consider these things, that 
 my Prince and General i? capable of eX' 
 claiming : — 
 
 ■ Hcrao sue:, 
 
 £t ul kamanpm me alienam pato : 
 
 and tbat I have, therefore, presumed to 
 lay at the feet of your Royal Highness 
 the present soiali attempt to rei^^er more 
 clear and familiar the matter of the va- 
 rious authorities which compose the sta- 
 tutory and customary law of the arraj^ 
 aided by the result ©f practical consider- 
 ation ; with the hope of producing a 
 more general comprehension of the judi- 
 cial duties of the officer, at least in the 
 junior caoka of the army ; and, perhaps, 
 
DEDICATION. VI. 
 
 inducing generally an attention to some 
 minutiae not hitherto considered. 
 
 To the sanction of these purposes, Sir, 
 the intrinsic dignity of your Royal High- 
 ness's name will contribute more power- 
 fully than the strongest reasoning con- 
 veyed through the most powerful elo- 
 quence. 
 
 I have the honour to be. 
 Sir, 
 Your Royal Highnesses 
 
 Most dutifu), 
 
 Most devoted, and 
 Most humble servant, 
 
 THE AUTHOR. 
 
 Lemica, 
 JODC t, 181ft, 
 
ADVERTISEMENT. 
 
 CIRCUMSTANCES, uninteresting to 
 the Public, have delayed the appearance of 
 the following pages ; unprofitable/, unless in 
 the opportunity afforded for including the 
 amendments in the Mutiny Act of 1810. 
 This has, at the same time, been attended 
 with a small inconvenience, arising from all 
 the other references having been made to the 
 preceding Act of Parliament. It will, how- 
 ever, be easily remedied from the excellent 
 
ADVERTISEMENT. 
 
 mode which has been adopted in the new actj 
 of incorporating the amendments with the 
 sections to zchich they relate, instead of cre- 
 ating nczi) ones ; so that, hy adding one to 
 the number of any section after the thir- 
 tieth, (where the only new one is added,) 
 the references made to the Mutiny Act for 
 1809 ^^ill apply' toUhat of 1810. The Ar- 
 ticles of War remain the same. And, the 
 work having been finished previously to any 
 recent occasion for the important domestic 
 employment of the army, it has not been 
 deemed necessary to make any allusion to it. 
 Thai, in the execution of his plan, the 
 writer will sometimes be found not to have 
 fidfdled his intention, that many deficiencies 
 uill be discovered, under particular heads, 
 there is no doubt, from various causes. It 
 ii'ould have been extremely impertinent in 
 him to have expected permission to make 
 tho^e official researches which are abso- 
 lutely necessary, for a xsork in the progress 
 of which its utility must be doubtful : it 
 
APVERTISEMENT. X] 
 
 was impossible for him to hope that he coiildt 
 at once, make his arrangement so co?fipIetc 
 as to meet every possible case : but, should 
 the public approve what has been done, he 
 has no doubt, from the beneficent liberality 
 and exalted intcUigence of the Right Hon. 
 the Secretary at War, and the general de- 
 sire of other high 'public officers, for the 
 due understanding of military law, that he 
 shall be enabled to satisfy his own wishes in 
 points which have become obvious to him 
 since his work was committed to press, and 
 to render it more worthy of approbation. 
 
 At the same time it is hoped, that some- 
 thing not quite unimportant has been done 
 towards collecting and simplifying the ma- 
 teriak which form the Military Lazi) of Eng- 
 land, and it may be presumed, at least, 
 that the young officer will he directed to 
 sources of information, ('" not harsh and 
 crabbed, as dull fools suppose,") from which 
 the highest benefit may he derived, both to 
 himself and to his country. 
 
ADVERTISEMENT. 
 
 It mmf not be amiss here to add, that 
 there are incorporated with this work the 
 Articles of War and General Regulations 
 and Orders of Bis Majesty;, the annual 
 act of parliament, and other correlative 
 statutes; with the Spirit of the best Trea- 
 tises on the Practice of the Military Courts, 
 as well as the opinions on disputed points of 
 many authors, not generalh/ accessible; 
 which, in any other form, could not be col- 
 lected without very considerable expense, 
 consulted without much leisure and diffi- 
 culty, nor retained, from their bulk, on 
 ■service. Many of the forms and prece- 
 dents that seemed most important have 
 been selected from those already printed, on 
 account of their decided authority ; and 
 the same 7nay be said of numerous refere?ices 
 which have been made when such confirma- 
 tion was not absolutely necessary. For this 
 reason, also, it was deemed better to rest 
 the authority of the m ork on the powerful 
 luinics of those to whose judgement and ex- 
 
ADVERTISEMENT. Xlll 
 
 perience it has been so much indehted, ra- 
 ther than that of an individual, unadorned 
 hif the splendour of rank, unsheltered bij 
 academical honours, — 
 
 " Who nought cati boast but his dcbire to be 
 " A Soldier." 
 
XVI INTRODUCTION. 
 
 Every man, of ordinary intelligence, who 
 enters an army, in whatsoever species of force, 
 must quickly be impressed, that military disci- 
 pline, to become effective, must address the 
 soldier as a moral agent ; and regard " a proud 
 submission, — that dignihed obedience, that sub- 
 ordination of the heart," which attaches him to 
 the service, and enables him to support and 
 overcome every difficulty and danger of war, — 
 in preference to the operation of terror. This 
 cannot be effected without the correct execu- 
 tion of those- ad nili-aHe regulations which have, 
 from time to time, arisen out of the collective 
 experience of the army, — without the due ad- 
 uiinistiiatiotiof military justice. 
 • The military laws, however, improving and 
 increasing with the. state and numbers of the 
 forces. for whose government they are enacted ; 
 originating in his Majesty's Articles on the one 
 hand, and receiving the augmention and sancT 
 tion of parliament, in an annual act, on the 
 other; with a constant addition of regulations 
 (exclusive of those which form as it were the 
 bye-law^ of office,) and customs, adapted to 
 the various circumstances of service ; accii- 
 
I]^TRODUCTIOX. XVll 
 
 mulate and co^iiplicate to such a degree, that, 
 tljougli simple and perspicuous in their indi- 
 vidual enactnient, no more can ordinarily be 
 brought into execution th^n may be retained 
 by the memory— that frail and deceitful in- 
 terpret^. For, as to reference, no less acumen 
 of research and depth of consideration would 
 he required than in any other class of English 
 jurispru.dcnce : and, as observed by Mr. Su- Thoughts on 
 
 ^ ^ ^ Mart. Law, (2d 
 
 livan, '' the soldier cannot be supposed to have ^^^'^^ p- ''• 
 Uie means or disposition of qualifying him- 
 self for a court of law." 
 
 To remedy this evil, several efforts have 
 been made, highly honourable to their authors, 
 and important to the army. 
 
 If we except the incidental observations of Hist.of Com. 
 
 Law. c. 2. 
 
 Hale and Coke, and an author named Davis Connnemar. on 
 (1619), of whom little is known, beside a ci- 
 tation on quarters in the mihtary antiquities, Grose's Mil. An- 
 the fust of these efforts may be traced in the ''^^ ' " 
 '-* Military Institutes, antient and niodern," of 
 Bruce (1717) ; a work of which the intention 
 is admirable, and the use considerable, but 
 which is, of course, become almost ob- 
 solete. 
 
 b 
 
XVIH INTRODUCTION. 
 
 Near forty years after, in the Commentaries, 
 tliat beautiful outline of the laws, composed 
 for the early instruction of his Majesty, in 
 clm'^bTc'ia English jurisprudence, Sir William Black- 
 stone found cause to regret the unsettled and 
 arbitrary nature of military law, which he con- 
 sidered as retaining the characteristics of anti- 
 ent servitude, concealed and precarious ; and 
 which had certainly not, until after his time, 
 received the mild definition of which it is at 
 present capable. There is, however, reason to 
 fear that its practice, more than its principles, 
 excited this disapprobation. 
 
 Nor was the opinion of that enlightened 
 judge attempted to be disproved by Major 
 Adye, the first military author who wrote, ex- 
 pressly, on the subject, with the most enlarged 
 views and most generous sentiments. A con- 
 siderable experience derived from active service, 
 during which, also, this well-informed ofiftcer 
 had filled the appointment of deputy judge-ad- 
 vocate abroad, enabled him to view all the 
 points and bearings of military discipline; and, 
 in consequence to his ** Treatise on ]\Iartial 
 
IN'TRODUCTIOX. XIX 
 
 Law," he found it necessary to append an essay 
 on military '* rewards and punishments." 
 
 This work may, perhaps, be too general for 
 application, but it is full of wisdom ; it contains 
 the sublimest lessons of a polished commander; Jf'^'-^fLL, 
 and the author receives, while *' he resigns to J^e„;, '"^'"^*^ 
 men of letters the prize of eloquence." 
 
 To it (1784) succeeded the "Thoughts on 
 Martial Law, with a mode recommended for 
 conducting the proceedings of General Courts 
 Martial," of Richard Joseph Sulivan, Esq. 
 which clearly shews the unsettled state of mi- 
 litary forms to that period, and the laudable 
 anxiety of military men on the subject; for, 
 observes this author, with great ingenuous- 
 ness, " had Mr. Adyc, indeed, been more pai- 
 ticular with respect to the proceedings of ge- 
 neral courts martial, the present work would 
 never have been obtruded on the world. But, 
 as he is silent on points which may every day 
 occur; and as the officers of the army have, 
 invariably, expressed a desire to be informed 
 decisively of the grounds on which they stand, 
 an attempt to ascertain them may not be un- 
 welcome or ill-timed." More than the single 
 b 2 
 
XXII INTRODUCTION. 
 
 To these have been finally added (1806) va- 
 luable facts and illustrations in " Principles 
 and Practice of Naval and Military Courts 
 Martial," by the useful w^ork of Mr. M*Arthur, 
 on these conjunct subjects. 
 
 That these writers, both separately and col- 
 lectively, have powerfully, though not com- 
 pletely, remedied the evil, as far as relates to 
 the fleeting regulations or customs of war ; the 
 forms, and rules of evidence derived from the 
 civil courts, &c. cannot be doubted ; but the 
 Act for punish- Articles of War, and the Mutiny Act, with the 
 
 ing Muting' aiu) 
 
 i)e!»tftioi:, ii.iH accumulations of centuries, remain the same, 
 
 b tier pa^inent ' 
 
 .tc-i'J'Q^rnn"'' mutually confusing each other; and, instead 
 ~ ■ of the beautiful code exhibited in the elo- 
 quence of Lord Loughborough, representing a 
 mutilated manuscript, venerable indeed from 
 its antiquity, and respectable from its insti- 
 tutes, but of which, in several instances, li- 
 terally, the rubj'ic alone remains. And, what 
 is of still more importance to the soldier, the 
 quadripartite laws for which he was before in 
 vain directed to the annual volume, that of 
 regulations, and the orderly book of his re- 
 giment, arc now only to be found by the ad- 
 
INTRODUCTION". XXIU 
 
 clitional consultation of numerous tomes, and 
 then scarcely to be considered complete. 
 
 That the act for punishing Mutiny and De- 
 sertion, Sec. in common with many other acts 
 of parliament, required periodically, should 
 not be adapted to the facility of hasty refe- 
 rence, by those occupied in the discussion of 
 its laws ; is no impeachment, either of their 
 talents or industry, when it is recollected that 
 even Addison, while secretary of state, could 
 not write a letter on business required in haste, 
 and the British Socrates himself declares, that, 
 '* to comply with the mode of publishing peri- 
 odically, he wrote some of his papers against 
 the feelings of nature !" 
 
 Neither need it excite wonder that laws ac- 
 cumulate, when the twelve tables of the Ro- 
 mans, — the collective wisdom of the antients, 
 preferred by Cicero to whole libraries of the dc Oratione» 
 philosophers,— gradually extended to two thou- 
 sand volumes ; and would have been explained 
 into still greater obscurity, but for the labours 
 of the emperor Justinian, who caused them to 
 be reduced to four, similar to those of Black-* 
 stone, in the reign of George the Third. 
 
^:XIV INTRODUCTION. 
 
 English jurisprudence, however, is perhaps, 
 not susceptible of such a diminution, and se- 
 parate digests are therefore the only meails of 
 adapting it to ordinary use, or assisting the 
 future inquiries of the legislature. Many able 
 writers have employed themselves in this way 
 on various parts ; but none on that which 
 forms the subject of the following pages. 
 This may be accounted for, — firstly, by the 
 repulsive nature of its antient definition by 
 Judge Hale, that military or martial law is 
 "in truth and reality no law, but something 
 indulged rather than allowed as a law," which 
 has not yet been overturned ; secondly, (as 
 observed by Mr. Sulivan), that " the disci- 
 pline of a camp, in every esseritial most widely 
 different from that of a common court of law, 
 may have, tirade it unworthy of the attention 
 of those v/hose abilities M'ould have enabled 
 them to have expatiated on the subject :' and, 
 lastly^ from the. difficulty of reconciling the 
 cold labour of legal disquisition with the spirit 
 of martial enterprize; and the consequent 
 danger of adopting theories, which, whatever 
 
INTRODUCTIONi XXV 
 
 their excellence, could never be reduced to 
 practice. 
 
 Yet, continues the «nufhor just quoted, 
 (1784), *' no less, perhaps, than a million of 
 subjects^ either in arms tor tbeit" sovereign, or 
 as retainers to his camps, are amenable to its 
 coercion ;" and " an unlimited power to create Biackstone. 
 crimes, and annex punishments to them not 
 extending to life and limb, is not unalicnably 
 cohfined to the sovereign himself, but is dif- 
 fused by delegation to his different officers on 
 service." Therefore, "at the same time that we Suiivan. 
 concur in the banishment of all the subtilities 
 of the law, we must as readily confess, that 
 a general knowledge of its principles should be 
 encouraged ; l^st those should prove unequal 
 to the task who may be placed on the judge- 
 ment seat of mercy." 
 
 Without examining whether the facility of 
 prompt punishment may not also sometimes be 
 preferred to the discrimination of rewards in 
 the prevention of crimes, it is from this view 
 and with a very peculiar experience of the ne- 
 cessity of some legal guide of easy reference 
 
XXVi INTRODUCTION. 
 
 and sufficient authority, for officers, in the 
 judiciary character with which they are con- 
 stantly invested, that the present writer has 
 attempted, from notes made for his private 
 use with the best effect, and the result of in- 
 vestigation arising out of an inquiry with 
 which he was honoured at the instance of his 
 commanding officer, — to exhibit the military 
 law of England, with all its principal authori- 
 ties adapted to the ready comprehension of the 
 army. - To those who shall still imagine that 
 an assimilation to legal precision, loads the 
 officer with new restrictions and formalities 
 incompatible with other duties, it may be ob- 
 served that the case is diametrically opposite; 
 military law already possesses the fictions of 
 action and other exuberances of common law ; 
 and such is the variation of forms in prac^ 
 ticc, that scarely two officers will be found to 
 issue a warrant alike: So that some rule 
 would seem necessary to preserve even its ex- 
 istence. 
 
 Simple Offickr, it would ill become the writer 
 to pretend to any new light, on a subject 
 
INTRODUCTION. XKVU 
 
 which has so long eluded the vigilance of su- 
 perior talents ; yet by those whose judgement 
 he has most to deprecate will readily be allowed 
 that in proportion to the activity of his charge 
 he was enabled, if not compelled, to perceive 
 \ certain ilesiderati which he has thus, at least, 
 temporarily endeavoured to supply. And it 
 was not objected to Charles Guischard, — 
 ^'hen, from the extremity of Holland, he rec- 
 tified the romantic errors of his great master 
 Folard, cleared the difficulties of Hirtius, and 
 laid open the whole tactics of the antients — 
 that he was only a subaltern in obscurity. 
 
 In the following pages, then, it is intended 
 to submit to an arrangement not disagreeable to 
 the natural order of military concerns, the 
 whole body of military law as it exists in the 
 various depositories before described, with its 
 several relations ; abridging, where it is ex- 
 pedient, the prolixity of law, but conveying 
 at length those passages which require a full 
 and lasting impression. And that nothing 
 should appear to rest upon doubtful authority, 
 every fact is powerfully corroborated by re- 
 
XXViii INTRODUCTION. 
 
 ferenee ; and every passage referred to is 
 qaoted ill the words of its author; a method 
 whicli, if it should sometimes lead too much 
 into detail, may yet boast the suffrages of 
 D'Espagnac, the friend and biographer of Mar- 
 shal Saxe, in an Essay on War, celebrated 
 throughout Europe^ To these are added, for the 
 convenience 6f thfe inexperienced judge-advo- 
 cate on service, the most necessary forms and 
 precedents, those "outworks of law," of which 
 Blackstone and Mansfield did not disdain to 
 enjoin the preservation. 
 
 Whatever the success which shall have ac- 
 companied this attempt, the author will have 
 the satisfaction to have pointed out to the young 
 officer those sdurces whence h^ may derive the 
 best assistance to a deeper inquiry into sub- 
 jects which can never be considered without 
 advantage. 
 
 And, however humble his endeavour, he 
 
 cannot help indulging himself with the idea 
 
 that it will rank in the lowest class of the 
 
 same order with those memoirs of experience 
 
 Vrronva'/''^ in service, recommended by Lord Orrery to 
 
INTRODUCTION. XXIX 
 
 be required of commanders ; whicli Colonel fiii„^"ReflTc. 
 
 T-vi 1 ' ^^ i'^ M'i. 1 tions on raising, 
 
 Dalrymple, in the iirst military essay, ad- &c. British in- 
 
 1 1 • . . . ^ c 1 fantry and Ca- 
 
 dressed to his majesty, containing the tounda- vairy. with 
 
 Prop, for Im« 
 
 tion of every amended system of the present provemem, 
 European armies, — approved ; and which, lastly ^ 
 General Andreossy advised to be encourao-ed decade Phiio- 
 
 •' *-' sophiqae lOrae 
 
 by the mihtary department {Dcpdt de /« (^802!) ' ""' '' 
 Guerre) in Paris, as unfolding in the most 
 useful, just, and pleasing, manner, the transac- 
 tions of the war. 
 
 At least the present w^ork will not be de- 
 nied the merit of impressing in some degree, 
 under the sanction of law, the authority of 
 the greatest and most intelligent of com- 
 manders, and the experience of fact, that in 
 the British army it is necessary to preserve 
 to the principles and forms of justice the ut- 
 most attention compatible with military ser- 
 vice ; that the wisest system of military regu- 
 lations must depend for its practical effect 
 on those who are intrusted with its execution ; 
 and that, even if it were expedient to uphold 
 power by its own terrors, a command in 
 which the cultivation of tlie military virtues 
 
XXX. INTRODUCTION. 
 
 and the affections is neglected, though it 
 should produce a numerical force of external 
 appearance, ^vilI never furnish an efficient 
 body of troops, nor increase the annals of 
 glory. 
 
CONTENTS. 
 
 PAGE. 
 
 DEDICATION iii 
 
 ADVERTISEMENT ix 
 
 INTRODUCTION xv 
 
 PART I. 
 
 GENERAL VIEW OF THE CHARACTER 
 
 OF MILITARY LAW 1 
 
 Ch. I. ITS STATUTES, OR LEX SCRIPTA 5 
 
 § 1. Articles of JVar ib, 
 
 2. Act for the Punishment of 
 Mutiny and Desertion, &;c ib. 
 
 3. General Orders and Regula- 
 tions 6 
 
xxxu Contents. 
 
 PAGE. 
 II. ITS CUSTOMS, OR LEX NON 
 SCRIPTA 7 
 
 § 1. C undent Rules of service . . , ib. 
 
 2. T/ie Practice of Courts Mar- 
 tial , ib, 
 
 3. The Common Law of the Coun- 
 try . . . . , . . 8 
 
 III. ITS RELATION WITH THE CIVIL 
 CLASSES 9 
 
 IV. ITS SPECIFIC JURISDICTION . . 13 
 V. ITS EXTENDED JURISDICTION 
 
 IN THE PROCLAMATION OF MARTIAL 
 LAW . 18 
 
 PART II. 
 
 PRIMAIiY OBJECTS' IN TilE' GO- 
 VMNIVIENTOT TriEMLlTARY 
 ; FQliCE OF GREA^ BRITAIN 
 
 Ciy. I. RELIGIOUS INSTITUTES OF THE 
 
 A,?lMY 22 
 
 II. MEDICAL INSTITUTES 26 
 
 III. ADMINISTRATION OF JUSTICE . 27 
 
 § \\ Police of the Army .' ib. 
 
CONTENTS. XXXlll 
 
 PAGE. 
 
 i. Piescrvaticnof the Peace, 
 
 and preventing Cliallenges . . ib. 
 
 ii. Apprehension of Offen- 
 ders , ^5 
 
 iii. Safety of the Camp ... 39 
 
 2. Judiciari/ Character of Offi- 
 cers 42 
 
 3. By Council of Inquiry .... 50 
 
 4. Court of Inquiry 52 
 
 5. By Field or Drum-head Court 
 Martial oG 
 
 6. Camp or Line Court Martial: 58 
 
 7. Garrison Court Martial ... ib. 
 
 8. JRegimental Court Martial . . 59 
 
 Appeal from the Minor 
 Courts 79 
 
 9. Detachment Court Martial , 91 
 
 10. General Court Martial ... 9'3 
 
 General Remarks on the Sen- 
 tence, its Execution, Punish- 
 ments, aqd the preceding Sec- 
 tions 145 
 
 11. General Board l64 
 
 12. The Courts of Record . . . . \65 
 
 c 
 
XXX CONTENTS. 
 
 PAGE, 
 
 13. Parliament 170 
 
 i. House of Peers ib, 
 
 ii. House of Commons . . . 171 
 
 14. The King 173 
 
 IV. THE ADJUSTMENT OF RANK . . . 175 
 
 PART III. 
 
 GENERAL MILITARY ECONOMY, 
 IN PROVISION, REGULATION, 
 
 &c. 
 
 Ch. I. RECRUITING THE ARMY 179 
 
 § 1. Commissioning Officers .... ib, 
 2, Lilisting of Private Soldiers 1 83 
 Of the Oath 195 
 
 II. VARIOUS DUTIES ENJOINED, AND 
 CRIMES PROHIBITED, TO THE ARMY . 199 
 
 § 1. /w Quarters, including their 
 
 Provision ib. 
 
 The Provision of Quarters in 
 
 the United Kingdom 201 
 
 2. In Garrison, including Suttling 212 
 Suttling 214 
 
CONTENTS. 3CXXi 
 
 PAGE. 
 
 3. In the Field, including Camp, 
 and Foreign Service 217 
 
 i. The Camp 219 
 
 ii. Foreign Service ib. 
 
 4. On the March, including the . 
 Provision of Carriages ....... 220 
 
 Regulations for pressing Carriages 222 
 
 5. On-board Ships of fVar ... 228 
 
 6. On Domestic Service 229 
 
 i. In the Protection of Nati- 
 onal Establishments, as Guards ib. 
 
 ii. Suppression of Tumults . 232 
 
 iii. On the Coast for Protec- 
 tion of the Revenue, &c. . . . 253 
 
 7. On Leave of Absence, or Fur- 
 lough ib. 
 
 i. Absent Officers ib, 
 
 ii. Furlough of Non-commis- 
 sioned Officers and Soldiers . . 258 
 
 iii. Extension of Furlough by 
 the Magistrate ib. 
 
 III. DISMISSAL OF THE FORCES, IN- 
 CLUDING REWARDS 260 
 
 § 1. Resignation of Officers . . . . ib. 
 
XXXVl CONTENTS- J 
 
 l^AGE. 
 
 2. Discharge of Private Soldiers ^^'Z 
 
 IV. CONCERNING MUTINY AND DE- 
 SERTION 264. 
 
 ^ 1. Penalties of Mutiny in Prin- 
 cipals and Accessories ......... ih. 
 
 2. Penalties of Desertion, and 
 Apprehension of Deserters 266 
 
 PART IV. 
 MINOR MILITARY ECONOMY. 
 
 Ch. I. ACCOMPTS, INCLUDING THE 
 
 PAYMENT OF THE ARMY 274 
 
 II. MUSTERS, RETURNS, AND EN- 
 TRIES 279 
 
 § 1. Musters ib. 1 
 
 2. Returns 283 
 
 3. Entry of Commissions and \ 
 Leaves of Absence 284 
 
 III. CARE OF STORES, AMMUNITION, 
 &C. INCLUDING THE COMMISSARIAT, 
 AND THE ILLEGAL POSSESSION OF. 
 STORES 285 
 
 IV. CARE OF EFFECTS OF DECEASED 
 OFFICERS AND SOLDIERS . 290 
 
CONTENTS. XXXVIl 
 
 APPENDIX. 
 
 PRECEDENTS AND FORMS OF MILI- 
 TARY LAW. 
 
 I. FORMS. 
 
 PAGE. 
 
 1. Form of Conviction^ under the Act 
 for Punishing Mutiny and Desertion, and 
 the better Payment of the Army and 
 their Quarters 29^ 
 
 2. If^arrant of the King appointing 
 Court of Inquiry 293 
 
 3. Warrant of the King appointing Ge- 
 neral Court Martial 300 
 
 4. fVarrant of the King appointing 
 New Members to a Court Martial .... 302 
 
 5. fVarrant of the King empoxvering 
 Commatider in Chief to appoint Court Mar- 
 tial, &:c 30(J 
 
 C). IVarrant of a Commander in Chief to 
 a Brigadier General, empowering him to 
 convene Courts Martial, and appoint act- 
 ing Judge- Advocate 310 
 
XXXIV CONTENTS. 
 
 PAGE. 
 
 7. Warrant of a Commander in Chiefs 
 appointing President of General Court 
 Martial 313 
 
 8. Warrant of a Commander in Chief to 
 President to assetnble Court Martial ... 314 
 
 9. Warrant of a Commander in Chief 
 appointing Military Judge-Advocate ... 315 
 
 10. Warrant of a Commander in Chief 
 appointing acting Judge-Advocate 317 
 
 11. Warrant of a Commander in Chief 
 jointly appointing Court Martial, its Pre- 
 sident, and Judge-Advocate 318 
 
 1 2. JVarrant of a Commander in Chief 
 for executing Sentence of Death 320 
 
 II. PRECEDENTS. 
 
 1. Notification of Judge- Advocate on a 
 General Court iMartial to the President . 322 
 
 2. Notif cation of Judge- Advocate to 
 President, individually, to attend .... 323 
 
 3. Notification of Judge- Advocate on a 
 General Court Martial to the Prosecutor ib. 
 
 4. Notification of Judge- Advocate on a 
 General Court Martial to the Prisoner . . 324 
 
CONTENTS. XXXV 
 
 PAGE. 
 
 5. Notification of Judge- Advocate to the 
 Commanding Officer of a Reginient, to pro- 
 duce JVitnesses and RegiJnental Books . . . 325 
 
 6. Summons of Judge-Advocate to Wit- 
 nesses 3^7 
 
 7. Minutes of Proceedings, including a 
 Written Address of a Soldier, stating his 
 Cause of Appeal from Regimental to Ge- 
 neral Court Martial 328 
 
 8. General Orders, including Line Or- 
 ders for an Execution 345 
 
 9. Act of Parliament for the Proclama- 
 tion of Martial Law 349 
 
THB 
 
 MILITARY LAW 
 
 OF 
 
 ENGLAND. 
 
 PART T. 
 
 GENERAL VIEW OF THE CHARACTER OF 
 MILITARY LAW. 
 
 \JF Law, that general rule of action, which, 
 in various forms, regulates and preserves the 
 universe, originating with the Almighty First 
 Cause, and extended by wisdom almost divine 
 to the various circumstances and relations of 
 human society, the present subject forms a 
 minute branch, differing from others in nothing 
 but its adaption to the government of a mili- 
 tary force. 
 
 Like those other subdivisions of English 
 jurisprudence, ecclesiastical, maritime, acade- 
 mical, &c. military law deviates from their 
 mutual parent, the common law of the land, Uaie, pi Quu 
 as its application is to cases for which there 
 is no other provision, and where brevity and 
 
GENERAL VIEW OF 
 
 promptitude are indispensable; while its jur^- 
 Iliction, always extensive, may occasional ly 
 be required to supersede every otber. For .t 
 CKten.ls not merely to the preservation of order 
 and discipline in the army, " the better go- 
 vernment of his majesty's forces,' but, if un- 
 happily martial power be required to support 
 the di^ authority of government, sometmres 
 temporarily assumes the place of that authority, 
 under the character of martial law. 
 T,>ie,,F.,„,<.» xn proportion, then, to its brevity and promp- 
 -r"""' titude of operation, every process of military 
 law should be viinuUly correct; and, where 
 power must sometimes be indiscriminately con- 
 fided, prevention should invariably be pre- 
 ferred to the punishment of crimes. 
 
 The same circumstances require no less at- 
 tention to be given to the pronmlgation of mili- 
 tary law; for, although the care in this respect 
 prescribed by the articles of war, which enjoins : 
 that they shall be read and published once in. 
 every two months at the head of every regiment, ; 
 .„.«...„. &c. and that order which directs that those as 
 Ora.c.804.)55.^^.^U.^^^„ ^^,|g,, ,^,,(1 regulations shall be trc- 
 nuentlv rea.l and explained both to officers and 
 men, vrould seem sufficient to render every sol- 
 dier intimately acquainted with the restrictions 
 by which he is bound, yet, when the pecul.a. 
 circumstances of the military character and itr 
 minute duties are considered, it will be found 
 
 Goli,e, Inst 
 
 $ 24. Art. 5. 
 
MILITARY LAW. 3 
 
 that nuicli more is required to that knowledge 
 so indispensably necessary. Ubi lev inccrta ibi 
 lex nulla, said one oF our greatest lawgivers; 
 and punishment cannot be justly inflicted on 
 him who is ignorant of his crime. 
 
 All laws are excellent, or the contrary, as 
 they apply to human nature in such a manner, 
 that, while they check its deviations from right 
 by punishment, they also conciliate its preju- 
 dices and defects. How constantly, then, should 
 this principle be recognised in military law, 
 where error is doubly fatal, and where service 
 in its best form is attended with evils that 
 merit the highest consideration. 
 
 Hence arises, in the government of a military Q,f' 'Jj*'' ^• 
 force, that svstcm of rewards, scarcely known 2^,<^*'."-iji e.g. 
 
 ' ^ 'J A dyes Treause 
 
 among the other classes of the community : °» MiI. Law, 
 which, prevailing throughout every age, is yet 
 recognized in our own; so that, if the punish- 
 ment of crimes be here more prompt and cer- 
 tain than under the civil power, not less so 
 (while it retains its purity) is the reward of 
 every military virtue. 
 
 It must also be recollected, that, whatever the 
 obnoxious characteristics of military law, its 
 summary proceedings and secret sentences, its 
 jurisdiction (unless in the public exigencies 
 before mentioned) extends in no respect be- 
 yond the military order of citizens; not even Deb.inrariiam. 
 jji to those, who, having quitted its active duties, 
 B 2 
 
i 
 
 4 CENXUAL VIEW OF 
 
 are enjoying its remuneration, in the forms of 
 halt- pay or pension, whether officer or private l 
 Militia Acts. * solclier ; nor even to tlie miHtia, as respects hfe 
 c. 90.789. N;c. or Hmb (except the stati'), any longer than 
 
 Mutiny Act, , . , i i • i r • « 
 
 $ii6,et.e4. while embodied tor service.* 
 
 ]J'^;'^;*™;,^J''' Military law has, in common with all others, 
 y. ^.(_i\oi«;67. j|.g g|.^jm.g3^ or Written hw {le.v scripta) ; and , 
 customs which arising out of necessity have 
 prevailed and become its common, or un- 
 written, law (lew )ion script a). 
 
 Of these the first consists in the " Articles 
 of War," and the annual " Act for punish- 
 ing ]\Iutiny and Desertion, and for the better 
 Payment of the Army and their Qu^ters (in- 
 fso, $126. to which all former Mutiny Acts resolve)," 
 by which they are from time to time legiti- 
 mated ; and such orders and regulations as 
 may be issued by his majesty, and are to be 
 found either in specific publications under his 
 royal authority or in the orderly books of 
 Tvtier'.s E'Niiy cvcry rcgimcnt, or both. The second is de- 
 ou^M. . Law. ^j^^g^j ^Yoni the general custom of war, the 
 practice of courts martial, the standing orders- 
 
 * A very inlelligi'iit view of the rise and progress of the mi- 
 litary law in En-^land will be found in the first chapter of 
 Tytler's Essay on Military Law, &c, ; and much interesting 
 matter on the !same subject in the second volume of Grose'* 
 Military Antiquities. 
 
MILITARY LAW. 
 
 adapted to the circumstances of every regi- 
 nijent, the collective experience of officers, the 
 authority of various antient and modern writers 
 on the subject, and finally the common law of 
 the land. 
 
 I. ITS STATUTES, OR LEX SCRIPTA. 
 
 1. Articles of JFar. 
 The statutory law of the army, as regards Afivc'« tr^tise 
 
 ■J •' ' ^ ou i\1il. Law. 
 
 the articles of war, is perhaps as antient as r.viier's Essaj 
 
 , . on ALL Law^. 
 
 any other part of the constitution of England; utsup. 
 and to the preservation of niany of its antient 
 ordinances, with the necessary emendations of 
 modern times, is, probably, owing that irregular 
 form which has rendered it, in the opinion of 
 
 a high authority, " vague and disputable ;" ra- J| 
 ther than its having been originally " passed in 
 a hurry :" not that it is meant to dispute the pro- 
 priety of Captain Grose's wish that it were bet- 
 ter arranged and rendered more explicit, suffi- 
 cient cause for which will be found under 
 several heads in the following pages, as re- 
 specting the duty of judge-advocate, &c. 
 
 2. Mutiny Act. 
 The best definition of the military statute 
 
 Grose's Mi'. Aii- 
 
 ii. 206. 
 
A GENERAL VIEW OF 
 
 law, j)aiticularly as relates to the act of par- 
 liament for punishing mutiny and desertion, 
 and the better payment of the arn^jy and its 
 quarters, is that of the late Earl Rosslyu, 
 while Lord Chief Justice of the Common Pleas, 
 on the only case where military law was ever 
 Procccdinpsof Submitted to the extreme niceties of legal dis- 
 aisoGraiiiv. cussion. "Itisonc objcct of that act," said 
 Rep. 1791;"' his lordbhip, "to provide for the army; but 
 there is nmch greater cause for the existence of 
 a mutiny act, and that is the preservation of 
 the peace and the saftty of the kingdom: 
 for, there is nothing so dangerous to the 
 civil establishment of a state as a licentious 
 and undisciplined army." The same necessity 
 for new attention to arrangement described 
 in respect to the articles of wry will be also 
 found to apply no less to the mutiny act. 
 
 
 3. General Res^ulations and Order 
 
 "O 
 
 s. 
 
 In the publications under this title, which 
 form an important part of the statutory law of 
 the army, it possesses an advantage superior to 
 any other law in all the characteristic prompti- 
 tude of military acts. Since, upon the discovery 
 of error or deficiency in any part of the law, it 
 may be immediately amended or supplied, and 
 pronuilgated to the army. And the minor laws 
 of the forces are with facility adapted to every 
 
II I LI TAR Y LAW. 
 
 occasion wliich may present itself; an object 
 impossible to be effected in the ordinary routine 
 
 of legislation. 
 
 II. ITS CUSTOMS, oil LEX NGN SCHIPTA. 
 
 1 . Curren t R iiles of Service. 
 
 The custom of the army, in its general sense, ^y![''a">so«'s 
 in all those fleeting circumstances which can- ^ >•• ° 6r. 
 not easily be reduced to rules, but which, from 
 common agreement and the necessity of the 
 thing, have become binding, as well as numerous 
 orders which have never been collected into 
 the general code, and the frequent correspond- 
 ence with head-quarters from various parts of 
 the world, on points in dispute, form a consi- 
 derable body of intelligence. 
 
 2. The Practice of Courts Martial. 
 
 The practice of courts martial, under various 
 circumstances, constantly ofter new rules for 
 guidance, and new facts; to which, by his ma- 
 jesty's orders, are added the proceedings 
 of all courts martial of importance, by a printed 
 circulation of them, and their promulgation at 
 the head of every regiment in the service. 
 These altogether form an extensive and in- 
 
GENERAL VIEW OF 
 
 teiesting common (or unwritten) law for the 
 army, which also, in cases purely military, very 
 often takes the lead. 
 
 3. The Commofi Law of the Country. 
 A<ivf« Treatise \^^ ^11 cases, whcrc neither the statutory nor 
 
 on to It Mart. 
 
 210, '256. &c. common law of the army M'ill suffice, the de- 
 
 &p. otCM. iiciency must naturally be supplied from the 
 parental source, the common law of England ; 
 and most especially in its forms, from which 
 indeed military courts ought never unneces- 
 sarily to deviate. 
 
 iiak, PI. c. Over the whole, the *' courts of commofi law 
 
 have super intendency,'" as well as the other 
 branches, ecclesiastical, maritime, &c. to the 
 end that they may be kept within their juris- 
 dictions; that it may be determined when they 
 
 Lieut. Frye'i excccd them ; to restrain and prohibit such ex- 
 
 Case, a|)ufl ' 
 
 Tviier&M'Ar- cess, and, iu case of contumacy, to punish the 
 aflicer wlio executes, and, m some cases, the 
 judge who enforces, the sentence so declared 
 to be illegal.* 
 
 * They are subject moreover to the investigation of. par- 
 liament, and to the prerogative of the king to dismiss any oflfi- 
 crr whose services may be no longer agreeable to his majesty, 
 although delinquency mny not have been proved against him : 
 and even after trial and acquittal. Adyo, \10; Tytler, 332; 
 M'Arthur, 1. 102, !. 208. 
 
WILITARY LAVV. 9 
 
 / 
 
 III. ITS RELATION WITH Til E C I V I L C LASS£S. 
 
 This division leads us to rlie relations which, 
 exclusive of a reciprocal aid that will be found 
 to exist between the military and common law, 
 have been established between the army and 
 the civil classes of the community. And first ^'j^^°^^^y^*J* 
 occurs that sweeping article, which, with a ^''-^ ^-^ 
 control elsewhere unkn(>wn, governs the very 
 manners of an officer, and renders him ac- 
 countable at every instant to a court ot pro- 
 priety. Whatever commanding officer (by his 
 majesty's articles of war) shall be convicted 
 before a general court martial of behaving in 
 a scandalous infamous manner, such as is un- 
 becoming the character of an officer and a 
 gentleman, shall i)e discharged from the ser- 
 vice. Provided, however, that, in every charge 
 preferred against an officer for such scanda^' 
 lous or unbecoming behaviour, the fact or 
 facts whereon the same is grounded shall be 
 tlearly specified. 
 
 By the mutiny act it- i^jexpressly declared JJ ^'J/^^^P 
 tbat nothing in it shall be construed to exempt ^"-^ 
 any officer or soldier from the orrlinary course 
 
 r*of law; and by it also, as well as by the arti- 
 • cles of wiir, it is enjoined that every com- 
 
 • iiianding officer deliver over to the civil power, 
 
4rt. 
 
 !0 GENERAL VIEW OF 
 
 Secci.risiinipus upon application, any officer, non-commis- 
 Alvus Edict, sioned ofHcer, or private soldier, accused of 
 
 apud Bruce, . • i i i i i r ^ 
 
 315. Tu.36. any crime punishable by the known laws of the 
 land, and aid the officers of justice in securing 
 him. For wilfully neglecting or refusing so to 
 do he shall, on conviction before a general 
 
 rt supra. court martial, be cashiered.* 
 
 And generally, said Earl Rosslyn, where sol- 
 diers are offenders against the civil peace, they 
 are tried by the common law. 
 
 A. o^ w. ib. >fo officer shall protect as military any un- 
 inilitary person ; nor any soldier not doing all 
 duties as such, continues the articles of war : 
 nor soldiers any farther than warranted by the 
 
 n.- Mu'tm^iJc '""^^"Y '^^^- This at present only enjoins that 
 
 49Gco. lii. no soldier shall be arrested but for just cause 
 
 cap. IL'. 5 9?. '' 
 
 of action, criminal or civil, nor unless affidavit 
 of debt of twenty pounds, exclusive of costs of 
 suit, be previously made; (which must be in- 
 dorsed on the back of the writ ;) otherwise, on 
 complaint of the soldier or any superior officer 
 to any judge of the court out of which it is- 
 sued, he may examine into and discharge it 
 lb. « 1*9, 100. li'itli costs. (No soldier arrested for debt, nor 
 confined under conviction of any criminal of- 
 
 * This is not however to extend (the fourth article is found 
 necessary to shew) " to Gibraltar, Malta, or any other place 
 beyond sea, where there is no form of civil judicature in 
 force." 
 
MILITARY LAW. 11 
 
 fence, is entitled to pay from that period till ib. 5 98 
 his return). 
 
 At tlie same time, to favour the snit of ho- 
 nest creditors against persons inlisting, instead 
 of an arrest, at once injurious to themselves and 
 the service, any plaintiff, upon notice first 
 given in writing of the cause of action to the 
 person inlisted, left at his last place of resi- 
 dence before inlisting, may file a common ap- 
 pearance in any such action, so as to entitle 
 him unexpensively to proceed to execution. 
 
 Any officer, who, without leave, shall kilUb. §7i. 
 game, on oath of one witness before a justice, 
 forfeits live pounds for each offence, to be 
 given to the poor ; and, for every such offence 
 committed by a private soldier, every officer 
 commanding in cliief shall forfeit twenty shil- 
 lings. Either officer, neglecting to pay such 
 fine for two days, forfeits his commission. 
 
 Commissioned officers forcibly entering ib.«p4. 
 house or outhouse, without the warrant of a 
 justice, (which he is empowered to give,) on 
 pretence of searchiuL!: for deserters, to forfeit 
 twenty pounds. 
 
 But, again, the civil })ower was long en-ib. 491. 
 joined to assist in the apprehension of all mili- 
 tary offenders ; and, by rewards, is still en- 
 couraged to apprehend deserters ; constables, 
 &c. being warranted in taking before a magis- 
 trate any person suspected of desertion ; and 
 
IC GENERAL VI EM' OF 
 
 lb. §93. magistrates, on conviction, in committing him 
 to goal, and paying the reward. 
 
 And any person harhouring or conce&hng a 
 
 lb. |6«. deserter, knowing him to be snch, forfeits, on 
 
 conviction, by the oath of one witness, before 
 a justice of peace, twenty pounds. And, in 
 the same way, receiving, buying, or ex- 
 changing, the necessaries of soldiers, renders 
 the parties liable to a tine of five pounds, im- 
 prisonment, or whipping. 
 
 lb. « 41, ct seq. Thc civil powcr provides quarters and pro- 
 vision for the army in its cantonments, and the 
 means of transporting its baggage on the 
 
 Ih.jfn. niarch. Magistrates may also extend furloughs 
 
 to sick soldiers. 
 
 The march of an army, or its officers on 
 duty, horses, carriages, &c. are free from all 
 
 it^ap. tolls, exce|)t tliose of canals, or where others 
 
 wise particularly excepted by law. 
 
 Magistrates have also a certain power to call 
 to their aid the military force in their vicinity, 
 
 4R G-r. TIT r. ;md a positive one, at all times, tocalloutthe 
 
 i 1 i i; 4 i . ' . . 
 
 local militia. And the military force may be re- 
 moved, in deference, from that vicinity, wheur 
 ever it becomes the scene of election of mem- 
 bers to j)arliament, or the administration of 
 justice by the judges of assize. 
 Mnt ^^t,i!l.''o. j.\j, j)tirj)oscs of remedy also the mutiny 
 act, as far as relates to the civil classes, may at 
 ail times be altered and varied. 
 
miLITARY LAW. 13 
 
 IV. SPECIFIC JURISDICTION. 
 
 The specific jurisdiction of military law in- 
 cludes " Any person who is, or shall be, com- 
 missioned, or in pay, * as an officer, or w hu is, 
 or shall be, listed or in pay as a non-commis- 
 sioned officer or soldier;" all Serjeants and 
 non-commissioned officers, and persons em- An. of War. f 
 ployed on the recruiting service, receiving any Mm..^^t,§uu 
 regular pay in respect of such service ; and all 
 suttlers and retainers to a camp; and all persons 
 whatsoever serving, with his mHJf sty's armies in 
 the field, though not inlisted soldiers: " Artil- 1^-> ^<^- 
 lery, engineers, military surveyors, and drafts- 
 men, mihtary artificers and labourers, master 
 gunners, and gunners under the ordnance:" i**- 5 ^^o. 
 also, " Troops in pay, raised or serving in any 
 of his majesty's dominions, or place occupied !*>.]? ur, 
 by his majesty's subjects or forces while un- 
 der the command of any officer having a com- 
 mission immediately from his majesty:" in 
 ^hort, " All oflicers and soldiers of any troops, 
 being mustered and in pay, which have been, 
 
 * This includes brevet, (commi'^sioiied,) but not h(tfj-pay, 
 wrtii'iTs, nor oj' cuurse |;cii>ionc'd private soldiers uiitftijiuj^ed 
 M\ tl.v service. 
 
 T^lUr, M'Jrtfiur, &c. 
 
14 GENERAL VIEW OF 
 
 or are, or shall be, raised or serving as afore- 
 said, shall, at all times, and in all places, be lia- 
 
 ib. $112. ]j1c to martial law and discipline, &c. " Ne- 
 groes also, purchased on account of his majes- 
 ty's force, become free, and arc to be considered 
 as soldiers having voluntarily inlisted, (except 
 as relates to the rewards of pension and limited 
 periods of service.) 
 
 lb. §116. Militia and fencibles, when embodied, and 
 
 in actual service, are subject to the same regu- 
 lations, restrictions, and penalties, as are im- 
 posed on the officers and soldiers of the rest of 
 the army by this act. 
 
 lb. §115. And so are yeomanry and volunteers, as far 
 
 as compatible with the acts by which they are 
 respectively governed. 
 
 iiaic.pi. Cor. c. ^]so alicns excitino: treason and rebellion, 
 
 10. 1.^. Tvtier ^ . ' 
 
 EssayoaM. L. accordins: to Lord Chief Justice Hale ; but for 
 
 128. ° .... 
 
 this case there is no particular provision in mili- 
 tary law. * 
 
 And, as to the actions and crimes of whicli 
 
 military law is to take cognizance, after a fidl 
 
 Art. ofWar. lenumcration of such as can be specified, '' All 
 
 S> 24. art. 2. . 
 
 M. A. $118. crimes, not capital, and all disorders and ne- 
 glect, of which officers and soldiers may be 
 guilty, to the prejudice of good order and mili- 
 tary discipline, though not specified, " are in- 
 
 * Tiie incendiaries of the clocks at Portsmouth were tried 
 by commission. 
 
MILITARY LAW. 
 
 eluded by a sweeping clause ia the articles of 
 war. 
 
 This jurisdiction is protected by various ib-j "9. 
 auxiliary regulations * derived from the civil 
 pou'er; thus, a false oath under it is ''perju- 
 ry to all intents and purposes." 
 
 Persons sued for any act, matter, or thing, 
 done under it, may, except in Scotland, plead 
 the general issue, not guilty, and give such 
 special matter in evidence, which, being plead- 
 ed, had been suliicient to have discharged the 
 defendant; and, if a verdict be obtained for 
 the defendant, or the plaintilf beconie nonsuit, 
 or discontinue his action, the defendant shall 
 have treble costs, recoverable in the usual way. r». jist. 
 7'he same advantage to be derived in Scotland, 
 when the court shall see fit to assoilzie the de- 
 fendant, or dismiss the con)j)laiut. 
 
 All suits are to be brought in some of the ib. § 120, 
 Courts of Record, at Westminster or in Dublin, ^ 
 
 or the Court of Session in Scotland. 
 
 Persons inducing or aiding in the military ib.$ 12s. 
 crime of desertion, in any way, forfeit one 
 hundred pounds ; or, if unequal to the forfeit, 
 or such forfeit shall appear not to be asufiicient 
 punishment, to be imprisoned for any time not 
 exceeding twelve months, and to stand in the 
 
 These extend btill faillier in favour of the naval laws. 
 
IG ftESERAt. VIEW 09 
 
 pilloryfor one hour in tlie most public place 
 in the vicinity, wherein the offence was 
 coniniitted. These penalties, when occur- 
 
 iy§i23,ti4. ing in England, to be recoverable in any 
 Court of Record, at Westminster; in Scot- 
 land, in his majesty's Court of Exchequer 
 for Scotland ; iu Ireland, the Courts of Re- 
 cord in Dublin ; in Guernsey and Jersey, in 
 the respective royal courts of those islands ; 
 and, when in the isles of Alderney and Sark, 
 in the royal court of .Guernsey ; in the Isle 
 of Man, in any of its Courts of Record, or in 
 any Court of Record at Westminster : and, 
 in short, for any " such offences as shall be 
 committed in ani/ of the dominions of his 
 majesty, the penalties may be sued for and be 
 recoverable in any Court of Record of his 
 majesty in the place where the offence shall 
 have been committed." 
 
 Tb.i i?3. All actions and prosecutions, however, in this 
 
 last respect,' are to be commenced within six 
 months after the offence is committed. 
 
 lb. ^1.7. And *' no person shall be liable to be tried 
 
 and punished for fl«j/ ofi'ence against any mu- 
 tiny act or articles of war, which shall appear 
 to have been comniitted more than three years 
 i)efore the issuing of the commission or war- 
 rant for such trial, unless the person, by ab- 
 sconding or some other impediment, shall not 
 have been amenable to justice within tliat 
 
Wir.ITARY LAW. I7 
 
 period, and then not exceeding two years after 
 the impediment shall have ceased. 
 
 And no persons acquitted or convicted ori^i. $:5. 
 any offence, hy the civil magistrate, is liable 
 to be punisiied by a court martial for tlicsame, 
 otherwise than by cashiering. 
 
 Witnesses summoned to attend upon military ib. ua. 
 courts, (who are privileged from arrest, &c.) 
 and neglecting, are liable to be attached in 
 the court of King's Bench, in London or Dub- 
 liuj or court of Session in Scotland, or college 
 of law in the West Indies, oiv complaint re- 
 spectively made to theni; 
 
 Though the act for preventing mutiny and ib. $ 129. 
 desertion, &c. from which the whole author 
 rity of military law is derived, expires annu- Tvtier, Ks-ay 
 ally on the <^4th of March, in Great Britain lir,' ''^' 
 and beyond sea, on the 31st of .March in Ire- 
 land, and 30th of April in Jersey, Sec. vet no Art. of War, 
 procedure expires with it, since it is immedi- 
 ately succeeded by another, authorising the 
 same articles of war, and with enactments, 
 differing from the former only according to 
 the circumstances or improvements of tlic time. 
 
 The privile"-es even of parliament do not -M'Ani.ur's 
 
 ... . . . t'r. Hfid i'ract. 
 
 exempt military persons from military law, oiC.M. i.-ijr. 
 though the courtesy of an intimation previous - 
 to arrest is used, and a prosecution may be * 
 
 brought in a court martial, at tiie suit of a 
 person who is himself not subject to military 
 c 
 
IS GENERAL VIEW OF 
 
 Tytipr. Essay jurisdictioii, proviclccl the offence be of a mi- 
 
 on Mil. Law, J ' « 
 
 ^"' litary nature, and committed by a person under 
 
 military la\v^. 
 
 V. ITS EXTENDED JURISDICTION, IN THE 
 PROCLAMATION OF MARTIAL LAW. 
 
 Tytior, Essay Such (says the judgc - advocate for Scot- 
 p. an." '"' land) is the regular tenor of the operations of 
 the civil and military law in times when the 
 state enjoys its ordinary tranquillity. But there 
 are extraordinary seasons, when the body po- 
 litic, like the natural, is affected by disease, 
 and when absolute necessity authorises the ap- 
 plication of extraordinary remedies. So the 
 connnon and statutory law, which, In ordinary 
 times, is adequate to the coercion of all of- 
 fences, may be found in times of extraordinary 
 turbulence and alarm, utterly inadequate to 
 the repression of the most dangerous crimes 
 against the state. The slow and cautious pro- 
 cedure of the king's ordinary courts of justice 
 keeps no pace with that daring celerity, M'hich 
 attends the operations of rebellion ; nor are 
 their regulated forms, and publicity of proce- 
 dure, fitted to bring to light the dark designs 
 of a conspiracy. In such seasons, therefore, 
 the constitution possesses in itself that remedy 
 which is necessary for its own preservation. 
 
MILITARY LAV. 19 
 
 I^y tlie authority of King and Parliament, 
 martial law, and the mode of summary trial 
 by courts martial, is enacted for a limited 
 time, either over a part or the whole of iht: 
 kingdom where such rebellion may exist. 
 
 This apology, however, would, with diffi- 
 culty, have been received by the people of 
 Great Britain, fondly resting on the various tro- 
 phies which decorate their temple of liberty, 
 Magna Charta, the Bill of Rights, and Trial by 
 Jury, if the effects of martial law continued to 
 be such as they had experienced in the un- 
 settled times of Britain ; and, as it appears 
 from those writers, whose works form the 
 common law of the land. Jugl'ue jura in oiniii foxtescnt Ac 
 
 Z- 1 , .• 1 , r iaiidibns. Leg. 
 
 ibcrtati dantjavorcm. An-, c. 41. 
 
 But, says the Lord Chief Justice of the Gram, v. sir 
 
 -, „, • 1 1 1 . . C. Gould, Trin. 
 
 Common Fleas, martial law, such as it is xonu, i7yt. 
 described by Hale, and such also as it is 
 marked by Sir William Blackstone, does not 
 exist in England at all : and his lordship's as- 
 sertion (however true Judge Blackstones 
 might also have been of his own time, thirty 
 years before) is certainly capable of proof in 
 the unhappy occurrences in Ireland a few years 
 since, which occasioned this resource, it is 
 even there found to be more mild than could Prochi^. ©f 
 liavc been experienced before. ' i^^t- irya. 
 
 AVherc martial law prevails, (continued Lord 
 Loughborough, afterwards Earl Kosslyn.) the 
 
 o 
 

 20 GENERAL VIEW OF 
 
 authority under which it is exercised claims a 
 jurisdiction over all military persons, in all 
 circumstances ; even their dchts are suhject to 
 inquiry by a military authority. Every species 
 of offence, committed by any person who ap- 
 pertain to the army, is tried, not by a civil 
 judicature, but by the judicature of the re- 
 giment or corps to which he belongs, &c. 
 His lordship then goes on to prove, from a 
 variety of circumstances, that lately the civil 
 power has been paramount in England. 
 Ub.Supr.376. The statute for the enactment of martial law 
 (continues ]\Ir. Tytler, and after him IM'Ar- 
 thur, &c.) ordinarily proceeds on a narra- 
 tive of its inductive causes, in order that the 
 subjects in general may be certified of the 
 necessity of this strong measure ; and that, 
 while the full extent of its object is perceived, 
 no unnecessary alarm may be excited in the 
 minds of the innocent and wcll-affcctcd part of 
 the community. The right of the legislature to 
 adopt this violent but necessary remedy, and 
 to invest the crown with this extraordinary 
 power of the sword is likewise pointedly as- 
 serted on constitutional principles, that all may 
 perceive its entire legality. It is then de- 
 clared, that it shall be lawful for his majesty, 
 or for any chief governor, or commissioner, 
 whom he shall appoint, during the continuance 
 of tlie rebellion, and whether the ordinarv 
 
MILITARY LAW. 21 
 
 courts of justice sliall or shall not be open, to 
 issue his or their orders to all officers com- 
 manding his majesty's forces, and to all others 
 whom he or they shall think fit to authorize, 
 to take the most vigorous and effectual mea- 
 sures for suppressing the said rebellion in any 
 part of the kingdom, which shall appear to be 
 necessary for the public safety, &c. and to 
 punish all persons acting, aiding, or assisting, 
 in such rebellion, either by death or otherwise, 
 as to them shall seem expedient. The statute 
 likewise gives a power to arrest, or detain in 
 custody, all sus])ected persons, and to cause 
 them to be brought to trial in a summary man- 
 ner, by courts martial, and to execute their 
 sentences; and releases all who act under its 
 authority from responsibility to the oth^r 
 courts. 
 
22 PRIMARY OBJECTS OF 
 
 PART II. 
 
 PRIMARY OBJECTS IN THE GOVERNMENT 
 
 01- THE MILITARY FORCE OF 
 
 GliEAT BRITAIN. 
 
 I. RELIGIOUS INSTITUTES OF THE AUMV 
 
 Art. of^'ar, TO preservc a due reverence for rehqion, no 
 
 j 1. Alt. 1. , ^ . , 1,1 
 
 where more aciively necessary than throughout 
 every rank of the army, it is by one of the 
 most ancient articles of war enjoined, that all 
 officers and soldiers, not having just impedi- 
 ment, shall, diligently,' frequent divine service 
 and sermon, in their respective quarters, and 
 behave decently and reverently, under the 
 pain, on o\ 'ssion in eiiher case, if a commis- 
 sioned officer, of l;cing reprimanded before a 
 court mart':' I, by the pre?»i(lcnt; if a non-com- 
 n.issioued "Iticer, or private soldier, of forfeit- 
 ing tuc!vcper:ce, out of his next pay, for the 
 f^l^t ()n\i:ce; and, for every repetition, in ad- 
 th'tioii to the same fine, lo be laid in irons 
 for twibc .jourb. The money to be applied to 
 
Jj'ILITARY LAW. 2S 
 
 the use of the sick soldiers of his troop orcen. Reg.and 
 
 , ^ ^, . . ■, ,. Ord.(ia()4)3.). 
 
 company: and tor this article commanding $ i and 2. 
 officers are responsible. The same penalties 
 are incurred by any unlawful oath or execra- 
 tion. 
 
 And any officer, non-commissioned officer, ^^^ M- a..". 
 or soldier, speaking against any known arti- 
 cle of the Christian faith, is ordered to be de- ' 
 livered over to the civil magistrate. This 
 crime will, however, be easily perceived to be 
 triable by court martial, under many sweep- ib. $ i.'4. a. 2. 
 ing clauses, as un-oflicer or un-soldicr like 
 conduct, &c. 
 
 And it is expressly ordered, that, for profa- ib. § 1 a r 
 nation or violence to any place of worship, or 
 chaplain, tjiey shall be liable to such punish- 
 ment as by a general court martial shall be 
 awarded. 
 
 The religious service of the army is under i'j- ^ ^-^^ 
 the direction of a chaplain-general, wlio issues 
 his regulations for its government, in the usual 
 course of the war-otfice, appointing, or rather 
 allowing to garrisons, regiments, &c. their re- 
 spective chaplains, where necessary. 
 
 The duty of regimental chaplains is, of 
 course, the ordinary ones of his profession. 
 On service, he visits the hospital, and pci forms 
 the funeral ceremonies. 
 
 No cha[>lain, who is commissioned to a regi- 
 ment or garrison, is to absent himself, (except 
 
i-* PRIMARY OBJECTS OF 
 
 in case of sickness, or leave of absence,) under 
 pain of punishment, at the discretion of a 
 court martial. Nor is he to be guilty of drunk- 
 enness, or other scandalous or vicious beha- 
 viour; on proof of which, before a court mar-^ 
 tial, he is to be chsmissed from his office. 
 These courts martial, though not so specified, 
 are doubtless to be general. 
 
 Such are the simple, though comprehensive, 
 
 institutes of the army, for the preservation of 
 
 religion and its establishments; institutes which 
 
 have, however, been extended by the example 
 
 iifxand. ab. of thc sfrcatest o-cnerals, and politest gentle- 
 
 AJcxand. L. 3. ,? „ , , . r- , 
 
 men, or all ages, and the importance or a due 
 attention to which must be manifest from the 
 frequent necessity of applying the religious 
 ceremony of the oath to an army. Uninr 
 structed as are the very humble class of pear 
 sants, from which are often drawn the llowcr 
 of our forces, wliat value would they attach 
 to a pledge which disregard of the essential 
 points of religion should render a nullity ? 
 Without supposing, with an old military writer, 
 Sirjame^Tur- thut " mcu wlio follow thc War assume to 
 
 ni'r'i. I'iillas Ar- . 
 
 Diau. themselves a greater liberty to sin than other 
 
 mortals do, as it' thp entering themselves in a 
 militia did let them loose from all civil bonds 
 and ties of society ;" a more marked attention 
 to the religious establishments of the country 
 may be safely urged in the army. Since, ex-. 
 
MIMTARY LAW. 
 
 elusive of the duty to support the constitu- 
 tion in cluircli and stale, (it has been well 
 observed) that *' every quahty, which is en- 
 joined by Christianity, as a virtue, is recom- 
 mended, by poHteness, as an acconipHshment ; 
 gentleness, humility, deference, affability, and 
 a readiness to assist and serve, on all occa- 
 sions, are as necessary in the composition of 
 a true Christian as in that of a M-ell-bred man. 
 passion, moroseness, peevishness, and super- 
 cilious self-sufticiency, are equally repugnant 
 to the characters of both."' 
 
 II. MEDICAL INSTITUTES. 
 
 The health of the army is preserved by the 
 regular appointment of surgeons, wherever 
 they can be required, in numbers proportioned 
 to the strength or importance of the care to Om. i^f?:..!*- 
 Avhich they are appointed, with the controul ofdcr/.Tsoi/* 
 a medical inspector-general, his deputies, Sec. Kc!"s,!'Sois, 
 
 It is the duty of general, and even ordinary, ^*^' ^'*"*'" 
 pflicers of the day also to visit and report the 
 gtate of regimental hospitals. 
 
 ■The extensive duties of regimental surgeons re- 
 quire, and will, no doubt, obtain some regula- 
 tions, at least, as explicit as those which respect 
 the conduct of chaplains, in addition to the pre- 
 sent, which direct their peculiar duties. On 
 
2ti PRIMARY OBJECTS OF 
 
 thein depend the inlistiDcnt of a hcaltliy force, 
 and the preservation of its strengtli; and, per- 
 haps, on the skill of a young junior assistant-*^ 
 surgeon in his report may depend the com- ] 
 mission of a veteran otiicer in a doubtful . 
 5c-eaisoBn.ee'silhiess ; slucc, thoucjh thc scctioH on counter^ ,1 
 
 iMil. Tust. i'JiO. . , • 1 . 1 • 1 i 
 
 Tu. 8o,5, &c. leitmg s.ckness has been omitted in thc articles | 
 of war of latter years, its influence still remains i 
 in other forms. And it is yet even imdeter- | 
 mined how far the regimental surgeon is to at- '] 
 tend the sick officers of his corps. I 
 
 In all these respects, however, (as well as in 
 their capacity of ofiicers,) surgeons are, of :^ 
 course, liable to the jurisdiction of military 
 law, under the sweeping clauses of its statutes ; ^ 
 
 Tvtiei'sE. on and mav moreover be prosecuted at the suit of 
 
 Mil. L. 211. , . ' . 
 
 (Note.) a coroner, making an inquest even on a de- 
 
 Case at Nor- . , . 
 
 uich, i7yy. ceased private soldier. 
 
 In all corporeal punishments, the regimental 
 surgeon attending is, for the time, paramount 
 to the commanding otiicer ; in those of flagella- 
 tion it is his duty to point out when the consti- 
 tution of the sufllerer will not permit farther pu- 
 te-imcm:.i nislimcnt with safety. The instant, says Major 
 Comp. v.ii. p. j^^^pg^ j-Ij^j- .^^ military culprit receives a lasli, 
 the surgeon is responsible for his life. 
 
 The professional duties of regimental sur- 
 geons are detailed in particular " InstiuctionSj" 
 issued from the llorsc-Ciuards. 
 
MILITARY LAAr. fif 
 
 III. THE ADMINISTRATION OF JUSTICE. 
 
 In the following arrangement \\\\\ be seen 
 the laudable care whicli has been exercised to 
 meet every end of justice in the army of Great 
 Britain. Nothing remains but that, in the 
 subordinate ranks of power, it should be ex- 
 ecuted with purity. Nor can any species of 
 force be hoped to be efficient where this maxim 
 docs not invariably prevail: — Fiatjustitia mat 
 
 1. Police of the Army, 
 
 i. Preservation of the Peace and Prevention of 
 
 Challenges. 
 
 While preserving the influence of that livel}' 
 sentiment of lionour, which must ever pervade 
 the conduct of a military force, it is yet found 
 necessary to prescribe bounds to the intem- 
 perance of youth, and the irascibility conse- 
 quent upon injury, real or supposed, in those 
 whose reasoning is necessarily directed on all 
 occasions to an appeal to arms. 
 
 It is, therefore, most properly enjoined by^J-^^^^^j" 
 the Articles of War (to the ancient cognizance 
 
28 PRIMARV OBJECTS OF 
 
 i 
 
 of which, hke religion, it is left hy the mutin}'- 
 act) that *' No officer, non-comnnssioned of- 
 ficer, or soldier, shall use any reproachfal 
 or provoking speeches or gestures to another, . 
 upon pain, if an officer, of being put in ar- | 
 rest; or, if anon-commissioned ofiicer or sol- 
 dier,- of being imprisoned, and asking pardon 
 of the party offisnded in the presence of his 
 commanding officer. 
 
 lb. <E r. Alt. 2. That none shall presume to give or send a 
 challenge to fight a duel, under pain, if a com- 
 missioned officer, of being cashiered; if a non- 
 commissioned officer or soldier, of suffering 
 corporeal punishment, at the direction of a 
 court martial. 
 
 ib.s<7. Art.3. jf ^j-,y commissioned or non-commissioned ^ 
 officer, commanding a guard, shall knowingly 
 and willingly suffer any person whatsoever 
 to go forth to fight a duel, he shall be punished 
 as a challenger. And likewnse all seconds, pro- 
 moters, and carriers, of challenges. 
 
 Alloihccrs, of what condition soever, have 
 power to quell all quarrels, frays, and disorders, 
 though the person should belong to another 
 regiment, troop, or company ; and either to 
 order officers into arrest, or non-commissioned 
 oihccrs and soldiers to prison, until their pro- 
 per superior officer shall be acquainted there- 
 Avith. And whoever shall refuse to obey such 
 officer (though of inferior rank) or draw his 
 
 lb. < 7. Art 1. 
 
MILITARY LAW. 29 
 
 sword on him, shall be punished at the discre- 
 tion of a general court martial. 
 
 The same punislnnent applies to any one who ^b. i 7. Art. 5. 
 shall reproach another for refusing a challenge; 
 *' and/' says the Articles of War, " We hereby 
 acquit all officers and soldiers of any disgrace 
 or opinion of disadvantage which might arise 
 from their having refused to accept of chal- 
 lenges, as they will only have acted in obedi- 
 ence to our orders, as good soldiers, &c." 
 
 All this is law ; and an officer who shouKl 
 sliew himself addicted to quarreling, and chal- 
 lenging, on frivolous occasions, his brother- 
 otHcers, or defending errors, or refusing tp 
 accede to a rational explanation, as such con- 
 duct would be inconsistent with tlie character 
 of an officer and a gentleman, would not es- 
 cape with impunity. 
 
 And be it remembered, that, whatever tlie 
 feelings inherent in the military character 011 
 the subject, on such a conduct being practised 
 towards any one in the civil classes of the com- 
 munity, who shall chuse to prefer to the ordinary 
 civil courts an application to military law, 
 the court martial, which must be ordered on 
 application, must take that part of the third 
 article of tlic seventh section of the Articles of 
 War which extends to " anv person whatso- ''' ^ ^- -^'^ 
 
 ' 'J, :j. 
 
 ever," to apply equally to the second trticle, 
 
50 VRIMAUV OBJECTS OF 
 
 and in consequence sentence the military offen- 
 
 der to be—" Cashiered." Ijc 
 
 To the conflicts of private sokliers it need jff 
 scarcely be added that this prescription ex- 
 tends in full force. 
 
 But, while such is decidedly the law of the-'* 
 case, paradoxical as it may appear, with all the 
 denunciations against " the challenger" before j 
 his eyes, the officer who should permit the use ! 
 of opprobrious ed^prcssions towards him, much 
 LESS A BLOW, or indeed any conduct from 
 another that should degrade him, or in the 
 smallest degree impeach his courage, would be 
 liable to be arraigned before a court martial, 
 for conduct unbecoming an officer and a gentle- 
 man; and at the least to a council of in- 
 quiry of his brother-officers, whose decisiorl 
 could not amount to less than the resignation 
 of his commission. 
 
 In either case — that of the challenging quar- 
 reller, who destroys all the pleasures of society, 
 or of the person whose meanness or indecision 
 renders him a palpable butt to the stupid tri- 
 umphs of wanton insolence — such representa- 
 tions never fail of being made to his majesty 
 as induce him to dispense with services so little 
 honourable to his cause. 
 
 Here is one of many instances iu which 
 every commander becomes answerable to God 
 
JIILITARY LAW. 3t' 
 
 and Ills country for a scrupulous exertion of 
 cool and impartial judgement, of exact and dis- 
 criminating decision.* 
 
 Yet, notwithstanding all tliat lias been said, 
 there are cases of opprobrium, in the unworthy, 
 which even the delicacy of the military cha- 
 racter does not require to be washed away 
 by the blood of an innocent and honourable 
 man ; and which every principle of reason and 
 propriety in fact demand to be cleared by tlie 
 cool investigation of a general court martial. 
 Such are those which specifically attack cha- 
 racter, and which the sacrifice of a thousand 
 hvcs could not disprove, when, perhaps, sub- 
 mitted to the laws of evidence, they sink into Case of ricut. 
 contempt, or rail with redoubled vengeance onxriiioiCoioiiei 
 the head of tlicir " mi gentlemanly'' propaga- -'"'"'^ '-'"*• 
 tors. 
 
 * Since, liowcver, it will be seen that there arc cases in 
 which, notwitlistaiuliniT theoxplicit declarations of tlic written 
 law, the custom of tiie service would s^eein to denuind a re- 
 ference to arms, although any regulations of an illegal act 
 cannot be attributed te positive law, yet, whore custom has 
 establij;hed certain provis-ions, tending to lessen the bleach of 
 society, an attention to wliicli also might tcii.t i^ a tjn at mi- - 
 tigation of the common law on the part of a survivr in the 
 unhap|)y termination of a dispute, a brief sketch of them can- 
 not at least be deemed impertinent. 
 
 ... , 11/.- , . Con. Failrs and 
 
 Avoiding any observation on the law of ancient combat, it in»jtnct.ons lor 
 
 is properly observed, by an intelli<je,nt oflicer, who has formed ''••'^^'""^* '" 
 
32 PRIMARY OBJECTS OT 
 
 Gen. Order., Sucli, to "JO 110 fartbcF buck, would appear 
 
 <jtli~Dcc. 1W)9. , , . . . 
 
 procccdin-^ G. to DC tlic casc ot Licutcnant Kingston, ot the 
 ipswich.'*Vw llertfbidsliire regiment of militia, for the basest v 
 
 iiialot Captains » 
 
 Goakuiaii, ____—_»_ „—■ ^ y 
 
 Jsccling, and ' 
 
 iUfibundcr. jj^g u General rules for second?," that " Whenever a gentle- ^ 
 man has the misfortune to be solicited in friendship to under- 
 take upon himself this serious oflice, he ought to inform * 
 himself niost minutely of every particular in dispute, and 
 duly reflect upon the nature of it. lie is then to try, and I 
 even rack, his invention, for any new and reasonable light -l 
 that can be thrown upon it, in order to reconcile the party ^ 
 aggrieved. 
 
 Jf, however, it should so happen that the oflcncc is of that 
 magnitude as to preclude any explanation, he must then de- 
 termine according to the right or wrong of the party thaf 
 applies. If it be the former, he must readily attend him, 
 but, if the latter, it should be done with the utmost reluctance, 
 and only on this condition, that, having tlic odium of being the 
 flagrant aggressor, he goes upon the ground to make a proper 
 Atonement, and nothing more; that he passes his word of ■ 
 honour to make no attempt upon the life of his adversary, ' 
 atid leaves him to his own satisfaction. 
 
 When young men are made captious by over drinking anci 
 the want of rest, they will take unreasonable olfencc at the 
 most innocent things, demand immediale satisfaction, and 
 stagger from the bottle to the field. The sufl'ering tlu-m to 
 fight in a state of drunkenness is preposterous, becau^e no 
 man's courage is the better establi>licd by any thing he does iri 
 such moments. 
 
 Supposing, however, that the seconds have used every 
 honouraljJe means of adjustment without avail, it is a fortu- 
 fiate circumstance that the sword is so much laid aside, and 
 pistols made use of, from the inequality of skill, the number 
 of wounds, and the difficulty of curing ihcm from the de«p- 
 
MILITARY LAW. .'33 
 
 calumniation, of wliom even to the charge of 
 unnatural propensitieSy three officers of the 
 
 n<»8 of their extremities. For those who are so desperate as 
 to chuse these weapons, the seconds are to observe, 1 . That the 
 swords are of equal length. 2. That the sod they stand on is 
 clear, dry, and even. And, 3. above all, that the combatants 
 be placed as far asunder as that they must advance to each 
 other before they can come to the assault. 
 
 " For pistols the first thing is the choice of ground; liigh- 
 ways or footpaths, or under \>'alls, or hedges, or along the 
 ridges of a field, are to be avoided; since, forming so many 
 lines of direction, they unnecessarily endanger the parties ; the 
 ground should be in an open situation, and crossway of the 
 ridges, if there are any. 
 
 The bloody distances of eight and seven yards are some- 
 times given by unskilful seconds ; so that, when the parties 
 eome to present, the mouths of their pistols are no more than 
 four or five distant, leaving no chance for their lives ! Ten 
 yards is the nearest distance that parties sliould be sulfeied to 
 fight at ; and the man who abides by his fate, at such a dis- 
 tance, makes an honourable expiation for any misdemeanour. 
 In trivial disputes, twelve or fourteen yards may well be 
 given, and all matters of this kind are wisely taken from the 
 power of the principals. To prevent the distance being 
 lessened, also, particular orders should be given for the ad-*" 
 vanccd foot in presenting; for, if they step beyond, instead 
 of to, the mark of distance, they clearly gain a yard upon 
 each other. A good and sufficient mark must be placed, 
 and orders given for no advance beyond it, when they come 
 to fire. By stepping to fire, advancing the foot, and incli- 
 ning in the act of presenting, the body will be sunk some 
 inches, and many a head has been so saved. 
 
 The ridiculous custom of adjusting the mode of fighting, 
 D 
 
34 TRIMARV OBJECTS Oi 
 
 same regiment, his superiors, were brought to 
 trial by a general court martial, on the 27th of 
 
 by tossing up a piece of coin, to determine which of the 
 princrjials is to have the first shot ; and of alternate liring, 
 to punish the party conceived to be wrong, by making him. 
 receive the first fire ; are to be equally avoided, and the 
 firings to take place by signal of the seconds, the voice not 
 being always sufficient, and the signal prevents the eyes of 
 the combatants from being fixed on the object of cither aim. 
 
 A second must never deliver a pistol cocked ; nor a fresh, 
 one without first using his utmost endeavours to reconcile the 
 parties. Tor, though wrath and revenge may actuate the 
 principals, the seconds arc to feel nothing but humanity. 
 
 The seconds examine and load the pistols in presence of 
 each other. 
 
 These modes arc perfectly competent to every honourable 
 purpose in the field, and are free from absurd and unneces- 
 sary danger. 
 
 If any clear and decided injury lias been done by either of 
 the parties to the other, he will only present, in order to in- 
 terrupt the aim of his adversary ; on receiving his fire he 
 will instantly recover, and then submit himself to the gene- 
 rosity of his enemy, and the endeavours of the seconds, 
 which cannot often be unavailing. 
 
 Most duels have their origin at play or the bottle; in- 
 sulting language returned by worse produce them, instead of 
 dignified explanation. Something like the following is re- 
 commended. " Sir, the company will remember your im- 
 proper behaviour. 1 have too much respect for them to 
 stay any longer. 1 shall hope to hear from you in the course 
 of to morrow'; if not, you will be sure of hearing from me." 
 'i'liis would give time for recollection, and provcnl the parties 
 to the quarrel from being aujfmenled. 
 
MILITARY LAW. 35 
 
 October, 1809; two of whom were dismissed, 
 with a subaltern oHiccr, whose testimony ap- 
 peared to be given under all tlie influence of 
 party. From the recital, as " general orders," 
 (which the army owes to that most useful vi- 
 gilance of military administration, exercised m 
 the circulation of such judicial proceedings as 
 may form precedents for the government of 
 future courts,) it appears, that, without "the 
 slightest imputation whatever on the honour 
 and character of Lieutenant Kingston, of the 
 purity of whose intention there does not exist 
 in the mind of any member a doubt — whose 
 character remains, in the estimation of every 
 member of it, pure, untainted, and unblemish- 
 ed, " officers of the rank of captain had not 
 liesitated to descend into the common sewer 
 of infamy for the creation of a charge, of 
 crimes which the English law, declares iiujit to 
 be 7iamed among christians, (peccatum illud hor- 
 rihile, inter christianos non ?tommandu?n); of 
 which military law does not stain its annals 
 by any recognizance, and which cannot even 
 be mentioned with a name without injury. 
 
 All that a gcntlemiin has a right to require for offensive 
 >*iords is to have them recanted, with a proper apology. 
 This is not to be obtain«d by returning abuse, and a public 
 uproar." 
 
PRI.MARY OB.Jr.CTS OF 
 
 A charge of this kind is by common law pu- . 
 nished with death, if but a guinea be ex- 3 
 tor ted. 
 
 Another instance of this melancholy depra- '-) 
 vity occurs in the trial of Colonel Passingham. — ]■' 
 Ohe, jam satis ! I 
 
 It must be recollected that any person is , 
 justified in apprehending, and taking before a ; 
 civil magistrate, the whole of the parties con- 
 cerned in a duel, and holding them all to find 
 security for preserving the public peace. 
 
 ii. Apprehension of Offenders. 
 
 At the head of this division of the police of | 
 the army must be placed the provost martial , 
 general. His office, however, is little exer- 
 cised except in the camp, the officers of every 
 regiment forming, under its standing orders, a 
 police of their own. 
 
 What officers of every rank are to the func- 
 tions of the magistrate, non-commissioned offi- 
 cers and private soldiers are to the execution of 
 tiie minor regulations of police. Ilcncc the 
 facility with which the necessary promptitude 
 of all military affairs may be conducted in this ^ 
 respect; — crimes prevented, criminals appre- 
 hended, and proved perpetrations punished. 
 And (notvvith>>tanding the obnoxious charactef 
 
 I 
 
MILITAUY LAW. 37 
 
 which martial law has from circumstances as- 
 sumed)— the common law of the country pro- 
 tected. 
 
 Is an oiVicer guilty of any, the smallest, dere- 
 liction from duty or character, which are 
 indeed the same, he is liaMc to he immediately 
 put under arrest hy the oliicer in command, 
 even a single grade ahove him. / 
 
 Is a private soldier ohnoxious to complaint, 
 either civil or military, a thousand hands are 
 ready to secure his person ; his immediate re- 
 sidence is instantly known, a prompt pri- 
 son in any guard-room awaits him, and a strict 
 form of justice at any hour ready, with every 
 class of evidence in array. 
 
 '* To the end that offenders mav he brought An. of War. 
 
 : f $7.Art. 2'J, 
 
 to justice," (say his majesty's Articles at War) 
 " we hereby direct, that, whenever any officer 
 or soldier shall commit a crime deserving pu- 
 nishment, he shall by his commanding oliicer 
 be put in arrpst, if an officer, or if a non-com- 
 missioned officer or soldier be imprisoned until 
 he shall be either tried by a court martial, or 
 shall be lawfully discharged by a proper au- 
 thority," (the commanding officer.) " No offi- 1^.23. 
 cer or soldier," however, " who shall be put in 
 arrest, or imprisonment, shall continue in his 
 imprisonment more than eight days, or until 
 such time as a court martial can be convenient- 
 i^ assembled. 
 
38 PRIMARY OBJECTS OF 
 
 lb. u. As to the manner of doing this, it is subse- 
 
 quently prescribed, that " No officer com- 
 manding a guard, or provost martial, shall 
 refuse to receive or keep any prisoner com- 
 mitted to his charge by any officer belonging 
 to our forces, which officer shall at the same 
 tim« deliver an account in writing, signed by 
 himself, of the crime with which the said pri- 
 soner is charged." 
 
 lb. 25. But then *' No officer commanding a guard, 
 
 or provost martial, shall presume to release 
 any prisoner committed to his charge, M'ithout 
 proper authority for so doing, nor shall suffer 
 any prisoner to escape, on the penalty of be- 
 ing punished for it by the sentence of a court 
 martial." 
 
 lb. ?&. In pursuance of the best principles of policy, 
 
 *' Every officer or provost martial, to whose 
 charge prisoners shall be committed, is hereby 
 required, within twenty -four hours after such 
 commitment, or as soon as he shall be relieved 
 from his guard, to give, in writing, to the 
 colonel or commanding officer of the rcgi^ 
 ment to which the prisoner belongs, (when 
 the prisoner is confined upon the guard be- 
 longing to the said regiment, and his offiiMice 
 only relates to the neglect of duty in his corjis,) 
 or to the commander in chief, their names, their 
 crimes, and the names of the officers who com- 
 mitted them, on the penalty of being punish^U 
 
MILITARY LAW. 39 
 
 tor his (iisohedience or neglect at the discretion 
 of a court martial." 
 
 And, if any officer under arrest shall leave ib. 27. 
 liis confinement before he is set at liberty by 
 the officer who confined him or by his superior 
 in power, he shall, upon being; convicted 
 thereof before a general court martial, be 
 cashiered. 
 
 And all crimes not capital, and all disorders 
 and neglects which officers and soldiers may 
 be guilty of, to the prejudice of good order 
 and military discipline, though not specified in 
 the said rules and articles, are to be taken 
 cognizance of by a general or regimental court 
 martial, according to the nature and degree of 
 the offence, and to be punished at their dis- 
 cretion. 
 
 When punishments take place, the whole is 
 under the direction of the provost martial ge- 
 neral, who has the command of fuing parties, 
 &c. 
 
 iii. Safety of the Camp. 
 The provost martial assumes a more general """''^■* ^*'' 
 
 * , '^ Inst. Til. K\ 
 
 and very important character, which he has i 1? 
 also borne for no short period of time. In the 
 beginning of the last century his power and 
 trust was so great, that all officers and soldiers 
 were prohibited to hinder him, his lieutenant. 
 
40 PRIMARY OBJECTS OF 
 
 or servants, in the execution of their offices, 
 Art.Antiic. Qjj pj^jj-j ()f death, &c. There were then also 
 
 Reg. 57. ' ' 
 
 regimental provosts marshal, whose fees were 
 re gu lilted by the court martial. 
 ^'?i' ?/^\^ On actual service the provost marshal, or 
 
 Urd. 86. et seq. ' 
 
 his deputy, acting with tlie army, will frequently 
 make the tour of the camp and its environs, 
 and will have orders to seize such persons as 
 are committing disorders. 
 
 Plundering and marauding, at all times high- 
 ly disgraceful to soldiers, under the circum- 
 stances in which the army would take the field 
 in any part of the united kingdom, and com- 
 mitted against the persons and properties of 
 our own countrymen, whom it is our duty to 
 protect, will become crimes of such enormity 
 as to admit of no remission of the awful punish- 
 ment which the military law awards. The pro- 
 vost martial, in making his rounds, will be 
 commanded to execute it immediately, and in 
 its greatest rigour against all such as are detect- 
 ed in the fact. 
 
 lb. 80. All officers in the command of guards and 
 
 detachments are enjoined to give assistance 
 to the provost marshal in the execution of his 
 duty, and any officer or soldier impeding him 
 in the same, or offering him any insult, will. re- 
 ceive the most exemplary punishment. 
 
 .tatncs'i Reg. A subaltern and thirtv cavalry to be always 
 
 rum. V. i. ^59. . " 
 
 ready to go out with the provost's guard. 
 
MILITARY LAW. 41 
 
 The gTancl provost to attend all Foraging 
 parties that are made ])y troops of different 
 nations under one comniantier in chief, with a 
 detaclimcnt of cavahy for the purpose of pu- 
 nishing with death all those that shall be found 
 plundering or marauding in the country, &c. 
 Those that do not belong to his regiment will 
 be sent prisoners to their own. 
 
 All men guilty of capital crimes to be im- 
 jnediately sent to the provost. No man re- 
 ceived except his crime be sent with him in 
 writing. 
 
 When any man is executed, his crime is on a 
 label to be affixed on his breast. 
 
 The provost to give in a list of his prisoners 
 to the general of the day, at head quarters, by 
 pine o'clock. 
 
 The provost to bury all dead horses and car- 
 rion. 
 
 The provost is to inspect the sutlers' weights 
 and measures, &c. to inquire into the sutlers' 
 servants^ and endeavour to watch them, that, 
 under pretence of going to neighbouring towns 
 to market, they do not hold correspondence 
 with the enemy or his spies. 
 
 Lists are to be delivered in to the provost 
 marshal of the sutlers and butchers licensed in 
 each corps, that they may have weights and 
 measures of the same standard, and sell by no 
 
4Q PRIMARY OBJECTS OF 
 
 others but those stamped by the provost, un- 
 der pain of severe punishment. 
 
 2. Judiciari/ Character of Officers of every 
 Rank, in their respective Commands. 
 
 If the importance of a miHtary education in 
 officers for the formation of an efficient military 
 force, and to society, ha\e not been already 
 perceived, it must here be evident, since tlie 
 junior officer of a regiment must in some form 
 or other constantly be hable to command, and, 
 whether in the inspection of a squad, or the 
 command of a party or guard, becomes for 
 the time a mihtary magistrate, to whose hands 
 the well-being of a part of the army is con- 
 fided. Uninstructed, if even his heart possess 
 the generous warmth of youth, he is likely to 
 relax too much the bands of discipline; if, on the 
 contrary, he be undeviatingly harsh, obdurate, 
 and unfeeling, instead of preventing crimes, 
 or arresting them in their progress, he chills 
 1 the spirit that is fostered by discriminate ap- 
 probation, drives the offender to desperation, 
 and instead of the open manly character full of 
 espiit du corps that should mark the soldier, 
 produces cunning, meanness, desertion, and 
 dismay. In the command of a body of men, 
 however small, opportunities constantly offer 
 
MILITAUy LAW. 43 
 
 themselves for the delightful exercise of every 
 virtue; but, to the mind not instructed by 
 education nor informed by experience, all 
 these opportunities are in vain. 
 
 To any othcer commanding a company, any 
 soldier may apply for rech'css of any Nvrong, or 
 the settlement of any dispute, and lie is bound 
 to inquire into it, and afford the necessary 
 redress. Indeed, when not on service, this is • 
 the most pleasing and most military duty 
 of an ofhcer, since it is by cares like these 
 alone that those bonds, which are otherwise 
 formed by mutual difficulties and dangers, can 
 be created. It is here, by a readiness in 
 all the minor attentions of the officer, that tlie 
 soldier is taught to view the army as his fami- 
 J}', and every comrade as his brotlier. 
 
 '* If any inferior officer, non-commissioned An. of war, 
 
 iiit Art. S. 
 
 officer, or soldier, " say the Articles of War, 
 4* shall think himself wronged by his captain, 
 or other officer commanding the troop or com- 
 pany to which he belongs, he is to com})lain to 
 the commanding officer of the regiment, who 
 is hereby required, if necessary, to summon 
 a regimental court martial, for the doing justice 
 to the complainant ; from which regimtrntal 
 court martial either party may, if he think 
 iiimself still aggrieved, appeal to a general 
 court martial. IJut if, upon a second hearing, 
 ^he appeal bhall appear to be vexatious and 
 
44 riUMAUY OBJECTS OF 
 
 groundless, the person so appealing shall be 
 punished at the discretion of the said general 
 court martial. 
 lb. $12. Alt. 1. " If any officer," they continue, ''shall 
 think himself to be wronged by his colonel, 
 or the commanding officer of the regiment, 
 and shall, upon due application to him, be 
 refused to be redressed, he may complain to 
 the general commanding in chief our forces, 
 in order to obtain justice, who is hereby re- 
 quired to examine into such complaint, and, 
 either by himself or our secretary at war, to 
 make his report to us thereupon, in order to 
 receive our farther directions. " 
 
 The most important part in the judiciary 
 character is that sustained by the colonel or 
 commanding officer of a regiment ; and to 
 the rank of field officer is therefore required 
 much dignity of mind and deportment. To 
 him may be said to be confided the last resoit 
 of justice, in respect both to officers and sol- 
 diers, since any farther appeal is necessarily 
 attended with a trouble, exposure, and sus- 
 picion, very incompatible with the true spirit 
 of military discipline. Hence arises a ne- 
 cessity for every commanding officer pos- 
 sessing a personal knowledge of the character, 
 at least of every officer in his corps, and as 
 far as may be of every private soldier, with a 
 mind perfectly free from the little prejudices 
 
MILITARY LAW. 45 
 
 uf subordinate ranks, and of course from 
 every motive of interest or caprice, or any 
 sentiment but the good of the service, with 
 which that of the soldier must always be iden- 
 tified. Innumerable are the precepts to be Turpiu's An of 
 
 . War, V. i. 
 
 derived from the theory and practice of the Saxe's Com- 
 
 . nieiuaries, Rc- 
 
 great teachers of war m modern times, all veriw, &c. 
 tending to soften authority by honour andMiscei/' 
 affection; and to incorporate, with the con- 
 stituent-feelings of the soul, those habits which 
 are necessary to the perfection of the militar}^ 
 character. 
 
 " The colonel," (says General Le ■Marq. de Art.de ucuer. 
 Quincy,) " in addition to the strongest con- 
 cern for the propriety and martial air of his 
 soldiers, should set the best example to his 
 oihcers; he should not oblige them to be at 
 any superfluous expense; he should take great 
 care to have the regard of his officers, using 
 with them a noble familiarity, marked with 
 the greatest disinterestedness ; living as re- 
 spectably as his circumstances will permit, nor 
 committing any injustice in the distribution of 
 their employments." " The soldiers will obey 
 their colonel with pleasure, even on the most 
 perilous occasions, if he evinces care that they 
 suffer no injury {auciuitort), thatthey receive the 
 full benefit of their pay, are attended to when 
 sick or wounded, and experience his occasional 
 
4G 
 
 PRIMARY OBJECTS OF 
 
 Jiberalities when they shall have distinguished 
 themselves." 
 Biumcnthai «« fhc hussars of Zicten, whether officers or 
 
 Lite ot (jeii. do _ ' 
 
 z.etcn, V. A private soldiers, were ever anxious to emulate 
 their commander ; wlio, on his part, carried the 
 confidence he had in them to such a degree as 
 to imagine himself invincible at their head. 
 Whenever it happened that he encamped in 
 the midst of his regiment, lie considered him- 
 self more secure than he could be in any other 
 situation." After peace was made, his officers 
 and soldiers flocked to Zieten as to their com- 
 mon father, &c." *' Long live our good father, 
 Zieten !" was their constant acclamation. 
 
 Mii.Es'aj, c. Speakincj of the i^overnment of a British 
 regiment, Colonel Dalrymple observes: — '* It 
 in a great measure depends on the disposition 
 of the commanding otBccr." " The military 
 laws have authority enough to invest him witli 
 . all the severity of German discipline." Where 
 a commanding ofllicer is a man of sense and 
 spirit, and will give himself the trouble, he 
 will certainly succeed in forming his corps : 
 he may manage so as to have little occasion to 
 use severity. Avoiding all partialities, and 
 exacting a strict attention to the duties of the 
 regiment, and afterwards behaving always with 
 an easy gentlemanlike familiarity, will be the 
 best method of establishing harmony and 
 
MILITARY LAW. 47 
 
 unanimity, witliout which the service can never 
 be carried on cheerfully and well."' 
 
 '* In all institutions of authority," (says an c>''»ervaHonson 
 
 *' ' ^ "^ _ ttic char.-icier 
 
 inteUisijent writer.) " there must exist a certain «"d I'^fu 
 
 , ^ ^ ... . sluie i)t the mil. 
 
 portion of pov/er, M'hich it is impossible to force ot Great 
 
 ... ... I 1 • 1 Brit;.iii. 180 i. 
 
 hmit by positive checks, and which must, or p. it. 
 course, be intrusted to the individual by whom 
 it is held. Wherever dis.cretionary power ex- 
 ists, it will occasionally be abused by weak- 
 ness, or prostituted to the gratification of 
 passion. In armies, as in all other depart- 
 ments of political power, men are often either 
 ignorant how to direct that authority with 
 which they are intrusted, to its proper end, or 
 they abuse and pervert it to purposes foreign. 
 to its nature and original design. Impelled by 
 a mistaken zeal, or by tlicir own evil dispo- 
 tions, they indulge their passions in the in- 
 fliction of unnecessary severities, or they render 
 their power instrumental in procuring to them- 
 selves low and selfish indulcjences, and in 
 stifling the indignation and contempt which 
 such meanness never fails to produce." 
 
 " The want of proper heads'' (says ]\Iajor Jrcar. on mw. 
 Adye) *' generally causes the ruin of corps." 
 
 " He" (a commanding ofiicer) says M. Saxe, ^^'l Reveries. 
 " ought to be mild in disposition, and free 
 from all moroscness and ill- nature ; to be a 
 stranger to hatred ; to punish without lenity, 
 especially those who are dear to him, but never 
 
 ' 
 
48 PRIMARY OBJECTS OF 
 
 through passion ; to shew' a constant concern 
 at being reduced to the necessity of executing, 
 with vigour, the rules of iniHtary disciphne, 
 and to have always before his .yes the example 
 of Manlius. He should persuade both himself 
 and others, that severity is a term misapplied 
 to the necessary administration of the martial 
 laws. He will thus render himself beloved, 
 feared, and, without doubt, obeyed." "He 
 will thus have no occasion in action to em* 
 barrass or perplex himself j for, if he takes upon 
 him to do the duty of the serjeant, and to be 
 every where in person, he will resemble the fly 
 in the fable." " I have seen colonels who were 
 professed disciplinarians, and perfectly clever 
 at the manoeuvre of a body of troops in camp ; 
 but, if you took them from thence, to employ 
 them against the enemy, they Avere absolutely 
 unfit for the command of a thousand men ; 
 they would be confused to the last degree, and 
 totally at a loss which way to turn them- 
 selves." 
 
 From the judiciary cJiaracter of a command- 
 ing ofticer, Marshal Saxe naturally glances 
 upon the ill effects of its mal-administration in 
 the field. 
 
 This requires no illustration; for if, for in- 
 stance, it could be supposed, that, in Great 
 Britain, a corps, previous to its rendezvous for 
 service, encampment, review, or even inspec- 
 
MI L IT A It Y LAW. 4'} 
 
 tion, had been subjected to tliis anomaly, or 
 rather solecism, in military ordination. That a 
 commanding officer, for the sake of some 
 selfish gratification of power or profit, had 
 assembled around him the vicious refuse of 
 the lowest orders of society, had communi- 
 cated with his officers only, according to their 
 judgement, and with his private soldiers only 
 to countenance their extortions ; that, in con- 
 sequence, merit and respectability, in every 
 rank, had been driven to despair. That the 
 other field-officers also had separately adopted 
 their courses, not indeed similar, excepting their 
 anomalous character in military science. That 
 with all this a shew of discipline was kept up, 
 characteristic of the term only, in the exercise 
 of unnecessary severity towards, perhaps, 
 the most deserving individuals, including 
 even the sick, and privates previously au- Brenner. Eaie 
 thorised to emplo} their labour usefully to the ^^j. 
 community. If either the whole or any part 
 of such a system of domestic annoyance 
 could be supposed to have existed, what, ac- 
 cording to the view of Marshal Saxe, or any 
 other celebrated warrior of modern times, 
 must be the result in the field ? Confusion, ar- 
 tifice, disorder, and shame ! In vain the (Ge- 
 neral expects to meet a species of iorce correct, 
 decided, and animated by military prowess : — 
 In vain he inquires the cause, that the least 
 
 E 
 
so PRIMARY OBJECTS OF 
 
 difficult process is performed with noisy re* 
 crimination of neglect, tediousness, and dis- 
 may, that the whole economy is, with difficulty, 
 explained ; and that, only with exhaustion of 
 the utmost' diligence, patience, and acumen, 
 he is enabled to pass through the ranks, and 
 submit for the consideration of his superiors 
 and government a barely passable report. 
 Observations oa , ''Evcry act of unncccssary severity, therefore, 
 
 the character, -^ ^ - » » 
 
 ^c. li). every capricious exercise of power, may be 
 
 said, more or less, to injure discipline, and to 
 deprive it of its surest supports." *' Men may 
 be overawed by tyranny and oppression into 
 an adherence to the strict letter of their 
 duty; but it is impossible, amid threats and 
 punishments, to preserve that *' proud sub- 
 mission, that dignified obedience, that subor- 
 dination of the heart, which superadds to the 
 cold obligations of duty the powerful influ- 
 ence of voluntary zeal." 
 
 Every officer, from the ensign up to the ge- 
 neral, is placed solitarily in a sort of judicial 
 situation, to judge of the law and the fact, and 
 to punish or acquit at will. 
 
 3. Council of Jnqiiiri/, 
 
 he nesct form which tl 
 
 egimental justice assumt 
 
 proach to a court martial, and in which the 
 
 Tviifr, lis.' This is the nesct form which the adminls- 
 iration ot regnnental justice assumes in its ap- 
 
MILITARY I.A\V. 
 
 wfilccrs, under tli€ order of tlie colonel, as- 
 semble in the character of jiulgc-jurors, to 
 in(}uire into the measures necessary to be taken 
 in consequence of the suspicion of some de- 
 linquency having been committed by an of- 
 ficer of the corps. 
 
 "A meeting of this kind, liowever," say? 
 the Judi»-e-Advocate for Scotland, "althouo;li 
 they may collect material information from ap- 
 parent or known facts, or written evidence, of 
 vhich they may be possessed, are not authorised 
 Co examine witnesses or record their decla- 
 ration." 
 
 And, as such a meeting nmst, therefore, be 
 proporlionably dangerous to the individual 
 xvho is its object, from the very slender footing 
 on which the practice rests, it behoves every 
 commanding oHicer to be cautious how he as- 
 sembles his officers for such prompt and inde- 
 cisive deliberations; and, at all events, ,that he 
 lias at least something approaching to positive 
 •evidence x)f a fact of delinquency ; most of all 
 that he violates not that principle of law 
 which suffers not evidence to be heard against 
 any one in his absence. 
 
 Among the private soldiers, this, practice, 
 with the acquiescence of the commanding of- 
 ficer, is in some regiments very i)revalent and 
 very useful. They examine into the tircum- 
 K '2 
 
52 rUIMARY OBJECTS OF 
 
 Stances of a comrade with great readiness, are 
 prompt to punish one uho occasions trouble 
 to themselves, and is a disgrace to their com- 
 pany. It is supposed that the result is some- 
 times more severe, as wd\ as more appropriate, 
 than could perhaps have been administered. 
 Sfp Dutch jt is ^ relique of the Dutch and French custom 
 
 Arttclo, 1(0. ^ 
 
 of admitting to courts martial one or more 
 privates, that the soldier might have a portion 
 of the benefit of a trial by his peers. 
 
 4. Bi/ Court of Inquby. 
 
 Teller, 347. This form approaches still nearer to a re- 
 gular judicature. " In cases of much im-, 
 portance, and where the facts are various and"- 
 complicated, or there appears ground for sus- 
 pecting the just foundation of the charge of 
 criminality, or where a crime has been com- 
 mitted, or much blame incurred, without any 
 certainty on whom it ought chiefly to attach," 
 
 Tvtier, ubi Courts of luquiry are appointed to *' take the 
 matters under their consideration, and deter- 
 mine on such evidence as can be brought before 
 them, whether there is or is not sufiicient 
 cause for bringing particular persons to trial, 
 for the oftence or crime, before a general court 
 martial." The power of appointing them, like 
 courts martial, is vested in his majesty, or any 
 
 iina. 
 
MILITAUY LAW. 5.1 
 
 commander to whom the right of appointing 
 general courts martial is committed under the 
 royal sign manual. 
 
 The opinion of such courts, being entirely T.\''«i ^so. 
 of the nature of advice or council given to his 
 majesty or his commanders, has no binding 
 effect as a sentence against the person accused, 
 who in general is no party to their procedure. 
 In particular instances, however, it will be 
 evident they must be both for the interests of 
 a party accused and the ends of justice. Yet 
 a person who should be examined, and after- ^'^•^°''"/^^°'- 
 
 * ' daunts liiqiiirj 
 
 wards be liable to trial by court martial, ndo-ht o" J^"«^i't='"^i 
 
 *' , . Kxptditioii, 
 
 plead his bavins: been thus induced to commit npi'tiiviiT. 
 
 ;. ,- ^ .M'Arlhur, 6lC. 
 
 hmiself 
 
 A Court of Inquiry is not in every case 
 called upon, or warranted even, to give an 
 opinion ; but is confined solely to the exami- 
 nation of witnesses on certain points, on the 
 result of which examination the person, by 
 whose authority the Court of Inquiry is held, 
 is to form his own opinion. ^>"'"'^' ^^'• 
 
 " There is one occasion on which they seem wniiarasoir* 
 
 ,.,,.. . . . , Mil. Arraug.in. 
 
 warrantable in delivering an opinion or judge- *oi. li. 13-2. 
 ment. "When they sit as courts of arbitration, 
 which either t\\ o contending parties have ap- 
 plied for, or the decision of which tiiey have 
 consented to abide by." 
 
 *' Although the report of a Court of In- i.*"i-f. "(^i*"?- 
 quiry has in no caic the positive elfect r f a sen- 
 
''n 
 
 ^^ vniMAur OBJECTS or 
 
 tcnce, it may, in son>€ cases, be immediately 
 followed by the punishment of the party^ 
 ^vhosc conduct has been the object of the in- 
 quiry." "This, however, may he yegarded 
 ratlier as tlie mark of his majesty's clemency, 
 Adjeon c. M. and lovc of justice and e(|uity, as it is the pre- 
 rogative of the crown to (hsmiss officers, or 
 ' soldiers, or any other servants, from its service^ 
 without any form of trial. And, although no 
 commander in chief, having authority to sum- 
 mon courts martial, has any power of inflict- 
 ing a proper penal sentence, unless through the 
 medium of a court martial, yet, in the case 
 of an officer holding any particular employ- 
 ment or conmiand, under the appointment 
 and at the discretion of the commander in 
 chiff, there can be no doubt that, oi\ the re- 
 port of a Court of Inquiry, ic^nr ranted to ex- 
 amine and give an opinion on hi$ conduct, he 
 might, without farther procedure, be instantly 
 removed, or suspended in such command or 
 employment, by the same power whjch con- 
 ferred it. 
 
 On the principle of the common li^w, that 
 lip indicter or juror, who has found a true bill 
 against a person accused, can be put upon the 
 })Ctty jury for the trial of that person, so 
 lie thcr can the members of a Court of Inquiry 
 sit on II court martivil, without being liable to a 
 good challenge. 
 
MILITARY LAW. .^5 
 
 The members of a Court of Inquiry are not 
 sworn, nor do the witnesses give their evidence 
 on oath; neither can any person be legally ly tier, sss. 
 "obliged to furnish information, nor give his 
 testimony. Yet this power would seem to be 
 recognized in some Courts of Inquiry, Avhich warrant for in- 
 
 ■, , 1 • I • 1 /'I quirv onlloclio- 
 
 have been authorised m the person or the ton'Kxped. 31 
 judge-advocate to summon them. 
 
 These courts not beinsj established by anv ^I'Anhur.v. i, 
 law, but by precedent and custom, it is sup- Aiii. Arran-c™. 
 posed that any officer or soldier may refuse to ' " 
 plead before them. This is, however, a pri- 
 vilege not likely to be often exercised ; and it 
 were to be wished, that, resembling, in som^ 
 respects, the court of inquest under the civil t^ tier, 346. 
 courts of criminal jurisdiction, called a grand 
 jury, they should confnie themselves to a si- 
 milar mode of giving a verdict, briefly and M-Arthur, v. j. 
 simply in the affirmative or ne2;ativc. ,,.,' .„ „,„ 
 
 I J !^ Mil. Arraiijeia, 
 
 There is, however, a strong dissimilarity ut,. »ui.r». 
 between the two courts, inasmuch as grand 
 jurors examine only the evidence for the crown, 
 whereas courts of inquiry examine evidence on 
 both sides. Grand juries act in a judiciary 
 capacity, by finding or rejecting a bill : Courts 
 of Inquiry are, i)y every authority, undcrstooci 
 but rarely to pronounce any judgement, or 
 declare any opinion. 
 
 There are two instances in which a Court of 
 Inquiry seems somewhat irregularly authorised 
 
«50 PRIMARY OBJECTS OF 
 
 by the articles of war under a misnomer, 
 Tliat where ^n inferior officer, as well as the 
 non-commissioned officer, on thinkiiig himself 
 AnofWar, wrongcd by his captain, &c. is subjected to 
 ([i^iarui' a ^^ I'eg'wiental court martial''' and again, 
 when an inventory of the effects of deceased 
 officers is directed to be made before " the 
 next regimental court martial." The trial of 
 General Whitelocke was, however, conceived 
 by the judge-advocate-general to be an inr 
 quiry into the conduct of that pommander \x\ 
 chief. 
 
 5. By Field J or Drum-Head^ Courts Martial, 
 
 This is the first, though it may, in a legal 
 
 sense, be also conceived as the utmost stretch, 
 
 Williamson's of military courts of judicature. It applies 
 
 IVIil. Arriingcm. ^ - n t • i i • i i- 
 
 V. ii. 106. phieily, ir not entirely, to the private soldier, 
 and is, as its titje designates, held in the field 
 for the punishment of some offence that re- 
 quires an immediate example, and seems ,to 
 KuipsandArt. draw its authority entirely from that principle 
 sov.'ofi'tr'^' of the articles of war, (now long since 
 thc'.wrhcr-"" omitted,) which expressed, in those of Queen 
 lauds, art. bi. ^pn^^ (ii^t " all military offences are appointed 
 Brucc's Inst of to bc summarHy heard and determined at a 
 i. $:»j. pljii! court martial." " AVhich order," says the 
 learnetj and respectable writer of that time, 
 *' takes place esnecially in case of crimes, when^ 
 
MILITARY LAV. 5^ 
 
 if one be taken in the very act, lie is immedi- 
 ately to be sentenced, and the sentence straight- 
 way put into execution.'* 
 
 It may consist of officers of one regiment, ^i^' Arr. i, 
 or be composed of those of different corps ; the 
 3 proceedings are not committed to writing, but, 
 li at circle being formed, the prisoner is arraigned; 
 evidence is heard t'iva 'voce, the prisoner de- 
 fends himself, the members communicate their 
 opinions in a whisper. The president reports 
 their sentence to the commanding officer, 
 who, if he approves of it, orders it to be 
 ' carried into immediate execution. 
 
 Sometimes the accusation and sentence are 
 I written on the drum-head, wlience such are 
 I called drum-head courts martial. They are 
 I commonly held when the offence is evident ; 
 I such as in cases of mutiny or sedition, refusal 
 j to obey an order, or where a soldier is detected 
 in marauding, with the goods upon him. A 
 i simple entry is made in the regimental book of 
 
 these field drum-head courts martial. 
 I In no case, however, it evidently appears, 
 from every authority, should these summary 
 proceedings, under a judicial form, take 
 place but where the exigencies of time, cir- 
 cumstance, and locality, most absolutely re- 
 quire. No law of civil society could otherwise 
 endure it; to say nothing of the invariable suiiivan's 
 j>rinciple, that the best method of trial which m.'lI'^!^! 
 
5S ?RTMART OBJECTS 0? 
 
 the nature of the case affords, and no other^ 
 bhall be admitted in courts of justice. 
 
 6. Camp, or Line, Courts martial. 
 
 11^. Atj. f. 4, iy,j^g ^]jg garrison court martial, this form 
 differs very little from the regular judicature, 
 to which we are approaching, only in the aj^- 
 pointment of its members, and the command 
 to which it is responsible. It is sometimes 
 composed of the oOicers of different corps in 
 camp, in the same manner as those in garrison. 
 It is ordered and approved of by the com- 
 manding ofticer of the camp ; the sentences 
 are executed before the picquets of the line^ 
 which it is the business of the adjutant of the 
 day to see properly inflicted, every corps send- 
 ing a drummer. The drum-major of the regir 
 ment that gives the adjutant, and the surgeon 
 of the corps M'hich the prisoners, who receive 
 corporal punishment, belong to, arc also ta 
 attend. 
 
 7. Garrison Court Martial. 
 
 An. crWiir, 
 
 This is assembled by order of a governor of 
 ji,4ri. 1.. a garrison, fort, &c. or the commanding of- 
 ficer of different corps, or detachments, &c. 
 in barracks, or elsewhere, ** when there shall 
 not be a sulBcicnt number of officers of the 
 
MILITARY LA\V. 5.9 
 
 corps to whicli the person to be tried shall be- 
 long, or in which the matter shall have hap- 
 pened," for the purpose of adjusting disputes, 
 or trying oflences, wherein members of the wiiiiamson'i 
 
 , . Mil- Arrangem; 
 
 same or of diuerent regnnents are concerned, v. 2, loj. 
 Their institution, power, and method of pro- 
 ceeding, are exactly the same with those of 
 regimental co-irts martial, tlieir sentence not 
 being executed till confirmed by such governor 
 or commanding otiicer. 
 
 8. Regiment al Court Martial. 
 
 The order hitherto pursued, tliough in some 
 respects retrograde, is now arrived at the in- 
 ferior of those positive forms of courts es- 
 tablished by law fov the administration of 
 Bjilitary justice. 
 
 "The commissioned officers of every rcgi- $ i6, an. if« 
 ment," say the articles of war, " may, by the 
 appointment of their colonel or commanding 
 officer, without any special warrant from us, 
 or other authority, than these our rules and 
 articles of war, hold regimental courts martial, 
 for inquiring into such disputes or criminal 
 matters as may come before them, and for the 
 inflicting corporal or other punishments for 
 small offences, and shall give judgement by the 
 majority of voices; but no sentence shall be 
 executed until the commanding officer, not 
 
CO PRIWARV OBJECTS OF 
 
 being a member of the court martial, or the 
 governor of the garrison, shall have confirmed 
 the same,** and the authority for this article is 
 
 M.A.ui, 24. especially sanctioned by the Mutiny-Act. 
 
 From this literal statement of the law, under 
 which regimental court martials are held, their 
 power is evidently not limited to the trial of 
 non-commissioned officers and soldiers; and 
 
 Art. of War, from anothcr article of M^ar it appears, that 
 
 $ 12, ait. 2. . _ . .. " 
 
 any interior OFFICER, as xceU as non-commis- 
 sioned officer or soldier, thinking himself 
 wronged by his captain, or other commanding 
 officer of the troop or company, is, by com- 
 plaining to the commanding officer of the re- 
 giment, submitted to a regimental court mar- 
 tial, with the ordinary right of appeal, under 
 restrictions, to a general one. 
 
 Hence it M'ould appear, that, as general 
 courts martial are seldom occupied upon a 
 civil process, or mere matter of litigation, and 
 that to it is specifically given by the articles of 
 war a right of appeal, even while the same 
 right, in criminal process, is still to a certain 
 degree involved in doubt, to a regimental 
 court martial it was intended to assign those 
 Ubisupr*. minor disputes, as well as regimental offences^ 
 wliich could so much more serviceably be heard 
 within the cantonments of a regiment than 
 when extended to a general district. And, if 
 this appear to be giving to the regimental 
 
MILITARY LAW. <>l 
 
 court martial a more important character than 
 it have usually acquired, it \vill be easily as- 
 certained to be otherwise ; since it has been 
 justly said, with sufficient truth, " chat, though I^*"''' '"/" g^. 
 instituted for the trial and punishment of 
 minor offences, they had been extended by 
 degrees to the consideration of high military 
 crimes." *'Thus," the military speaker ob- 
 served, and is, of course, known to the whole 
 army, "by a fiction, desertion had been 
 deemed absence from duty, and mutiny un- 
 soldier-like behaviour." And this was reite- 
 rated in argument, for enjoining the same so- 
 lemnities on the regimental as on tlie general 
 court martial,* including the oaths adminis- 
 tered to president, members, and witnesses. 
 
 * Of the necessity of the solemnity of an oath none could 
 doubt, who was ordinarily acquainted with this branch of 
 military judicature. 
 
 Their Royal Highnesses the Dukes of Clarence and Cum- 
 berland, and the Marquis of Buckingham, were averse from 
 the law which imposed the oath, arguing, from their own 
 noble minds, (hat a court of military honour would be mor« 
 Considerate of the soldier, and could be more lenient to his 
 errors, than when bound by the strict injunctions of law as to 
 punishment; but it was not for these peers to conceive, that, 
 throuohout the various dispositions to be found among the 
 numerous officers of an extensive military force, the same 
 generous sentiments cannot be hoped to be invariably prevU' 
 lent, and particularly in the minor specie^ of that force, in- 
 cluding militia. 
 
6'i I^RIMAHY OBJECTS OF 
 
 All this must evidently tend to shew the ne- 
 cessity of a greater attention, both to the prin- 
 h:r R. Wilson'* ciples and forms of \d\v, than can be always 
 J.^Mii.°F.'"f attributed to the judge-jurors of a regimental 
 Gcn-'stewlrt court martial. To the acquisition even of an 
 wi Mij. I. ot ordinary acquaintance with the law by which 
 every man is bound, a long preparatory study 
 
 Even since the period of tlie amendment in the Mutiny Bill 
 4)crc alluded to, more numerous instance^ than arc necessary 
 to be pointed out have occurred, of the proceedings of re- 
 gimental courts martial, consisting of little more than the 
 different heads or titles, the members of which had no other 
 judiciary character than their oaths, having considered tkcir 
 assembly only as a form or preparatory step to punishment, 
 similar to that of erecting the triangles ! and rejected in- 
 quiry tending to disprove the crime, as delay incompatible 
 with the service! While again, previous to the period in 
 question, sentences have occurred in transportations for lite, 
 for a week's absence; five hundred lashes for missing, per- 
 haps, a singla parade ; and imprisonment, two hundred 
 lashes, and drumming out, in the person of one man, for 
 sleeping a single night out of quarters ! and this on no ser- 
 vice, but in perfect security. Members have rctlccted the 
 hasty opinions of each other, at diflerent periods, and then 
 called it the custom of war; while any attempt to note evi- 
 dence, fur the purposes of compirison and deduction, was 
 ridiculed as suporerogat<jry and ineffectual I ' 
 
 Let it be rcmenibi-red, however, that this is not described as 
 general ; this attaches not to the law of courts martial, but to 
 the want of a consideration on the subject in those whom no 
 human institution can preclude, which \l is the buiincw 
 of these pages to imp^^:is. 
 
MILITARY LAir. 65 
 
 h necessary, with the advantage of a previous 
 academical education; yet to the important 
 oftice of a member of a court martial, who is to 
 judge both of the law and the fact, and that 
 under the powerful influence from which, in 
 the narrow boundaries of a regiment, he can- 
 not be entirely exempt, th^ee months only is 
 allowed for the preparation of the youngest of- S^JccI'Ts-*^ 
 ficer ; and that, with the chance of being able, 
 perhaps, to witness the form but very seldom. 
 Since, then, such is the paucity of intelligence 
 to be derived from this necessarily short no- 
 viciate, it is indispensable that every person 
 should, by some other means, acquaint him- 
 self as much as possible \;ith the principles of 
 jurisprudence. 
 
 And as ''justice," even in the highest post, HM-Curoa, 
 is recognized as to be " always tempered with 
 mercy," so in a court, the original jurisdiction 
 of which is evidently exceeded by the fiction 
 whicli submits to its authority crimes other- 
 wise beyond its power of punishment, for the 
 purposes of expedient lenity, this sentiment 
 should prevail with the most lively sense. 
 And it is to a similar end, that that order, so 
 full of wisdom and humanity, is included 
 among the instructions issued by his majesty's 
 command to general officers on reviews and in- Ceu. Rpg. »ai 
 spcctions : that they will "examine the stand- ^''' ''■'■ 
 ing orders and regulations of the regiment, and 
 
64 PRIMARY OBJECTS OF 
 
 t!ie courts martial which have set since last 
 review, that they may ascertain whether the 
 necessity of frequent puyiislwients has been sii* 
 ferseded by the adopt ioji of xcise measures for 
 the prevention of crimes ; and by the zeal and 
 assiduity of all the ojjicers, in their different 
 stations, to carry them into effect, and main- 
 tain the discipline of the regiment." 
 
 apud Such, then, being the important character 
 
 <?aap.'T. I.'aj. of a regimental court martial, to which may be 
 added its more frequent use from its superior 
 facility of assembling to any other, every due 
 attention to formalit}-, consistent "with the ser- 
 Procewofas- ^vicc, IS to bc givcu, aud nouc dispensed with, 
 I^rniaTcourt°' whcu absolutcly necessary : it is in no respect 
 to be treated lightl}^ in its appointment, nor 
 any part of its law considered a dead letter. 
 
 A regimental order will announce, at least, 
 a day or two before the regimental court mar- 
 tial, the prisoners to be tried, and the officers 
 of whom the court is to be composed, the latter 
 from roster kept by the adjutant, with equal 
 attention to succession with that for any other 
 duty. 
 $16. wta:?. The prisoner, (for any non-commissioned of- 
 ficer or soldier committing a crime is to be- 
 come so, at the instance of his commanding of- 
 ficer, nor can any provost martial, or officer 
 commanding, refuse to receive him,) will also, 
 as early as possible, have a copy of the charge 
 
MILITARY LAW. 65 
 
 delivered to him by tlie scrjeant major, who 
 will also explain to him the nature of his trial, 
 and advise him as to the collection of any evi- 
 dence in his favour. Tlu^ execution of this 
 task should partake of the principles already 
 recommended. 
 
 No prisoner shall continue in confinement -^';'i.'='"°f„Y"' 
 
 I <5 16, art. 23. 
 
 more than eie'ht days, or until such time as a i J'.^- ^'^t- if • 
 
 O •/ ' Ibid. art. 18. 
 
 court martial can be conveniently assembled. Tytier.Ess.MU. 
 
 L. 181. 
 
 The court, being; assembled, will observe, that An. of War. 
 
 • . . . , , ^T • 1 UCart.lO. 
 
 It IS enjomed, that " No regnnental court 
 martial shall consist of less than five officers, 
 excepting in cases where that number cannot 
 be conveniently assembled, when three may be 
 sufficient ; who are likewise to determine upon 
 the sentence by the majority of voices, which 
 sentence is to be confirmed by the command- 
 ing ofiicer, not being a member of the court 
 martial, before it be carried into execution." 
 No proceedings shall take place, but between 
 tlie hours of ei^jht in the mornins: and three in 
 the afternoon, except in cases which require aa 
 immediate example. 
 
 "The usual practice is to appoint a captain, 
 as president, and four subalterns, or two, if 
 more cannot be conveniently assembled." Cap- 
 tain-lieut. has set as president. 
 
 In it, as "in all trials by any courts martial, 
 other than general courts martial, the person 
 appointed to be the president thereof shall 
 f 
 
66 
 
 PUIMARV OBJECTS OF 
 
 Tiicfniiu.rcourti aclmiiiistcr to each of the other members the 
 
 oliK.Tvet}iesann; 
 
 forms with rcgi- followiiig oaths : 
 
 mental conns ^ 
 
 niaitiai. " Vou shuU Xi'cll (Did truly try and dctcrminey 
 
 according to your evidencCy the matter noxc be- 
 fore you. 
 
 So HELP YOU God.'' 
 
 " /, , do snear, that I will duly ad- 
 minister just ice according to the rules and arti- 
 cles/or the better government of his 7najesty's 
 forces ; and according to an act of Parliament, 
 noxv in force, for the punishment of mutiny 
 and desertion, and of other crimes therein men- 
 t toned, icithout partiality, favour, or affection ; 
 and, if any doubt shall arise ichich is not e.r- 
 plai)icd by the said articles or act of parliamentf 
 according to my conscience, the best of my un- 
 derstanding, and the custom of icar in the like 
 cases. 
 
 So IIELI' ME CiOD.'- 
 
 And, as soon as the said oatlis shall have 
 been administered by the president to the 
 otber members, any one of the members shall 
 administer the said oaths to the president. It 
 is usually done by the senior member. 
 FonnuieofRo- The j)risoner is now arraigned in the follnw- 
 c(jediu^». i"g manner: Ihe eourt bemg seated, uneo- 
 vcred, according to the seniority of members, 
 beginning on the right and left of the presi- 
 dent, awd the prisoner introduced by the 
 
MitJTAkY lAW. 07 
 
 serjcant-iiiajor, guarded, (tbrinerly by a regi- 
 mental provost niavslial). Tlic commciu-e- 
 ment of the " proceedings" is read to t!ic pri- 
 soner by tlie president, as follows: — 
 
 *' Proceedings of a regimental court mar^ 
 
 tial, held at head-(}uartcrs, on the day of 
 
 • 18 by order of 
 
 commanding for the trial of ■ 
 
 ■ charged with {xvJialtvcr 
 
 the crime describes a<^rec.abl\) to (lie terms of the 
 Articles of War, meiitiotiing time, place, ami 
 circumstance) M'hercof is appointed 
 
 President, Capt, 
 
 Members . 
 
 The president demands of the prisoner, 
 *' How say you, are you guilty of the crime 
 laid to your charge or not:"' To which, agree- 
 ably to the lenity of English law, the prisoner 
 is advised to plead *' Not guilty." For, liow- 
 ever obvious the crime laid to his cliarge, this 
 is the only mean by which any circumstance 
 ill uiitigation of it can appear, or the court 
 ascertain the (pumtum of punishment; since, 
 .sliould the prisoner plead guilty, confessing 
 the cliarge, no farther proceeding is necessary 
 than to sentence him to any infliction pre- 
 scribed within the letter of the law. 
 
 For any of the rare deviations from tliis 
 course, reference rnLi.>»t be had lo the pleas be- 
 fore G L N Y. It A I. Co U 1{ TS M A IIT I A I . 
 
68 PRIMARY OBJECTS OF 
 
 The prisoner, however, having no objection to 
 the officers by whom lie is to be tried, and, in the 
 ordinary course, pleaded not guilty, the court 
 proceeds to the examination of the evidence, in 
 which the president leads, and, if desirous, the 
 members follow. The first evidence necessary is 
 to prove the jurisdiction of the court over the 
 prisoner, " that he belongs to the army, receiving 
 pay and clothing, and having had the Articles 
 of War read to liim ;" which the serjeant- 
 major is generally competent to prove, who is; 
 also, in cases where there is no other, officially 
 prosecutor. 
 ATt.ofWar. All pcrsons who oflve evidence before any 
 
 ^16. Art. 19. . "^ 
 
 Williamsons court martial are to be examined on oath, 
 
 Mil. Arrangein. , . . ^ „ 
 
 ▼.ii. n. 6.5. this IS as follows : 
 
 " You shall true and perfect answer ynake to 
 all such questions as shall be put to you, touch- 
 ing the matter now before the courts beticeen 
 our sovereign lord, the king's majesty, and 
 the prisoner to be tried; which shall be the 
 truth, the xvhole truth, and fiothing but the 
 truth : 
 
 So HELP YOU God."* 
 
 * It is not to be found, either in the Mutiny Act or (ht 
 Articles of War, says Colonel Williamson, (Military Arrange- 
 ments, V. ii. p. 65;) nor is it, probably from its generality, 
 furnished to this day, (1810,) cither there, or in many other 
 books on the subject. 
 
MILITARY LAW. 6.9 
 
 For die more perfect decorum of the pro- Art. of War. 
 
 * § 15, art. X.'. 
 
 ceedings, it is expressly enjoined, that " No 
 person whatsoever shall use menacing M'ords, 
 signs, or gestures, in the presence of a court 
 martial then sitting, or shall cause any disoi^der 
 or riot, so as to disturb their proceeduigs, on 
 the penalty of being punished at the discretion 
 of the said court martial," This injunction is 
 most particularly necessary to be observed on 
 a regimental court martial, which, from thesimr 
 plicity of form, the probable youth of its mem- 
 bers, and place of meeting, must'otherwise be 
 extremely liable to interruption, at least from 
 levity and inconsideration. It is scarcely ne- 
 cessary to observe, on the mere possibility of a 
 member being accidentally ordered to this 
 duty while in the smallest degree inebriated, 
 that such a case would incur the highest cen- 
 sure, and be subject to great severity ^of pu- 
 nishment. A juror in the civil courts, at no i'<?rd Lough- 
 
 , . r ■ • 1 , t)orouij;h. Sum. 
 
 great distance ot tmie, received a public and Assizes, Dur. 
 
 \ r 1 • 1 1 , < ham, 1787. 
 
 severe reprimand trom the judge on the bench, 
 who afterwards fined him twenty pounds. 
 The member of a regimental court martial is 
 not only a juror, in the most delicate sense, but 
 also judge, and very often party. 
 
 To assist in the evidence generally, and also, 
 if necessary, to afford any recpiisite informa- 
 tion, the adjutant of the reginicnt to. which 
 the prisoner belongs attends. This officer u 
 
James's Hot;. 
 Comp. V. ii. 17 
 
 "Rule;, and Art, 
 lOiUl An. 49. 
 
 Z\Iil. Arrani^c. 
 V. i.103. 
 
 C/MJi. b. 3. 
 
 rcrmulc. 
 
 PRTMARV OBJECTS OV 
 
 suppo.scd to be, at least, perfectly acquainted 
 M'ith the proceedings of com ts martial, and is 
 on occasion expected to afford, at least, the 
 minor qnalifications of a judge-advocate; at 
 all times to advocate the cause of the prisoner, 
 and to explain the Articles of War, (M'ith a 
 copy of which, as well aspen, ink, and paper, 
 &c. he has already supplied the court). 
 
 The part of Register of the proceedings, for- 
 merly, and witli more propriety, performed by a 
 sivorn clerk, is now generally allotted to the 
 youngest member, who is to be scrupulously 
 correct in committing to pnpcr every matter 
 6f form, however apparently trivial (for they 
 are, according to Blackstone, the outworks of 
 law) ; and no less so, in giving the depositions 
 of every witness as nearly as possible in tlie 
 words in which they are delivered.* 
 
 To the title of the proceedings already 
 quoted will be now added, that, " The pri- 
 
 * Nor is itof little importance that the proceedings be /iz/'r- 
 li/ written; since the writer recollects to liave sei-n liie remis- 
 sion ©f a sentence of three hundrefl lashes, after approval by 
 a commanding olJicer, because " he could not read" the pro- 
 ceedinss to his satisfaction. A s-iVoni clnk, formerly, an'd not 
 iiniiecessarily, took down the proceedings ; a? this is no longer 
 the ca.se, the ari^iihit rogis-ter should, at least, be liled, from 
 the ni<ist obvidtis rule of esidepce, and also as a powcrtul iti- 
 niuluo to correctness. 
 
MILITARY LAW. 7^ 
 
 soner, having lieard the cliargc alleged against 
 
 liim, pleaded — Not guilty ; and that 
 
 being solemnly sworn, deposes, " I, &c." Which 
 evidence will hy the president he kept as close 
 to the question as possible, and nothing irrele- 
 vant be permitted. 
 
 Two witnesses will generally be sulTicicnt to 
 prove the case for tlie prosecution, (unless 
 where minute circumstances attend it, or the 
 prisoner has been in various custodies) which 
 to a regimental court martial can be easilv 
 summoned ; but, in cases where more cannot 
 be had, even one, as in the common law, is 
 enough to a single fact; and tven presumptive 
 evidence hath in secret cases been taken. But 
 these are resources very rarel}', and warily only, 
 to be admitted. For, it is an invariahle princi- Suiiivan's 
 pie of the law of England, that the best evi- ml. li!" 
 dence which the nature of the case affords, 
 and no other, shall be admitted in courts of 
 justice. * 
 
 • For the various peculiarities of pleas, oaths of witnesses of ^<"<' GrsrnM. 
 ,. . , . , ^ CouriTsMAR- 
 
 vanous religions and countries, the event of non-appearance hal. 
 
 of prosecutor or witnesses, the laws of evidence, adinissibilitv $ i<>. 
 of witnesses, of written evidence, peculiar circumstances ol 
 evidence, and the mode of judging or weighing it, the disa- 
 bilities of punishment, character of principals and accessaries, 
 &r. the reader is necessarily referred to Sect, 10. of the pre- 
 sent cliapter, in which a compendium of the best writers on 
 
72 PRIMARY OBJECTS OF 
 
 The evidence for the prosecution being 
 closed, the prisoner having been instructed by 
 the court to ask any necessary question of the 
 witnesses, the president will inquire for the 
 prisoner's " defence," and the member wlio 
 performs the office of Register will insert it in 
 the proceedings under that title. If he have 
 nothing to offer, he will probably *' beg to 
 throw himself on the mercy of the court." 
 
 As every thing, however, must necessarily 
 have been done to prove the charge against 
 him, in all its force, in the first instance, so, 
 for the due ends of justice, and the strict as- 
 certainment of truth, it becomes now indis- 
 pensably necessary to assist the prisoner in 
 every way towards the best representation of 
 any reasonable grounds of defence. And, as 
 he may be ignorant of the palliative effect of 
 circumstances which might be offered in his 
 defence, or appalled by the situation in \vhich 
 he is so placed, so it is the duty of the whole 
 court to elicit from him any fact tending to 
 either of these particulars, and of the Register 
 to insert the matter so furnished into the " de- 
 
 the subject will be found; and no officer should, in comnon justice 
 io a piisontr, or as regards common propriety in himself, sit on 
 any court martial, till he has, in some form or other, at least, 
 moderately acquainted himself with these subjects, and ena- 
 bled himself to reason on them. 
 
MILITARY LAW. 73 
 
 fence" in the most perfect point of view.* 
 After which, the prisoner being withdrawn, 
 and the court no longer open, they will pro- 
 ceed to sentence. 
 
 The president, as occasion may serve, will 
 probably recapitidate, in a brief manner, with 
 such observations as are dictated by his judge- 
 ment and experience, the evidence and de- 
 fence, and he will then call upon the Junior 
 officer for his opinion as to the decision of in- 
 nocence or guilt in the prisoner. If his inno- 
 cence should have become apparent, little 
 farther will be necessary ; the natural order 
 therefore proceeds to him who is found guilty^ 
 and on this subject is to be derived the best 
 advice from the most powerful authorities, 
 both military and civil. 
 
 •' The members of a regimental court mar- Mil. Arrange, 
 tial," (says Colonel Williamson) " should care-"'" 
 fully attend, in giving sentence, to proportion 
 the punishment to the degree and nature of the 
 offence actually proved before the court. No 
 private informalion, or interior conviction of 
 the prisoner's guilt, from the knowledge of cir- 
 cumstances not introduced or established by 
 evidence, should have the smallest influence 
 
 ' wild that is acqiiainlcfl with human nature would trust 
 fiinndf with II decision founded on any other groundb.' 
 
/* PRIMARY OBJECTS 07 
 
 on the vote of a member." Nor should a pri- 
 soner's good or bad character either diminish 
 or increase the penalty. Favourable testimony 
 as to a prisoner's former conduct may induce 
 the court to recommend liim to the clemency 
 of the commandini^ otlicer, but should never 
 prevent such a degree of punishment being 
 allotted to him as may appear proportionate to 
 his guilt." 
 Treatise on cts. *' In assigniuu," punishment," says Major 
 Adye, ' not only the nature ot the crime, or 
 offence, but the motives uhich induced the 
 person to commit and the circumstances at- 
 tending the committing of it are to he con- 
 sidered ; for, it may be committed either out , 
 of premeditated design, or in the heat of pas- 
 sion, or through imprudence; which may each 
 be considered in its proper degree; thus in a 
 transport of passion it is more culpable than 
 uhen proceeding from imprudence, and 
 through premeditated design more heinous 
 than in a transport of passion. The violence 
 of passion, or temptation, may sometimes alle- 
 viate a crime, as theft in case of hunger is far 
 more worthy of compassion than when com- 
 mitted through avarice, or to supply one in 
 luxurious excesses." 
 
 ** The age, education, and character, of the 
 offender; the repetition or otherwise of the 
 offence; the time, the place, the company, 
 
MinTAUV LAW. 46 
 
 vlierein it M'as coniniitted ; all tliese and a 
 tlioiisand other incidents may aggravate or ex- 
 tenuate the crime." 
 
 " But, more particnlarly," advises the Advo- in»«'<uiiom of 
 
 ' %■ ■ Mil. Law, .\n- 
 
 cate Bruce, *' tliere is ahsolutely required in S!'^^""'"'^ ^'^^• 
 
 ' . Tit. 10. ^ 30. 
 
 tiiose judges, a cahii, sedate, and sincere, tern- sii. 
 per of mind, tree of all partiality and passion."" 
 "If they expect to found a right sentence, ^''- ^^^* 
 they are resolutely, in judging, to lay aside all 
 fear ; fcr it is rare to see a man, w ho is over- 
 awed by the power or terrified hy the threats 
 of a great man, hit upon a right sentence." 
 ** Nor was it any great extenuation of Pilate's 
 crime, that he was overawed into the unjustest 
 senteuLC that ever was pronounced hy tiie im- 
 petuous fury of the barbarous and enraged 
 multitude." 
 
 I would recommend to youno- officers," savs ^^''•^^<^'"''>'« 
 Captain Simes, *' never to be biassed hy any 
 person, but to adhere strictly to justice, and 
 rather of the two incline to mercy." 
 
 Such are the best opinions on forming a 
 judgement on delinquencies amenable to a re- 
 gimental court martial. 
 
 " Punish not," adds Major Adye, " a man Trcat;.-.cOTC», 
 
 . . c ' \. C \ Mart. 2.57. 
 
 i\\ tile same manner, tor, perhaps, a tew hours 
 absence from his quarters, as if he had been a 
 deserler from his country, and a violator of his 
 sacred |)romise ; for it is not the number of 
 iu-ihes, but the sliauie that must attend it, that 
 
7G PRIMARY OBJECTS OF 
 
 cm 
 constitutes the punishment. To fix a lasting | i\( 
 visible stigma upon an oiFender is contrary J 
 botli to humanity and sound policy. The u 
 wretch, finding himself condemned to continual jiie 
 insult, becomes habitua*ted to his disgrace, and 
 loses all sense of shame." 
 n>. " For small crimes find out adequate punish- ^i 
 
 ments, such as confinement, fines, double .^ j,;, 
 duty, &c. and, by way of medium degrada- I [jt 
 tion, from one rank to another, or working at 
 fortifications, or other public works. 
 
 " Corporal punishments, which are the next 
 capital ones to death, should be sparingly made |j 
 use of." 
 
 MJi.Antiq.v.ii. " Respecting corporal punishments," says j^ 
 Captain Grose, " it may be necessary to ob- q, 
 serve, tliat they were not so common in an- 
 cienl armies as at present. Private soldiers in 
 those days, having some property, were punish- , 
 cd by forfeitures and fines." 
 
 '/() those who may be led to conceive, that, 
 on all occasions where corporal punishment is 
 alluded to in the written law, it is necessary 
 to award flagellation, it will be useful to point 
 An. ofWar. out that the Articles of War consider impriaon" 
 '^■■"'^" ■ meiit ?L?> corporal punishment; and this is h- 
 JJi^J '^"'"'! ' "• terally confirmed by Captain Grose, in his 
 observation, that "imprisonment may in some 
 measure be considered as a corporal punish- 
 ment, and was formerlv inflicted for different 
 
MILITAKY LAW. 77 
 
 Crimes and misdemeanors, as may be seen in 
 the different ordinances of war." 
 
 Two important axioms should be alway* 
 kept in mind, first, that principle derived from 
 the common law, that no prisoner nor witness 
 is to be urged to answer any question tending 
 to criminate or injure himself, nor are crimes 
 which by fiction alone are brought before this 
 minor court to be considered in their full mag- 
 nitude, which M'ould impugn its jurisdiction. 
 
 "Regimental and garrison courts martial," Essay on mj 
 says Mr. Tytler, " not having the aid of a 
 judge-advocate to direct their proceedings, 
 have on that account much responsibility ; 
 and, as the judgement of the court may come 
 by appeal before a general court martial, they 
 ought to be particularly careful that its pro- 
 ceedings be stricfii/ conformable to military lazL\ 
 and the practice of the army, as well as to the 
 great principles of justice and equityS' And 
 again, speaking of the proceedings being accu- 
 rately taking down in writing, he very properly 
 urges it, as *' a farther incentive to extreme 
 caution with regard to the regularity and 
 equity of their proceedings that an appeal lies 
 from all their sentences to a general court mar- 
 tial, and that the members are liable Iv prosecu- 
 /iofi for an iniquitous judgement."' 
 
 Having thus shewn, as nearly as mav be. in 
 
7S 
 
 pnnrAUY okjects or 
 
 Fonoole. 
 
 Mil. Arrnng 
 
 tliL'ir own words, the principles on wliich these 
 important authorities citlier as niihtary com- 
 manders or as persons occupied in the govern- 
 ment of a military force, have directed the 
 proceedings of regimental court", martial, it 
 will be convenient, previous tu the considera- 
 tion of an appeal, to coutinue the fornmle of 
 proceeding to the dissolution of the court. 
 
 The junior officer having declared liis opi- 
 nion, it proceeds in succession np to the senior, 
 and finally to the president, who declares the 
 ** opinion and sentence,"' to be subjoined to 
 the proceedings. 'I'hey will state that, — 
 
 "The court, having maturely considered the 
 evidence for and against the prisoner, is of 
 opinion that he is guilty of the crime laid 
 to his charge, and does therefore sentence him 
 
 to " (jchatevcr the piiiiisJiment that 
 
 may haie been awarded). 
 
 The proceedings, thus rendered complete, arc 
 now signed by the president, who also sul> 
 scribes his rank; and are by him enclosed, under 
 seal, to the commanding officer, by whose ac- 
 ceptance of them alone the court can be dis- 
 solved, and on whose confirmation only the 
 sentence can he put into execution. 
 
 Kven should a prisoner be honourably ac- 
 quitted, he is not capable of being immediately 
 discharged by the court; for, after being put 
 
MII.rTAUV LAW. 
 
 in confinement, and the matter reported to the 
 commandinj^ olhcer, he can be released by no 
 other authority. 
 
 As a copy of the proceeding's of ever}' gene- 
 ral court martial is entered at the judg-e-advo- 
 cate-general's office, so should every trial and 
 process before a regimental courts martial be 
 copied into a regimental book, kept for that 
 purpose at head-quarters; and of course, at 
 least equally accessible to that of the judge- 
 advocate. W the original register the better. 
 
 If a new prisoner be to be tried tlie oath nu st '':"''" 
 be repeated. 
 
 Notwithstanding the progress and conclu- 
 sion of the proceedings which ha\'e been de- 
 scribed, there is another, \vhieh may liavc 
 place during the one, and after the other; and 
 which is indeed necessary to the chain of subor- 
 dination in military law. 
 
 Appeal from tlic Minor Courts'. 
 
 It has been said, in the language of Mr. 
 Tytler, that, from the sentence of a regimental 
 or garrison court, an ajipeal lies to a general 
 court martial; and it is sufficiently shewn by 
 tliat well-informed writer to be grounded both 
 in equity and reason. The important anrl 
 most necessary privilege i^. nevcrtheles-;, so 
 
 noral Orders, 
 
 All. lUlO. 
 
80 PRIMARY OBJECTS 6T 
 
 seldom recognisctl, and has been disputed in so 
 extraordinary a manner,* that it is necessary to 
 render its existence as certain and obvious as 
 
 Mil. Mentor, * In an agreeable compilation of modern date, profossing 
 
 ▼.11,331. Note, jQ teach the various duties of an officer, and to accomplish 
 the young soldier, in which it is not, however, considered 
 necessary cien to mention the law by which they are governed I 
 the writer steps out of his way, by a false deduction, to support 
 the doctrine that there is no appeal in general cases, and 
 quotes the following instance in conjinnation. " At Barham 
 Downs, in 179^, a man was sentenced by a regimental court 
 martial : his' case appeared a very hard one, being connected 
 with something personal between two officers of the regiment; 
 and, when brought into the circle (for corporal punishment) 
 and the proceedings read, he appealed to a general court 
 martial. The colonel, however, told him he must first receive 
 this sentence, and ordered him to strip. The man's captain 
 now stepped out, and supported his appeal. But the co- 
 lonel's answer was the same, and the punishment was inflicted. 
 The captain brought the aft'air before Major General Norton, 
 (commanding) who decided that the colonel's conduct had 
 been right. This was thought very unjust in the regiment; 
 but, on a correct reference to the Articles of War, &c." they 
 were satisfied. " That the opinion of the colonel, however, 
 had not been founded on any immediate recollection or know- 
 ledge o( the law on the subject was evident from his saying, 
 
 after the punisJanent, Now, Captain , you may have a 
 
 general court martial for your man if you cliuse." 
 
 It is, perhaps, to be regretted that tliis is not the only in- 
 stance of such an unworthily-boastful conduct in a command- 
 ing officer of a regiment, preferring passion and pertinacity 
 to reason and humainty. 
 
 '^1 
 
MILITARY LAW. 81 
 
 possible, by the assemblage of whatever facts or 
 corroborative circumstances have occurred in 
 its consideration. 
 
 It will, perhaps, be sufficiently obvious on 
 examination of the Articles of M^ar and the 
 Mutiny Act, by which they are governed, that 
 originally, perhaps adapted to the exigencies 
 of the moment, neither the one nor the other 
 can be entirely free from the charge of being 
 *' vaffue and disputable;" and that at all events ^^o^^'" '^^.'.'• 
 
 o I ^ ^ Antiq. V. u. 
 
 the various emendations, necessary adaptations 
 to circumstances and times, and casual altera- 
 tions, have left chasms and superfluities suffi- 
 cient to confound, or at least employ, even 
 the lawyers. It is thus, for instance, that the 
 short section of tire Article of War, which sim- 
 ply prescribes an ^^ Entry of commissio7iS ««</ Art. of War, 
 leaves of absence,'" appears to be occupied in a 
 manner at least very unsuitable to its dignity ; 
 wJiereas by a recurrence to its origin it will be 
 found to be intended precisely " for prevent- Dutch Art. 70. 
 
 11- • 11 ,, ,1 Art. Reg. Ann. 
 
 mg and discovering such abuses as a *' plu- 41. Lruce-s 
 
 rality of .posts :" " which," says Bruce, *' was Txum^iw' 
 
 \iery consonant to reason and justice, such a p. 2.w!*' 
 
 ^ • 1 • 1.1 1 . 49 Geo in. 
 
 management implying no less than peculate or^ i^.ji^. 
 
 theft from the public, since no man is able to 
 
 be in two places at onqe." It is thus also that 
 
 the Mutiny Act has to the present moment 
 
 declared that no soldier shall be tried a second 
 
 G 
 
S3 PRIMARY OBJECTS OF 
 
 time for the same offence, *' unless in the case 
 of an appeal from a regimental to a general 
 court martial;" though it has long thsconti- 
 nued to re-echo from the Articles of War, or 
 those articles to recite, the cases in which such 
 
 Art. of War, au appeal was to be allowed. A single in- 
 stance, indeed, is preserved, that of any soldier, 
 &c. being wronged by the commanding officer 
 of his troop or company, a case which in modern 
 times it has been deemed necessary otherwise 
 to distinguish, inasmuch as that the smallest 
 detention of pay on complaint is now very 
 
 Milt. Act, $103. properly visited upon " every officer," with the 
 utmost deprivation ; which was formerly so 
 much the reverse, that even any number of 
 soldiers presuming to take counsel among 
 
 All. Ann. Reg. themselves for demanding their pay were "to 
 suffer death." 
 
 This being premised, to go no farther than 
 the rules and articles of James II. it is there 
 stated, after due mention of the matters to be 
 recognized by a regimental court martial, that 
 *' if, in any matter which shall be judged in 
 any of the aforesaid regimental courts martial, 
 either of the parties shall find himself aggrieved, 
 he may appeal to the general court martial, 
 who are to take care that, if the party appeahng 
 make not good his suggestion, recompense be 
 made to the other for the trouble and charge of 
 such an appeal." 
 
 168(5. 
 An. 49. 
 
MILITARY LAW. 83 
 
 On the same principle as above remarked, An of War. 
 
 . / $11. Art. '.i. 
 
 and u liich will be found to be acted upon to this Mut.Act.^u, 
 day, that of yielding to the common law all its 
 rights, it is that Sir James Turner observes of 
 the incompetency of a minor court to Jinal 
 judtjement, — "to the decision of a p;eneran'""as, Atmata, 
 
 J t> -> . . . ° . book 2. ch. 9. 
 
 court of war belong all civil affairs and busi- 
 ness, though they have been determined in the 
 lower courts ; for in these cases appeals are per- 
 mitted to the higher court, neither can the sen* 
 tence of the lower court be executed till the 
 proper process be fully heard in the superior,^ 
 if the parties concerned have appealed to it." 
 
 " In civil causes," says Bruce, " according i^eg- Ann. Art. 
 to the British articles, a court martial can in 
 no wise hear or determine, only there is an ex- 
 ception of such civil controversies between 
 soldiers and their officers, or betxveen soldier 
 and soldier, as relates to their military capaci- 
 ties ; and if in that case any of the contending 
 parties may judge h.imself aggrieved by the 
 regimental court, he is allowed to appeal to the 
 general court martial, who, by the said articles, 
 are enjoined to take care that, if the party ap- 
 pealing make not good his suggestion, recom- 
 
 * This law does not appear to have governed the operations Ub. jupra. 
 atBarham Downs, reported by the " Military Mentor," nor it 
 is to be feared others less excusable. 
 G 2 
 
84 TRIMARY OBJECTS OF 
 
 Art. 55. ^ pense be made to the other for the trouble and 
 charge of such an appeal. 
 
 Art. of War, This gocs mucli farther than the present arti- 
 cle, and leads us to the judicious observation 
 
 Mil. Arrangem of Coloucl Williamson, that "disputes rela- 
 
 Dote 75. * . ' 
 
 tive to pay and clothing are indeed the prin- 
 cipal points on which a difference may happen 
 between a soldier and his officer; but they arc 
 not the sole ; and cannot by any means be a ; 
 cause of dispute between one soldier and ano- 
 ther. Yet in this latter case either party has j 
 the same right to appeal, for which all that ' 
 can be urged is the reason of the thing itself, , 
 and the antiquity of the practice." And, there i 
 being nothing in the present article to abro- 
 gate it, it may be added, in the words of Bruce, 
 Mil. lust. 308. on another occasion, that, " though now dis- 
 continued, it is not to be considered as a sta- 
 tute repealed, but is still in force." 
 Thus do we arrive at thaX point in the sub- 
 Treatise on cts ject on which Major Adye, with his usual 
 1 art. p. .c. -gQQ^j sense, observes, still doubting of the e.r- 
 tent of appeal : " to fix the proper bounds is a 
 matter of a very delicate and interesting na- 
 ture, as well with regard to the soldier as the 
 service. Should it be understood that appeals 
 arc of right due in all cases, much inconveni- 
 ence might ensue ; as conscious offenders would 
 be induced to appeal merely for the sake of 
 tlelaying punishment, and M^ould be most apt 
 
MILITARY LAW. 85 
 
 to do SO, when there was either an impractica- 
 bility, or great difficulty of convening a general 
 court martial ; and yet, on the other hand, it 
 may not be easy definitively to point out in what 
 instances they ought to be allowed or refused." 
 
 Nothing is more true; yet, without the cer- 
 tain privilege of appeal, a link is wanting in 
 that chain of subordination in the military ju- 
 dicature, which a small consideration of the 
 service will shew to be indispensably necessary; 
 which many appeals even from general courts 
 martial to the common law will prove ; which 
 even the Earl Rosslyn in summing up the argu- Trial of Gr»m. 
 ments for prohibition of the sentence of a 
 court martial, by his mentioning as a prefera- 
 ble mode of procedure a?i appeal, allowed ; and 
 which, to conclude the wliole, a case in point 
 has at length confirmed. 
 
 This, it is hoped, notwithstanding some equi- 
 vocal circumstances, by' which the decision 
 is characterised, may set at rest a question 
 which ouo:ht never to have arisen. It is quoted ^j- '"^ Jj*9*- 
 from the text of ^f r. M 'Arthur, of whose work o< c. m. v. i. 
 
 145. 
 
 it forms one of many documents of the highest 
 importance. " At the Cape of Good Hope, 
 May, ISOf^, Serjeant Joseph Ginger, of the 
 34th regiment, was tried by a regimental court 
 martial, for disobedience of orders, being out 
 of .his barracks after hours, and for unsoldier- 
 like behaviour to Lieutenant Dawson ; he was 
 
86 PRIMARY OBJECTS OF 
 
 found guilty, and sentenced to be reduced to 
 the ranks to serve as a private soldier, and also 
 to receive live hundred lashes. The irregularity 
 of the sentence was aggravated by Serjeant Gin- 
 ger having, tor the same offences, previous to 
 the said trial, been degraded by the colonel of 
 the regiment from the rank of serjcant- major 
 to that of Serjeant. A general court martial 
 xcas accordingly assembled to try the appel- 
 lant, and the court passed the following re- 
 solution : * It having been clearly proved that 
 the appellant was seijeant-major of the 34ith 
 regiment, and regularly mustered as such, and 
 tried by the regimental court martial, from 
 which he has appealed, as a serjeant ; it there- 
 fore appears to the court that the proceedings 
 of the regimental court martial were invalid, 
 inasmuch as the appellant was not by any suf- 
 ficient authority reduced from the rank and 
 pay of a serjeant-major to that of a serjeant. 
 The general court martial therefore rest their 
 proceedings until this opinion be submitted to 
 the commander-in-chief, and receive his orders 
 as to any farther investigation.' The result, 
 after farther investigation had taken place, 
 was, that the commander-in-chief conHrmed 
 the opinion of the general court martial 
 Avith respect to the irregularity of the regi- 
 mental court, directed the proceedings to be 
 cancelled accordingly, and ordered Serjeant- 
 
MILITARY LAW. 8/ 
 
 Major Ginger to be released, and return to his 
 duty as serjeant-niajor of his majesty's 34th 
 regiment." 
 
 Here is tiie the full right of appeal complete- 
 ly admitted and acted upon; and, notwith- 
 standing the disinclination so often expressed 
 from the introduction to military affairs of 
 niceties of legal objection, even the greatest 
 weight is given to the circumstance of the 
 colonel having reduced the prisoner only a sin- 
 gle grade, instead of the full degradation " to 
 private ccntincl." 
 
 It only then remains to shew the limitation 
 of this right; which, according to the elo- 
 quent judge-advocate for Scotland, " arises xjrtier, Essay on 
 from the constitution of all general courts 3^8^'^ ^'*'*' 
 martial. They are not subsisting courts of ju- 
 dicature, open at all times, and to all parties ; 
 but, being assembled by special warrant for a 
 particular purpose, they are not embodied or 
 created at all, unless it shall appear to the chief 
 military authority that there is a just and rea- 
 sonable cause for assembling them. No mili- 
 tary person is therefore of absolute right to 
 demand the assembling of a general court mar- 
 tial, either for the trial of himself or another 
 party, unless in one instance, that of a dispute An. of War, 
 respecting pay and clothing. His request u^'supr" 
 must come by petition or memorial, before the 
 commander-in-chief, who will judge from all 
 
AS PRIMAUY OBJECTS OF I 
 
 circumstances whether the same is reasonable Jf 
 or otherwise, and either grant or refuse it as '* 
 he shall think proper. i ot 
 
 The reasoning for such control given by 
 this elegant writer, tending only to lay at 
 the feet of the commander the right of every 
 opportunity for appeal to military justice, is i 
 not added; because, while there are, it is be- i\ 
 lieved, very few instances in which when re- ' 
 quested it has ever been withheld, still it is 
 a principle no less repugnant to the highest \ 
 British commander, than its tendency to an ' 
 avowedly absolute control in the operations 
 of military judicature, must ever be obnoxious 
 to the character of a British people. 
 Essay on Mil, " But," contiuucs Mr. Tytlcr, " as it is com- 
 petent for the commanding officer of any corps ; 
 to assemble regimental courts martial for the 
 trial of the lesser offences, and for the punish- 
 ment of non-conmiissioned officers and soldiers; | 
 and as such courts, of which the members are 
 often few in number, and these frequently 
 young and unexperienced officers, must neces- 
 sarily from these circumstances be more sub- 
 ject to error in their proceeding and sentences 
 than a more numerous and select tribunal of 
 experienced men ; it would be a material hard- 
 ship and grievance, if those inferior courts 
 ■were under no control. It is proper therefore 
 that thei/ should ever act under a confirmed 
 
 Law, c. 8. 338. 
 
MILITARY LAW. 89 
 
 soise that their procetdbigs are subject to re- 
 vision by a general court martial, to whose judi- 
 cature the party conceiving himself to be ag- 
 grieved has it always in his power to appeal, 
 through the medium of the commander-in- 
 chief." 
 
 "The reason," again says !Mr. Tytler, "why 
 a power of appeal is declared to be competent 
 of absolute right to inferior officers and sol- 
 diers complaining of being wronged by their 
 superior or commanding officer is, that a re- 
 gimental or garrison court martial have not the 
 power of inflicting any punishment on com- 
 missioned officers ; they can do no more than 
 express their opinion that the complaint is just 
 or the contrary, and restore the sufferer against 
 any existing grievance ; but the injury com- 
 plained of, however flagrant, must therefore 
 have remained unredressed, as far as punish- 
 ment is concerned, if an appeal to a general 
 court martial had not been declared to be a 
 matter of right to the party aggrieved." 
 
 All this may be true; though it seems to re- 
 fine too much upon it, and rather strikes at the 
 competency of regimental courts martial to the 
 investigation of such cases at all; since, if after 
 this court has gone to the extent of its juris- 
 diction in satisfying the complainant, he has 
 to go to a higher court to render that satisfac- 
 tion complete, the former becomes nugatory, 
 
go PRIMARY OBJECTS OF 
 
 or the latter little less than double punishment 
 for the same offence, particularly in the appoint- 
 ment of detachment courts martial ; and this 
 idea is confirmed by the case laid down. Still 
 the right of appeal remains untouched, or, if 
 any thing, appears to gain new strength from 
 the position. 
 
 Nothing remains on this subject but to 
 state the procedure, of which also the form is 
 established. 
 Tvtier&M'Ar- The court bciug appointed by proper autho- 
 "^'' '^' rity, " the parties in the trial are summoned 
 to attend together, with all the necessary evi- 
 dence. The appellant sustains, in conjunc- 
 tion with the judge-advocate, the part of pro- 
 secutor ; and the party in whose favour the 
 inferior court has given its judgement is de- 
 fendant in the cause; the charges on the ori- 
 ginal trial being the matter at issue, on the 
 truth or falsehood of which the court of ap- 
 peal is to decide." " The witnesses before the 
 regimental court are again examined ; and are 
 entitled," says Mr. Tytler, '' before giving evi- 
 dence, to have their former testimony read 
 over to them ; w hich they may either confirm 
 or vary agreeably to their conscience. They 
 must likewise answer all pertinent interroga- 
 tories put either by the prosecutor and appel- 
 lant, or the defendant, or by the court; and 
 that either in the way of primary examination 
 
MILITARY LAW. Ql 
 
 or cross questioning. It is competent, more- 
 over for eitlier cf tlie parties in the appeal to 
 adduce additional evidence, either by the ex- 
 amination of new witnesses or the production 
 of writings. The wliole of the evidence is 
 taken down in writing by the judge-advocate, 
 as recorder (or register), and the court deli- 
 berate thereon, and pronounce their opinion 
 and sentence in the same manner as in ordi* 
 nary trials." 
 
 An appeal always implies the review by Tjtk-r's Essaj 
 
 ^^ ^ . ,. ^^ , "^ on Mil. Law. 
 
 one court or judicature or the sentence to an- 845. 
 other. 
 
 9. Detachmeiit Court Martial. 
 
 The appellation of this court is a sufficient 
 description of its general nature, exactly that 
 of garrison courts martial, for which, perhaps, 
 it is a misnomer in the recruiting regulations, Reg. for Re- 
 except that the proceedings of courts martial, *''"'""^'"'" 
 on recruiting parlies, are to be approved by 
 the inspecting field officer. 
 
 But it has a particular character. With the 
 most minute accuracy, in the assurance of 
 justice to every individual, his majesty consti- 
 tuted this new species of court, ranking, as it 
 were, between regimental and general courts 
 martial, for the trial of officers of a rank, 
 which neither permits them to be tried by a 
 
5ft PRIMARY OBJECTS OF 
 
 regimental court, nor authorises the dignity of 
 a general court martial. These are warrant 
 
 $i8."lrt!i3. officers, or, according to the Articles of War, 
 " not commissioned by us, or by any of our 
 general officers, having authority from us to 
 grant commissions, but appointed by warrant, 
 under the signature of the colonels or com- 
 mandants of the corps to which they belong." 
 It is appointed by the general commanding 
 in the district where the corps is situated, if 
 in Great Britain, Ireland, Jersey, Guernsey, 
 
 IK. Alderney, Sark, or Man ; but if in the British 
 
 dominions beyond the seas, or in foreign 
 parts, by the general commanding in chief on 
 the station. It is conducted in a similar 
 manner to a regimental court martial, but 
 cannot, in any case, consist of less than five 
 commissioned officers, of whom not more than 
 two shall be taken from the regiment in which 
 the warrant officer to be tried is serving, not 
 more than two under the rank of captain, nor 
 the president under that of field officer ; nor 
 can its sentence be put into execution, if the 
 trial shall have taken place in Great Britain, 
 Jersey, Guernsey, Alderney, Sark, or Man, 
 until (says his majesty's articles) a report shall 
 have been made to us, and our directions shall 
 have been signified thereupon, through the 
 commander-in-chief of our forces, or, in his 
 absence, through our secretary at war, or in 
 
MILITARY LAW. g% 
 
 J u reign parts, until such sentence shall have 
 i>een conlirnied by tlie general commanding in 
 chief on tlie station, who is hereby authorised 
 to cause such sentence to be put in execution, 
 or to suspend, mitigate, or remit, the same, as 
 he shall judg-e best and most conducive to the 
 good of our service, without waiting for far- 
 ther orders." 
 
 The detachment court martial, however, has 
 no authority to award corporal punishment, 
 nor has it, or any other, power to reduce to 
 "aa inferior situation" the warrant officer, 
 unless he shall have been originally inlisted 
 as a private soldier, and shall have continued 
 in the service until his appointment to be a 
 warrant officer. 
 
 10. General Court Martial. 
 This is the supreme military court of law, ^'li'an«o»'» 
 
 ' -^ ' Mil. Arrangem, 
 
 instituted for the purpose of ''adjusting all ^- 2.77. 
 disputes between individuals and corps, and of 
 trying and punishing all offences that may be 
 committed by officers or soldiers against mar- 
 tial law." 
 
 To the local jurisdiction of g^eneral courts SuUivan, 8.5. 
 
 «' _ o An. of War. 
 
 martial there are occasionally a kind of pe- wiUiamson'. 
 
 •^ >■ Mil. ArraiiK< 
 
 culiar exceptions, which are necessary to be ^- 2. 101. 
 mentioned here, though chiefly sufficiently 
 understood. A general, commanding in chief 
 
 cm. 
 
94, 
 
 PRIMARY OBJECTS OF 
 
 Peculiar Ex- 
 ceptions to Ju- 
 risdiction. 
 
 abroad, could not be tried by a court martial 
 there, because he must in general be "arrested 
 by a superior," and there is no remedy against 
 him but by an application at home to the se- 
 cretary at war, in Avhich case he might be re- 
 called, in order to be tried and punished.* 
 
 Neither hath he, who orders a court martial, 
 the power to cause an offender to be tried a 
 second time for the same trespass; nor, after 
 his conviction or acquittal by a court of judi- 
 cature, to punish him otherwise than by 
 cashiering; i. e. upon proof being brought of 
 his conviction of a crime before the civil court, 
 which renders him unworthy of the honour- 
 able profession of a soldier, he may, on that 
 ground, be dismissed from his - majesty's ser- 
 vice by a court martial. f 
 
 To it is, however, conceded, in Gibraltar, 
 and other garrisons abroad, the trial of all 
 persons accused of felonies or misdemeanors, 
 with power to punish with deatli or other pe- 
 
 Sulltvan, 8. 
 
 Tr. of L. Geo. 
 
 SackTiUe. 
 
 * A colonel may, however, be arraigned before a tribunal, 
 with a major at its head. An officer, under suspension, is 
 liable to be tried : So may even an officer, uithout military 
 ovyloy or commismm, he being willing. 
 
 t So, on the other hand, after being subjected to the con- 
 viction or acquittal of court martial, an offender is not to 
 be punished again by the civil power, all judges, in all 
 courts, being bound to taLc Judicial notice of military law. 
 
MILITARV LAW. 9^ 
 
 iialty, as the nature of the offences may re- 
 quire. 
 
 No officer or soldier, who shall be put in ^'/g^^^^gg* 
 arrest or iniprisonnient, shall continue in his iiui- Act. §11. 
 confinement more than eight days, or till such 
 time as a court martial can be conveniently as- 
 sembled. 
 
 All oeneral courts martial are assembled Tjtier's Es.ay 
 
 , , , . on Mil. Law, 
 
 under authority of the king, either expressly 134. 
 signified by commission, or warrant under the 
 royal sign manual, or by delegation of the 
 royal authority to any general officer having 
 the chief command of a body of forces. 
 
 A general court martial shall not consist of •^,'*•°^^^'f' 
 
 O 5 16, art. 1:^. 
 
 less than nine commissioned officers, in Great ^'^^"''"y^<=^ 
 
 $ 17, &c. 
 
 Britain or Ireland ; or in Gibraltar, or any 
 other place beyond the seas, except in Africa 
 or New South Wales, in which places it shall 
 not consist of less than five. But, if held for 
 the trial of a commissioned officer, it shall not 
 consist of less than thirteen commissioned of- 
 ficers : And in no case shall the president be 
 commander in chief, or governor of the gar- 
 rison where the offender shall be tried ; nor 
 shall he be under the degree of a field-officer, 
 except, when in Africa or New South Wales, a 
 field-officer cannot be had, and then not under 
 the rank of captain. 
 
 ^i Although a less number than that prescribed^.J^^^f^°"^ ^" 
 under each of the above cases cannot consti- '^c. i79!4. 
 
9$ PRIMARY OBJECTS OF 
 
 Trial of Gen. tutc R court martial, vet a sweater number may 
 3808. be assembled, as shall aj)pear expedient ; and, 
 
 whenever the service will admit, a greater 
 number should be ordered, (as in waiting for 
 Mil. Arraiigem. any other duty,) that, in case of sickness or 
 Ord. ^ri^'"* other accidents, there may still be enough to 
 form the court. And, when officers are put in 
 order for this duty, they are especially to pass 
 ev€ry other turn of duty till the court shall be 
 dissolved, by order from the same authority 
 which appointed it, unless in the interim be- 
 tween passing and declaring the sentence, from 
 peculiar circumstances, it should be delayed. 
 Art. of War, It is now cxtrcmcly rare, that any officer, 
 
 § 16, ait. 10. , , in • • • 1 • 
 
 Mut. Act, § 17. under the rank or captam, is appomted to sit on 
 a general court martial, yet it is in no way pro- 
 hibited ; on the contrary, it is found necessary 
 to enjoin, that *' no field-othcer shall be tried 
 by any person under the degree of a captain ;" 
 and that in no case members shall be "under 
 the degree of a commissioned officer." 
 Sullivan's The power thus existing in the sovereign, 
 
 MLniaiw, and by appointment in his delegates, to direct 
 pToccedfng.lc. courts martial to be held, and a general court 
 ^^' martial being required, the person thus exer- 
 
 cising the power issues a warrant to some of- 
 ficer as the president, and to other officeis as 
 the members of the court, which he finds it 
 necessary to appoint. If at the head-'quar^ers 
 of the army in London, the whole thke$ place 
 
I 
 
 WIMTARY LAW. 97 
 
 tliroiigh the judge- advocate general, uho 
 tlicrtin appears somewliat in the character of a ' 
 
 law'-sfcretary to the army. Tlie place of sitting J*!'»- Arrangcm. 
 is appointed by the person by wiioni the court 
 is ordered to assemble. It is often at the pre- 
 sident's tent or cjuarters. 
 
 With the appointment or constitution of theTv'^^i'' ^ 
 court martial the royal authority ceases, till 
 that court shall have pronounced its judge- 
 ment; the king can no more interfere with the 
 procedure of courts martial in the execution of 
 their duty than he can with that of any of 
 the fixed courts of justice. Nor can the all-Tr. ofbjrdo 
 powerful influence ot parliament even affect it 
 in any ordinary way; since the doubtful case, 
 which formerly occurred, in conse(]uence of 
 the expiration of the ^Mutiny Act, without the 
 sanction of which it could not exist, during 
 the progress of a trial, has since, by parlia- 
 ment, been remedied by the ordinancte, which 
 directs that every warrant, for holdiuo- any 
 
 ' - :Miiiinv Act, 
 
 court martial, under any act, shall remain in § i-u.' 
 full force, notwithstanding the expiration of 
 such act ; " and that all proceedings begun 
 shall not be discontinued by the expiration, 
 but it shall be lawful to proceed to judgement, 
 and to carry such judgement nito execution. 
 
 In addition to the president and members of 
 a court martial, thus temporarily appointed, 
 there is by no means the least important oflicer 
 u 
 
9^ PRIMARY OBJECTS OP 
 
 to be mentioned, who, according to his fo- 
 cality, SListaiv.s a most respectable gradation of 
 character. This is the jnoge-advocate ; at the 
 head quarters of the British empire, in London, 
 styled judge-advocate-general ; in the other 
 capitals of tlie empire described as deputy 
 judge-advocate ; and, on all other occasions, 
 officially acting as judge-advocate. 
 
 The duty of a judge advocate, in either of 
 Art. of War. thc gradations, is to " inform the court, and 
 50""" *^^" **' ' prosecute/' on behalf of the sovereign ; for 
 $i6?'a. 7. such is the original text and continued mean- 
 Tytier'sjM. L. jng of tlic iuiperfect article (vii.) of the l6th 
 section of the Articles of War on this subject, 
 which, in a manner before described, is inju- 
 riously altered, while the perfect rubric, or 
 marginal note, remains.* 
 
 From every thing, however, it would ap- , 
 pear, that the duty of the judge-advocate in- 
 volved that of instructing or counselling the 
 court, not only in matters of essential and ne- 
 cessary form, with which he must be presumed 
 to be from practice most thoroughly acquaint- 
 ed, but in explaining to them such points of 
 law as may occur in the course of their pro- 
 
 '^ The same circurastanre occurred in § 1 14 of the Mutiny 
 Act, where, by the marginal note, the reader is in vain di- 
 rected to tho billetting of troops from abroad, cum multis 
 aliis qua: nunc prescnbere longum eai. 
 
MILITARY LAJr. 99 
 
 cecdings, and witli respect to which tlie Arti- 
 cles of War ai^d Mutiny Act n)ay he .silent. 
 *' For it is to be observed, tliat, in all matters ib. ^.joo. 
 touching tiic trial of crimes by court martial, 
 wherever the military law is silent, the rules of 
 the common law of the land, to the benefit of 
 which all British subjects are entitled, for the 
 protection of life and liberty, must of necessity 
 be resorted to ; and every material deviation 
 from these rules, unless warranted by some 
 express enactment of the military code, is, in 
 fact, a punishable oflence in the niembers of 
 the court martial, who may be indicterl for the 
 same in the king's ordinary courts. 
 
 So soon as the commission, or warrant, is is- mii. Arr. n. ao. 
 sued for the assembling of a general court jJs. "" ' ' 
 martial, the judge-advocate, being lequired to 
 attend his duty, and furnished >vith the arti- 
 cles of accusation, or charge, on which he is to ' 
 prosecute, is to inform each prisoner of the 
 time and place appointed for his trial, an<l is 
 to furnish him with a copy of the charge ex- 
 hibited against him, in order that he may have 
 time to prepare for his defence, the nanies of 
 the witnesses, (as far as he is able,) by whieii 
 it is to be proved, and a correct detail of tlie 
 members of the court martial ; he is then aLso 
 to summons (subpoena) the M'itnesses for the ^^ ^'°' 
 crown, and to rccpiire of the prisoner a list of 
 such as he may wish to have called upon in tha 
 
I 
 
 100 PRIMARY OBJECTS OP 
 
 same manner, summoned either by direct in* 
 timation from himself to each of them or by 
 an application to the commanding officers of 
 the regiments or parties to which they belong, 
 requesting that they may be warned to attend 
 that duty. If any witnesses should be persons 
 in a civil capacity, the party requiring their 
 attendance applies, through the judge-advo- 
 cate, to the proper civil magistrate, who grants a 
 subpoena, compelling the attendance of wit- 
 nesses in the usual manner. 
 euU.M.L.i3. The general court martial being thus in 
 orders to assemble, and the witnesses for and 
 against the impending prosecution being sum- 
 moned to attend, the court forms itself at the 
 appointed place, agreeably to its commission, 
 and it is imniediately governed by the follow- 
 ing rules : 
 Mii.Arr.9r. The court is open to all persons, civil as well 
 fr-.l^^*^*^' as military, except when any doubt as to 
 A-'o^v.^e. ^ po^"^ "^ ^^^ ar->es, when it is closed to all 
 '■^^'^'' but the president, members, and judge-advo- 
 
 cate, that they may argue and decide upon it. 
 All the members are to beh ive with decency ; 
 the proceedings are to be conducted through- 
 out with solemnity ; and no person whatever 
 shall use any menacing words, signs, or ges- 
 tures, there, or cause any disorder or riot, so as 
 to disturb their proceedings, on the penalty of 
 being punished, at the discretion of the said 
 
MIl.rTAnY LAW. 
 
 101 
 
 court martial. This rule, Colonel Williamson 
 thinks, supposes, that the party offending is 
 " suhject to its jurisdiction :" If not, the of- 
 fence would be, as a l)reach of the peace, re- 
 cognizable by the common law. Nor shall any 
 proceedings or trials be carried on, excepting 
 between the hours of eight in the morning and 
 three in the afternoon, except in cases which 
 require an immediate example. 
 
 When a trial is not finished at that hour, the Mil. Arr. 9rt. 
 court is adjourned to the next or a future day. 
 In the interim it is the duty of the judge-advo- 
 cate to make a fair copy of the proceedings, M'Arthur.y.?, 
 taking care to state the adjournment at the suii. m. l. is. 
 commencement of the proceedings of each sue- lockc.*^ 
 ceeding day. 
 
 To return, however: the members being 
 duly seated ; the president at the head, and 
 the other members on his right and left, ac- 
 cording to their several ranks and standings 
 in the army ; the judge-advocate, on the right- 
 hand of the president, calls over their names, 
 beginning with the president ; and then, having mil Arr. 
 received from the president his warrant, he 
 reads aloud the president's appointment, and, 
 afterwards, the comnission by which he of- sdUvaa. 
 ficiates, as judge-advocate, himself. Tiiis be- 
 ing done, and the prisoner to be tried being 
 brought before the court, the judge-advocate, 
 ih his capacity of recorder to the court and 
 council for the king, demands, if he has ei- 
 
Mil. Arr. v. 
 83i also u. jy 
 
 17, &c. 
 
 IOC PRIMARY OBJECTS OF 
 
 ceptions to any of the meinbers present?^ If 
 he has not, the judge-advocate proceeds to 
 
 Sullivan, \b. * Xo member, however, can be excepted against after the 
 
 formation of tlie court ; neither can an instance of his former 
 character be pleaded against him, unless he shall have per- 
 petrated some deeds or have been principally or necessarily 
 
 T iler "''6 concerned in the commission of some act subsequent to such 
 formation, which shiill be adduced as guilt against him, ot 
 unless the prisoner knew not of the cause of exception be- 
 fore, j 
 
 The power of challenging (says Colonel Williamson) pe- 
 remptorily, or without assigning causes, whether on the part of 
 the king or the prisoner, is repugnant to the spirit of martial 
 law, and to the administration of justice in an army, to- 
 wards which, above all things, promptness is requisite. The 
 number qf peremptory challenges allowed, in tlie civil courts, 
 is, in murder and other felonies, twenty ; the number of chal- 
 lenges, xiith cause, in high and petit treason, thirty-five, 
 (leaving the number of a general court martial indefinite)} 
 but out of forty-eight summoned, which they call the pannel, 
 twelve must be found to try the prisoner ; therefore, if many 
 challenges, with cause, are produced, and thought sufficient, 
 some of the peremptory challenges must (or may be) set 
 aside. It is usual to assemble no (or but a few) more than 
 are intended to form a court martial, (particularly on-board 
 ship, or in distant garrison,) so that, if many members are 
 challenged, the whole business must be at a stand, till a report 
 can be made to the comMinnder-in-chiet', and fresh officers or- 
 dered to attend as members; in many cases the prisoner could 
 
 I'll, on M. L. ""t be tried at all, from the impossibility of finding sufficient 
 ofiicers at n station. However, (says Mr. Sullivan) it rs 
 not more than justice to n prisoner to admit them, in the same 
 extent, at a military tribunal, more especially when it is con- 
 iulered, that memlers ot a court martial hit not only as 
 
MIITTARV LAW. 10! 
 
 administer, first to the president and then to 
 the several menihcrs, according- to their respec- 
 tive ranks, as many at a rime as can conveni- 
 ently be sworn, upon the Holy Evangehsts, 
 the following oaths, first reading the preamble -^j^^ °J^^^^^"' 
 to them : — 
 
 " Vou shall xcell and truly fry a7ul determine, Preamble. 
 according to your evidence, the matter now be- 
 fore you. 
 
 So HELP YOU God." 
 
 jurors, but ultimately as judges. On that principle of mercy 
 
 which pervades the whole system of the criminal law of 
 
 England, the prisoner is not suffered to be tried even by one 
 
 Mhme countenance he shall tUsllke. Officers, indeed, are not 
 
 to be told, that relinquishing their seats, when excepted 8 Henry IV. 
 
 against unsatisfactorily, and when such relinquishment is 
 
 practicable, is not only humane and delicate, but prudent 
 
 and commendable. 
 
 Members of a Court of Inquiry in the same cause or same 
 matter are liable to be excepted Hiiainst as iudjic^ : any person State Trials, 
 having a claim to (or interest in) the forfeiture (or resig- 
 nation) may be challenged as a juror. 
 
 A principal challenge is such, when the cause assigned 
 carries with it, prima-facia?, evident marks of suspicion, 
 either of malice or favour, as that a juror is of kin to either 
 party, within the ninth degree; that he has been arbitrator 
 on either side; that he has an interest in the cause ; that 
 there is an action between him and the party ; that he has 
 taken mofley for his verdict; that he is the i>arty, master, 
 servant, counsellor, steward, or attorney, or of tfie same 
 corporation with him. 
 
 Finally, an officer in his judicinry capacity should be as 
 far as ■possible unexceptionable. 
 
104 
 
 PKIMARV OBJECTS 0^ 
 
 Oalh to Prcsi- '• / . / 
 
 .Km a„d .Mem- ' ' ^^<^ ScCCar, tliat I •uUl dulu 
 
 ad,ni„i,,cr justice, accordh,, to the Rule, and 
 Article, Jo,- the better govcrmnent of l,U ma- 
 jestysjorces, and according to an Act of Par- 
 h<ment,u>w in force, for the puniAm^nt of 
 Mutmy and Desertion, andof other crime, there- 
 in mentioned, '^cithout partiality, favour, or af- 
 Jectcon; and if any doubt , hall arise, u,hichis 
 not explained by the said articles or act of par- 
 liament, according to my conscience, the best of 
 my understanding, and the custom of zoar in the 
 like cases: And I do farther s^ear, that IzcilL 
 not divulge the sentence of the court, until it 
 ■^hall be approved of by his majesty, or by some 
 person dul, authorised by him; neither uilt I 
 upon any account, at any tune whatsoever, dis- 
 close or discover the vote or opinion of any 
 particular member of the court martial, unless 
 required to give evidence thereof as a rcitncss by 
 a court of justice, or a court martial, in a du» 
 course oj law. 
 
 So HELP ME God." 
 
 And as soon as tlie said oatlis shall have hecn 
 ».l.mn,ste,c<l ,o ,hc respective members, the 
 presKlent of M,e court shall a.hninister to th« 
 Ju<lge-a<lvocate, or person officiatin-. as such, an 
 oath, in the folkni iug words : 
 
 Oath to Judxe 
 
 ^' , ilu 
 
 cear, that I :ri/l not, 
 
 ^pon aui, account, at ayiy time xchatsocv.r, dis- 
 
>nMTART LA^V. 1^5 
 
 ^' or dhcoier the vote or opinion of ani/ par- 
 iiar viembcr of tht court martial^ unless rc- 
 'td to give evidence thereof, as a witness, by 
 
 a court (f justice, or a court martial, in a due 
 
 course of law. 
 
 So HELP ME God." 
 
 Should the court martial be ordered for the 
 trial of ''sucli prisoners as may be brought 
 before it," it must exhaust all the charges, and 
 at evert/ new one repeat the forms and oaths 
 already prescribed* 
 
 Tiie court martial being regularly formed, inSuUivaj*. »». 
 the manner before-mentioned, and the wit- 
 nesses in attendance, the judge-advocate be- 
 gins upon the prosecution. Prepared with the Ty tier, si*, 
 cliargc, which must particularise time and 
 place, as well as circu?nstance, with the full de- 
 scription of the parties, and the prisoner 
 standing before the court, the judge-advocate 
 asks him, upon reading to him his crime. — Arraignment 
 " How sai/ i/ou, arc you guilty of the crime laid 
 to your charge, or not ? 
 
 If he should plead guiltv, or refuse to plead, P'"- 
 
 I f^ ' r » Sullivan ul>i J4- 
 
 as in manv instances is the case, the nrosecu-pra. 
 
 ' . . . IV.' Geo. Ill 
 
 tion immediately closes, and judgement is c. to. 
 
 * Since the present work has been in preparation for the 
 press, this instiuite h.vs become a l«w, hy tlie goncral orders 
 «f the 1 3th of January, l.SIO. 
 
I06 PRIM AH V OBJIXTS OF 
 
 passed accordingly,* standing mute ex tisita^ 
 tione Dci^' alone excepted : that act of God 
 rendering him, fron) an inability to plead liim- 
 self, most peculiarly intitied to a solemn and 
 regular investigation of his conduct ; or, if he 
 urge some plea in abatement, or bar, of the 
 charge ; :]; but, on the contrary, if he should 
 
 •3Edw. I. c. IC. ^ The passing J ii(l!^emcnt in this case is one of tlie nume- 
 rous amendments of die law, which ha\e taken place in favour ; 
 of humanity, within a short period of time ; for, till the , 
 
 Mutes. present reign, by statute, all persons remaining mute, from | 
 
 obstinacy, instead of pleading, suft'ered the punishment of i 
 being pressed to death by an immense weight of iron, (fti/te 
 J'oifc ct (lure). 
 
 t Where a person wanting the faculty of speech, either 
 fiom natural ini))edinient of some supervening disease, and is 
 without the power of evprrm/ig fits meaning by intelligible 
 sigub, (for in the latter case, as in that of ignorance of the . 
 language, a sworn interpreter might be employed,) he is 
 said to stand mutefrwn the visitation of' God. In this case he 
 must, without positive certainty of his intention to the con- 
 trary, be supposed to have pleaded not guilty ; every thing 
 
 Tvtier 243 "^"^^ ^^ ^""*^ "* '^''» ^a^our that the most scrupulous humanity, 
 due regard being had to jus; ice, can dictate, and it is con- 
 
 Blackst. romm. ceived, that, after all, a judgement of death, cannot be given 
 ■ > ^•'^•^- against such a person who has never pleaded, and can say 
 nothing in arrest of judgement. 
 
 Picas in bar. ^ ^^ prisoner, instead of pleading, in the general manner, 
 
 1 viler, '2n. not guilty, may plead in abatement, or bar, of the trial, if 
 
 Alii: Arr. r. 'J, " ■" ^ ' 
 
 ii7. he lias been A)rmerly tried tor the same individual act or acts 
 
 of crime, and can verify it by production of the record of 
 
 the trial, or other sulVicient c\ idence ; if he has received 
 
MILITARY LAW. 
 
 m 
 
 throw himself upon tlie decision of Ins peers, 
 and consequently stand his trial, by pleading 
 not giiiltji, tlic M'itnesses, on the part of the 
 crown, (including, if necessary, the prose- 
 cutor,) are viva voce* to be examined, and 
 
 pardon of the crime for which he is arraigned, or a promise 
 of mercy on condition of becoming evidence against an ac- 
 complice in the same ot^ence, or, if the oti'ence with which 
 he is charged has been committed more than three years Mut. Act^ 
 before the commission or warrant was issued for his trial, ^ ^' ' 
 unless it be for desertion. A prisoner may, moreover, va- 
 lidly object to the jurisdiction of the court, if it appear that 
 they have no proper authority for taking cognizance of the 
 crime, as if it were (for instance debt) a crime only cogni- 
 zable by the civil courts; if brought before a regimenlul 
 court martial, for a capital offence ; that the court did not 
 consist of t!.e requisite number of members; or that these 
 wore not of the requisite rank to sit on the trial of the prisoner. 
 
 * "Nevertheless," (says colonel Williamson,) "I have ^j:i^„ ., 5^ 
 seen a witness read his whole deposition, having first requested, "• <'f'- 
 and obtained, permission of tlie courl to do it. All witnesses Essay on M. L. 
 are permitted to refer to notes." *' Alliiouj^h " (says Mr. **'" 
 'lytler) " the witness is not allowed to read his evidence, it 
 is not illegal or improper, in circumstantial cases, or in cases 
 where dates are to be detailed, or matters of account, for 
 the witness to m;ike use of written notes, for the aid of bis 
 memory, and for the greater precision of his testimony." 
 The principal necessity seems to be to guard against subor- 
 nation of evidence, which is also done by the preliminary 
 questions, " whether the witness has been instructed what to 
 say? or received any reward, ctr promise of reward, for 
 giving his testimony?" 
 
 As to the prisoner, it is always allowed him, both in civil 
 
108 PRIMARY OBJECTS OF | 
 
 their depositions recorded by the judge-advo-'i 
 cate. And lierc it should be remarked, that 
 the plea ot* not guilty should at all tinges be 
 encouraged ; ibr, however conscious a prisoner 
 may be himself of the unjustifiableness of his 
 conduct, there may be circumstances appear 
 to mitigate the atrociousncss of a crime, and ,j 
 in some degree serve to entitle him to mercy. 
 $?6rart."9. " All pcrsons, who give evidence before any 
 sffmArr. general or other court martial, (including eveu|| 
 peers of the realm,) are to he examined on! 
 oath." The follow ins^ are its terms: 
 
 *' You shall true and perfect aj2szver make to 
 such qiieslipiis as shall be put to you, touch- \ 
 ing the matter now before the court, beiiceen 
 our sovereign lord, the Idng's majesty, and\ 
 the prisoner to be tried; xchich shall be thci 
 truth, the xchole truth, and nothing but the 
 truth : ; 
 
 St) HELP vou God." 
 
 In cases where any party, whether mem-i. 
 ber of the court, prosecutor, or prisoner,.' 
 shall happen to be foreigners, totally unac- ; 
 quainted with the English language, the pro- 
 
 caines in uhi and military courts, to deliver if be thinks proper hisdefenc«i 
 
 • Ulrfft 
 
 '^ in unling. 
 
Ml UTAH Y LAW. 109 
 
 cceilings or depositions may be explained by a 
 sworn interpreter.* 
 
 Forciirners ami natives, includino- of course ^Haic, p. c. 
 interpreters themselves, may be sworn accord- M-Anhur, v. ii, 
 ing- to the customs ot tlicir reHgion.j' 
 
 * The oath in this case is described as follows: 
 
 *• Yuu shall tell and truly interpret and transhte in all cases yioAes of 
 
 in uhkh you shall lie uvylied to in the course of the present trial; shearing pro- 
 
 ^ ' ^ '' ' secutors or wit. 
 
 and yuu shall not cnnimunicate or discover to any person or persons iuiw.es ot" various 
 
 any part I)} the procci dings until t lie sentence to be Pronounced ^^'f- 
 shall have been approved by hii majesty, or the commander-in- 
 chief. 
 
 So HELP YOU God." 
 
 t Thus, even in the small deviation from the ceremony of 
 the church of England of covenanters of the church of Scot- 
 land, it is permitted that they be sworn by the form of 
 holding up instead of kissing the book, or even touching it, in 
 terms as follows : 
 
 •' You sKear, according to the custom of your country and 
 the religion you profess, that the evidence you shall give, bctiuen 
 our Sirvereign lord the king and the prisoner at the bar, shall be 
 the truth, the -dhole truth, and nothing but tlic truth." 
 
 C«/Ao//c* of the church of Rome are sworn on the Holy 
 Lvangelisl*, with a crucili.\ laid on them, which is kissed, 
 while the bofjk is held in the right hand. The oath verbally 
 llie same as that in the text. 
 
 Jru:s, on the contrary, arc swurn the oallj on the Old testa- 
 niciit. 
 
 Quakers — by declaring 
 
 " / do solemnly, sincerely, and truly, declare and affirm." 
 
A Turk is sworn on tlie Koran, th« common oath being 
 interpreted to him. He places his right hand flat upon it, 
 puts the other hand to his forehead, brings the top of his fore- 
 head down to the book, and strikes it with his head. 
 
 110 PRIMARY OBJECTS OF 
 
 Mil. Arrange. When, from sickness or any other unavoida- 
 ble cause, an important witness is incapable of . \i 
 attending, the court may, on the incapacity j (fo 
 being proved, adjourn to take the deposition ^ cut 
 of such evidence, if within ordinary accessi 
 bility. But it must be the whole court, and thel ^y 
 prisoner must go along witri it; as an accused! (v 
 person, by the English law, as well as every 
 principle of justice, is always to be confronted 
 with his accusers. Should the Avitness be in- 
 accessible in any way, it must impede the pro- 
 
 Suiiivan, S3, grcss of the trial.* This will, of course, be done 
 by way of adjournment. 
 
 The Chinese wrings off the head of a cock, or breaks a sau 
 cer, then raises up his hands towards heaven, exclaiming 
 
 '• If I do otherxcise than as I have said, do thou, Tien, = '^ 
 deaf u-ith me as I have dealt with i/iis code, SfC," 
 
 Genloos take the ordinary oath, touchins; the foot of a Bra- 
 min priest, it is then described to him, and he touclies the 
 hand of another Bramin priest. 
 
 Every man of every religion should be bound to that form 
 which he himself thinks will bind bis conscience mosL 
 
 Absence ftfEvi- * O" 'Account of the absence of material witnesses, the 
 
 dcncc or of pro- court may be moved to postpone a trial. But, in the affidavit 
 
 of the neceswty, {of the propriety of iihit^h affidavit aho (he 
 
MILITARY LAW. 11 I 
 
 The prisoner, hoMcver, being put upon his Trial at Nor- 
 
 • 1 1 • I , .. x« 1 wicli, 1799. 
 
 trial, the jucIgr-ii(l\ocate, as prosecutor tor tlie ivi^ioj Poweii, 
 crown, if on any public account, or the ))rose-'^' 
 cutor in person, it' the court shall have been 
 ordered at the instance of any individual, 
 M'licther civil or military, * commences the 
 evidence for the prosecution. This is taking 
 for granted that at lengtli the proceeding is 
 perfect in the constitution of its several parts, 
 
 coiirf is to judge,) it is to be shewn that tlie persons are ma- q^^ Var.Term. 
 
 tcrial wiincsses; tliat the party applying has not nedected to I^''P-4^^«-l^'* 
 
 ' -^ ' "^ •' " Burr. Jiuck. 
 
 endeavour lo procure their attendance ; that there is reason- Mac Xally, 
 
 able oxpccution of his being iible to procure their attendance ',^"''^* °' ^^'' 
 at the time tu which he prays f!ol ay; it may be the affidavit M'Arthur, &c 
 of a medical person that the witness is unable to attend in 
 court, and the same with regard to the prosecutor or i)risoiier, 
 aOldavits also oi the circulation of printed pamphlets or 
 papers, or paragraphs in the newspapers, tending to influence 
 the court to oithcr side, may, if uithout the knowledge of 
 the party applying, sufhcc. 
 
 * It was formerly determined by a board of general officers, 
 on a charge brought against the colonel of the Westmoreland v. ii. u. p. 63.* 
 Diililia, by a medical man, a complainant not being a mili- 
 tary person had no right to prefer any charges in propria 
 
 persona;, nor to demand the trial of any officer. lie thcre- 
 
 Prorccdmgs of 
 upon brouglit his complaints through the officers of the re- Conn !\l:irt. oa 
 
 giment. To remedy the diiagrecable necessity for this legal I^"*''^"' «' ^^ 
 circumlocution, probably it was that the decision was re- 
 versed, of which we have a remarkable instance in the case of 
 the celebrated William Cobbett, who purposely dispossessed 
 himself of the military character, to bring bis officers to 
 trial ; and also the coroner who prosecuted the surgeon. 
 
J2 PKIMARY OBJECTS OF 
 
 and most paiticularly in the presence of the 
 prosecutor. * 
 
 Whichever the prosecutor, he ])egins hy a 
 Recital of the charges together with such detail 
 of circumstances, (if the case be circumstan- 
 tial and complicated) as he deems necessary; 
 and proceeds with his proof of the prisoner's 
 amenahleness to a court martial, either as an 
 officer or soldier, or in some other respect, 
 down to the degrading fact, if necessary, of his 
 
 * This, however extraordinary, nevertheless is sometimes 
 
 deficient. Two instances occur, the one accidental and the 
 
 IkTiDTites of Pro- other pre-deteimined. The first is, that, in the naval court 
 
 r.,,iiugsapiid. njaj-ti^i assembled to try Captain Powlett, afterwards Duke 
 
 -li 'Arthur, v. ii. j t ' 
 
 -79. of Bolton, on charges of Vice-Adiniral Grifliths, at which 
 
 neither prosecutor nor witnesses appeared, but a letter was 
 received from the admiral, inclosing an aftidavit, which stated 
 that he could not proceed that day on account of the absence 
 of material witnesses. The court on this indefinite statement 
 acquitted the prisoner. The court will not put ofl" a trial 
 unless there be circumstances to shew that the party apply- 
 ing cannot have substantial justice without the delay he ap- 
 plies for. The second instance is the case of Cobbett, already 
 ^'.^iiical Rep. alluded to. The court was assembled and the witnesses 
 r'.lc&Optn.^ ready, but, from political motives, the prosecutor did not 
 **c. appear. The court acquitted the prisoners; but, according 
 
 to the opinions on a case submitted to the then attorney and 
 solicitor general (afterwards Lords Eldon and Iledesdale), 
 they (the prisoners) might have maintained actions upon 
 the case against him, (the prosecutor). 
 
MILITARY LAW. 113 
 
 The prosecutor continues with his proof of 
 I the dehnquency of the prisoner's conduct. For 
 the issue is said to He, and proof is always first 
 required, upon tliat side which affirms the mat- 
 ter in question. To this end he examines and Suiiir. 34. 
 cross-examines the several witnesses, calls upon 
 every one who can adduce testimony in favour 
 of the prosecution, and aims in every re- 
 spect to establish the certainty of guilt. The 
 court likewise as judges take part in the pro- 
 secution. They also examine and interrogate, 
 (either collectively or individually as they 
 think proper,) and, in concert with the judge- 
 advocate, endeavour to arrive at a knowledge 
 of the fact.* This is, however, for continuity, 
 
 * The same laws of evidence in general prevail at courts ^I''- Arrangem. 
 .,.,,. ° r . , 90. u. 109. 
 
 martial as in the ordinary courts of law. It is the custom 
 
 at both to procure two or more witnesses, if they are to be 
 
 bad, to convict a prisoner ; but, if more cannot be found, M' Arthur, 2, 
 
 44, Sec. 
 one good and credible witness, and on s»me occasions strong 
 
 presumptive proof, have been deemed sufficient towards the 
 condemnation of a criminal, though he absolutely deny the 
 facts alledgcd against him. It is necessary in the civil courts Adye. 
 to procure two witnesses, at least, to convict a prisoner of 
 of high treason; but there is no such military offence as 
 treason; mutiny, which nearly corresponds to it, being con- 
 sidered and punished as felony. 
 
 It is theitfore of essentinl consequence that the general TytI«ir,Esi»r, 
 doctrine of the law of evidence should be undeiitood by a'l "" 
 military persons. 
 
 I 
 
114 PRIMARY OBJECTS OF 
 
 supposing that the witnesses are unimpeached,* 
 and that the evidence they offer, or is required 
 
 C.B.Gilbert's Evidence is that which either proves and^demonstrates, or 
 Mac Nall^'t R. renders highly probable and worthy of credit, to a court or 
 of Evid.icc, jury, the facts or points in issue before them. 
 
 What has no tendency to establish these is no evidence, 
 and ought not to be admitted. But, <in circumstantial and 
 presumptive evidence, circumstances which have not an im- 
 mediate and direct tendency to prove the very facts 
 in issue may have an indirect and consequential tendency 
 to that effect, and are therefore not to be dissallowed by a 
 court, provided the party who uses them shall make their 
 consequence apparent. 
 
 Evidence is of two kinds, vice voce, or parole, — given by 
 witnesses in court ; and written evidence, records, deeds, and 
 other authentic and probative papers. 
 
 In all cases the best evidence of which the matter is capable 
 shall be resorted to, provided it can be brought ; if not, the 
 best that can be hud. 
 
 In the balancing of contrary evidence, the mind is to be 
 guided by no other ruTe than this ; That assent must be given 
 to that testimony, of whatever nature it be, which produces 
 the strongest beliff ; without regard to the numbers on either 
 side. 
 
 A tesdmony which is precise and circumstantial must out- 
 weigh that which is less particular or minute, and goes only 
 to a general fact; because tlie former implies more attentive 
 observation, or more pointed recollection, and therefore cre- 
 ates a stronger belief. 
 
 Positive evidence must outweigh that whicli is negative, as 
 attention is to inattention. 
 
 Much depends on th% mamur in which testimony is deli- 
 vered. One influenced by his passions on either side, when 
 
MILITARY LAW. 115 
 
 of them, is admissible, t or such as ought to 
 be required. 
 
 giving evidence on that side, is of less importance than lie who 
 
 exhibits no such bias, and conversely when giving evidence !| 
 
 on the other. 
 
 The countenance, look, and gesture, of a witness, charac- Lavater's Essay 
 terise his testimony. " Hence all attempts to brow-bear, per- ^" ^'' ° 
 plex, or irritate, a witness, in the delivery of his tcblimony Tytler, '^67. 
 are most reprehensible, and a court is not only deficient in a 
 proper feeling of its own dignity but positively in its bounden 
 duty, if it docs not repress such conduct with exemplary 
 severity ; as all attempts of this kind affect the weight of the 
 evidence, they are in fact nearly allied to the punishable 
 crime of subornation of perjury. 
 
 The superiority of testimony on oath or written testi- 
 mony depends entirely on the circumstances under which it 
 is given. 
 
 * There are c«rtain objections in the civil courts to the Mil. Arrangera. 
 competency and to the credibility of witnesses, which exist, ^" "" ^' ' 
 though not to the same extent, before a military tribunal. 
 No officer who is to be called upon as an evidence should be 
 ordered on the trial as a member; nevertheless, it does 
 not appear that any member is incompetent to give evidence, 
 if called upon, either on the part of the crown or the prisoner. 
 • The necessity of not appointing officers of the same regiment 
 with a prisoner to try him has also been strongly urged to 
 the writer, by an intelligent officer, from much observation 
 while sitting on general courts martial, even at Chelsea. 
 
 The law positively excludes from giving testimony: — Tyiler,27# 
 1. Those who have an interest in the matters at issue. 2. Those 
 who stand in a certain relation to the parties in the cause. 
 3. Those who have committed crimes which destroy their 
 credibility, or are stigmatised by law. 4. Those who wu?it 
 bulTicient discernment and understanding. 
 I 2 
 
116 
 
 I'RIMAllY OBJECTS OF 
 
 1 
 
 The judge-advocate, however, should have 
 
 Trial of Ho». 
 Gen. Murray. 
 
 Sullivan S4. 
 
 Trial. concluded with the examination of a witness 
 
 1. The evidence for himself either of prosecutor or testi- 
 mony is very doubtful; but, for the opposite party, there- 
 verse. Nevertheless their evidence must be allowed, or many 
 crimes would escape unpunished. In all cases the prosecutor 
 may be called upon to give evidence m faxour of the pri- 
 soner, or to produce records or papers of any kind which may 
 be necessary for the prisoner's defence. 
 
 Bail cannot be witnesses for the principals. No persons 
 who positively or negatively receive a reward, nor a person 
 who has been threatened with vengeance of any kind, nor one 
 who is a party in a similar cause. 
 
 In occult crimes, from necessity, the evidence of parties 
 suffering robbery, ravishment, assault, &c. and accomplices, 
 may be taken, but is not by itself suflicient. 
 
 When it is apparent that a statute-law could receive no 
 execution, unless a party interested were to be admitted as a 
 witness, there he must be allowed. 
 
 The confession of a party of the crime for which he is tried 
 is conclusive evidence against him. 
 
 2. Husbands and wives can neither be witnesses for nor 
 against each other, where either is a party in the action. In 
 the same way the evidence of other relations will bo suspi- 
 ciously received, and that of the servant in respect to his 
 master. 
 
 Counsel or attorneys, acting in the cause, cannot be com- 
 pelled to furnish evidence from their professional communi- 
 cation. 
 
 3. Those cannot give testimony in a court who have com- 
 mitted felony or perjury (though pinioned) ; forgery or trea- 
 son, (unless pardoned) ; conspiracy. i;ai ratry, or stirring up 
 
MILITARY LAM'. 11? 
 
 before the Interrogatories of the court are in 
 general propounded. For, although such in- 
 
 of law-suits; in all cases of objection the record of conviction, 
 or sufficient proof of it, must be advanced. 
 
 Persons excommunicated, (for heresy, simony, incontinence, 
 or perjury, in ecclesiastical courts, including popish recusants,) 
 quakers (in criminal suits), are variously debarred from giving 
 evidence. 
 
 4. Those who want sufficient discernment and under- 
 standing are inadmissable; infants, ideots, persons constantly 
 insane. 
 
 •t Written evidence, any thing of the nature of public re- 
 cords may be received as proof, but to be allowed must be 
 authenticated as copies of the originals, on oath of him who 
 compared them ; public or private books, the latter accord- 
 ing to their probability, even of third persons; receipts, dis- 
 charges, bills of parcels, gazettes or newspapers, notc^ of 
 hand, bills of exchange, letters of correspondence, &c. 
 The hand-writing of letters, and all similar writings, must be 
 proved on oath ; comparison, though of some weight, is not 
 sufficient. 
 
 An informant's deposition in writing, taken before a justice Mil. Arrangetu. 
 of peace, is admissable, when it is proved that he is dead, 
 unable to travel, or prevented from appearing by the pri- 
 soner; but then it must be proved that such paper contains the 
 literal deposition of the informant. 
 
 A prisoner may be convicted on the testimony of his own ib. v. ii. 95. 
 hand-writing, when the identity is fully proved ; but this 
 should be admitted with caution ; and, in the courts of law, 
 it is not allowed to criminate, unless when found in possession 
 of the person. 
 
lis PRIMARY OBJECTS OF 
 
 terrogatories may be pertinent and applicable, 
 yet as the several members have in the end an 
 
 A prisoner's previous confession to a private person, can- 
 not be admitted as sufficient evidence ; but, if taken before a 
 magistrate in writing, it may be read in court, but then the 
 whole must be given, and not a part or extract; and this con- 
 fession mukes only against the prisoner himself, not against 
 any accomolice or accessory. 
 Tytler, 305. One credible witness may suffice towards conviction, or 
 
 even on certain occasions strong presumptive, or circumstan- 
 tial, proof. 
 
 It has frequently been the practice of courts njartial to 
 take the opinion of the witnesses in regard to any part of the 
 
 Mil. Arrange m. prisoner's conduct ; and in my idea, (says Colouel Williara- 
 
 ubisup. '^ ^ ' \ ^ 
 
 son) no reasonable objectien can be made to it; a witness 
 being as much bound by his oath to give his real opinion as 
 he is to stale the matter of fact ; of the capacity of the wit- 
 ness, as to the value of his opinion, the court must judge. 
 
 Hearsay evidence, behig that ©f another who is not upon 
 oath, is no evidence ; yet a witness may swear to report, in 
 support of a witness's testimony. 
 
 Case of Captain A person involved in the same criminal charge with others, 
 
 Ji'Na^^lv's ' but not affected by the evidence for the prosecution, maybe 
 
 Rules of Evid. immediately acquitted, and admitted as a witness in favour 
 56. 
 
 of the others. An unsettled difficulty, however, occurs in 
 
 regard to the acquittal which must fir»t take place to rid the 
 
 unconvicted person of his connection with the other pri- 
 
 Casc of Mi.£- soners. In courts martial this would seem to require a com- 
 
 W'Artlmr' v i p'^tion of the proceedings as regard the individual, and 
 
 ^^- waiting their confirmation by the proper authority, previous 
 
 *o continuing the trial of the remaining parties. 
 
 Ty tier, 293. 'Vitnesses may be called to support the crediblity of wit- 
 
MILITARY LAW. 119 
 
 Opportunity of drawing forth answers to such 
 questions as they may put; and, as an interrup- 
 
 nesses, by testimony of their characters, knowledjje of the 
 facts in issue, or to their having invariably related facts in the 
 same manner. 
 
 In weighing evidence the mind should more easily give its 
 faith to things which are probable than those repugnant to 
 probability; and therefore fewer witnesses will serve on one 
 side than the other. While any matter remains in doubt, 
 the presumption is always to be in favour of innocence. 
 
 Positive proof is always to be required when it can possibly 
 be had; next the proof a number of concurring circumstances 
 which usually attend certain facts. 
 
 In judging of the credibility of a witness is to be considered 
 general reputation, known principles, judgement, accuracy of 
 memory, perfect indifference to the matter at issue, and free- 
 dom from prejudice and partiality. 
 
 An unwilling and reluctant witness, who speaks with cau- 
 tion, answering nothing but what is forced out of him by re- 
 peated and circuitous interrogation, is not equal to one who 
 openly and fairly declares all that he knows upon the point; 
 one who amplifies in his testimony, who seems gratified by 
 the opportunity of furnishing evidence, or betrays passion 
 and prejudice in the matter or delivery of his testimony, is to 
 be suspected. 
 
 So is he who remembers with minuteness trifling circum- 
 stances long since passed ; or avers his total want of recollec- 
 tion of material facts which recently happened in his pre- 
 sence. 
 
 If a witness cannot shew a cause for his knowledge, he is 
 not to be believed at all. 
 
 Every thing, however remote, that tends to support the 
 
120 PRIMARY OBJECTS OF 
 
 tion of the judge-advocate may probably break 
 in upon a chain of leading and necessary in- 
 formation, it were at all times to be wished 
 that he were suffered to finish with his exami- 
 nation before the introduction of any new 
 matter be admitted by the court. This, how- 
 ever, had not been observed at all in Colonel ^ 
 Joiestr"^""' Williamson's time, who says, '' The judge-ad- | 
 vocate, the president and members, the in- 
 formant and defendant, ask questions of the 
 evidence under examination, without any re- 
 striction as to order or priority/' Nor has the 
 former rule been yet invariably observed. 
 
 The examination in behalf of the crown be- 
 ing at an end, the prisoner cross-questions the 
 witness if he pleases, or defers it till he is put 
 upon his defence ; a privilege indeed which is 
 allowed him through every stage of the prose- 
 cution. But neither he nor the judge-advocate 
 has a right to cross-examine his own witnesses, 
 lest it should lead to answers concerted pre- 
 vious to the trial, for establishing of innocence 
 on the one hand, or of guilt on the other. The 
 judge-advocate is permitted to cross-examine 
 the prisoner's witnesses, and the prisoner those ' 
 
 charges on one side, or invalidate them on the other, is ad' 
 piissiblc evidence. 
 
MILITARY LAW. 121 
 
 for the crown, but neither of them the witnesses 
 produced by themselves. 
 
 '■■' No witness is to be suffered to remain in 
 court but during his own examination. 
 
 The examination of the crown-witnesses be- SuiUvaa. 
 ing brought to a conclusion, the prisoner is 
 put upon liis defence. If a soldier, he ge- 
 nerally commences it without adjournmeilt; 
 if an officer, a time is usually begged for pre- 
 paration, and his prayer is granted, if the 
 period is not deemed to be unreasonable. Yet Mil. Arrangem. 
 this indulgence can hardly be required when 
 the prisoner has had sufficient notice of the 
 trial, and when all the charges have been made 
 known to him in time. But, if any of the 
 charges have not been particularised, as may 
 sometimes be the case,* till the moment of trial, 
 it is then, no doubt, but fair and reasonable 
 that he should be allowed a short interval to 
 summon his evidence and to prepare his de- 
 fence. " I see no reason, says Colonel Wil- 
 
 * The present judge-advocate-general, (Sir Charles Gould,) Mil. Arrangem. 
 having been lately questioned on this subject, gave it as his 
 opinion, that additional charges, foreign to th« original cause 
 of a prisoner's arrest or confinement, are admissible, sup- 
 posing they are Jint reported to the person "who has given orders 
 for the process, and by him deemed proper to be investigated ; and 
 lupposing also that t/u: prisoner is served -with sufficient noticiy 
 and allowed sufficient time to prepare for his defence. 
 
1S2 PRIMARY OBJECTS OF 
 
 liamson, " why the same indulgence should 
 not be granted to a soldier, or why any dis- 
 
 ^ tinction should be observed between them in 
 
 this particular." 
 
 E*wf383!^''' On the contrary one would conceive it every 
 way most necessary for the soldier, nho, as is 
 well observed by Mr. Tytler in urging the aid 
 of the judge-advocate to his defence, must 
 stand greatly in need of advice in such trying 
 circumstances as are sufficient often to over- 
 whelm the accutest intellect, and embarrass or 
 suspend the powers of the most cultivated un- 
 derstanding.* 
 
 5u!ii,«i»,57. Thus arrived at the most serious and im- 
 portant moment of his trial, the instant of 
 clearing up his honour, or sinking under a 
 load of infamy and guilt, what is there not 
 required to enable him to act with judgement 
 and deliberation ? Probably uninformed of let- 
 ters, a private sentinel or serjeant ! Possibly a 
 subaltern as yet in youth and unacquainted 
 
 4 
 
 Johnson, Lives 
 
 It was admirably observed by Lord Halifax " who from 
 of Poets,' v.ii. a poct became the friend of poets" when urging in the House 
 of Commons the necessity of a law to grant the assistance 
 of counsel in trials for high treason, he became confused 
 and could not proceed — " How reasonable it was to allow 
 counsel to men called as criminals before a court of justice, 
 when it appeared how much the presence of that assembly 
 could disconcert one of their own body." 
 
MILITARY LAW. 123 
 
 with the strictness of discipline and opder ! — • 
 Unaided, perhaps, by counsel or by friends, 
 left to the wild unconnected dictates of a be- 
 wildered fancy, how and in what manner is 
 he to effect one salutary purpose? Unhappy 
 being, distracted with fear, and sinking with 
 apprehension, whither is he to turn to escape 
 the threatening destruction? Fate hangs dread- 
 ful over his head ! He hears nothing ! He knows 
 nothing ! He implores for mercy, — he submits 
 himself to heaven and the equity of his judges. 
 — You, therefore, (says Mr. Sullivan) who are 
 ordained to preside over and decide the des- 
 tiny of your fellow-creatures, protect him 
 with your counsels, lead him with a cautious 
 hand through the mazes of his defence ; — and 
 as, in the hour of prosecution, you aimed to 
 fix his guilt, so, in the moment of exculpa- 
 tion, assist him in the vindication of his in- 
 nocence. 
 
 The judge-advocate officiates as counsel for SuiUvan, 39. 
 the king, and in his defence he is allowed to ^^"' 
 restrain the delinquent from advancing any 
 thing to criminate himself. This in some cases 
 may be too circumscribed a power. But, how- 
 ever, as the court themselves have the privi- 
 lege of trying every means to exculpate the 
 prisoner from guilt, it is less to be re- 
 gretted that the laxv-ojficer is not declaredly 
 permitted to afford him that assistance which 
 
J24 PKIMARr OBJECTS OF 
 
 1 
 
 he might stand in need of. Not that, in- 
 deed, it could be of any material service to 
 him, except in those instances when counsel | 
 could not be procured. 
 ^^' rtinr, v.ii. -p^^^ jj. j^ ^j^^ practice at courts martial to 
 
 indulge the prisoner with counsel, under the 
 character of friends of the court (^amici curia), 
 who may sit or stand near him, and instruct 
 him what questions to ask the witnesses, with 
 .respect to matters of fact before the court; 
 and they may commit to paper the necessary 
 interrogatories as they arise, which the pri- 
 soner may give on separate shps to the judge- 
 advocate, who reads them to the court, and 
 if approved of, ?. e. proper to be put, he inserts 
 them literally in the minutes, with the witness's 
 answer thereto. 
 
 The judge-advocate is, says Mr. Tytler, to 
 advise and assist the prisoner as far as expe- 
 dient, engrossing in the proceedings the cir- 
 cumstances in his favour, and taking no ad- 
 vantage of his want of intelligence. 
 
 SuiiivaiL The prisoner being thus assisted by the aid 
 
 of counsel, (as we can safely say he maybe, 
 under the sanction of such high authority,) 
 and the examination of his witnesses being at 
 an end, the judge-advocate is allowed to reply 
 
 Mirrourofj. to liis dcfencc I not, however, upon auy Jiezo 
 
 apudBlackst. ' ^ 
 
 Com. b.4. subject-matter that shall appear, but strictly 
 
 Trial of Ld.G. ^, , . , n „ , , • • i 
 
 iukvuie. to that which shall relate to the original 
 
MILITARY LAW. ^^^ 
 
 charge; and, in like manner as the judge-advo- 
 cate, the prisoner may be indulged in answer- 
 ing him in rejoinder. For, the law of England 
 industriously endeavours to investigate truth at 
 any rate. It varies its examination of facts 
 according to the nature of the facts them- 
 selves. This being the one invariable principle 
 pursued, that, as well as the best method of trial 
 the best evidence upon the trial, which the 
 nature of the case affords, and no other, shall 
 be admitted in courts of justice. 
 
 From all analogous reasoning (respecting Mii.Arrtngm 
 the common law) on this subject, remarks 
 Colonel Williamson, it should appear that the 
 prosecutor is only to be permitted in his reply 
 to controvert an}^ new matter introduced by 
 the prisoner. For, a prisoner may, in his own 
 exculpation, urge matter that may tend to cri- 
 minate his accusers. Now it is repugnant to 
 the principles of equity that any person should 
 be liable to an aspersion, whether offered in a 
 direct or an oblique manner, without having 
 the means of answering it, and of defending 
 himself from the imputation. This I take, 
 though I do not pretend positively to assert it, 
 to be the original and proper intention of a 
 reply. The rejoinder is a concession to the 
 prisoner, for which he is solely indebted to the 
 generous principles of martial (or rather per- 
 haps military) law, and to the indulgence of 
 
19.6 PRIMARY OBJECTS OF 
 
 the court. This Colonel Williamson also points 
 out as forming a prominent title in the common 
 law (le.v nan scripta) of the army, or custom 
 of war, being equally independent of the usages 
 of common law and the statute, or written, 
 law (lex scripta) of the army. 
 
 Suiiiv. 45. The prisoner is, likewise, permitted to ad- 
 
 duce the testimony of persons of reputation, 
 in support of his character and the integrity 
 of his hfe; for, if for mutiny, desertion, or 
 any other crime, there shall be nothing but 
 presumptive proof ad«JLiced, the evidence of 
 his former good conduct will, indisputably, 
 serve to influence a decision in his favour. 
 
 Ik 67. We now come to the last and most solemn 
 
 act, the^.ri^^o- of the crime, and the pronoun- 
 cing of the sentence of the law : here, indeed, 
 deliher^.tion is required. The facts have hi- 
 therto appeared before us, in order to be ar- 
 ranged, scrutinised, and compared ; but they 
 are now to be decided upon agreeably to the 
 laws of justice and of mercy. At a moment 
 so awful as this, therefore, and when the fate 
 of one in the same rank of being with our- 
 selves is ultimately to be fixed ; when the 
 avenging power of Providence is thus entrusted 
 in our bawds, for the benefit of the community 
 at large ; how cautious should we be in our 
 determination ! how attentively should we in- 
 vestigate each open source, each latent prin- 
 
 II 
 
MILITAUY LAW. 127 
 
 ciple, of action ! Nothing should be forgotten. 
 Coercion, in all its parts, should carefully be 
 weighed ; the necessity of punishment should 
 calmly be considered ; but, above all, mercy 
 should be embraced as the benignest attribute 
 of heaven. Before we proceed, then, on this 
 most awful of all our duties, let us acquaint 
 ourselves vvith the principles of guilt in ge- 
 neral ; let us bear in mind, that the statute- 
 law of England does very seldom, and the 
 common law never, inflict any punishment 
 extending to life or limb, unless upon the 
 highest necessity ; and that the constitution is 
 an utter stranger to any arbitrary power, of 
 killing or maiming the subject without the ex- 
 press warrant of law. Let us teach ourselves infants^.""*"*^ 
 
 *■ or lunatics, not 
 
 to discriminate between them who are fit ob- punishiWe. 
 jects for the severity of the law, and those, 
 who, from certain causes, are acknowledged 
 to be intitled to its lenity * and forgiveness : 
 
 * Amongst the latter are those who are under a natural Hawkins, Pl«i» 
 disability of distinguishing good from evil, as infants under Hales'i Fleas 
 the age of discretion, ideots, and lunatics, none of whom are ^^' ^^' ^'^^ 
 punishable by any criminal process whatsoever ; neither is a 
 person who has committed a capital crime, if he becomes 
 non-cofmpos before conviction, to be arraigned, nor after con- 
 viction to be executed, •> 
 
 But, at the same time that the law is thus tender with 
 respect to criminals who labour under a niitural and inevi- 
 |»ble deprivation of sense, it is equally as severe against those 
 
128 PRIMARY OBJECTS OF 
 
 the final cause of human punishments being a 
 precaution against offences of the same kind, 
 
 Drunken Cri- who, by intemperance, reduce themselves to a temporary in- 
 th«"se wi?rin- Sanity. A man, therefore, guilty of a crime, through the 
 cite madmen to pffp^t ^f voluntary drunkenness, is to be punished for it as 
 
 crimes, punish- "^ 
 
 able. if he had been sober. Also, he who invites a madman to 
 
 commit a crime is to be considered as a principal offender, 
 
 Littleton. ^^^ 's to be punished as if he had perpetrated the deed him- 
 
 self. The law declaring that every man, in his sound mind 
 and at the age of discretion, is to know the law, and conse- 
 quently that he is punishable by it, if he transgresses the 
 boundaries it hath established. 
 
 Accessaries pu- Besides principals, there are those concerned in some tres- 
 
 ■i»hable nearly 
 
 equally to prin- passes, who are called, accessaries. An accessary is he who 
 eipals. jg j^Qj jjjg chief actor in the offence, nor present at its per- 
 
 formance; but is someway concerned therein, either before 
 PI. Cr. 615, p. or after the fact committed. As to the point, who is acccs- 
 ^^" sary brfure the fact, Sir Matthew Hales defines him to be one, 
 
 who, being absent at the time of the crime committed, doth yet 
 Hawkins, Pleas, procure, counsel, or command, another to commit it. Herein 
 absence is necessary to make him an accessary ; for, if such 
 procurer, or the like, be present, he is guilty of the crime as 
 principal. As to an accessary after the fact, he is a person, 
 who, knowing a felony to have been committed, receives, re- 
 lievos, comforts, or assists, the felon; and, generally, any 
 assistance whatever given to a felon, to hinder his being ap- 
 prehended, tried, or suflering punishment, makoth the as- 
 sider an acccusarj/. For, if a parent assist his child, or the 
 child his parent, — if the brother receive the brother, or the 
 master his servant, or even the husband relieve his wife, 
 who have any of them committed a felony, the receivers be- 
 come accessaries ex post facto. Accossarie'!, by the general 
 rule of the antient law, are to suHcr ilic same punishment as 
 
MILITARY LAW. 129 
 
 and not an atonement or expiation for the 
 crime committed. 
 
 The court being cleared, the judge-advo- 
 cate reads the proceedings, or sums up the evi- 
 dence, as may be most agreeable to the court, 
 
 the principals ; but, though this law is still recognized, the Blackstone's 
 distinction is necessary, as, by the legal fiction of benefit ^^^'o'pr' 
 of clersiy, at common law, a sniall difference is occasionally 1 8 Geo. II. 
 made between the punishment of principals and accessaries q^^^^ 
 before the fact, and a greater difference more frequently be- 
 tween both and accessaries after the fact. And, perhaps, if 
 a distinction (which certainly may be the case at a court 
 martial) were constantly to be made between the punishment 
 of principals and accessaries, even before the fact, the latter 
 to be treated with a little less severity than the former, it 
 might prevent the perpetration of many crimes, by increasing ^^."^'■'•*'" 
 the difficulty of finding a person to execute the deed itself, as nishments. 
 his danger would be greater than that of his accomplices, by 
 reason of the difference of the punishment. 
 
 A man may be indicted as accessary, and acquitted, and ^'■'"cipals ac- 
 quitted as prin- 
 yet be afterwards indicted as a. pri!iC7pal ; for, an acquittal of cipals, or acces- 
 
 receiving or counselling a felony is no acquittal of the felony of"i)ein"mdi t 
 
 itself; but it is a matter of some doubt whether, if a man be ^^ »» eitiier of 
 
 , • • , 1 . r , ■ .. , the other char- 
 
 acquitted as principal, he can be afterwards indicted as ac- ges. 
 
 cessary before the fact, since those offences arc frequently u Ys'^^TV 
 
 very nearly allied, and, therefore, an acquittal of the guilt 63!5,&c. 
 
 of the one may be an acquittal of the other also. But it 
 
 is clearly held, that one acquitted as principal may be in- BUckst. Comv 
 
 dieted as an accessary after the fact, since that is always an ^' ' '^' 
 
 offence of a different species of guilt, principally lending to 
 
 evade the public justice, subsequent in its commencement to 
 
 the other. 
 
130 PRIMARY OBJECTS OF 
 
 i\i!cr, .316- in each case elucidating such parts as may ap- 
 pear either to himself or to the different mem- 
 bers worlliy of their attention. In compli- 
 cated cases, in circumstantial proofs, in cases 
 \shere the evidence is contradictory, or in 
 trials where a number of prisoners are jointly 
 arraigned, as in charges of mutiny, or the 
 like, it is expedient that the judge-advocate 
 should arrange and methodize the body of the 
 evidence, applying h distinctly to the facts of 
 the charge, and bringing home to each pri- 
 soner, where there are more than one, the re- 
 sult of the proof against him, balanced with 
 the evidence of exculpation or alleviation. 
 That done, and all in readiness for judgement, 
 he puts the following question to the respec- 
 tive members, beginning (as in the trial of a 
 peer, before the House of Lords, which is the 
 
 Sullivan, ub. hlghcst of all courts of honour) with the 
 
 »UJ). 
 
 youngest.* 
 
 * "But here," says Mr. Sullivan, " it is to be observed, 
 >pe iil«o Tytler that if, in the course of the prosecution, it shall appear the 
 prisoner is innocent of the capital offence exhibited against 
 him, he yet is liable to be found guilty in a less degree, as 
 must Lc particularly specified in the verdict. As, instead of • 
 MURDKU, homicide of ftionMlaug/itcr, Sec. and, instead of DE- 
 sh;rtion, bfing ab.^ent uithout Icaxc. But, in all instances, 
 his acquittal of the capital charge must be inserted; neither 
 can he be convicted upon any extraneous mutter." 
 (jraut'f C.iH. " It is true," says Serjeant I\Iarshall, " that a man charged 
 
MILITARY LA\V. 131 
 
 " From tht e\:idaicc given for and against the 
 prisoner, and from zvhat he has said in his de- 
 fence, are you of opinion that he is guilty or 
 not guilty of the crime xchich is iwJiibitcd 
 against him?''' And, as they declare their sen-Xyiicr, sir. 
 timents, he writes them down, severally, on a 
 slip of paper. 
 
 Where there are distinct and separate 
 charges, or articles of accusation, the presi- 
 dent and members of the court reason and de- 
 liberate, separately, on each charge; candidly 
 discussing, in a free and open conversation, 
 the import of the evidence, and allowing its 
 full weight to every argument or presumption 
 in favour of the prisoner. 
 
 Should the majority, on the casting up of 
 the opinions, be found on the side of mercy, 
 and their votes be — not guilty, the prisoner is 
 accordingly acquitted (or rather, perhaps, ac- 
 quires a sentence of acquittal, since he cannot 
 be set free without an order, founded on this 
 sentence, from the commanding officer by whose 
 authority he was confined); but, should it beA^veT 
 otherwise, his guilt is declared, and those who 
 have condemned him are to pass sentence 
 
 with a capitiil crime may be convicted of an oflence of an 
 inferior degree, but then it must be of the same 7iafure with 
 the offence charged." 
 
 K 2 
 
 . on 
 ML. 
 
152 PRIMARY OBJECTS OF 
 
 upon him,* subject to the mitigation of those 
 Avho have not found him guilty, whose voices. 
 
 * Several ideas occur here relative to caution in the for- 
 mation or arrangement of the sentence, some of which, as 
 that concerning the dignity of conduct, &c. in the president, 
 can only apply to regimental courts martial, and others in 
 such various ways, that such as may will be better in- 
 serted in the subdivision of the tenth section. The following 
 case, however, though trifling in itself, may be here men- 
 tioned, sin^e it will shew the minute objects that can create 
 deliberation, even in a regimental court martial; and was 
 also a cause of the present attempt towards a digest of mi- 
 litary law ; it occurred in a court of which the writer was a 
 member, to whom it was referred by his commanding ofticer. 
 
 " On a regimental court martial, composed of the president 
 and four members, A. awards the lowest number, 12 lashes; — 
 B. 300;— C. 300;— D. 200;— the president 150. Can the 
 president, by inclining to any number, (as the mininum,) es- 
 tablish its quantum as the sentence ? Should he modify the 
 whole by an equalizing calculation, which thus might pro- 
 duce a result of l^O lashes ? Or what is the legal mode 
 (each member being positive) of forming under such cir- 
 cumstances the sentence ? 
 
 " Auxiliary remarks : On a cursory reference to the books, 
 a singular deficiency appears in all provisions for the duty 
 and power of presidents. It is, nevertheless, evident, that a 
 discretional power is vested in that oflicer, in the case of a 
 member or members awarding no corporal punishment, who 
 are thence considered as having no voice in the quantum 
 awarded by others. lie then weighs the decision of the silent 
 7ncrtil)ers against the others, and pronounces accordingly. 
 
 " II this power may be exercised in ordinary cases, it is cer- 
 tainly most safe when leaning to the side of mercy ; for, all 
 
MILITARY LAW. 135 
 
 though overpowered by the majority in respect wiiiiarason-. 
 to the guilt of the prisoner, have yet equal i^^'*-^' ^^• 
 weight, in the diminution of the punishment, 
 in proportion to the namber who thought him 
 innocent. 
 
 The manner of passing sentence is tlius : 
 The judge-advocate, beginning with the junior 
 of those members who have foupd the pri- 
 soner guilty, proceeds in these words : — 
 
 *' Having declaimed it as your opinion that 
 
 the prisoner is guilty of the crime of 
 
 what is the punishment you would have ijiflicted 
 upon him ? " 
 
 And, as the member adjudges* either to 
 
 press that judicious lenity which seeks to maintain a respec- 
 table subordination, rather than to punish, &c. &c." 
 
 On the subject of the president's casting vote on general 
 courts martial, the writer has since seen the following opinion 
 of Colonel Williamson : — Five members may vote a prisoner 
 not guilty ; there are eight, whose opinion, with regard to 
 the punishment, the judge-advocate is to take. Four of them 
 may vote 100 and the other four 200 lashes, in this case, 
 •which eier side the president chuses must prevail. Militart} 
 jlrrangcjnents, v. 2, n. 118, p. 69. 
 
 The matter is, however, set at rest by Bruce, on reference 
 to whom it appears, that " if there happen to be an equality, 
 the president is to have a casting vote." Institutes vf Mi' 
 iitary Law, Tit. 1, p. 308, which was also directed .'n the 
 Articles of War, Qucenj^nne, (1713,) art. 52. 
 
 • The punishments, which it is in the power of a court "^ 
 
 ;nartial tointiict,are various in their nature and degrees .from Tyilcr 5?o. 
 
^o4f TRIMARY OBJECTS 01' 
 
 cashiering, suspension,* or reprimand; or to 
 death, I corporal punisliment,J or transporta- 
 
 tlic liighcst, which is death, down to those of the lightest 
 nature, as a bhort confinement lor a private soldier, or a re- 
 piimand for a conimissioned officer. See Gen. Remarks, p. 
 ] 43. 
 Mil. Arrangcm. * The suspension, from rank and command, of a com- 
 missioned officer, (during which he is mulcted of his pay,) 
 should be adjudged with great caution, — the period determi- 
 nate, and not left to any other discretion, and not of any 
 great length of time ; as it may always be attended with in- 
 convenience and detriment to the service, and, in conse- 
 Lieiit. Col. quence, produce an exercise of his majesty's prerogative, in 
 .^phsonCasc. jj^^pgnsing with the services of an officer entirely/, which would 
 Feb. 1804. amount to a very great increase of the sentence awarded. 
 A. of W. § 16, t No sentence of death bhall be pronounced against any of- 
 Miit "\ct S"s f'^"'^^^''? unless nine of the members, when the conrt consists 
 Il>. §;i2. of thirteen, or t^vo-thirds, where the number of the members 
 
 h greater or less, shall concur in that sentence. No person 
 is to be subjected to any punishment, extending to life or 
 limb, under the Articles of War, or any other regulations, but 
 as ihey accord x^ith the Mutiny .^ct. Punishment in limb, 
 iwdecd, 'exists only in the term, which, like many other re- 
 (irose, Mil. Ant. lies, remains aftor its meaning is gone. It formerly con- 
 ^' "' ^'■'' sisted in amputation of the hand of a soldier who wounded a 
 
 comrade ; — the car of a mutinous or other noisy fidlcwcr of 
 the camp, in particular, boys ; the left arm was broken of 
 every illicit woman, who persisted in haunting the camp. 
 IvtUrc i;. ay It 's '"Jt customary to adjudge, or direct, the particular 
 on Mil. I,u«, mode of the punishment, where it is a capital r>ne, nor the 
 ^ time nor place of its execution ; but only, in general terms, 
 
 ro adjudge the prisoner to suffer death ; nor, indeed, do the 
 •Articles of War authorise any such partifubrization. Yet, 
 
MILITARY LAW. 135 
 
 tion,|| &c.§ the judge-advocate writes down tlie 
 and words, so on, till he finishes with the senior. 
 
 as there is a mode of inflicting it more ignominious than the Mi'i. Arrangem. 
 
 ordinary military punishment of shooting, where such an in- ^■''' 
 
 » famy as hanging is intended to be attached to the crime, it 
 
 should certainly be specified in the sentence. Since his ma- ^'y CGonM on 
 
 jesty, or the General to whom the report is made, and who ciiailKim, Nov. 
 
 is to confirm tlie sentence, can take no share in tha Judgevuiif ; ^^"-* 
 
 which would be an union of powers incompatible witli the ^'^" '^.^%^\ 
 ' ^ Comniis. Sir Is. 
 
 British constitution or with justice. When stealing, or such Coil'm, I78b. 
 mean crimes, are punished by deatli, it is usually hanging. 
 
 The capital punishments inflicted by martial law are 
 common to all ranks in the army, from a general officer down 
 to a private soldier; no distinction whatever is made, but Williamson, ub. 
 the same degree of delinquency calls for the same judgcfnent *"t*'"''' 
 in one rank as another. 
 
 X In adjudging corporal punishment, (if it must have 
 place in an honourable service,) there are to be recollected 
 the following circumstances : — That not in every instance, 
 where "Corporal punishment" is ordained, as the penalty 
 of a crime in the Articles of War, is the disgraceful punish- 
 ment of flagellation intended ; for they consider hnprlson- 
 mcnt as corporal punishment, sometimes declaring that the 
 prisoner shall " suffer imprisonment, or otlur corporal punish- Art. of War, 
 ment," &c. which, as before-mentioned, (p. 76,) is con- * '^' '*'^'" 
 firmed in the Military Antiquities." wml'. " * 
 
 And, in the extent of this dreadfully humiliating punish- 
 ment, — the settling the number of lashes, reference should cer- 
 tainly be had to the previous condition of the prisoner, since 
 a small number inflicted on a weak emaciated wretch, shiver- 
 ing from a lingering confinement in various prisons, with no 
 other food than bread and water, probably with the additional 
 exhaustion of a long and depressing march, is surely equal in 
 
136 PRIMARY OBJECTS OF 
 
 This being done, the judge-advocate reads aloud 
 the different opinions, sums up the respective 
 
 its effects to a large number on an athletic form, which has 
 experienced no cause of debility. Nor is -this principle 
 Timocr. 759. of much novelty; according to Demosthenes, the lex 
 talionis was corrected en it in the person of a Locrian, who, 
 having been threatened with having his onlij eye struck out by 
 a person who had /uo, reasonably complained, that even the 
 punishment of retaliation would not place his despoiler in the 
 same condition. 
 
 A discrimination of character also ought, even after this 
 resort, to be made; since the general use of this corporal 
 punishment, a volume might be filled with instances of Bri- 
 tish soldiers, who have embraced death rather than submit to 
 its infamy; and, surely, these were not formed of those per- 
 feme and sullen materials to which the infinite variety of ra- 
 tional correctives could not be applied; and to which, only, 
 the stivmlus of the scourge can, in any point of view, be ap- 
 plicable. 
 
 In the present French military code, this corporal punish- 
 ment is not found. — (See also General Remarks, p. 143.) 
 
 II Whenever his majesty shall intend any sentence of a 
 court martial of transportation, or any conditional trans- 
 portation, to be carried into execution, the sentence, to- 
 gether with his majesty's pleasure on tUe same, shall be noti- 
 fied, in writing, by the commander-in-chief, or, in his ab- 
 sence, the adjutant-general of the forces, to any justice of 
 the King's Bench, Common Pleas, or Baron of the Exclvequer 
 of the degree of the Coif, who, thereupon, shall make an 
 order for the transportation, and perform every other act ne- 
 cessary for the ordinary transportation of felons, which order 
 ?4 Geo. III. '* ^o be obeyed by sheriffs, gaolers, and all other persons 
 VIui. A. $ 8. having custody, &c. 
 
MILITARY LAW. 157 
 
 judgements, declares on which side the deci- 
 sion has devolved, and then draws out the sen- 
 
 The justice or baron who shall make such order shall lb. $9. 
 .direct it, as well as the notification, to be filed in the crown- 
 office of the King's Bench, and there kept of record for filing, 
 of which 2s. 6d. shall be paid. At the same rate shall such 
 clerk of the crown deliver, either on part of the king or the 
 offeniler, a certificate, containing the names and offence of the 
 ofTender, place where the court was held, before whom he 
 was convicted, and of the terms and conditions on which his 
 majesty's order for such transportation was given, which 
 should be sufiicient proof of the conviction, &:c. in any 
 .court, &c. 
 
 A prisoner, under sentence of death, obtaining his majesty's 
 conditional pardon, shall be subject to all the ordinary laws 
 relative to the escape of felons, as well as those aiding or 
 ^betting, 
 
 § Fines are yet, among the minor punishments, inflicted by 
 military courts of judicat'ire, for they are, in many cases, Mil. Arrangt. 
 . .expressly enjoined by the act of parliament, though it has ^- "" ^^'* 
 also been doubted if they were at the discretion of courts 
 martial. Their utility, however, ought to set aside any 
 idoubt on the subject, as well as the variety of cases in mili- 
 tary affairs analogous to those to which they are applied by 
 the common law. 
 
 A case in point occurs in that of Major John Browne, of 
 the (>7th regiment, who was tried, in October, 1787, »n a 
 Complaint exhibited against him, by the members of a court 
 martial, at Antigua, of disrespect to them ; and on a charge 
 of cruelty to Thomas Edwards, a private soldier. With re- 
 spect to this last charge, he was found guilty in part, not of 
 cruelty, but oppression, and was sentenced to be suspended 
 from pay and duty 309 days, the time during which he had 
 
13f PRIMARY OBJECTS OF 
 
 tcnce agreeably to the sentiments of the court; 
 In the sentence, however, great considera- 
 tion sliOLild be used previous to the insertion 
 of the wonls ''unanimously," in respect to the 
 opinion of the court, "honourably" ac- 
 quitted, &c. Not that these terms, so satis- 
 factory to the persons to whose cases they are 
 applied, are by any means prescribed ; but that 
 they have been, occasionally, held as violating 
 the oath of the court, or censuring the authors 
 
 confined the soldier without trial ; and he uas also sentenced to 
 pay the soldier forty pounds, 
 Pr. and Pract. Mr. M'Arthur, who has doubts whether the court did not 
 C^M^v'^if^'' ^^^^*^^ 't^ authority by imposing a fine of 40/. though he has 
 none of the injured parly biing entitled to a cotnpensation for 
 his tedious confinement, thinks it should have been sought at 
 common law. But this could not siircly be necessary, while 
 both parties retained the military character, and the offence 
 was committed entirely within the military pale. 
 Mil.Antiq. Y.ii. Fines were more common in our antient crimes; even 
 *• Private soldiers in those days," according to Capt. Grose, 
 '• having some property, were punished by forfeitures and** 
 *' fines." 
 
 Imprisonment, kowcver, as regards officers, whicli was 
 formerly connected with it, and which is yet customary 
 abroad, is now very rare on the same principle, from which 
 suspension should be cautiously used. 
 
 The writer cannot resist an impulse arising from expe- 
 rience, to remark, that fines seem to offer a penalty well 
 adapted to the enforcement of due attciitiun in inconsiderate 
 mt-mbers of rt-giniental courts martial. 
 
 k 
 
 199. 
 
MILITARY LAW. 13.9 
 
 of a prosecution, in wliicli, perhaps, tliousrh Tvticr. 
 
 ' ' . . \Vi)li«inson. 
 
 the prisoner was innocent, his innocence could uous, 129. 
 not, by any other means, have appeared. 
 
 No irrelevant matter is of course to be ad- 
 '• mittcd into a sentence, and, least of all, any 
 remarks in favour or reprobation of any of the 
 parties concerned in the prosecution and de- 
 fence. 
 
 A court martial, on convicting a prisoner, T""' '^^ 
 Is generally considered as in duty bound to sen- M'I- Arrangea, 
 
 ^ *' , ^ V. i . 9P, and 
 
 tence some punishment ; though, on consider- "'^te^, 70. 
 
 . . ° James. Reg. 
 
 ation of the prisoner's previous sufferings, it has Comp. y. 2. 
 foiled to do so, and the sentence been never- 
 theless confirmed: And it may recommend the 
 remission of the punishment sentenced. The 
 punishment must be expressly ascertained, and 
 not lett to the discretion of the executive 
 power, or person, whose business it is to con- 
 £rm the sentence. In representing immedi- 
 ately to his majesty a prisoner, as a proper ob- Tytier, i78. 
 ject of the royal clemency, it is right to men- 
 tion the circumstances on which the represent- 
 ation is founded : if the court martial be helds^nivan.so. 
 under the authority of a commander-in- 
 chief, it is proper, on the same grounds, to 
 request that he will (in his discretion) solicit 
 his majesty's clemency. 
 
 The fair proceedings of the court being ex- 
 amined, and signed by the president and 
 judge-advocate, (the latter himself always in- 
 
140 PRIMARY OBJECTS OF 
 
 serting the sentence or sentences,) and sent or 
 
 delivered to the power by whose authority the 
 
 court hath been assembled, the court thea 
 
 Gen. Orders procecds to the trial of other offenders. Pre- 
 
 15th Jan. 1809. ' 
 
 vious to the arraignment of every new pri- 
 soner, for a different crime, the court is to be 
 re-sworn, and, of course, witnesses, if the same 
 should be called upon more than one trial. 
 When there are no more prisoners, the members 
 remain in orders, as a court, waiting the result 
 of the opinion of that power by whom they 
 have been constituted. 
 General Orders. They, howcvcr, return to their ordinary 
 duties in the mean time, notwithstanding the 
 regulation apparently to the contrary ; which 
 is obviously necessary, when considerable time 
 may elapse during postponement, or the in- 
 terval between sentence and confirmation. 
 
 In courts martial, being held by the same au- 
 thority as other courts of law, the person em- 
 powered to cause them to be held possesses the 
 Tytjer. prerogative of G?ice returning them their sen*- 
 
 M?i. Arrangera. 'cwce* foT vevision (whctt they may adhere to 
 T. i, 100. ^i^^jj. Qj-igjj^j^i sentence), and of pardoning and 
 remitting the punishment; but not of altering, 
 or adding to the judgement which shall havci 
 been given. It being a fundamental principle 
 of the common law of England, of which ihei 
 martial law is a branch, that a man cannot 
 suffer more punishment than the law assigns,, 
 
MILITARY LAW. Hi 
 
 but that he may suffer less ; that the laws can- 
 not be strained, by part*iality, to inflict a pe- 
 nalty beyond what the letter will warrant ; but 
 that, in cases where the letter induces any 
 apparent hardship, the crown has the power to 
 pardon. 
 
 To prevent interruption to the proceedings, 
 I till they should almost resolve themselves into 
 t the entire duties of the judge-advocate, it has 
 f hitherto been forborne to mention a privilege, 
 (for which it is to be hoped he will very seldoqi 
 have occasion,) should illegal measures be pur- 
 sued in opposition to his opinion ; and which, 
 exonerating him, throws the burthen of the 
 act upon the tenacity of those who may carry 
 it into execution. In such a predicament, "and 
 it is not uncommon," says INIr. Sullivan, " he 
 should protest, not stop the proceedings of the JJ^f^^^"" 
 court, but enter his objections, and, with re- 
 verence, submit them to the consideration of 
 his sovereign, or the delegates of his power." 
 " He may not," says Mr. Tytler, "enter his f^;- *" ^' ^'• 
 dissent in iheform o^ d. protest upon the record 
 of the proceedings, for that implies a judica- 
 tive voice, but engross therein the opinion de- 
 livered by him, for the government of him by 
 whom the sentence is to be confirmed." 
 
 No sentence of a general court martial (say ib. jis.an.u. 
 his majesty's Articles of War) shall be put in 
 execution, till after a report shall have been 
 
142 yillMARV OBJECTS OF 
 
 made of the whole proceedings to us, or to the 
 oflficer commanding in chief, or some other 
 person duly authorised by us, under our sign 
 manual, to confirm the same, and our or 
 his directions shall have been signified there 
 upon." 
 
 The sentence may now, however, be sup- 
 posed to have received confirmation, and either 
 to have been executed or remitted, in part or 
 the whole : a few observations only remain. 
 
 Mii.Arr. u. 72, ♦< Some commauders in chief," says Colonel 
 Williamson, " have of late gone so far as to 
 reprimand courts martial for the judgement 
 they have given. They have certainly a right 
 to make their observations, when declaring 
 their approbation or otherwise; but, as a repri* 
 mand'' (of course in any form) "implies guilt 
 in the person on whom it is imposed, and is 
 now among the punishments assigned to offend- 
 ers for small offences, it may be conceived, by 
 some, that a commander, in taking this upon 
 him, goes a step beyond the bounds of his au- 
 thority, by unitiirg the judiciary to the execu- 
 tive power; and besides acts improperly, not 
 to say illegally, in awarding punishment with- 
 out trial." ♦ 
 
 Mutiny Act. 'fhc ucxt proccdurc ordained is " that every 
 judge-advocate, or person officiating as such, 
 at any general court martial, do transmit, with 
 as much expedition as the opportunity of time 
 
MILITARY LAW. 143 
 
 and distance of place can admit, the original 
 proceedings and sentence of such court mar- 
 tial, to the (office of the) judge-advocate- 
 general, ill Loixdon, unless such court martial 
 shall have been appointed in Ireland, in which 
 case they shall be transmitted to the judge-ad- 
 vocate-general of that part of the United King- 
 dom, in Dublin ; and the said original pro- 
 ceedings and sentences are to be carefully kept 
 and preserved in their respective offices, to 
 the end that the persons entitled thereto may 
 be enabled, upon application, to obtain copies 
 thereof, without stamp-duty. ib.$29. 
 
 Provided always, that the party tried by any lb. Mr- 
 general court martial, within Europe, (except 
 Gibraltar,) shall be entitled to a copy of the 
 sentence and proceedings of such court mar- 
 tial, upon demand thereof, made by himself, 
 or by any other person or persons on his be- 
 half, (he or they paying reasonably for the 
 same,) at any time, not sooner than three 
 months after such sentence ; and, in case of 
 trials at Gibraltar, at any time not sooner 
 than six months after the sentence ; and, in 
 case of trials by any general court martial, in 
 his majesty's other dominions beyond the seas, 
 1 Or in foreign parts, at any time not soonet 
 than twelve months after the sentence given 
 by such court martial, whether surli hentencc«; 
 be approved or not. 
 
]44r PRIMARY OBJECTS OF 
 
 General Remarks on the Sentence, — its Execu- 
 tions, — Punishments, — and the preceding 
 Sections. 
 
 There are some general remarks as well as 
 as facts, in the consideration of a sentence and 
 the execution of punishments, which, to pre- 
 vent as much as possible confusion in the pre- 
 ceding pages of this section, have been thrown 
 together here for a glance of the eye, previous 
 to a general or regimental court martial. 
 
 The first observation that naturally occurs, 
 on the present section and those immediately 
 preceding, is that, notwithstanding the distinc- 
 tion so strenuously maintained between the 
 summary proceedings of military courts and. 
 the formal process of the courts of law, the 
 minutest forms of the latter will be found to 
 have a parallel in the former ; and that, without 
 the credit attached to the various formalities 
 of the civil courts, justice is here accessible by 
 an infinitely greater variety of means. These 
 means form the different grades which have 
 been described, arising out of necessity, from 
 the different circumstances of an army ; as far, 
 therefore, as, compatibly with the service, they 
 can assimilate in regularity and close reasoning 
 "with the civil courts, whose forms are the result 
 of calm wisdom, the better. 
 
MILITARY LAW. 145 
 
 In 110 respect is tliis assimilation more ne- 
 cessary than in a certain knox^lcdge of the de- 
 gree of punishment prescribed by mihtary 
 law, and a full attention to impress by all the 
 dignity of justice the example intended to 
 be conveyed by the sentence ; punishments J^'!; ^"^"^em. 
 being intended to deter by the terror of example, 
 and not so much to vindicate as to prevent the 
 commission of crimes. 
 
 The necessity of consistency, and consequent- 
 ly of consideration, in the sentences of courts 
 martial, cannot be better demonstrated than 
 by the folloM'ing instance, at once interesting 
 and ludicrous. 
 
 •' Orders by Lieutenant General Cornwallis, 
 commanding at Gibraltar, March 17, 17^4. 
 
 *' Lieutenant B , of the 54th regiment, 
 
 tried by. a general court martial, and found 
 guilty of leaving his guard, contrary to orders, 
 is adjudged by the court to receive a public 
 reprimand from the governor. The governor 
 does, therefore, in this public manner, re- 
 primand him, and orders him to be released 
 from his arrest. 
 
 '^ Corporal James, of the same regiment, 
 commanding the signal house guard, was tried 
 by a regimental court martial, the same day, 
 for a like neglect of duty, and was ordered to 
 be reduced, and to receive two hundred lashes. 
 The governor pardons him, thinking a neg- 
 
 L 
 
H^ PRIMARY OBJECTS OF 
 
 lect of duty in a commissioned officer more 
 heinous than in a non-commissioned officer, who 
 is not supposed to have the same education, 
 and is of course more hable to err. Justice is 
 the same in high rank as low. Lieutenant 
 Bond gave him as good a character in his situ- 
 ation as Lieutenant Colonel Welsh did the 
 lieutenant ; therefore^ to do strict justice to 
 both, the governor reprimands in this public 
 manner Corporal James." 
 
 These orders, in language so highly cha- 
 racteristical of the late noble Marquis Corn- 
 wallis, exhibit a very just discrimination ; for, 
 while the general is constrained to mark so 
 gross an inconsistency, he did not subject 
 
 Lieutenant B- to the pain of a personal 
 
 exhibition before the garrison, which he was 
 
 warranted by the sentence in doing; so well 
 
 piut.iuVit. did his lordship understand the real value of 
 
 Solon, 
 
 power, — in possessmg without using it. 
 
 The accessibility and promptitude of mili- 
 tary justice would seem to preclude the possi- 
 bility of any unjust exercise of military power 
 over those within the jurisdiction of military 
 law. When it is considered, however, that 
 while rejecting all the necessary fictions of the 
 common laAV, not only do the most dangerous 
 sometimes obtain admission to the militar}^ 
 procedure, but that there has occasionally 
 arisen, in some few parts even of the mihtary 
 
MILITARY LAW. 147 
 
 force of Great Britain, a sort of systejii, called 
 ANNOYANCE, wliicli, imdcr that avowed ap- 
 pellation, and by the abuse of military power, 
 subverts every principle of justice; arraigns 
 without charge, convicts without proof, and 
 PUNISHES without judgement ; it behoves that 
 every one intrusted should be cautious how he 
 aids it, whether by participation or assent, and 
 strenuously to support in his individual cha- 
 racter every rule for the administration of jus- 
 tice. For if, as it has been very properly said, 
 the hand of every commander should be 
 strengthened by every possible means, and those 
 in a subordinate capacity taught to look for 
 any advantage solely through his approbation, 
 it is pre-supposing that approbation to be di- 
 rected only by justice, and is at least necessary 
 that it should not be guided by caprice ; or, 
 instead of rendering command more efficient, 
 it will be exhibiting only an unworthy power 
 directed to public injury and private wrong, 
 and producing a combination of jarring mate- 
 rials, incompetent to any military purpose. If, 
 on one hand, such a pledge for the inviolability 
 of military power be necessary, some guarantee 
 is surely requisite on the other, that power neces- 
 sarily so absolute should not be unjustly exerted. 
 
 The respectable judge-advocate for Scotland Xytier, Essay on 
 has fallen on a most sophistical definition of ni, nmc/'^' 
 a soldier, ** whose conduct and character, 
 
 L 2 
 
148 PRIMARY OBJECTS OF 
 
 taken in the aggregate, may be such as to ren- 
 der him a most unfit person for having any 
 command; and yet it niay.be impossible to 
 specify any positive act to the satisfaction of a 
 court martial, &c." and thinks the distin- 
 guished honour and luimanity of British officers 
 merit the confidence of having the disposal of 
 the rank of non-commissioned officers without 
 trial; but unfortunately there are existing cases 
 to prove that there have been striking exceptions 
 to this well-known honour and humanity, against 
 which the laws must provide ; while the para- 
 dox of a guilty man without fault is not more 
 jnadmissable in law than irreconcilable with 
 military experience : — military law recognising 
 ^ even " all disorders and neglects which ojjicers 
 and soldiers may be guilty of," though not 
 specified in the Articles of War. 
 KssayonMii. Thc cloqucnt Writer just quoted declare* 
 that " every material deviation" from the 
 rules of common law% '' unless warranted by 
 some express enactment of the military code, 
 is in fact a. punishable off ence in the members 
 of the court martial, who may be indicted for 
 thc same in the kings ordinary courts." In 
 another place, IVf r. Ty tier has already declared 
 that all attemper lo brow-beat, perplex, or ir- 
 ritate, a witness in the delivery of his testimony 
 (while a court is deficient in a proper feeling of 
 its dignity, if it does not repress such conduct 
 
 Law, 360. 
 
MILITAUY LAW. "149 
 
 with exemplary severity) are nearly allied to 
 the punishable crime of subornation of per- 
 jury." 
 
 An irregularity particularly noticed bv Co- M'.V ^'''*"?^™' 
 
 o J t^ J *' V. 11.76, noU's 
 
 lonel Williamson in courts martial is that in 
 givmg; sentence they are apt to go beyond the 
 bounds of their jurisdiction, and to pass their 
 judgement on matters that are not submitted 
 to it, of Avhich he instances several cases, as 
 that of Lord Keppel, which censured the pro- 
 secution; that of Colonel Cockburne, which 
 declared the innocence of the evidence from 
 the aspersions cast upon them by the prisoner; 
 and another at Plymouth, which gave their 
 opinion on the conduct of the commanding 
 officer. 
 
 It can scarcely be necessary to urge here 
 that the treatment of a prisoner, of whatever 
 ■ rank, on his trial, should be characterized by 
 the highest consideration, and all the hu- 
 manity of that politeness which belongs to the 
 army. 
 
 " Some commanders-in-chief," remarks- Co- ^'b- ^"Pf^^ 
 lonel Williamson, (1784,) " have of late gone 
 so far as to reprimand courts martial for the 
 judgement they have given. They have cer- 
 tainly a right to make thei^ observations when 
 declaring their approbation or otherwise; but, 
 •ds D, reprima?id imj)lies* guilt in the person on 
 whom it is imposed, and is now among the 
 
150 PRIMARY OBJECTS OF 
 
 punishments assigned to officers for small of- 
 fences, it may be conceived by some that a 
 commander, in taking this upon him, goes a 
 step beyond the bounds of his authority, by 
 uniting the judiciary to the executive power; 
 and besides acts improperly, not to say ille- 
 gally, in awarding punishment without trial. 
 
 If this be the case, as respects a commander- 
 in-chief, how much more so must it be in the 
 commanding officer of a regiment or party, 
 who should employ it wantonly. If the in- 
 fluence of honour on the mind of an officer 
 be once destroyed, by the humiliation of public 
 reprimands, the military spirit v/ill vanish with 
 it. Yet even abusive language would appear 
 to have found its way in a few instances into 
 the conduct of military affairs, not, however, 
 for the credit of the army let it be understood, 
 without punishment. 
 Gen. Orders, lu thc beginning of 1804, Lieutenant-Co- 
 lonel W. Jephson, major of the 17th regiment 
 of Light Dragoons, was tried and found guilty 
 of having acted in an unwarrantable manner, 
 highly unbecoming an officer, by abusing and 
 ill-treating Assistant-Surgeon Samuel Tilt, of 
 the same regiment, on the morning of the 30th 
 October, and was adjudged to be suspended 
 from rank and pay for the space of six calen- 
 dar months. His majesty, however, adverting 
 to the detriment which the service must ex- 
 
 8th Feb. 1804. 
 
MILITARY LAW. 151 
 
 pciience from tlie suspension, deemed it indis- 
 pcnsablc that Colonel Jephson should retire aU 
 together, permitting him, on account of a ser- 
 vice of twenty -three years, to sell his regimental 
 commission. 
 
 In October, 1771, Captain James Titch- M'Artimr 
 borne, of the ■Marines, was tried onboard the Courts Man. 
 
 ; \ , V. ii. 267. 
 
 Buckingham, for treating Lieutenant Fynmorc 
 (whom he had already brought to a court 
 martial, which was adjudged malicious) with 
 frequent abuse and unofficer-like conduct. 
 The court found the charges proved, and he 
 was dismissed J ro7n his majesty's service. His 
 age and infirmities were recommended to the 
 favour of the Lords of the Admiralty. 
 
 It certainly could not be endured that a 
 punishment which must eventually destroy the 
 energies of any cultivated mind or feeling 
 heart, and is therefore wisely placed only in 
 the power of a court martial, should be left at 
 the disposal of any person whom chance might 
 throw into command ; with true military dig- 
 nity it is incompatible.* 
 
 * While such is the case that the inferior oflicer shall not 
 be treated unworthily, a due respect even in extra-military 
 concerns is very properly assured to the superior oflicer. 
 Thus the language of a letter is required to be of an equal 
 tenor with the personal propriety exacted from one to the 
 other. 
 
152 PRIMARY OBJECTS OF 
 
 Execution. That 111 thc modc of cxecutiiig a scntciice 
 no less attention is necessary than in passing 
 it, must he obvious; since, however guilty the 
 criniinal, even if death, the ullimum supplicium, 
 be awarded, there is no right to drag it into 
 lingering sufterance ; if a certain number of 
 lashes, no power to inflict them wantonly ; nor 
 to increase the pain even of an ordinary im- 
 3iii. Arraugem. prisoument. The followina- case, in Colonel 
 i*-!' Williamson's words, will afford sulficient illus- 
 
 tration. " When a soldier," says he, "con-, 
 demned to suffer death is pardoned, it is never- 
 theless usual to go through all the preparatory 
 formalities, by way of example. During the 
 last war there was a marine shot at Plymouth, 
 who had received his majesty's pardon, when 
 it was only intended to frighten him in this 
 manner. Tlie major Mho attended to inspect 
 the execution intended to carry on the cere- 
 mony to the fifth act, and only to exhibit the 
 royal pardon just before the dropping of the 
 curtain. However, by some oversight or mis- 
 
 Appcndix to In 17S4, Colonel Hugh Debbicge was tried at a general 
 
 M' Arthur, No. ■ , ^ , , ^ i ■ • • • 
 
 5^- court martial for writing several diircpectful and injurious 
 
 letters to the Duke of Richmond, as Master-general of the 
 
 Ordnance, and found guilty. But in consideration of the 
 
 high character of Colonel Debbi<'ge as an oflicer, and his 
 
 meritorious services, he was adjudged only to be reprimanded 
 
 in oj)on court. 
 
IIILITAUY LAW. 155 
 
 take, the catastioplie happened before the dc- 
 noaement took place, and the life of tiie un- 
 fortunate victim was sacrificed to the observ- 
 ance of military forms, or rather to the >ieg- 
 lect or inattention of those who were appointed 
 to conduct them." 
 
 Then is however another matter relative to 
 a sentence and its execution which tlie writer 
 Would submit with great deference to those in 
 whom its controul is invested. In sentencing to 
 .flagellation it is obvious that not a quantum of 
 purmhment is prescribed, but a number of 
 lashes ! now, even after all the consideration 
 of which the subject is capable, it is not pos- 
 sible to ascertain whether the criminal can 
 sufter the whole of a given number at one 
 time, even with all the resuscitativc arts of the 
 drum-major, after Repealed temporary deaths. 
 If not, and the surgeon direct him to be taken 
 down, he becomes a prisoner in the hospital, and 
 often, as soon as reviving nature willl permit, 
 just without the extinction of life altogether, the 
 patient is again brought forth to receive another 
 portion, under the same circumstances, and so 
 on till he has, in receiving the number of lashes 
 to which he had been sentenced, received re- 
 peated punishments, each approaching tlie near- 
 est possible to deaths whitb the law iu more 
 than one instance expressly prescribes, on every 
 principle o'i common justice, that no man shall JJ"^^^^*^''^"' 
 
154 PRTMARY OBJECTS OF 
 
 be punished twice for the same offence. Tliere 
 can be no doubt of the fact or of its in- 
 justice. 
 Punishment. The tendency of Sanguinary punishments to 
 brutah'ze the species, and of course to render 
 a soldiery any thing but military, is sufficiently 
 known and acknowledged : it is hoped that at 
 least an extention of them so absolutely vin- 
 dictive will be done away. From the habitual 
 exhibitions of sanguinary punishments it was 
 that the revolutionary slaves of the Antilles 
 became so inventive in cruelty towards the 
 most austere of their fallen masters, while 
 Edwards's West ^^^y P'"^^^^^^^ the Galifcts and Barrons, who 
 RaliiTr Hi'i ^^^^ ^^^^ considerate of them ; and, what is 
 Account of St. worse, that the soldiers of Mauduit, not con- 
 
 JJomingo, &c. ' ' 
 
 tented with their treason, refined upon bar- 
 barity, in the mutilation and exposure of the 
 mangled corse of their commander ! 
 Prcf. Ess. to It has been well observed, by Major Le Me- 
 
 Gen.Latrille on r • ^ 
 
 Modern w.r, suncr, that, whcrc this system or punishment 
 is disused, it may be concluded that " disci- 
 pline is maintained by calling into action the 
 noblest passions of the human heart." The 
 same sensible officer mentions that *' the pro- 
 mulgation of the edict of Louis XVI. enforcing 
 for certain offences the punishment of blows 
 with the flat of the sabre, occasioned the de- 
 sertion of thirty thousand men ! So obnoxious 
 to the French soldiery was what in their csti- 
 
MILITARY LAW. 
 
 155 
 
 mation tended to degiiule their profession, 
 &c." And agnin " tlie materials of whieh the 
 corps in the French service are composed, are 
 discordant and heterogeneous in the extreme ; 
 no army in Europe contains so large a propor- 
 tion of foreigners ; yet Poles, Italians, Dutch, 
 Swiss, Germans, French, mingled without re- 
 gard to nation or language, are governed by 
 the same rules, and subjected to the same dis- 
 cipline, nor is the conduct of any such as to 
 render necessary a departure from the general 
 system. These foreigners, who are either forced 
 into the ranks or seek in them a refuge from 
 captivity, cannot be supposed to entertain 
 much predilection for the service in which they 
 engage, and it is clear that the devotion, bra- 
 very, and enterprise, which they subsequently 
 evince, must arise out of the nature of the 
 service itself." — " In the French military code 
 corpoi'al punishment finds no place.'" 
 
 Perhaps in a few instances only of sullen, Kcnnet.it a. 
 
 I . ■^ • Rora.ArtofW. 
 
 perverse, stupid, stubbornness, (cases, however, c.i5. 2.^0. 
 which rarely occur,) it might be retained on 
 the same physical principle as the Roman pu- 
 nishment of letting blood, — with great caution, 
 liowcver, of legal prescription. 
 
 Punishments being intended to deter by the Williamson's 
 
 ^ "^ _ IVIil. Arrangera, 
 
 terror of example, and not so much to vindi- vol. ii. 109. 
 cate as to prevent the commission of crimes, it 
 follows that they should IJe most pointed on 
 
156 PRIMARY OBJECTS OF 
 
 those for which the most opportunities and 
 the most prevailing temptations oft'er, agree- 
 ably to the principle of civil law, which is 
 most severe on those oflences (such as those 
 of shecp-steaJing, &c.) which by the ease with 
 which they are perpetrated might be most detri- 
 mental to society. Such crimes in the army are 
 desertion, disobedience of orders, and sleeping 
 on a post, which, however apparently venial, 
 
 Art. of War, . , , ^. ,. 
 
 $ 24, art. 2. Hiay causc the destruction or an army. 
 
 Mut.Act.$ii8. A very great relief afforded to the common 
 law, by a military judicature, is manifest, in 
 there being few offences against the civil law of 
 the realm, committed by soldiers, which may 
 not be construed into military offences, as sub- 
 versive of good order and military discipline. 
 And an admirable characteristic of the discri- 
 mination of military law is that distinction 
 which is invariably preserved in his majesty's 
 Articles of War and Rules and Regulations be- 
 tween the penalties of crimes on foreign ser- 
 vice and those committed in the United King- 
 dom ; a distinction' which extends even to 
 cowardice or misbehaviour before the enemy, 
 which, " when it is judged not to proceeil from 
 
 Mil. Airangem. trcaclicry but wcakncss, is more generally pu- 
 
 ^■"*^^'" nished by an ignominious dismission than by 
 death." This also must certainly countenance 
 other discriminations which have been pro- 
 posed. 
 
MILITARY LAW. 157 
 
 The same principle is recognizable in the field 
 of battle, xc/im only any thing in the shape of 
 an arbitrary punishment can be tolerated. . 
 Such as in actual mutiny, when officers and 
 soldiers may be put to death, if the mutiny 
 cannot otherwise be suppressed ; running away 
 in action, marauding, &c. " These arbitrary wniiamion. 
 
 . T -11 ' n ub, sup, 114. 
 
 punishments are never indeed put in force 
 but abroad on service, and even then they can 
 be justified by nothing but the most urgent 
 necessity." 
 
 Shooting and hanging are the capital punish- 
 ments in the British service, and neither are 
 pointed out by the Articles of War. They are 
 common to officers and private soldiers. 
 
 Wlien a criminal is to be executed in camp, 
 it is usually done in front of the line, and in 
 presence of the whole army, or if more conve- 
 nient a detachment from each regiment, or 
 even a man from each company if scattered in 
 <listant cantonments. When a soldier is sen- 
 tenced to be hanged, the provost marshal is to 
 provide the hangman. But, when a criminal 
 is condemned to be shot, it is to be performed 
 by soldiers of his own regiment, sometimes by 
 liis pardoned accomplices, or by others who 
 have been convicted of similar oflences. A 
 Serjeant is usually appointed to command the 
 execution party, and to give the signal for the 
 men to lire. A reserve is also provided in case 
 
158 PRIMARY OBJECTS OF 
 
 the first fire may have not taken the desired 
 effect. The provost marshal also attends with 
 a case of loaded pistols. The criminal is 
 usually indulged to give the signal himself for 
 the soldiers to present, hut the signal to Jire 
 must he taken from the serjeaut, or from the 
 officer appointed to see the sentence executed. 
 After the ciiniinal is declared to he dead, by 
 the surgeons who attend for that purpose, it is 
 a custom to carry the mangled body three 
 times round the parade or place of execution, 
 in order to render the example more striking, 
 and to impress the greater terror on the minds 
 of the spectators. When many prisoners have 
 been convicted, the warrant has, sometimes, 
 only ordered to be executed a certain number, 
 which, if crimes be equal, must be furnished by 
 casting lots. In the East Indies mihtary cri- 
 minals have been blown from a mortar. 
 
 The ceremonies are of course varied accord- 
 ing to circumstances, local, personal, &c.* 
 
 * In Great Britain a military sentence of death being ap- 
 proved by his majesty, the warrant is issued under the sign 
 manual ; on foreign stations the commander-in-chief issues 
 his warrant to the second in command, and appoints the 
 time and place for carrying the sentence of death into execu- 
 tion. The form is issued in orders from the adjutant-ge- 
 neral's ollice, and the peculiar ceremonies arc arranged in the 
 public orders. 
 
MILITARY LAW. 159 
 
 Of commissioned ofiicers the most severe g^™^;;;'""**^ 
 punishment is mostly cashiering, being either 
 simply dismissed ihe service, or in addition 
 rendered incapable of again serving, or dis- 
 missed with infamy. The latter is rarely in- 
 flicted but for flagrant acts of cowardice or 
 treachery. 
 
 Thus, in 1655, no less than an adjutant-ge- 
 neral of the forces (Jackson), in the conjunct 
 expedition against St. Domingo, under Penn 
 and Venables, in which he led the advanced 
 body of the British army, having precipitately 
 retreated from the Spaniards, was tried for 
 COM'ardice, and sentenced to be cashiered, to 
 have his sword broken over his head, and to 
 do the duti) of a szvabber in keeping dean the 
 hospital-ship of the fleet. And, in 1745, a cap- 
 tain was broken in this ignominious manner, 
 except in the latter article, for misbehaviour at 
 the battle of Falkirk. 
 
 The criminal is brouo;ht forth at the head of wniiamson'. 
 
 , . . , . 1 . 1 1 • ,• Mil. Arrangea. 
 
 his regmient or the qorps m which his disgrace v. ii. us. 
 has originated; his charge, and the sentence 
 by which he has been found guilty of it, 
 are read to him aloud ; after which his sword 
 is broken over his head, his commission torn, 
 his sash cut to pieces and thrown into his face, 
 and, however scandalous and ludicrous it may 
 appear, he is sent off with a kick from the 
 drum -major. 
 
i-60 PRIMARY OBJECTS OF 
 
 Dismissal, witli a declared incapacity of serv- 
 ing afterwards in any military oflice, is also 
 ignominious, and has been more recently prac- 
 ticed. 
 
 The principal of the inferior pmiishments 
 are suspension for a limited time from rank and 
 command, during which an officer is mulcted 
 of his pay; fine and imprisonment; and repri- 
 mand, — even to " mild reprimand and gentle 
 
 W'Arthur. admonitiou." 
 
 The mode in which a public reprimand is 
 to be given is specified by the court martial. 
 
 uiisi™"' The most solemn and exemplary is at the head 
 . of the regiment, line, .or garrison. Another is 
 by the president before the court by which 
 the delinquent has been found guilty ; a third 
 is in the public orders. These are of course 
 public reprimands. 
 
 Non-conimis. Thc inferior punishments inflicted on non 
 commissioned officers are suspension and re 
 duction, with any additional penalty usually 
 imposed on soldiers, after reduction, for no 
 non-commissioned officer can receive corporal 
 punishment by Hogging, till first stripped of 
 his office and the symbols of it removed from 
 his dress. A court martial is, however^ au- 
 thorised to degrade a serjeant to the rank of 
 corporal, though it is not usual. If a non- 
 commissioned officer be to be tried, as such he 
 is ordinarily put under drrest. 
 
 •ioned Oiriccn. 
 
IIILITARY LAW. l6l 
 
 It is unnecessary to describe the mode of Private joidicn, 
 flogging by a cat of nine tails, at the halberds, 
 or a representation of them in wood, rendered 
 necessary by the contortions of the sufferer 
 during a severe punishment, from its form 
 called a triangle. The proceedings and sen- 
 tence of the court martial are read aloud by 
 the adjutant previous to the punishment. The 
 moment a criminal receives a lash, the sur- J*™"' i^«g- 
 
 Comp, ub. liup, 
 
 geon in attendance is responsible for his hfe. 
 
 Imprisonment takes place in a guard-room 
 or black-hole; the latter of which, if perfectly 
 dry and frequently aired, the confinement not 
 of too long duration, and the health of the 
 prisoner not previously impaired, is, with bread 
 and water for food, certainly the best punish- 
 ment that a court martial can inflict for minor 
 offences ; as is that of serving his majesty in some 
 corps on a disagreeable service, for greater 
 crimes ; particularly if criminals were associ- 
 ated for a forlorn hope, on occasion; in which 
 they might have the best opportunity of re- 
 trieving themselves, or offering the sacrifice of 
 an unworthy life to their injured country. To 
 imprisonment the restriction of hand- cuffs and 
 even chains are added ifnecessajy, but this of it- 
 self.is a corporal punishment which sliould never 
 be unnecessarily inflicted, and, if so, would be 
 absolutely illegal. 
 
 When a soldier has by frequent enormities 
 
 M 
 
162 
 
 Relating to »h« 
 precadiog »ec- 
 
 UOQl. 
 
 Mut. Act, 
 50 Geo. lit. 
 c. 10, § 74. 
 AoLo 1810. 
 
 Gen. Orders, 
 Feb. 1804. 
 
 PRIMART OBJECTS Of 
 
 become a disgrace to the service, he is dismissed 
 with infamy, or as it is termed drummed out 
 of the regiment : he is escorted, with a halter 
 about his neck, by the drummers of the regi'* 
 mcnt, (sometimes after severe corporal punish- 
 ment,) with a written label containing the par- 
 ticulars of his crime, through the streets of the 
 camp or garrison, and is dismissed with a kick 
 from the youngest drummer. His crime is also 
 inserted in his discharge. Surely a sentence to 
 a peculiar foreign service would be preferable; 
 for such dismissal is now no punishment. 
 
 In regard to the preceding sections there 
 yet remains to be observed, in the administra- 
 tion of military justice, that the jurisdiction 
 of military law is likely to be more particularly* 
 recognised in the civil courts, from an enact- 
 ment which directs their being furnished with 
 its statute-book ; a circumstance which it may 
 reasonably be hoped will, on the other hand, 
 induce a due recognizance in courts martial of 
 the principles and practice of the common law. 
 
 The practice of commanding officers on a 
 foreign station sending home officers with ac- 
 cusations pending against them, without hav- 
 ing been investigated, has been declared detri- 
 mental to the king's service and prohibited in 
 all other than cases of the most urgent neces- 
 sity. 
 
 The erroneous opinion, also, that an officer 
 who has been put under an arrest has a right 
 
IGS 
 
 MILITARY LAW. 
 
 to demand a court martial upon himself, and 
 may persist in considering himself as still under 
 restraint of such arrest, although released by 
 the officer who imposed it, (if it could be long 
 entertained,) is completely interdicted. An 
 officer, however, conceiving himself to have 
 been wrongfully put in arrest, or otherwise ag- 
 grieved, may, according to the same orders, of 
 course have remedy by application to superiors •'^f';°^^'»^' 
 in the ordinary mode prescribed by the Articles 
 of War. 
 
 In charges that attach to an officer's cha- 
 racter, if they have been known to the corps, 
 and the officers have, nevertheless, associated 
 with the prisoner, or, without remonstrance, 
 mixed in duty with him, *'I conceive," says 
 Sir Charles Gould, p. 9, " this circumstance 
 will and ought to diminish the weight of the 
 accusation." 
 
 That the conduct of the president of a regi- 
 mental courtmartial should be circumspect in the 
 extreme, that it is his duty to inform those 
 inferior to him, and above all to understand the 
 principles of justice, need not be repeated. 
 
 Finally, let the restraint and qualifications, 
 by which military law is bounded, between the 
 constitution of Britain on one hand and the 
 necessity of the case on the other, be remem- 
 bered ;-^that the king is by virtue of his prero- 
 gative possessed of command over the army. 
 
 M 2 
 
164 PRIMARY OBJECTS OF 
 
 the executive power absolutely, but with the 
 legislative power only as qualified and restrain- 
 ed by parliament. Courts martial therefore 
 are the only assemblies possessed of judiciary 
 power as being sanctioned by parliament 
 And the others, which have been hereinbefore 
 described, deriving their power from the 
 crown alone, have no power to judge of the 
 crimes or diiferences of individuals ; — that the 
 power which his majesty does not possess can 
 not be delegated. It therefore behoves every 
 one to be cautious how, in the exercise of 
 controul only arising from expediency, they ar- 
 rogate to themselves any of the powers of judi- 
 cature. 
 
 1 1 . General Board. 
 
 In passmg from the consideration of those 
 military courts positively judiciary to the cogni- 
 zance of their proceedings, with the power ol 
 which the courts of record are invested, the 
 assembly called a Board of General Officers^ 
 
 • The trifling circumstance of the appellation council of rear 
 (con^eil de guerri-,) being retained as applicable to a cour 
 martial, by the French, renders it just necessary to remark here 
 that, ill assembling it, no judiciary purpose is ever proposer 
 in British military law ; though in bare possibility it might b< 
 affected. Its object is simply a concentration of intelligence i 
 in the emergency of an army, from the principal commandint 
 orticers of the divisions and corps which compose it, of mhatevt 
 rank ; it is a privy council to a commander-in-chief, by whicl 
 his operations are to be influenced ; and completes the numbe 
 uf military assemblies. 
 
 i 
 
MILITARY LAW. 
 
 165 
 
 maybe said to intervene; its province being 
 sometimes similar to the judges to whose opi- 
 nions a case is referred in the ordinary courts. 
 
 This character is confirmed to it by the ^f^ Rep of b. 
 judge-advocate assisting, by whom also com- 
 plicated cases of various natures are sub- 
 mitted to it. 
 
 Assembhes of this kind are called together ^y'^'^"^^""'' 
 to decide a point of laze, form estimates, or to ▼•"•?• isi. 
 deliver their opinion on any matter proposed 
 to tliem. The result of their deliberations is 
 laid before his majesty ; and, when approved by 
 him, what they have established is, with the 
 restriction imposed by their non-judiciary cha- 
 racter, passed into a law. But no officer or 
 soldier is absolutely obliged in any particular 
 instance to abide by their decision ; of which, 
 says Colonel Williamson, we have an example 
 m the case of Sir Thomas Rich, who refused 
 to conform to the opinion of a board assembled 
 in this manner. His majesty, however, was 
 so much displeased at what was thought an 
 act of contumacy as to dismiss him from the 
 service. 
 
 12. The Courts of Record. 
 
 ■ As it is too much not to suppose in the best 
 7! constituted establishment the occasional abuse 
 jj of power, and that this abuse may sometimes 
 j,[ extend to the perversion of military justice, so 
 I the sentence even of a general court martial, like 
 
165 PRIMARY OBJECTS OF 
 
 # 
 
 that of every subordinate judicature, is subject 
 to review, and may be appealed from by the 
 party who conceives that he has suffered in- 
 justice. 
 
 Tvtier, 167. jhe appeal from the sentences of courts. 
 nunyi c , ^^L^UdX lics to thc suprcmc civil courts of law, 
 as the courts of King's Bench and Common 
 Pleas in England and Ireland, and the Court 
 of Session in Scotland. 
 
 Haie.pi. Cor. ]7qj.^ courts of law, agreeably to the common 
 law of the realm, have superintendency over 
 the king's ecclesiastical, the king's military, the 
 king's maritime, and the king's academical, 
 laws, to the end that they may be kept within 
 their jurisdictions. 
 
 The civil courts seem to be the only certain 
 refuge for an officer suffering from hasty deci- 
 sions^ of " CoMwc//.y of Inquiry." 
 
 The causes for which the sentence of a court 
 martial may be brought under review of a su- 
 perior judicature are the same which in the 
 civil courts in England authorise either the 
 granting of a new trial or an arrest of judge- 
 ment; that is to say, if the sentence, or verdict, 
 shall have been manifestly without, or contrary 
 to, evidence, or if it shall have been contrary to, 
 or unauthorised by, law ; if the penal award be 
 beyond measure exorbitant or severe ; if the 
 jury or judges have been corrupted, &c. But 
 the superior court will not entertain the appeal^ 
 or authorise any review of the proceedings^ 
 
MILITARY LAW. 1^7 
 
 unless on the most pregnant or positive 
 grounds for supposing that the merits have Biackstotie-i 
 not been fairly discussed, and that the deci- 
 sion is not agreeably to the justice and truth of 
 the case. 
 
 The sentences of a court martial may likewise 
 become the subject of prohibition, and be ar- 
 rested in their execution by interference of the 
 king's civil courts, on the ground of the mili- 
 tary court having exceeded its jurisdiction and 
 powers; as if, for example, a court martial 
 shall have tried and condemned, for a military 
 offence, a person not subject to the military 
 law. This excess of jurisdiction appears to 
 be the only legal ground on which a prohibi- 
 tion can be issued : for, it is no ground of pro- Tn«i of Scrj. 
 hibition that a court has decided wrong in a 
 matter clearly within its jurisdiction, although 
 such decision may be a just ground of appeal^ 
 or a sufficient foundation for a review of the 
 sentence. 
 
 A striking demonstration of the power of 
 the civil courts, in the exercise of their juris- 
 diction, is afforded in the case of Lieutenant ^''"*'''"»<^^*^ 
 
 •if NaT. & ftlil, 
 
 Frye; which Mr. M 'Arthur has preserved, as Coum Manmi, 
 
 1 , . ^ , T. ji.889. 
 
 lie says, " among ike many mstances of the 
 judgements of courts martial which have been 
 brought under their review." 
 
 Lieutenant Frye, of the marines, serving on 
 
l&S 
 
 PRIMARY OBJECTS OF 
 
 "board the Oxford man of war, ^as tried, at 
 Port Royal, Jamaica, for disobedience to his 
 captain's orders ; namely, in refusing to assist 
 another lieutenant in conducting an officer as 
 a prisoner on-board the ship. Lieutenant Frye 
 persisted to liave a written order for tliis duty 
 from the captain, which he peremptorily re- 
 ftased. On his being broug-ht to trial for his 
 oifence, the evidence produced against him 
 at the court martial consisted of the deposi- 
 tions of a parcel of illiterate people, reduced 
 i«to writing several days before he was 
 brought to trial, which persons were entirely 
 unknown to him, he, to his knowledge, never 
 having seen or heard of them before; and 
 upon iiis objecting to the evidence he was 
 brow-beaten and over-ruled. On the charge 
 being thus proved, he was sentenced to fifteen 
 years imprisonment, and rendered for ever in- 
 capable of serving his majesty. 
 
 He was brought home ; and his c^se, after 
 beitig laid before the privy council, appeared 
 in so- justifiable a light, that his late majesty 
 was pleased to remit ihe punishment, and to 
 order him to be released; -Sonne time after lie 
 ■brought an actioti, in the conrt of Common 
 Pleas, against Sir Chaloner Ogle, who had set 
 as president at the court tnartial, and had a 
 ^-erdict in his favour of one thousand pounds da- 
 
MILITARY LAW. l6^ 
 
 mages, it having beeu proved that he had been 
 kept fourteen months in close confinement, 
 before he was brought to trial. The judge, 
 Hioreover, informed him that he was at liberty 
 to bring his action against any of the mem- 
 bers of the said court martial he could meet 
 with. 
 
 On his application afterwards, (May, 1746,) 
 the Lord Ciiief Justice Willis issued his vvrit 
 of capias against Rear Admiral Mayne and 
 Captain Rentone, two of the members who 
 had set at his court martial, and they were ac- 
 cordingly arrested, just as they broke up from 
 a court martial assembled at Deptford, for the 
 trial of Vice-Admiral Lestock. This was 
 deemed a oieat insult, and highly resented by 
 all the members composing the said court 
 martial at Deptford, who drew up strong re- 
 solutions on tiie occasion, which they trans- 
 mitted M itii remonstrances to the Lords Com- 
 missioners of the Admiralty. The Admiralty, 
 through the mechum of the secretary of state^ 
 laid these resolutions and remonstrances before 
 his majesty. The lord chief justice, however, 
 being api)rized of the steps whijh the mem- 
 bers ot" the court had taken, immediately and 
 without waiting the result exercised the au- 
 thority of his high office, and caused each in- 
 dividual member to be taken into custody ; 
 and was proceeding in legal measures to assert 
 
170 PRIMARY OBJECTS OF 
 
 and maintain the authority of his judicial 
 power, wlien a stop M'as put to the process, by 
 proper concessions, expressed in a submissive 
 letter, (in which pardon was asked of his lord- 
 ship and of his court,) signed by the president 
 and all the other members of the court, and 
 transmitted to the lord chief justice, which let- 
 ter was ordered to be registered in the Remem- 
 i^mi. Gaiette, bran ce Office : — ^^ A memorial,'' as the lord 
 
 15th Noveiub. , r« • • i 
 
 ir46. chief justice then observed, " to the present 
 
 and future ages, that whoever set themselves 
 up in opposition to the laws, or think themselves 
 above the law ; will, in the end, jind themselves 
 7nis taken," 
 
 13. -% the Parliament. 
 
 There are, as it will readily appear to every 
 reader, various modes in which, should the 
 fallibility of human nature ever extend er- 
 ror so far as to follow a case through every link 
 of the chain of military jurisdiction which has 
 been described, it would reach the ear of par- 
 liament. 
 
 i. House of Peers. 
 
 From the judgement of the courts of King's 
 Bench in England or Ireland, or the court of 
 Session in Scotland, the ultimate appeal is 
 
IIILITART LAW. 171 
 
 is competent to the House of Lords, and to 
 this resource in the possible case above-men- 
 tioned application can only be made with any 
 certainty of success. 
 
 The House of Lords, as the supereminent 
 court of appeal, has tlie power of reviewing 
 sentences of courts martial, as well as those of 
 all other courts of judicature within the king- 
 dom. 
 
 ii. House of Commons. 
 
 It has been conceived that the proceed- Deb. m Pwj. 
 ings of courts martial arc subject to review 
 by the House of Commons, from its having 
 been considered as included in the Mutiny 
 Act, under the denomination of courts of jus- 
 tice, before whom there is an exception from the 
 oath of secrecy in courts martial. There is, Tytier'j e. o« 
 however, no example of such judicial power i69. 
 being exercised by the House of Commons, 
 though proceedings of courts martial have been 
 called for, and censured as /)fl7Yffl/, crZ'i/rflr^, Deb. Ap. so, 
 and illegal. And his majesty might certainly 
 be addressed by the house on any occasion in 
 which it was conceived that justice had not 
 been satisfied. 
 
 Some of the relations between the civil and Debates of Pari. 
 
 .,. , 1 ,• • /. . . • April 3, 1818. 
 
 military courts, and the hmits of investigation 
 in the House of Commons, of trial by court 
 martial, have been mcU defined by the Right 
 
172 PRIMARY OBJECTS OF 
 
 Hon. Chancellor of the Exchequer, so recently 
 as the case of the Hon. Captain Lake, for ex- 
 posing one of his men upon the uninhabited 
 island of Sombrero, arising- out of a motion of 
 Sir F. Burdett, for a committee to consider 
 of the proceedings on his trial. 
 
 *' The charge for which he was tried by the 
 court martial, said Mr. Perceval, was similar to a 
 most aggravated misdemeanor at common Jaw, 
 namely, an assault with intent to murder. On this 
 point Captain Lake had been already tried, and 
 had received the sentence of the court martial ; 
 and it therefore appeared to him that he could 
 not be tried a second time for the same offence,'' 
 although " it was doubtful whether a court of 
 law would not have inflicted a severer punish- 
 nient." However, " if there was any proof 
 that the man was dead, he did not conceive 
 that the sentence of the court martial could 
 prevent his being now tried for murder." 
 
 " If the man was, however, still living, a 
 farther punishment might be inflicted on Cap- 
 tain Lake ; for, the sailor would have a civil 
 action for damages, in which case a jury 
 would have to declare what damages ought to 
 be given in a case of such extreme cruelty and 
 atrocity." 
 
 " If it could not be in the power of the 
 committee to direct any farther proceedings^ 
 lie saw no principal good in the appointment 
 
MILITARY LAW. 173 
 
 of the committee." — " If the house were to 
 order an indictment for murder, Captain Lake 
 could not be convicted unless there was proof 
 that the man was dead." — " He thought it 
 was better to wait for some time to see whether 
 by additional inquiries an}^ farther information 
 could be obtained, and then, if any such evi- 
 dence was obtained as should prove the man to 
 have died in consequence of his being left on 
 the island, a trial might be ordered.'' 
 
 U. By the King, 
 
 The sovereign is the fountain of honour and 
 justice, and to his majesty, from whom (by 
 that express investiture, which, with the con- 
 sent of the whole community, placed in his 
 hand the sword of justice) all laws may be 
 said to emanate, so does their fmal execution 
 return. 
 
 The most amiable preroojative of the crown, Law of Forfeit- 
 
 , . , ^ ures, p. 99. 
 
 as an able writer has it, is the granting of par- 
 don. Law cannot be framed on principles of 
 compassion to guilt, yet justice by the con- 
 stitution of En^•laud is bound to be admitiis- . 
 tered in viercy. This is promised by the king 
 in his coronation-oatli, and it is that act of 
 his government which is the most personal, 
 and most entirely his own. The king himself 
 condemns no man,; that rugged task he 
 
^^ PRIMARY OBJECTS OF 
 
 leaves to his courts of justice. The great 
 
 com^entarie.. operation of his sccptrc is mercy. Whenever 
 
 the nation sees him personally engaged, says 
 
 Blackstone, it is only in works of legislature, 
 
 lb. b. 4. c. 1. magnificence, or compassion. It is therefore to 
 the sovereign, holding a- court of equity in his 
 own breast, to soften the rigour of general 
 law, in such criminal cases as merit an exemption 
 from punishment,* that a final appeal may be 
 made, in proper cases, by memorial or petition, 
 from the severest sentence; it being, sometimes, 
 even in extreme cases, (according to the best au- 
 
 i::Ll::"'" ^^^^^'^^y^) the intention of such a sentence - to 
 
 c Gould. Kcp. ^^'^''^ '''''''" /^^ ^^ application for mercy to his 
 majesty, from the goodness and clemency of 
 whose disposition applications of this nature are 
 always sure to be duly considered, and to have 
 all the weight they can possibly deserve." 
 
 His majesty, in the exercise of his royal 
 prerogative, frequently dismisses from his ser- 
 vice prosecutors who may have failed in the 
 first instance to substantiate heavy charges 
 brought upon a general court martial. His 
 justice has also been most laudably employed, 
 
 Sryl^baooV ^^^^^^c the sentence of a court martial, from 
 tenderness to the rank of an individual, (as in 
 
 69 
 
 M'Arthur, 
 
 * This will probably include all cases where even the best 
 of human laws may have boon uncertainly defined, or inca- 
 pabU of adaptation. 
 
MILITARY LAW. 175 
 
 case of a field-officer abusing his subaltern,) 
 had sentenced him only to a suspension of 
 rank and pay. His majesty deemed his reiire- 
 ment indispensable. 
 
 IV. THE ADJUSTMENT OF RANK. 
 
 Where a strict subordination is so absolutely 
 necessary as in the variety of a military force, 
 where antient prejudices amidst the improve- 
 ments of modern times still preserve their full 
 spirit, and jealousies local and characteristical 
 will occur, the adjustment of rank is an ob- 
 ject every way desirable. On this subject the 
 utmost pains has been taken in effecting a 
 decisive settlement in the Articles of War, to 
 which it is entirely resigned. 
 
 Thus the general subject of brevet rank, Art. of War. 
 that honourary quality M'ith which merit or 
 dignity may be rewarded without interfering 
 with regimental economy, or conferring pecu- 
 niary advantage, or anterior conmiissions in 
 other regiments, which might otherwise create 
 disputes, is arranged as follows : 
 
 ** Officers having brevets, or commissions of BrcTei-Hamt. 
 a prior date to those of the regiment in which 
 they now serve, may take place on courts 
 martial, and on detachments, when composed 
 
ITG primary objects of 
 
 of different corpSy according to the rank given 
 them in their brevets, or dates of theh' former 
 commissions; but^ in the regiment, troop, or 
 company, to which such brevet-officers and 
 those who have commissions of a prior date do 
 belong, they shall do duty and take rank both 
 in courts martial and on detachments, which 
 shall be composed only of their own corps, ac- 
 cording to the commission by they are mustered 
 in those corps." 
 
 Cen. Reg. and Thc Royal Artillery taking high precedence, 
 being next to his majesty's life-guards, if horse, 
 and before the foot-guards, it became necessary 
 to direct that courts martial relating solely to 
 their own corps might be composed of their 
 
 faoAr^r' own officers; "but, where a sufficient number 
 could not be assembled, or in matters wherein 
 other corps are interested, the officers of ar- 
 tillery shall sit in courts martial with the offi- 
 cers of other corps," taking rank only accord- 
 ing to the dates of their respective commis- 
 sions. 
 
 lb. $15. Art.?, w\ factitious distinctions in the forces, how- 
 
 4i 5, 8. 
 
 ever necessary on parade, are destroyed as 
 much as possible on duty; hence, when the 
 life and foot guards each do duty alone, they 
 are severally considered as one corps ; on the 
 life-guards and horse - guards doing duty 
 tooether, the senior ofncer commands the. 
 M'hole, regard being had to the posts they 
 
MILITARY LAW. 
 
 177 
 
 usually occupy, &c. And either on the whole, 
 marcliing with, being encamped, or quartered, 
 with any bodiesordetachmcntsof other troops, 
 " the eldest officer, without respect to corps, 
 shall take upon himself the command of the 
 whole. Sec.'' 
 
 As tlie importance of the different forces on 
 their original formation gave rise to these ad- 
 ventitious distinctions, so the various degrees 
 of efficiency in forces of modern constitution 
 have unavoidably created some gradations : 
 Thus officers of the regular forces take prece- ib. $ i»- a. 6. 
 dence of those of all militia forces, fencibles, 
 yeomanry, and volunteers, the officers of which 
 forces are to rank together. This is not, how- 
 ever to extend to fencible officers of commis- 
 sions dated on or before the i^ioth day of July, 
 1798; who continue to rank with the regular 
 forces, unless when brigaded with militia, to^^- ^ ^^•^•''' 
 any officer of which a fencible officer may be ju- 
 nior, when he will be commanded by the officer 
 of regulars whether senior or not. 
 
 General officers and colonels serving by com- •^'^- $ 21. A. «. 
 mission from any of the governors, deputy- 
 governors, or presidents of the council, for the 
 time being, of the provinces and colonies in 
 North Anjerica, shall, on alldetachments, co,urts 
 martial, or other duty with our regular forces, 
 take rank next ajter all colonels serving by 
 commission from us or by our general cum- 
 
178 PRIMARY OBJECTS Of 
 
 rftanding in chief, although their commissions 
 should be of elder date ; and in like manner, 
 lieutenant colonels, majors, captains, and other 
 inferior officers. 
 
 lb. $22. A.*. Officers in the East India Company's service 
 take rank also after the regulars, but, when on 
 courts martial, the prisoner shall be tried by 
 the Mutiny Act, &c. of the force in which he 
 is serving. 
 
 c.^9o!m. The following may be selected as a peculiar 
 
 point of private militia rank. The lieutenant 
 of any county, on the recommendation of the 
 colonel or other commandant of any regiment, 
 Sec. may appoint the adjutant to serve with 
 the rank of captain, provided he shall have 
 served five years as adjutant, but he shall not 
 rank above any other captain, nor receive any 
 other pay than as adjutant : a second adjutant 
 may have brevet rank of lieutenant. 
 
 The principal importance of explicit laws on 
 this subject must arise from the responsibility 
 which accompanies every seniority, in the due 
 execution of the law. 
 
31ILITARY LAW. 179 
 
 PART III. 
 
 GENERAL MILITARY ECONOMY IN PRO- 
 VISION, REGULATION, &c. 
 
 I. RECRUITING THE ARMY. 
 
 1 . Commissioning Officers. 
 
 HIS majesty having judged it necessary, 
 with the consent of parhament, to raise a body 
 of forces, by his royal prerogative, proceeds 
 to commission officers for their command, 
 cither immediately from himself or through 
 those generals to whom he has delegated suf- 
 ficient authority. 
 
 By those desirous to obtain commissions in 
 the regular forces a stipulated price is paid, 
 which, while it fulfils the antient end of in- 
 ducing property to the army, furnishes also 
 t fund directed to the most laudable pur- 
 poses. 
 
 The regular proccilure of those who desire to james'iRcg. 
 
 ^ T. i. p. 88, dec 
 
180 GENERAL MILITARY ECONOMY, — 
 
 enter the army will be found in numerous didac- 
 tic treatises, and learned from every army-agent. 
 In consequence, however, as stated in the pre- 
 amble to a new section, of inconvenience arising 
 
 Mut.Act.^ior. to his majesty's service from persons not au-* 
 thorized agents of regiments, troops, or com- 
 panies, negociating for the purchase and sale 
 of commissions, and much larger sums than 
 those allowed by his IMajesty's Regulations be- 
 ing given and received for commissions, and 
 great frauds committed, it is enacted, that 
 every person, not an authorized agent of any 
 regiment, kc. who shall ncgociate or act as 
 agent for, or in relation to, the purchase or sale 
 of any commission in his majesty's forces; and 
 also every authorized agent who shall take, 
 accept, or receive, any commission, or sum of 
 money, or reward fprj,. negociating the pur- 
 chase or sale of any siich commission, or acting 
 as an agent in relation thereto ; shall forfeit, 
 for every such offence, the sum of one hundred 
 pounds, and treble the sum which shall be 
 given or received for or in relation to any such 
 commission, over and above the sum allowed 
 by his Majesty's Regulations. 
 
 Kruce. Mil. For preventing and discovering such abijs^es,, 
 
 Inst. Tit. 9,^90. „ , ,. f, „ , -^ • 1 t • • \ '^ 
 
 ** as plurality of posts, also, it is by hiii majesty s 
 Articles of War directed, that " all commissions 
 
 A. of W. $18. ' 
 
 shall be entered in the books of our secretary 
 
RECRUITING, — SERVICE, DISMISSAL. 181 
 
 at war and commissary general, otherwise tlicy 
 will not be allowed of at tlic musters/' And 
 this entry is usually signified by a chief clerk 
 of each oftice on the commission itself. 
 
 The commissioning of officers to new raised 
 levies is governed by the various circumstances 
 under which they are raised. 
 
 In recruiting the army, the militia now be- 
 comes too prominent not to be considered, 
 since in fact it is a sort of grade in the regular 
 force of the country, and to be efficient must 
 continue so. In the present state of society in 
 Britain, the favourite constitutional idea of 
 personal service can have but little place, when 
 every man either by himself or by association 
 can with money procure a substitute. 
 
 The militia of "the United Kingdom, under 
 the guidance of intelligent and spirited com- 
 manding officers, may form an excellent school 
 for both officers and men ; but as, in this ser- 
 vice, there is no room for the formation of those 
 ties, or the operation of those sentiments, to 
 which the heroic enterprise of a regular army 
 gives birth, to form this school (which an in- 
 telligent and interesting author has considered 
 but *' little profitable to war") of ultin>ate uti- Caractcre Mif. 
 
 ,. , 1 • • 1 1 • des Arrases Eu« 
 
 iity, a resolute and m variable care to practise rop^ennes. 
 and instil all those dignified sentiments of jus- 
 tice and probity, and all the public virtues, 
 
182 GENERAL MILITARY ECONOMY, — 
 
 which are confined to no rank or class, must 
 be preserved by every superior officer of this 
 peaceful command. 
 
 The only difference necessary to be noticed 
 
 here is in a few peculiarities in the law regulating 
 
 c\ $2." seq. ^^^^ appointment of officers, Avhich enables the 
 
 lord-lieutenant to exercise the power vested in 
 
 him, highly advantageously to the service. 
 
 If any person, having served as captain of 
 militia, should cease to possess the required 
 property in the county, necessary to qualifi- 
 cation, he shall, nevertheless, on the recom- 
 mendation of the lieutenant, be qualified to 
 serve. 
 
 If a sufficient number of persons possessing 
 qualifications in the county should not be 
 found to accept commissions, within two 
 months after the embodying of the mihtia, it 
 shall be lavi'ful for the lieutenant, deputy- 
 lieutenants, &c. to appoint for that service 
 (to all its vacancies) officers in the arm}' or 
 marines, or persons who have had commit- 
 sions in any of his majesty's forces, ,or in the 
 militia; including such officers as art serving at 
 the tirne as lieutenants in the regiment^ ^c. in 
 which any company is become vacant, or in 
 any corps of provisional cavalry which may 
 have been embodied, and have retired there- 
 from, to be approved by his majestv', although 
 
RECRUITING, — SERVICE, — DISMISSAL. 183 
 
 not qualified, c^t. None of these persons, how- 
 ever, to be of any higher commission in the 
 militia than that of captain. 
 
 Persons having quahfications in any part 
 of England may also on like terms be ap- 
 pointed. 
 
 It will be easily perceived how, by a small 
 Jictio juris, these enactments may be rendered 
 productive of the best effects. 
 
 Commissions of ensign in regiments of the Gen. Reg. 
 line are granted to officers of militia, who vo- 
 lunteer in the proportion of one officer to fifty 
 privates, and sometimes less, at the instance of 
 
 a commanding officer. 
 
 * 
 
 2. Inlistifig of Private Soldiers. 
 This is an object of the highest importance Regulation* for 
 
 ... f. • I I r> 1 carrying on Re- 
 
 in military economy, too otten considered or the cruumg Service. 
 
 least ; it is the first act towards the formation of 
 a military force, and that by which the indivi- 
 dual relinquishes his character of citizen to as- 
 sume a new order in society. On the mode in 
 which it is transacted there is reason to be- 
 lieve much depends the rank and condition of 
 both. 
 
 As far as the lecrislative iniunctions in re- Mut. Act. j 74, 
 spcct to the detail of inlistment can operate, a 
 better svstem has not existed since that which 
 
Institution;* of 
 Mil. Law, 10.3. 
 
 184 GENERAL MILITARY ECONOMY, — 
 
 gave to Rome those triumphant legions which 
 poured forth her vengeance on every part of 
 the world. 
 
 In the present state of general society, how- 
 eve?-, the perfect execution of the most whole- 
 some laws is not to he expected ; and it is now 
 a century since it was found that we were not 
 so scrupulous in admitting unfit persons to 
 he soldiers as of old they were ; for instance, 
 says Bruce, " If all infamous persons, and such 
 as have committed capital crimes, heretics, 
 (nay atheists), those who are plainly strangers 
 to the trade, and all dastardly and elfeminate 
 men ; if all these, I say, were weeded out of 
 the armies that are at present on foot in Eu- 
 rope, it is much to he feared that most of 
 them M'ould he reduced to a pretty moderate 
 number." 
 
 From ihe mi>:ed qualities, therefore, which 
 compose the military force of Great Britain, 
 and the paucity of volunteers, anxious only 
 for the heroic enterprize of war, (not that our 
 ranks are entirely without them,) other powers 
 are necessary in recruiting the army than the 
 restraints of ardour, or the choice of selec- 
 tion. 
 Arj.ofWar, Hencc is derived the nature of the fv>ll()w- 
 
 Ai.A.<72. ing prescriptions of the Mutiny Act, involving 
 ithe short and insufficient section relating to thw 
 subject in the Articles of "War. 
 
RECRUITING, — SERVICE, ^1>IS MISSAL. 185 
 
 • Every person who shall receive inlisting- 
 money from any otlicer, non commissioned 
 officer, or soldier, or any other person em- 
 ployed on the recruiting service, shall be 
 deemed to be inlisted as a soldier in his ma- 
 jesty's service, >\ ith the benefits afterwards 
 prescribed, however, for such as hastily in- 
 list. 
 
 When any person shall be inlisted as a sol-ib. §73. 
 dier in his majesty's land-service, he shall with- 
 in four days, but not sooner than twenty-four 
 hours, be taken by one of the party before a 
 justice of the peace of the vicinity, ?2ot b€i?jg A.onv.ji, 
 an ojjicer <>f the army, or, if in foreign parts, 
 where recourse cannot be had to ihe civil ma- 
 gistrate, before the judge-advocate, and there 
 be at liberty to dissent from such inlisting, and 
 on returning the inlisting-money, with tAventy 
 shillinos for the cliar2:es expended or laid out (Mutiny Act, 
 
 ;-. , ". , , .. ,, „ , 50 Geo. III. «.. 
 
 upon hnn, together with such rull rate allowed 10. §74. Aano. 
 by law for the subsistence, or diet, and small 
 beer, furnished to such recruit, subsequent to 
 the period of his having been inlisted, he shall be 
 discharged in \\\c presence of such justice: And 
 the same, if the recruit shall not have been able 
 to procure one of the party to go with him, 
 or they shall have left the place, in which case 
 the money is to be deposited with the magis- 
 trate, for the recruiting party when they shall 
 
186 GENERAL MILITARY ECONOMY,— 
 
 demand it. But if such person refuse or neg- 
 lect to pay tlie money within the apace of four 
 days, he shall be deemed equally inlisted as if 
 he had given his assent. 
 
 If the person shall declare his having vo-. 
 luntarily inlisted, then such justice shall read 
 over, or cause in his own presence to be read .<"' 
 over, to liim, the third and fourth articles of 1/^^ 
 the second section, and the iirst article of the ■ W 
 sixth section, of the Articles of War, against t4 
 Mutiny and Desertion ; as follow ; jl 
 
 ^5;°^^'*'"' " yl)7i/ officer, 7W7i-com7nissioned officer, or \ 
 soldier, zvho shall begin, e.vcite, cause, or join, [jei 
 
 Ibid. art. 3. in any mutiny or seditio??, in the regiment, 
 troop, or company, to which he belongs, or in 
 any other regiment, troop, or company^ either 
 of our land or marine forces, or in any party, 
 post, detachment, or guard, on any pretence 
 xvhatsoccer, shall suffer death, or such other 
 punishment as by a general court martial shall 
 
 Ibid. ait. 4. be awarded. Any officer, noji-commissioned offi- 
 cer, or soldier, who being present at any mutiny 
 or sedition shall not use his utmost endeavour 
 to suppress the same, or coming at the know- 
 ledge of any mutiny, or intended mutiny, shall 
 not, zvithout delay, give information thereof to 
 his comma)uling officer, shall suffer death, or such 
 other punishment as by a general court martial 
 
 ib.jd Art 1. shall beaxcardtd. ulU officers, non-coifwiissiuncd 
 
IlECRUITING, — SERVICE, —DISMISSAL. 187 
 
 officers, and soldiers, in our service, xoho shall he 
 convicted of having deserted the same, shall 
 suffer death, or such other punishment as by a 
 general court martial shall be axvarded ; and 
 every non-commissioned officer or soldier who 
 shall inlist himself in any other regiment, troop, 
 or company, without a regular discharge from 
 the regiment, troop, or company, in xvhich he 
 last served, shall be reputed a deserter, and 
 suffer accordingly y 
 
 Sucli justice sliall also administer to the 
 persons inlisting, respectively, the following 
 oaths : 
 
 " I swear to be true to our sovereign lord^^'^^'^^^'^ 
 king George, and to serve him honestly and faith- 
 fully, in defence oj his person, crozcn, and dignity, 
 against all his enemies or opposers whatsoever : 
 And to observe and obey his majesty s orders, 
 and the ordei^s of the generals and officers set ^nn'Re^A't 
 over me by his majesty. 
 
 So HELP ME God." 
 
 do make oath that I am, **. a. $ 7%, 
 
 [or have been, as the case may be, — state the oc- 
 cupation, if any, or state '\f of no occupation] 
 and to the best of my hnozoledge or belief was 
 
 horn in [state county, parish, place, &c.] 
 
 and that I am of the age of years ; that 
 
 J do not belong to the militia, or to any other re- 
 
188 GENERAL MILITARY ECONOMY, — 
 
 gimcnt^ or to his majesty's navij oi' marines^ 
 
 If the person in- ^,,^/ jf//^/ I Will 367X6 h'lS majestll — TsEE THE i fill 
 Jibt without any -J ^ \. i 
 
 limiiation of pe- margin] — jov the period of \ seven vears for |ci 
 
 nod of service ■' ^ ' | 
 
 the oath will infantrvj ten vears for cavalrv, and /w;efoe for 
 
 conclude here, " , " .,..". ^ , 
 
 with the addi- artillery, it thc person inlisting is or the age 
 words, ■" until of eighteen yeavs OF npwards; but if under 
 dbcLrid."'' ^ eighteen years then the difference betweeji his 
 Mut.'^Aa.^' oge and eighteen to he added ^o such seven, 
 
 ten, or twelve years,] years, provided his ', 
 
 7najesty should for so long require my service ; !< 
 ¥ut Act, j 7o. and also for such farther term, not eX' \ 
 ceeding six months, as shall be directed by thc \ 
 com^nanding officer on any foreign station ; and i 
 not exceeding three years, as shall be directed \ 
 by any proclamation of his majesty. Provided 
 alzvays that in the latter case the said additional 
 period shall detennine whenever six months of ^ 
 continued peace, to be reckoned from the ra- 
 tification of any definitive treaty, shall have 
 elapsed subse<juent to the expiration of the said 
 (seven, ten, or twelve,) years.'' 
 
 The justice shall then certify, under his hand, 
 the inlisting and swearing, together with the 
 place of birth, age, and calling, if known, 
 ^c. &'c. and shall give to the recruit a dupli- 
 cate of thc certificate,* 
 
 * If tlie rctriiil inlist as well for tlic Kast-ludia Company's 
 service, a (k-vwtioii in uiilli and ccriifica'.e occurs, accord- 
 
RECIIUITIN'C, — SERVICE, — DISMISSAL. 189 
 
 If any person so to be certified shall, wil- 
 fully, refuse to take the oath of fidelity, the 
 officer from whom he has received the money 
 is to detain or confine him till he docs. 
 
 Every military ofiicer acting contrary to 
 these injunctions is considered to be guilty 
 of a crime equal to that of making a false 
 and untrue muster, and liable to the same pe- 
 nalty, &c.t 
 
 Every non-commissioned officer or private ('"Tuiiny Ac;. 
 
 , ,. .... . ,,,..,. 50 Geo. \\\. c. 
 
 soldier, on inlistmg a recruit, shall inquire his lo. (Sri. Anno 
 christian and surname, and place of aljode, '' 
 and take it do\rn in Meriting, or give it to the 
 non-commissioned officer, commanding in the 
 recruiting party to be taken down. 
 
 Any one who shall receive rnlisting-moncy, ^^"'•■'^'='' $^^ 
 from any person employed in the recruiting 
 service, (knowing it to be such,) and after^ 
 wards abscond, or refuse to go before a niagis-'' 
 trate, and continue to do so four days, shall 
 be deemed, to all intents and purposes, inlisted, 
 and may be apprehended and punished as a 
 
 ing to 39 Geo III. which will be found in the 8che{lulcs to 
 the Mutiny Act, but would be of litllc utility hen-. 
 
 t This appears to be at present, for the simple crime, ca- 
 shiering, und being rendered uritit to serve : the present sec- 
 tion alludes to a forfeiture applied to the olher circumbtances 
 offal e muster. 
 
190 GEN^ERAL MILITARY ECONOMY, 
 
 (Mutiny Acr. clescrter, &c. And he shall not be intitled to 
 
 10. §n, anno his discharge from a magistrate, unless it can 
 
 ^^^°'^ be proved to his satisfaction that the true name 
 
 and residence of the person inlisted was dis- 
 closed to the recruiting party, and that no no- 
 tice was given to the person inlisted, or left 
 at his last usual place of abode, of his having so 
 inlisted. 
 
 Mut. Act, $75. Persons concealing infirmities on inlisting 
 may, if incapable of active service, be trans- 
 ferred from their regiment to garrison, veteran, 
 
 lb. $76. or invalid, battalions, or the marines. Those 
 making any false representations, for the pur- 
 pose of obtaining inlisting money, bounty, or 
 any other money, are to ])e considered as guilty 
 of obtaining money under false pretences, and 
 punishable under iht Act of ^32 Geo. II. Those 
 
 lb. $77. delivering themselves up as pretended deserter? 
 
 will be made to serve in any of his majesty's 
 forces, as if they had been inlisted. 
 
 lb. $78. Apprentices inlisting will be liable to im- 
 
 InlUting Ap- . ^ 1 1, 1 1 I 1 
 
 picniices. prisonment and hard labour, in any gaol or 
 house of correction, for two years ; may be 
 indicted for obtaining money under false pre- 
 tences ; and arc liable to serve on the expira- 
 tion of their apprenticeship ; and, not then 
 delivering themselves up, to be treated as de- 
 serters. 
 
 ib.j79. No master shall be entitled to claim any ap- 
 
RECRUITING, — SERVICE, — DISMISSAL. J9l 
 
 prentice, unless bound for seven years, in 
 England ; in Ireland, tive : nor unless he shall, 
 trithin one calendar month after such appren- 
 tice shall have left his service, go before some 
 justice of the peace, and make oath of the sim- '^^°'- ^ct. 
 pie facts,* of which oath the magistrate is to 
 furnish a certificate, reciting it in the same 
 simple terms that it stated the masters de- 
 scription, date of indenture of apprenticeship, 
 time of absconding, and supposed age of the 
 apprentice. 
 
 In Scotland, the master cannot claim'unless i^. $ so. 
 bound for four years, and the contract, orin-ib. §8i. 
 denture, ratified, in every respect, agreeably 
 to the forms of law in Scotland, three months 
 after execution, or after the passing of this 
 act, and prior to the period of ciiUscment ; nor 
 unless the apprentice be under twenty-one 
 yeai-s of age, when claimed. The oath and 
 certificate as in the preceding cases. 
 
 A master, giving up the indenture of appren- ib. $82. 
 ticeship within one month after indictment of 
 his apprentice, may claim whatever remained 
 due to him of his bounty, after deducting two 
 guineas for necessaries. 
 
 In England or Ireland, on the master claim- ii^-^ 83. 
 i-ng his apprentice, he must obtain for bis appre- 
 
 Form in the Mutiny Act, Schedule G. 
 
192 GENERAL MILITAEY ECONOMY, 
 
 (Mutiny Act, heiision the warrant of any magistrate near the j 
 
 60 Geo. 111. c. , , , 1 , . . ' ' 
 
 10. « 85. Anno, place whercver hc may be, and give notice 
 
 ^^^^'^ to the regiment, troop, or company, with ^ 
 
 which he may be serving, or to the recruiting 
 party, or some officer or non-coromi.ssioned 
 officer of it, of his being an apprentice, of the 
 warrant so obtained, with a copy of the war- 
 ratit; on proof on oath af the delivery of ^ 
 which, and on production of the indenture, such 
 magistrate may immediately commit him to pri- 
 
 ib.§84. son, until discharged in due course.. He must 
 
 then examine into the matter,- on oath, retain 
 in his custody the indenture, and bind oyer 
 the master, or any other evidence, to the next 
 general or quarter sessions of the peace, or 
 
 lb. §85. session of Oyer and Terminer, or that succeed- 
 ing ; at which the trial is directed to be had, 
 unless the court shall think fit to put off the 
 trial on just cause ; when tlie production of the 
 indenture, with the certificate of. the justice 
 before whom it was proved, will be sut]ici.ent 
 evidence of the apprenticeship. 
 
 lb. 4 86. Every such oifcnder, in Scotlarid, shall be 
 
 tried by the judge-ordinary in such county, or 
 stewartry, as any person for offence not in- 
 ferring capital punishment; 
 
 lb. $87. - No person, except an apprentice, is to l^e 
 
 arrested, on the warrant of any magistrate, 
 for breach of contract to work for any 
 master. 
 
RECRUITING, — SERVICE, — DISMISSAL. 193 
 
 Hired servants enlisting are to be paid up ik. $88. 
 to the time of inlistment, at the discretion of 
 the magistrates, notwithstanding- their contract 
 is unfulfilled. 
 
 M'hen any corps, beyond seas, shall bere-ib. «89. 
 lieved, in order to return home, such of the 
 men as chuse may be inlisted, and incorpo- 
 rated witli those who remain, by any officer 
 authorised by the commander-in-chief at the 
 station : such men are deemed discharged from 
 their former corps, and the occasion shall be 
 recited in the inlisting certificate, a copy of 
 M'hich is to be delivered to the soldier for his 
 protection, 
 
 Non - commissioned officers and soldiers, 
 having been duly inlisted and sworn, shall 
 not be dismissed our service without a dis- 1*»^ 2. an. s. 
 charge, in writing, signed by a field-officer of 
 the corps to which they belong ; or if no field- 
 officer be with the corps, by the commanding 
 officer thereof ; in respect to regiments serving 
 abroad, the colonels of Mhich are absent from 
 Great Britain, by the adjutant-general of our 
 forces, or by the inspector-general of our re- 
 cruiting service. 
 
 Negroes, purchased and serving in the ib. $ ii* 
 forces, become free ; but derive no benefit 
 from limitation of service, or the reward of 
 pension. 
 
19-i • GENERAL MILITARY ECONOMY, — 
 
 lb. §3, «rt. 1. With ref>:ard to the inlistins: or enroUinor for 
 
 Mutiny Act, ° & t3 
 
 $73. the riiiiitia, it will be clearly perceivable, that 
 
 the prohibition of any officer from executing 
 the duty of magistrate in the service, as regards 
 his own corps, must apply more particularly 
 to the militia, in whicli many officers must 
 necessarily be magistrates in their county, and 
 thereby ofter such a peculiar facility in the 
 union of the civil and military functions, as 
 
 42Gco. in. c. must be dangerous in a particular degree. 
 
 00, § 4t, 67, , ^ * ° 
 
 i)3 Neither in the sections of the Militia Acts, re- 
 
 47 Geo. JIL c. , . , .... ,. , 
 
 h7, ii4.6ic. lative to enrolment, admmistration or oath, 
 
 nor billetting, nor volunteering into the regular | 
 
 forces, is any exception made to those of the fl 
 
 Mut.Act.uis, Articles of War and Mutiny Act on this sub- • 
 
 et «eq. 
 
 ject, which, thereforey of course, remain in 
 full force here. 
 
 In the other few peculiarities, reference must 
 be had to the Collection of Militia Laws, a 
 mere abstract of which would swell this vo- 
 lume in a manner very disproportioned to its 
 utility. 
 
 The transfer of volunteers from the Militia 
 forces into the line is conducted by various 
 minute regulations, adapted to various circum- 
 stances, which it would be useless to detail, 
 under the several recent acts of parliament al- 
 ready quoted. The volunteer, m hether officer 
 or private, begins dc novo, and experiences 
 
 \ 
 
RECRUITING, — SERVICE, — DISMISSAL. 195 
 
 again nearly all the official formalities of the 
 recruit, as before described. 
 
 It need scarcely be added here, that any im- 
 pediment to this important measure, for recruit- 
 ing' the regular army, (if such a thing be pos- 
 sible,) would, on proof, be severely visited 
 upon a commanding officer. Over non-com- 
 missioned officers and drummers alone he has 
 a controul. 
 
 Of the Oath. 
 
 It is presumed, however, that it will not be 
 even extra-judiciary to make some few obser- 
 vations on the administration of the oaths of 
 allegiance and inlistment. The juratory act 
 may, in this instance, be become a mean of the 
 best or worst of purposes, to impress on the 
 recruit those principles which may render him 
 a happy and honourable member of the order 
 of society to which he is about to be admitted, 
 or a burthen on the comnmnity, criminal, 
 detested, and miserable. In Rome, the soldier 
 and his oath were synonimous ; nor was he 
 suffered to use his weapon till he had been 
 duly sworn. 
 
 It has been complained, by Major Adye, ^'^.j/^'^^^f'** 
 
 ' ^ J 'i >^ ' or. Court Mart. 
 
 whose sentiments, replete with true military ^^''^'^''^"^'^• 
 generosity and humanity, are fully equalled 
 by his general intelligence, that, " on recruits 
 o 2 
 
1S6 
 
 rcj»kp Pep. 
 Cw ut Nisi 
 }*fiu«, 11. 
 
 OEJfERAL MILITARY ECONOMV,— 
 
 being inlisted, they are hurried away to a jus- 
 t.ce of peace, before whom they take an oath of 
 Melity ; " but that no one attends to point out 
 the nature of an oath. He, at the same time, 
 remarks, in shocking proof, that "a o-re- 
 nadier, shot at Plymouth, in the Amei-rcan 
 war, suffered with fortitude, from having, as 
 he said, done nothwg to offend Ids Sa-ciour" 
 It IS sincerely to be hoped, that this grenadier 
 was not mhsted within the pale of any of the 
 numerous magistrates who are also clergymen; 
 yet, from innumerable circumstances, there is 
 reason to fear that many thousands have been 
 6«-ora even by them, without being sufficiently 
 informed of the nature of an oath. It is not 
 intended t. Insinuate here any puritanical in- 
 novation incompatible with the service •• but— 
 can we justly ov safdy punish a man for the 
 breach of a bond of which he is ignorant - or 
 can we expect a due attention to minute, 
 though, important, ceremonies in one whom in 
 Ii.s first military act, we have»;«rfe to treat'the 
 subhmest and most important ceremonies 
 with neglect.? Can we assure fidelity to his 
 
 In cases „f .1„„|„, „, ,„ „„ ,,„^„„ ^^^^^^^^ ^^ ^^ 
 
 I. pr.,>.r,ue.,„.„ ,„ ,,. „,ked by ,h. coun i,. „he.l,er h. 
 MK.«e. „, God, the „Uig:.,i„„ „f ,„ ^..^^ ,„, ^ ,^,^,.^ ^____^ 
 
 01 rewards and pimisLmcnts ? 
 
RECRUITING, — SERVICE, DISMISSAL. ^97 
 
 king, in one who is thus offered an example of 
 infidelity to his God ? 
 
 With the usual consideration and propriety ^^^"ufi-n"'scr- 
 ,of all his majesty's regulations, recruiting par- glJ^^'.f^J^*'*^' 
 ties are repeatedly instructed to practice no 
 imposition or deception on recruits, but to 
 explain to them the nature of their engage- 
 ments ; to the magistrate is left to administer 
 the oath, which is to bind him to a new order 
 of society, and with ties stronger than his life, 
 yet of these by far the most frequently he re- 
 mains ignorant. That this arises from any 
 worse cause than the rapidity of business, it is 
 not intended to be asserted ; bat no business 
 should claim a priority to that of the state in 
 so important an office ; no facility should risk 
 perjury, desertion, treason ! Extraordinary 
 haste is not often necessary to a recruiting 
 party for the highest service, on no occasion 
 to a stationary regiment of the line, certainly 
 never to the JSlilitia. 
 
 Among the regulations of the King of Prussia, Adye.ub.sup. 
 after the young soldier was prepared to be 
 sworn to his colours, it was directed that the 
 violation of an oath, and the divine vengeance 
 which will infallibly attend it, must be ex- 
 plained to him, and he, himself, acknowledge 
 that he understands every particular well, and 
 voluntarily offers to conform tlu reto. 
 
 Much nnght be said on the principle of the 
 
198 GENERAL MILITARY ECONOMY, — 
 
 military oath, among the antients always im- 
 portant, explicit, and inviolable ; even to that 
 exquisite one of the Athenian youth, preserved 
 by Stobseus ; but it is unnecessary. The oath 
 of the British soldier has been more than a 
 century the same, and conceived in general 
 terms ; yet no less binding in military duty. 
 Mn. Inst. "This solemn swearino^ (on its application to 
 
 T'7. his own time, says Bruce.) was thought so 
 
 PJut. Probl. 38. . 'J iy & 
 
 essential to the very being of a soldier, that 
 Plutarch tells us no man was allowed, before 
 he had taken the military oath, so much as to 
 lift up a weapon to strike an enemy. Nay, 
 it was looked upon as so sound a tie, that his- 
 torians report that the Roman generals, by 
 barely putting the soldiers in mind of it, liave 
 many times so raised their resolution, and in- 
 L. Fabiiir, Op. Spirited their courage, that those who were 
 fleeing apace have been made to return to the 
 battle, and atchieve a glorious victory. 
 
 Above all, however, now that the oath is 
 used in every judicial proceeding in military 
 law, unless the recruit be properly (not tedi- 
 ously nor unnecessarily) impressed with its sa- 
 cred importance, there is an end to all military 
 justice, or its sources will be polluted ; the in- 
 nocent cannot be protected, nor the guilty 
 punished ; nor can the confidence, necessary 
 to every warUke effort, be ever assured. 
 
 Liv. I. 2. 
 
RECRUITING, — SERVICE, DISMISSAL. 1^9 
 
 II. VARIOUS DUTIES ENJOINED TO SOLDIERS 
 AND CRIMES PROHIBITED. 
 
 1. In Quarters, including their Provision. 
 
 As it must be an invariable principle, in every 
 well-regulated force, that its power should 
 be never apparent but to the enemy, so is pe- 
 culiar caution, in this respect, most expedient, 
 when mingling in the domestic intercourse of 
 civil society. Often unavoidably incompatible 
 with each other, on terms so unequal as those 
 of the armed soldier and peaceful citizen, it is 
 necessary that in quarters forbearance and 
 concihation should never cease to be impres- 
 sed. And it is an important object, then, in 
 these laws constantly to ascertain the mutual 
 rights of both, and by no means less those of 
 the commissioned officer than the private sol- 
 dier. 
 
 By military law it is particularly enjoined. Art. of War, 
 that all officers, non-commissioned officers, 
 and soldiers, are to behave themselves orderly 
 in quarters ; and whoever shall (unless towards 
 rebels) injure the property of any person, in 
 any way, shall, besides such penalties as they 
 are liable to by law, be punished, according to 
 the nature and degree of the offence, by the 
 judgement of a general or regimental court 
 
lb. i 9. art. ; 
 
 200 GEI^ERAL MILITARY ECONOMY, 
 
 martial. This, however must surely be con- 
 strued to mean only when those penalties are 
 not equivalent to the ofience in a military point 
 of view. 
 
 lb. art. 3, 4. A false alarm, iu quarters, is punishable at 
 
 tlie discretion of a general court martial.* 
 
 lb. art. 14. JsTq officer, non-commissioncd officer, or sol- 
 
 dier, shall lie out of his quarters, without leave 
 from his superior officer, but shall retire to his 
 quarters at the beating of the retreat, upon 
 pain of being punished, according to the cir- 
 cumstances and degree of his offi^nce, by a 
 general or a regimental court martial. 
 
 The commanding officer of every regiment, 
 troop, company, or detachment, shall, upon 
 their first coming to any city, town, or village, 
 where they are to remain in quarters, cause 
 public proclamation to be made, that, if the 
 landlord or other inhabitants suffi:r the non- 
 commissioned officers or soldiers to contract 
 debts beyond what their daily subsistence will 
 answer, such debts will not be discharged. 
 Any commanding otiiicer refusing or neglecting 
 
 • It is necessary to that cultivation of the relntions be- 
 tween the civil iiiid military classes, which can never be too 
 strongly urged, that not merply no false alarpi of a military 
 nature should be mado in quarters, but that the civil state 
 should not he violated by unnecessary marches through streets 
 and high roads, or the military parade, so obnoxious to strict 
 advocates for the constitution. 
 
RECRUITING, — SERVICF, DISMISSAL. *01 
 
 to do SO shall be suspended for three months, 
 and Ins pay be apphed to the discharge of 
 w liatever debts they have incurred. If, after 
 public proclaniation, the inhabitants so trust, 
 it wiil be at their own peril, and the command- 
 ing otiicer sliall not be hable. 
 
 The Provision of Quarters in the United 
 Kingdom. 
 
 After a full recoo-nizance of the Act of 31 MuUnyAct. 
 . . . . $*!• 
 
 Cha. II. c<mtaining the pecuniary con.promise 
 
 for tiie privilege of quartering, which, in unhap- 
 py tinies. had become obnoxious, the Mutiny 
 A' t provides, that, during the existence of its 
 pie^eut actual necessities, it shall and may be 
 law ful for the constables, t\' thing men, head- 
 boroughs, and other chief oflicers and magis- 
 trates of cities, towns, and villages, and other 
 places, within England, Wales, and the town 
 of Berwick-upon-Tweed, and, in their default 
 or absence, for any one justice of the peace of 
 the vicinity, and for no others, to quarter and 
 billet the officers and soldiers in his majesty's 
 service, and persons i^eceivins: Vau m his ma- (Mut. Act, 
 jesty's army, in inns, livery-stables, alehouses, lo. $42- Anno 
 victualling-houses, and the houses of sellers of j^jm^,t^^4j. 
 wine by retail, to be drunk in their own houses, 
 or places thereunto belonging; other than and 
 except canteens, held and occupied under the 
 commissioners for the affairs of barracks; 
 houses of free vintners of Loudon, in right of 
 
f02 GENERAL MILITARY ECONOMY, 
 
 patrimony or apprenticeship, keeping taverns, 
 although with only victualh'ng-licences; selleu 
 of brandy, strong waters, cider, or metheglin, 
 by retaiJ, to be drimk in houses, not used for 
 distilling brandy and strong waters ; and the 
 liouse of any shopkeeper, whose principal dealr 
 ings shall be more in other merchandises than 
 these, so long as tippling be not permitted in 
 them ; and all private houses whatever. And 
 the owner of any private house will have his 
 remedy at law against any one quartering an 
 officer or soldier upon him. 
 Art. of War Persous havini? an undue number quartered 
 
 f ?, aft. 1. o ^ 
 
 on them must be relieved by the magistrate of 
 the place, or he failing, by one of the vi- 
 cinity. 
 
 No more billets shall, at any time, be or- 
 dered than there are effective soldiers present 
 to be quartered. 
 
 ^^ i^^' All billets, when made out by magistrates or 
 
 constables, shall be delivered into the hands of 
 the commanding officer present. 
 
 IV, Ml' No justice of the peace having any military 
 
 office or commission in England shall, di- 
 rectly or indirectly, be concerned in the quar- 
 tering, billeting, or appointing, any quarters 
 for any soldier in the regiment, troop, or com- 
 5)any, under his immediate command ; or all 
 acts, matters, or things, so executed, will be 
 void. 
 
 And if any military officer shaU take upon 
 
a 
 
 Vll 
 
 RECRUITING, — SERVICE,— DISMISSAL. ^^* 
 
 l-im to quarter soldiers otheru'ise, or offt'r any 
 money or compulsion to any oivil officer, such 
 11 ilitary officer, beina: couvicteci before any two 
 ju-^^iL-es, on tlie oath of two credible witnesses, 
 l)c deemed, and taken to be, ipao Jacto, ca- 
 r/d, and utterly disabled to hold any mi- 
 rv en.jjloynieiit in his majesty's service, pro- 
 led the ronviction be affirmed at the next 
 <iuii!ter stssions, and a certificate thereof be 
 transu.ineii ^'^ tne judge advocate in London, 
 w'v^ is her-b> obliged to certify the same to 
 the next court m niiil. 
 
 Any military officer quartering wives, chil-n.^sc. 
 dren, men and jnaid servants, of otlicers, shall, 
 on romplaint made to the commander-in-chief, 
 or judge-advocate, be, ipso facto, cashiered: 
 aiiy civil officer being proved to have done so, 
 before the next justice of peace, shall forfeit 
 twenty shillings, for the use of the party in- 
 jured, \o be levied by distress if not paid. 
 
 If any (military) officer shall take, or cause ib. § so. 
 or suffer to be taken, any n^oney for excusing 
 the quarters of officers or soldiers in any house, 
 allowed by the Mutiny Act. such officer shall- 
 be cashiered, and incapable of serving in any 
 military employment whatever. 
 
 If any high constable, constable, beadle, or lb. $ si. 
 other officer, or person who shall be employed in 
 quartering or billeting any officers or soldiers, 
 shall neglect or refuse to quarter or billet such 
 
204 GENERAL MILITARY ECONOMY, — 
 
 officers or soldiers, when thereunto required, 
 provided sufficient notice be given before the 
 arrival of such troops ; or shall receive, de- 
 mand, contract, or agree for, any reward, in 
 order to excuse any person from quartering 
 officers or soldiers ; or if any victualler, or 
 other person liable, siiall refuse to receive or 
 victual any officer or soldier, so quartered upon 
 him or her, or to furnish the several things di- 
 rected to be furnisiied to non-commissioned 
 officers or soldiers, or shall neglect or refuse 
 to furnish good and sufficient stables, hay, and 
 straw, for each horse, at the rate herein-aftcr- 
 mentioned ; on conviction, before one or more 
 justices of the place, by his own confession, 
 or the oath of one or more credible witnesses; 
 every person so offending shall forfeit a sum 
 not exceeding five pounds nor under forty 
 shillings, at the discretion of the magistrates, 
 to be levied, if necessary, by distress, and ap- 
 plied, after renmnerating any expense incurred 
 bi^ the soldier, to the poor of the parish in 
 which the offender shall dwell. 
 ibj32. And, for the prevention of abuses in (quar- 
 
 tering or billeting the soldiers, justices may, 
 at any time, order the civil officer billeting to 
 furnish an account of the number of ollicers 
 and soldiers quartered, the names of the per- 
 sons on whom quartered, the street in which 
 they dwell, and the sign (if any) of their 
 
RECRUITING, — SERVICE, — DISMISSAL. 
 
 205 
 
 houses, tliat easy reference may be had to the 
 persons quartered, and their quarters. 
 
 Whenever any order shall issue for the quar- Q^^^rimof 
 tering or billeting the olficers or soldiers of ^'*^^-^''*"^'- 
 his majesty's Foot-Guards, in Westminster and 
 places adjacent, including ^Middlesex, Surrey, 
 and tlie Borough of Southwark, (which of 
 course except the City of London,) the high 
 constables shall deliver out precepts to petty 
 constables, head boroughs, &c. by which they 
 shall be billeted, under the same limitations, as 
 in other parts. 
 
 The list of quarters and quartered, how-ib. $4s. 
 ever, in this case, are to be delivered in the 
 respective places, at every quarter sessions, on 
 oath ; which lists are to remain with the re- 
 spective clerks of the peace, that any one may 
 inspect it without fee or reward, and receive 
 copies at the rate of twopence per sheet, con- 
 taining one hundred and fifty words ; and, for 
 neglect in delivering, or defect in the list, each 
 petty constable, tything man, &c. forfeits five 
 pounds, for the use of the poor, to be levied 
 by distress, if necessary ; and, failing in suf- 
 ficient distress, the offender to be committed 
 to the common gaol for any time, not exceed- 
 ing three months, nor less than one, without 
 bail or mainprize. 
 
 The officers, men, and horses, belonging to ib.§ 46. 
 
 1 1 II 1 11^ Horse and Dr«- 
 
 horse or dragoons, and all bat and baggage goon», &C. 
 
206 GENERAL MILITARY ECONOMY, 
 
 horses, belonging to any of his majesty's 
 other forces, and also the horses belonging to 
 staff and field officers in his majesty's forces, 
 ■when upon actual service, not exceeding, for 
 each officer, the nuuiber for which forage is 
 or shall be allowed by his majesty's regulations, 
 shall and may be quartered and billeted in 
 inns, livery-stables, alehouses, &c. as before 
 described. 
 
 They shall be received and furnished by the 
 owners or occupiers of such inns, victualling 
 houses, &c. with diet and small beer, and with 
 stables, hay, and straw, for such horses, pay- 
 ing for the same the rates hereinafter- men- 
 tioned, out of the subsistence-money. 
 It 547. When horse or dragoons are billeted on those 
 
 who have no stables, men and horses, or 
 horses alone, may be removed, by order of 
 justices, to be quartered on those who have; 
 the person from whom removed paying a set- 
 tled allowance to the person receiving them, 
 lb $48. IVfen and their horses, however, to be bil- 
 
 leted together, or as near as possible to each 
 other ; in no case a horse without a man, and 
 one man to every two horses, 
 lb. $ 49. An even exchange may also be made in the 
 
 quarters of men and horses, by the command- 
 ing officer, which the constable, &c. must 
 billet accordingly, 
 lb. J 53. All officers and soldiers, so quartered and 
 
RECRUITING, — SERVICE, — DISMISSAL. 20/ 
 
 billeted, shall be furnished with diet and small 
 beer, as aforesaid, at the several rates, payable 
 out of the subsistence-money for diet and small 
 beer. 
 
 If innholders furnisli the men quartered on ib. $ 54. 
 theno, (except on a march, or employed in 
 recruiting, or men recruited, for the space of 
 seven da^^s) with candles, vinegar, and salt, 
 gratis, and the use of fire, and the necessary 
 utensils for providing their food, and shall 
 give notice of his desire to do so, to the com- 
 manding officer, the officer who i^eceives the 
 pay and subsistence of such non-commissioned 
 officers and soldiers shall pay to them the 
 sums to be paid, out of the subsistence-mo- 
 money for diet and small beer, instead of the 
 person on whom they are quartered, that they 
 may provide themselves. ib. $ 55. 
 
 Officers receiving the pay of a regiment. An. of War, 
 troop, or company, or otherwise, shall im- ^ ^' ^^'" ^* 
 mediately, on receipt of every sum, on ac- 
 count of pay or subsistence, give public notice 
 thereof to all persons by whom soldiers are 
 quartered, that their accounts may be settled 
 within four days at farthest, and before any 
 part of the pay shall be distributed to the sol- 
 diers ; provided the said accounts exceed not 
 the following rates, for diet and small beer, 
 per diem : 
 
£08 GENERAL MILITARY ECONOMY, — 
 
 To a commissioned officer (under a £ s. d. 
 
 captain) of horse 2 
 
 Dragoons ...010 
 
 Foot 1 
 
 To one light-horseman 7 
 
 ■ Dragoon ....* 7 
 
 Foot-soldier 5 
 
 For each horse, for hay and straw, 6d. 
 
 Any officer not giving the prescribed notice, 
 or not satisfying the accounts when produced, 
 on complaintr made thereof, on oath, by two 
 witnesses, at the next quaiter sessions, and a 
 certificate of it, by the justices, shall be, ipso 
 facto, cashiered ; and tl)e paymasters of guards, 
 garrisons, and marines, are authorised to pay 
 and satisfy the same out of the arrears due to 
 tlie said officer, or, if noiie, out of the next 
 subsistence-money due to the regiment, &c. 
 under penalty of these paymasters forfeiting 
 their respective places. If, by accident, in 
 remission of money, or on the sudden march 
 of a regiment, such a defalcation occur, every 
 commanding officer, previous to quitting quar- 
 ters, shall make up the accounts, and give a 
 certificate of the settlement, which will be a 
 sufficient voucher to the aforesaid paymasters, 
 on which they are to pay them, under the 
 former penalty. 
 
 In any place where a non-commissioned of- 
 
RECRUITING, — SERVICE, — DISMISSAL. 209 
 
 ficer or private soldier shall be quartered, 
 who has either wife, or child, or children, any 
 two or more justices of the peace may cause 
 him to be summoned before them, in order to 
 make oath of the place of their last legal set- 
 tlement ; and such justices must give an at- 
 tested copy to the non-commissioned officer, or 
 private, swearing, which shall be, at any time, 
 admitted in evidence as to such last legal set- 
 tlement, and, on any other summons, he need 
 only have a copy of his previous oath, if re- 
 quired. 
 
 In Scotland* officers and soldiers are to beib. $65. 
 
 Quarters, &c. ia 
 
 quartered agreeably to the directions of the Scotland, 
 laws in force before the union. No officer 
 shall be obliged to pay for his lodging, where 
 he shall be regularly billeted, except in the 
 suburbs of Edinburgh. 
 
 In Ireland, the same rule is observed ; but jt^^-^^s. 
 
 , r- ■ ^ Quarters, &c, in 
 
 has been round necessary, from circumstances, itei»ud. 
 to add, in a particular manner, in the act go- 
 verning these regulations, that persons refusingMut. Act, j68. 
 to receive or victual the officer or soldier in the 
 manner prescribed, are yet liable to the penal- 
 ties in force before the union. 
 
 It has also been found necessary to declare, 
 
 * There seems to be an extraordinary hiatus in the provi- 
 iotis respecting Scotland and lieland iu^e Mutiny Act. 
 P 
 
210 GENERAL JJILITARY ECONOMY, — 
 
 that, in addition to the ordinary force of the 
 country, to which quarters are to be furnished 
 in the manner already described, officers and 
 persons serving in the Royal Artillery, the 
 several Trains of Artillery, the corps of Royal 
 Engineers, corps of Royal Military Surveyors 
 and Draftsmen, corps of Royal j\Iilitary Ar- 
 tificers and Labourers, and all master gunners, 
 and gunners under the ordnance, shall be quar- 
 tered and billeted, together v^'ith the horses 
 employed for the service of the said corps, in 
 the same manner, and under the same restric- 
 tions and penalties. 
 Mut. Act. *' Officers and soldiers of troops, raised in 
 
 lb. inder. tit. places possessed by his majesty s subjects, sent 
 over to Great Britain, are also *' to be quar-^ 
 tered as British forces." 
 lb. §114. And, lastly, wherever it may be necessary, 
 
 it is enjoined by the Mutiny Act, that "All 
 such houses as are liable, by this act, to re- 
 ceive the officers and soldiers of his majesty's 
 other forces, in the same manner," are ''to re- 
 ceive and provide for" all " officers and 
 soldiers of the said troops, who, having been 
 taken prisoners, shall be " sent over to Great 
 Britain in a distressed condition." There can 
 be no doubt that this section, however ex- 
 pressed, is intended to be understood in its 
 most extensive meaniilg; and that, ifits/^//er 
 should not be f^und to enjoin all that is neces- 
 
RECRUITING, — SERVICE, DISMISSAL. 21 I 
 
 sary, its spirit will never fail to influence Bri- 
 tish huipanity. 
 
 There has always heen (as is alluded to hy 
 Captain Grose) much difficulty, in respect to 
 the accommodation to be afforded in the Mil. Amiq, 
 
 V 2 
 
 quarters of an officer. There is no doubt tliat 
 proper selection can be made, and that it is 
 the duty of the civil officer to do so, Avhose 
 billets must be changed at the instance of the 
 commanding officer. In a proper house, pro- 
 per accommodation will be afforded, and the 
 risfht to the second best bed in the house ex- 
 
 '^ ' ^ Edward Ditis, 
 
 ists, at least, in an opinion of two hundred lei?. apud 
 
 Grose. 
 
 years standing. 
 
 While such are the accommodations neces- 
 sarily to be afforded to every description of his 
 majesty's forces, in almost every variety of cir- 
 cumstance; and it is the indispensable duty 
 of the soldier, in this as in all other relations 
 with the civil classes of the community, to 
 comport himself with the strictest propriety, 
 not to say forbearance or submission ; so, for 
 tlie preservation of good understanding be- 
 tween them, and tlie mutual assurance of their 
 interests, every commanding officer is held re-^ 
 sponsible. It is strictly enjoined that every '^^f «^^»". 
 olFiccr commanding in quarters shall keep good 
 order, and to the utmost of his power retlress 
 all sucli abuses or disorders as may be com- 
 jnitted by any officer or soldier under his 
 r 2 
 
212 GENERAL MILITARY ECONOMY, 
 
 command. If upon complaint made to him 
 of officers, non-commissioned officers, or sol- 
 diers, beating or otherwise ill-treating their 
 landlords, or extorting more from them than 
 they are obliged to furnish ])y law, or disturb- 
 ing fairs or markets, or committing any kind 
 of riots, such commanding officer shall refuse 
 or omit to see justice done on the offender 
 or offenders, and reparation made to the party 
 or parties injured, as far as part of the offen- 
 der's pay (not exceeding the half thereof) 
 ' shall enable him to make such reparation ; he 
 shall, upon due proof thereof before a general 
 court martial, be deemed culpable in the same 
 degree as if he himself had committed the crimes 
 and disorders complained of, and shall be pu- 
 nished accordingly, at its discretion. 
 
 lb. $14 art.S. 
 
 2. In Garrison {^including Suiiling). 
 
 Of the duties prescribed in garrison, only the 
 most prominent can be general. No officer, 
 non-commissioned officer, or soldier, may lie 
 out of garrison without leave from his superior 
 officer on pain of being punished according to 
 the nature and degree of his offence by the 
 sentence of a general or regimental court 
 martial.* 
 
 • This not being the first instance where an oftker appears 
 to be subjected tu a regimental court martial, which can hav« 
 
RECRUITING, — SERVICE, DISMISSAL. 213 
 
 . A false alarm in garrison is punishable at the Ib$i4.»rt. u. 
 discretion of a general court martial. 
 
 Whatsoever officer, non-commissioned officer, ^^- "^20,21. 
 or soldier, shall shamefully abandon, or deliver 
 up, or compel, or induce, the governor or com- 
 manding officer to abandon or deliver up any 
 garrison or fortress committed to his or their 
 charge, or which he or they shall be com- 
 manded to defend, shall suffer death, or such 
 other punishment as by a general court martial 
 shall be awarded. 
 
 Every officer commanding in garrisons shall ib.$9,art.5. 
 ^eep good order, and to the utmost of his 
 power redress all such abuses and disorders as 
 shall be committed by any officer or soldier 
 under his command, or he will be punishable 
 by a general court martial, as if he himself had 
 committed them. , 
 
 no judiciary power over him ; and in which the proceedings 
 as before observed would be nugatory; the writer cannot 
 help sugg«sting that it would be preferable to consider it, 
 however irregular, as a grammatical ellipsis, ratlier than an 
 anomaly in law ; and that wherever the crimes of officers and 
 soldiers so occur, a general court martial will try the formery 
 or a regimental court martial the latter. Indeed any other 
 principle cannot be acted on. The second section of the 
 Articles of War, art. 1, will also countenance this idea, no 
 ellipses being u&ed. 
 
GENERAL MILITARY ECONOMA',— 
 
 Suttllng. 
 
 ct, Any two magistrates within their respective 
 jurisdiction may grant or transfer any hcence 
 for selling ale by retail, or cider, or perry, to 
 be drank or consumed in any house or premises 
 held as a canteen ; or any licence to sell spi- 
 rituous liquors or strong waters, wine, or liquor, 
 by retail to any person applying for it, who 
 shall hold any canteen under authority from 
 the commissioners for the affairs of barracks 
 without regard to the time of year, or any 
 other forms required by previous acts of parlia- 
 ment. And the commissioners of excise in 
 I'.ngland and Scotland, their collectors, super- 
 visors, &c. are required to grant licences under 
 those of the magistrates. And the persons 
 liolding such canteen may sell therein, and in 
 the premises thereto belonging, and not else- 
 where, victuals and exciseable liquor under 
 such licences, without penalty or forfeiture. 
 
 §^' No suttlcr shall be permitted to sell any kind 
 of liquors or victuals, or keep their houses or 
 shops open for the entertainments of soldiers 
 after nine at night, or before beating of the 
 reveille, or on Sundays during divine service or 
 sermon, on penalty of being dismissed from 
 suttling-. 
 
RECRUITING, — SERVICE,— DISMISSAL. 215 
 
 All officers, non-commissioned officers, sol- ib. an. 2. 
 dicrs, and suttlers, shall have full liberty to 
 bring, into any fort or garrison, any quantity 
 or species of provisions, eatable or drinkable, 
 except where any contract exists, which is the 
 only exception. 
 
 All governors, lieutenant-governors, officers ib. an. 3. 
 commanding in our forts, barracks, or garri- 
 sons, are required to see that the persons per- 
 mitted to suttle supply the soldiers with 
 good and wholesome provisions, at the mar- 
 ket price, for which those officers are held re- 
 sponsible. 
 
 No governors or officers commanding in any ib an. 4. 
 garrison shall either themselves exact exorbi- 
 tant prices for houses or stalls let out to sut- 
 tlers, or shall connive at the like exactions in 
 others; nor by their o\v;n authority and for 
 their private advantage shall they lay any duty 
 or imposition upon, or be interested in, the 
 sale of any victuals, liquors, or other necessaries 
 of life, or merchandizes, brought into the gar- 
 rison, fort, or barracks under their command, 
 for the use of the soldiers, or connive at it in ib. art. 5. 
 others, on pain, upon conviction thereof before 
 a general court martial, of being dismissed 
 from our service and suffering, besides such 
 penalty as they may be liable to by law. 
 
2l6 GENERAL i»tILlTAKY ECONOMY,- 
 
 3. In the Field, (i/icluding the Camp and 
 Foreign Service). 
 
 ik.$u,art.5. No officer, non-commissioned officer, or sol- 
 dier, shall fail to repair at the time fixed to 
 the place of parade of exercise, or other ren- 
 dezvous appointed by the commanding officer, 
 if not prevented by sickness, or some other 
 evident necessity, nor shall go from the said 
 place of rendezvous, noi^ from his guard, 
 without leave from his commanding officer, 
 before he shall be regularly dismissed, or re- 
 lieved, on the penalty of being punished ac- 
 cording to the circumstances and degree of 
 his offence, by the judgement of a general or 
 regimental court martial. 
 
 r^> nri. 8. Any officer, non-commissioned officer, or 
 
 soldier, who shall, without urgent necessity, or 
 without leave of his superior officer, quit his 
 platoon or division, shall be punished accord- 
 ing to the circumstances and degree of his 
 offence, by the judgement of a general or regi- 
 mental court martial. 
 
 lb. art. c. ;^^^ soldier shall be excused from duty, but 
 
 in case of sickness, disability, or leave of ab- 
 sence; nor shall any soldier hire another to do 
 his duty, or both himself and the soldier hired 
 will be punished at the discretion of a regi- 
 
RECRUITING, — SERVICE, — DISMISSAL. 217 
 
 mental court martial. A non-commissioned ib. art. 7. 
 officer conniving at the hiring of duty will be 
 reduced for it. A commissioned officer know- 
 ing and allowing of such practices, will be pu- 
 nished according to the judgement of a general 
 court martial. 
 
 The Camp. 
 
 No officer, non-commissioned officer, or sol- ib.an.s. 
 dier, shall lie out of his camp without leave ^^"f- '^<='' M» 
 from his superior officer, upon pain of being 
 punished according to the circumstances and 
 desrree of his offence by the sentence of a ee- ^rt- of War, 
 
 ° ■^ ^ § 14, art. ♦. 
 
 neral or regimental court martial. Under the 
 same penalty the non-commissioned officers 
 and soldiers are to return to their tents at the 
 beating of the retreat. 
 
 The same penalty also applies to non-com- ib. arts, 
 missioned officers or soldiers who shall be found 
 one mile from the camp, without leave in writ- 
 ing from their commanding officer. 
 
 Any person belonging to the forces who ib. an. 14. 
 shall occasion false alarm in camp, within the 
 United Kingdoms, Jersey, Guernsey, Alderney, 
 Sark; or IVIan, shall be punished at the discre- 
 tion of a general court martial. 
 
 Whoever shall be convicted of holding cor- ib. art. is, le. 
 respondence with, or giving advice or intelli- 
 gence to, any rebel or enemy, either by letters. 
 
218 GENERAL MILITARY ECONOBIV,— ' 
 
 messages, signs, or tokrns, or any way eithef 
 directly or indirectly ; or shall relieve an enemy 
 with money, victuals, or ammunition, or shall 
 knowingly harbour or protect an enemy, or 
 shall treat or enter into any tcrhis with such 
 rebel or enemy, witV.out his majesty's licence, or 
 that of the general, or commander in- chief, shall 
 suffer death, or such other punishuKut as by a 
 general court martial shall be awarded. 
 
 lb. art. 13. j^y^y person belonging to ar.y of our forces 
 
 making known the watchword or parole to any 
 person not entitled to receive it, or giving a 
 different one, shall be punished at the discretion 
 of a general court martial. 
 
 lb. art. 19. Casting away arms or ammunition (at home) 
 
 to be punished at the discretion of a general 
 court martial. 
 
 lb. art 9. Whatever commissioned officer shall be found 
 
 drunk on his guard, party, or other duty, un- 
 der arms, shall, upon being' convicted thereof 
 before a general court martial, be cashiered for 
 it; any non-commissioned oflicer or soldier so 
 offending shall suffer such corporal punishment 
 as by a general or regimental court martial shall 
 be awarded. 
 
 lb. art. 10, Whatever sentinel shall be found sleeping on 
 
 his post, or shall leave it before he shall be re- 
 gularly relieved, shall suffer death, or such other 
 punishment as by a general court martial shall 
 be awarded. 
 
RECRUITING, — SERVICE, — DISMISSAL. 219 
 
 All public stores taken in the enemies camps, ib. an. ir. 
 towns, forts, or magazines, whether of artillery, 
 ammunition, clothing, forage, or provisions, 
 are to be secured for his majesty's service, for 
 which the commanders in chief are responsible. 
 
 If any othcer, non-commissioned officer, orib. art. is 
 soldier, shall leave his commanding officer, or 
 his post, or colours, to go in search of plun- 
 der, he shall upon being convicted thereof 
 sufter death, or such other punishment as by a 
 general court martial shall be awarded. 
 
 Whatsoever officer, non-commissioned officer, ib. art 20.21. 
 or soldier, shall misbehave himself before the 
 enemy, or shall shamefully abandon or deliver 
 up any garrison, fortress, post, or guard, com- 
 mitted to his charge, or which he shall be 
 commanded to defend, or shall compel or in- 
 duce any other to do so, shall suffer death, or 
 such other punishment as by a general court 
 martial shall be awarded. 
 
 On Foreign Service (''employed in any of his Ib.art.i4. 
 majesty's dominions beyond seas, or in fo- 
 reign parts"). 
 
 The preceding paragraphs will be readily per- 
 ceived mostly to apply to general service. — The 
 following are all specified under this head. 
 
 Whatsoever officer, non-commissioned offi- iijaft i^- 
 cer, or soldier, shall do violence to any person 
 who brings provisions or other necessaries 
 
GENERAt MILITARY ECONOMY, — 
 
 to the camp, garrison, or quarters, of our 
 forces, employed in foreign parts and shall be 
 convicted thereof by a general court martial, 
 shall suffer death. 
 
 Whosoever of his majesty's forces shall force 
 a safeguard, on conviction by a general court 
 martial, shall suffer death. 
 
 Any person belonging to his majesty's forces 
 who shall make known the watch- word to any 
 person not intitled to receive it, according to 
 the rules and discipline of war, or shall pre-f 
 sume to give a parole or watch- word different 
 from what he received, shall suffer death, or such 
 other punishment as by a general court martial 
 shall be awarded. 
 
 Any person belonging to his majesty's forces, 
 who by discharging fire arms, drawing of 
 swords, beating of drums, or by any other 
 means whatever, shall occasion false alarms in 
 camp, garrison, or quarters, shall suffer death, 
 or such other punishment, as by a general court 
 martial shall be awarded. 
 
 Any person who shall cast away his arms 
 or ammunition, shall suffer death, or such other 
 punishment as by a general court martial ^all 
 be awarded. 
 
 4. On the March. 
 
 All officers, non-commissiojied officers, and 
 soldiers, are to behave themselves orderly on 
 
KECBUITIN0,-SERVICr,--l^'9MISSAL. - ^^l 
 
 their march ; an<l whoever shall com.nit any 
 waste or spoil, either in walks of trees, parks, 
 warrens, fish ponds, houses or gardens, corn 
 fiekN inclosures or meadows, or shall malici- 
 ously destroy any property whatsoever belong- 
 ing to his majesty's subjects, unless by order 
 of the then commander-in-chief of the forces, 
 to annov rebels, or other enemies, m arms 
 acrains't us, he or they that shall be found 
 .tilty of offending herein, shall, besides such 
 penalties as they shall be liable to by law, be 
 punished according to the nature and degree 
 of the offence, by the judgement of a general 
 or regimental court martial. 
 
 No officer, or non-commissioned officer, shall a«. .J^w- 
 demand billets for quartering more than his 
 effective men ; nor shall he quarter any wives, 
 children, men or maid servants, in the houses 
 assi-ned for the quartering of officers or sol- 
 dierl without the consent of the owners, (nor 
 Of course act in any manner, unauthorised by 
 the Mutiny Act, as already abstracted under 
 Ihe section relative to quarters,) upon pain ot 
 a commissioned officer being cashiered ; it a 
 non-commissioned officer, of being reduced to 
 a private sentinel, and suffering corporal pu- 
 nishment, at the discretion of a general or a 
 reaimeutal court martial. 
 
 Every officer commanding a regiment, troop, a«. .. 
 orcompany, on a march, shall take care that 
 
GENERAL MILITARY ECONOMY, — 
 
 his own quarters, as also that the quarters of 
 every officer and Soldier under his command be 
 regularly cleared ; and if, on marching, no mo- 
 ney shall arrive in sufficient time, that he shall 
 give to each landlord a certificate of the sum 
 due to him, and transmit duplicates to the pay- 
 master general, on pain of being cashiered, on 
 conviction, before a general court martial. 
 
 The commanding officer of every regiment, 
 troop, company, or detachment, which shall 
 be ordered to march, is to apply to the proper 
 magistrates for the necessary carriages, and is 
 to pay for them as is directed by the Mutiny 
 Act, taking care himself not to beat or abuse, 
 nor to suffer any person, under his command, 
 to beat or abuse the waggoners, or other per- 
 sons attending such carriages, (nor, of course, 
 the cattle by which they are drawn,) nor to 
 suffer more than thirty hundred weight to be 
 loaded on any wain or waggon so furnished, 
 or in proportion on carts or cars ; nor to per- 
 mit soldiers, except such as are sick or lame, 
 or women, to ride upon the said carriages, un- 
 less in the cases of emergency mentioned in 
 the Mutiny Act. Whatsoever officer shall of- 
 fend herein, or in case of failure of money, 
 -shall refuse to grant certificates, specifying the 
 sums due for the use of such carriages, and the 
 name of the regiment, foot, or company, in 
 whose service they were employed, shall he 
 
003 
 
 RECRUITING, — SERVICE,— ClSillSSAl. 
 
 cashiered, or otherwise punished, according- to 
 the degree of his offence, by a general court 
 
 martial. 
 
 Such are tlic injunctions of the Articles ot 
 War; those of' the Mutiny Act, to which they 
 refer, furnish the detail. 
 
 *' For the better and more regular provision H'- § s»- 
 of carriages, say they, for his majesty's forces 
 in their marches, or for their arms, clothes, or 
 accoutrements, in England, Wales, and the 
 town of Berwick-upon-Tweed, all justices of 
 the peace. &c. being duly required thereunto 
 by an order from his majesty, or person duly 
 authorised in that behalf, upon sight of 
 such order from the quarter-master, adjutant, 
 or other officer, or non-commissioned officer, 
 of the regiment, detachment, troop, or com^ 
 pany, ordered to march, a're to issue their war- 
 rants to the constables of the division, riding, 
 city, liberty, hundred, and precinct, from, 
 through, near, or to, which such regiment, de- 
 tachment, troop, or company, shall be ordered 
 to march, requiring them to make such pro- 
 vision of carriages and horses, or oxen, with 
 able men to drive the same, as is mentioned in 
 the said warrant, allowing them sufficient time 
 to do the same, that the neighbouring parts 
 may not always bear the burthen, and specify- 
 ing in the warrant the place to which the said 
 caniages shall be required to travel, which 
 
224 GENERAL MILITARY ECOJfOMY, — 
 
 shall not exceed the day's march of the troops, 
 unless in case of pressing emergency or neces- 
 sity, and in no case whatever twenty-five miles 
 from the place at which the march shall com- 
 mence. 
 
 In case the place itself cannot furnish suf- 
 ficient, the magistrates must issue their warrant 
 to the vicinity ; ajid the officer, who demands 
 the carriages, is, at the same time, to pay 
 down in hand to the constable, for the use of 
 the person who shall provide the carriages and 
 men, for every mile they are to travel, s. d. 
 
 For a waggon with four or more horses 1 
 
 Wain, with six oxen, or four oxen with 
 two horses ----------lo 
 
 Waggon, with narrow wheels, or cart 
 with four horses, carrying 15cwt. - - 9 
 
 Every cart or other carriage, with less 
 than four horses, and not carrying 15cwt. 6' 
 
 And the farther sum of ^d. in the first in- 
 stance, Sd. in the next, and 9.d. in the last, 
 according as the same shall be fixed at the 
 sessions, with regard to the price of hay and 
 oats at the time of fixing such additional rates; 
 for these sums the constable is to give an un- 
 stamped receipt. 
 
 The owner chusing to carry greater weight, 
 or to superadd any additional number of 
 horses, will not be subject to the turnpike 
 laws. But, if the commanding officer shall 
 
RECRUITING,— SERVICE,— DISMISSAL. ^5 
 
 cobstrain any carriage to travel beyond the 
 distance specified, or not suffer it to return 
 home in the same day, or suffer any soldier or 
 servant, except such as are sick, or any wo- 
 man, to ride in any carriage, or force or menace 
 any constable to provide saddle-horses for him- 
 self or servants, or shall force horses by them- 
 selves, servants, or soldiers, every such officer 
 shall forfeit five pounds, on proof before two 
 of his majesty's justices, who shall certify the 
 same to the paymaster general, who is to pay 
 it to the order of the justices, and deduct it 
 out of the officer's pay. 
 
 Where the day's march of the troops shall Rubric. 
 exceed fifteen miles, (so that they cannot re- 
 turn on the same day,) such farther compen- 
 sation shall be made to the owners of the car- 
 riages as shall be deemed reasonable by the 
 magistrate granting the warrant, not exceed- 
 ing the usual rate, who, in ordering it, shall 
 8p*^cify the period for which it shall be in force, 
 which shall not exceed ten days beyond the 
 next general sessions. A copy of the order 
 is to be transmitted, within three days, to the 
 secretary at war, or it will become invalid. 
 
 In cases.of emergency, the secretary at war, ib.$59. 
 by order of his majesty, may authorize a ge- 
 neral or field officer, or the commissary of 
 stores and provisions, to require justices to 
 issue warrants for providing saddle-horses, and 
 
lb. i a. 
 
 GENElvAL MILITARY ECOXOMY, — 
 
 ft)<it- wheel carnages, let to hire, and also 
 vessels used in canals and navigable rivers; on 
 which requisition the justices shall issue war- 
 rants for their provision, specifying the dis- 
 tance they are to go. The officers dema^idinig 
 them are to pay for their hire such sums as the 
 justices shall direct, not exceeding the usual 
 rates, but making no allowance for post-office 
 duty or tolls. The constable to give an^un- 
 stamped receipt. 
 
 By these military officers may convey clothes, 
 accoutrements, baggage, equipage, officers; sol-» 
 diers, servants, women,, children, and other 
 persons, &c. But if any such officer shall 
 force and constrain any horse, carriage, 'Or 
 vessel, to travel beyond the distance specified 
 in the warrant, without licence of the magis- 
 trate, which is to be given at his discretion, the 
 officer for every such offence shall forfeit five 
 pounds, in the manner before described. 
 
 If any constable shall refuse or neglect to 
 execute the warrant of the magistrates, or 
 shall demand more than the rates ordered, Or if 
 any of the persons appointed to furnish the dif- 
 ferent conveyances shill' refiis6 Or neglect to 
 do so, or an}' other person shall wilfully frus- 
 trate or hinder them, every such constable or 
 other person shall, for every such offence,, for- 
 feit any sum not exceeding five pounds, nor 
 less than forty shillings, to the use of the poor 
 
r^ECRUlTlNG, — SERVICE, — DT.SMIS*iAL. 227 
 
 in the viciniitj') at the discretion of the nearest 
 justice, to be levied, ;ifnet:e3saiy, by distress. 
 
 All his majesty's olTicers and soldiers, ancfib. $62. 
 their horses, on duty or on their march ; and 
 all carriages and liorses belonging to his ma- 
 jesty, or employed in his service, and return- 
 ing therefrom, &c. Sec. are exempted from pay- 
 ment of toll, (unless where, by some peculiar 
 act, they are rendered liable with others.) But 
 this does not extend to the tolls on Lavigable 
 canals. Sec. 
 
 Where the constables shall be at greater ib. § 63. 
 charges than the amount ordered to l>e p;iid by 
 commanding officers, they are to be paid by 
 the treasurer of the county. Sec. without fee 
 or reward, according to rates fixed by the ma- 
 gistrates, having regard to the season of the 
 year, length and conditiorr of the Mays, &c. 
 To remunerate this expenditure to the public 
 stock of the county, &c. if necessary, theib. $64. 
 justices have power to raise money as the}' do 
 for county gaols and bridges. 
 
 In Scotland, the provision and payment ofib. $66. 
 carriages, for his majesiy's forces, is conducted 
 as was directed by the laws in f^rce in Scot- 
 land at the time of its union with England. 
 
 In passing regular ferries, however, it isib. $67. 
 
 optional to the commanding officer either to 
 
 engage the boat for himself and party, (taking 
 
 a priority to all other passengers,) or to pass 
 
 Q 2 
 
228 G£N£HAL MILITARY ECOXOMY,— 
 
 over himself and men, as ordinary passengers ; 
 in either case, he only pays one half of the 
 ordinary rate. Where there are no regular 
 ferries, they must l>e paid for as other persons. 
 
 In Ireland, the provision of carriages is di- 
 rected by the laws in force before the union. 
 
 The lord-lieutenant may sign routes by de- 
 puty. 
 
 lb. i 69. 
 
 lb. § ro. 
 
 5. On Board SJiips of JP'ar. 
 
 "Whenever any of our forces," say the 
 Articles of War, "shall be embarked on board 
 
 Art. of War, our ships of War, or any other ships which may 
 have been regularly commissioned by us, 
 and which may be employed in the transporta- 
 tion of our troops, our will and pleasure is, 
 that the officers and soldiers of such forces, 
 from the time of embarkation on-board any 
 ship, as above-described, shall strictly conform 
 themselves to the laws and regulations esta- 
 blished for the government and discipline of 
 
 ProtctofLieut the Said ship; and shall consider themselves, 
 
 r it.'.j»crala, llln « . ' 
 
 Fool. 1795. lor these necessary purposes, as under the com- 
 mand of the senior officer of tbe particular 
 ship, as well as of the superior officer of the 
 fleet, if any, to which such ship belongs." 
 
 Col. Browning's Officcrs and soldiers are subiect to tlie naval 
 
 Letter to Ocn. .... "^ 
 
 IV". 1800. admmistration of justice: nor can the niilitarv 
 
 ApudM'Arthur, • i i 
 
 ai'p. i\o. 47. orncer pumsh those under his command by any 
 other means. 
 
RECRUITING, — SERVICE, — DISMISSAL. 229 
 
 6. On Domestic Service. 
 
 L The Protection of National Establishments as 
 Guards, and in Cases of Conflagration, 
 
 A military guard, under whatever circum- ib. $ ii. «it. 5. 
 stances, must, m its military character, be go- Mut. Act. $ i. 
 verned by the general principles, already de- 
 tailed in the section, on the duties enjoined, , 
 and crimes prohibited, in the field, &c. but, as Gen. Reg. aod 
 there is necessarily a wide distinction made by 
 the Articles of War in the punishment of the 
 same crimes when committed at home, and 
 beyond seas, or in foreign parts, so some dif- 
 ference seems naturally estabhshed, and must 
 be observed between a guard mounted, per- 
 haps, on a civil establishment, in the precincts 
 of a populous capital, or in a camp of parade, 
 and in that of a garrison, for the protection 
 of the coast, or a post of danger. And, ex- 
 cept as relates to their own military govern-? 
 ment, the sentries of a guard, for the protec- 
 tion of national establishments, must not con- 
 sider their functions in any other light than 
 those of an armed police, posted for the more 
 speedy and certain apprehension and conveyance 
 of offenders to the justice of the civil power. 
 For, in fact, any force that should be used 
 
230 GENERAL MILITARY ECONOMY, 
 
 with fire-arms, or any detention, would, by the 
 civil classes, be conceived as nothing less than 
 military execution, and the exercise of martial 
 law. 
 Rules and Or- Even in the various arsenals, Sec. of the knjo;- 
 
 ders, it c. for TO 
 
 guards. dom, offenders are detained no longer by the 
 
 Woolwich, ■ O J 
 
 Deptford, 6CC. guard than the commissioner arrives, who, in 
 , ., ^ _ his magisterial capacity, may examiw; them. 
 
 *A 
 
 ^,;o^,.,they can be transferred to the civil power. 
 
 Trial of John .,The iocendiaries who attempted t^\ S|et fire- 
 to the. docks, at Portsmouth, were triefl.by the 
 
 •♦* ■■'■'^^^ .^^r.qnjx , that jealousy of a military, power, 
 wliicU, is..iiisepar^ble from the ciyil classes of 
 the British community, it is most necessary that 
 every guard mounted over any civil establish- 
 ment, indeed evpry one liable to communi- 
 cation I M'ith the populace, and particularly 
 where it may.ht^ve intrenched on any supposed 
 rights, .Of |ie. othefwisq obnoxious, or even 
 considered as obtrusive, should have a distinct 
 detail of positive orders, as to what is required 
 of it, .if not absolute directions, for every pos- 
 sible ca^se tluit can occur, 
 
 Ai]d that the consti^pte^cistence of such di- 
 r^cti9ns, is supposed, f.^at^^, the posting of everj/ 
 mihtary guard, must be evident, from the 
 liiglily useful regulation of his majesty, which 
 OeiLRpp. & directs . tl^ut, 'I.Thq standing orders of the 
 guard are to be distinctly read, and carefully 
 
ftECftUITINO,-^SKBV;cE, — DISMISS A ].. tSl 
 
 explaiueci to the men, as soon as the guard ia 
 mounted, and again after the sentries first 
 ported return to the gui^rd," * who would not 
 otherwise hear ihem, 
 
 ^Another matter, of considerable importance, 
 is ,the detachment of any part of the force of a 
 guard in- aid of, the civil power, as to protect 
 property duriwg the tumult of conflagration, or 
 any .other occasion. This miist, at present, 
 rest with, the judgement of the officer com- 
 Mu^N J}^: . i 
 
 * An instance of the necessity here dcseribed presents it- 
 self, in regard to the first esta\jlislimerit of the kind in Europe, 
 —the Wefet«-India Doeivs.'and; Wayehouses in the Isle of Dogs. 
 No- distinct orders have to this hour been given to strong j^^ y^ j 
 guardsof militia posted there. A few random orders remain Dock Guard, 
 
 . . . ' 1808. 
 
 by tradition, since tli« first appointment, one of which di- 
 rected, tliat "the grand entry from ihe Commercial Road 
 shoul(l 'ijc guarded from~ frequent danger, by the sentry re- 
 quiring every carman to enter carefully at his hoi-se's hcid. 
 lotfais duty an athletic fellow attacked a sentry, struck hi^i, 
 and, with the aid of a fleet and strong team of hoiscs, defied 
 his power. The officer protected his sentry by a guard, and 
 proceeded to arrest the carman, who excited a considerable 
 tumult, in which the company's servatrtfc joined, and which, 
 but for the most prudent caution, would have ended in a severe 
 conflict. It was only after haung obtained an apology from the 
 offender, that the officer wai^ accidentally informed that the 
 order was no longer necessary, and ought not to have been in 
 force longer than tl)e entrance afforded safe passage to those 
 on foot. Of course, any IrfeMost in the' affray would have 
 been murder, and the tumultuous servants of the company 
 its evidence. 
 
23S GENERAL MILITARY ECONOMY, — 
 
 manding the guard, as, though he should by 
 no means weaken the force considered neces- 
 sary for the protection of the post to which he 
 is sent, yet a tumult in the vicinity, above the 
 strergh of the civil power, might, if un- 
 checked, proceed, with accumulated force, to 
 threaten even the post itself, which a small de- 
 tachment, shewing itself actively, might pre- 
 vent. An officer is, however, by no means 
 warranted to such a step, and, upon the dis- 
 cretion with which it was conducted would, 
 no doubt, depend even his safety. 
 
 In this, as in many other respects, is also 
 seen the excellence of that regulation which 
 witholds the command of a guard from an of- 
 ficer, '' till he is perfectly acquainted with his 
 Ord*ut*fu*rr*^"^y J ' ^°^ directs that, **for the purpose of 
 instruction, young officers may be put on duty 
 as supernumeraries with senior officers, from 
 whose advice and example they may be ex- 
 pected to obtain a knowledge of their duty." 
 
 ii. The Suppression of Tumults. 
 
 That this is the most disagreeable service in 
 which troops can be employed need not be 
 told, or that such an application of the mi- 
 litary force of the county has been a constant 
 source of jealousy since the English constitu- 
 tion has been recognized in its present admi- 
 
RECRUITING, — SERVICE, — DISMISSAL. 233 
 
 rable fotm. Yet, what power less than that of 
 a regular military force can subdue the orga- 
 nized terrors of a depraved mob, like that of 
 the London riots in 1/80, or could have con- 
 vinced many associations of misguided pea- 
 santry or artizans, assembled to controul the 
 laws in their favour, that such attempts must 
 be in vain. The Mihtia, indeed, which is 
 identified with the constitution, when embodied, mil Act, 
 and that part of it which is local, whether em- c. 90. preainb. 
 bodied or not, may be called out ; but the first ^GeJ^iii^*^*' 
 class of this force is now assimilated to the re- *=• ^-H^ 
 gular army, and the other cannot fail in a com- 
 parative approximation, the only mark in these 
 times of efficiency. 
 
 The propriety of military aid in the execu- 
 tion of the laws is not, however, the present 
 question, but the laws by which the military, 
 when so employed, are to be governed ; a matter 
 yet never specifically ascertained. 
 
 Without unnecessarily emerging into the re- 
 mote recesses of the common law, or intruding 
 on the ordinances of the civil power, it will be 
 seen, from the earliest writers, that, at the time 
 when, under the feudal tenures, almost every ""™e,&c.Hi$- 
 
 •^ tor^ ot Eng, 
 
 man must consider himself a soldier,* and the Edw. in. 
 
 * " It is commanded, that every man have in his house Stat, of Win- 
 harneis, (armour, arms,) {ox to keep the peace," &c. ij"^rc ^. ' 
 
 Disobedience in attending the summons to the royal stand- Ma<ldox's Hist. 
 
 ot Exchequer, 
 
 ard was punished by depriving the vassal of his land. v. 1. p. 662. 
 
J34 GENERAL MILITARY ECONOMY, — 
 
 kijig co^ld;^ssei:iible a ;powerful army of his 
 suljiject&('^wi^hgfV%t .expense, the persons of 
 whom that aimy was composed were or- 
 dained, " that every one, of the age of fourteen 
 years i and, -above, shouid prepare him (se 
 
 Myrrorof 3m^- aprcstat) to kill mortal offenders in their no- 
 tice, c. 1. § 3. ' . ^ . 
 
 tori oils crimes, or to follow them from town to 
 ivcstm. Primer, jQ^^,j,» . And, again, that ''the sheriff (visct.) 
 or the bailiff, take M'ith him the power of his 
 county, or of his bailiwick, and shall endea- 
 vour to make: a replevin of cattle from him that 
 has taken them," and driven them into any 
 castle or strong hold, &c. 
 sract. de Leg. <« Jq him who, justlv posscsses," says Bracton, 
 
 Vng. lib. 4. c. 4. \, i i • 
 
 ion. III. "it shall be lawful, with arms, to repel him 
 who cometh to expel Avith arms against the 
 peace, that, by arms of defence and peace, 
 which arc of justice, he may repel injury and 
 unjust violence, and arms of injustice, &c." 
 
 3oct et Stud. " It is lawful,'';declares the author of Doctor 
 and Student, .** to repel force with force, for 
 the defence of the body, due circumstances 
 being ^hserve4^'' f ; ! m!) 'jo >■, 
 
 The statute inflicteth both fine and imprison- 
 
 . 5. 
 
 tllen.V. c. 8. 
 
 > Maria Reg. * It is curious tliat one of the last acts of the unhappy 
 
 -1. "Mary, of Scotland, enacted, "That all citizens, who as- 
 
 sembled to sujipress any riot, in the town of Edinburgh, 
 without authority from the provost, incurred the punishment 
 of death." 
 
: 
 
 RECRUITING, — SERVICE,— IpISNISSA,!. 2S5 
 
 nient upon such as shall nj9)l^7^id,it|lvTt ^^Ctjff, 
 they being therqunto required.- T^:-.^rij «ir|j .;] / 
 
 "The justices of the peace, sherifK or under E'f^"arciia, 
 
 ^ • ' ' b, 3. p. 316. 
 
 sheriff," observes Lan)hi>,i;cl, ," o^ght to have 
 
 the aid and:*ttendan<;p Qf\al|.. ,^|^e'J<:i>ig|?ts, o;en- 
 
 tlemen, yeomen, ^c. &c. above tl^e lagp, ,<?f 
 
 fifteen years, &c. &c." ^■, 
 
 oiiV J^'^ery ,013^," rfimaoi^s Sii" .Ed\yard Coke, ainst. p, 193. 
 
 *'i5 boumJ by the co^minfin, 1ft W) to assist, not 
 
 only the ^h^ii.ifiui, lusipfUc-ei fw t,he,.^-\€cutw4 
 
 oi^vt^ie kingly nvfits«i>(;\KMch>pr¥i,th0 C9^iiT?tand-i 
 
 ijients of the king,) ai^cprciivig to law, but 6,l^o. 
 
 JjiyS baily that liath th§ $ljflri/j[^'j's ;>va,rraut, *^.c.'*, 
 
 ^' Also," says Ua^v^kin^joY it Ja^ath be^n hoIdei«j!»!i Hawks, 
 that thoae who at^and t|)iQ jwstic.es, in order Xq.^ 
 suppress a riot, niay take witl) them such ii^f- 
 pQns as shaU be necCwaty, t(? enable them ef- 
 fectually to do it ; and that they may justify 
 the beating", wounding,^ md^^xen the killmg\ ot^ 
 such rioters as shall. x^^\i% or refuse to sur- 
 render theiDselvQs." ; 
 
 These precepts, whicli had evidently con-,J'.'J*J°J„Yo' 
 tinned the l^w for 6t)0 yeajs, were frequently ^"™^- 
 put in force, .and. m some instances of a very 
 celebrated natUrie. .Thus, when Wat Tyler 
 held hi3 4:wfnuUuous meetinar with Richard JJ. sceaisoStaf. 
 
 ^ 15, Ricli. II. 
 
 in Smithfleld, the Lord Mayor did not hesitate 
 to put the leader to death, and the most daring 
 of iiis followers, immediately after, fell in the 
 fame way at the feel of the king, 
 
136 GENERAL MILITARY ECONOMY, — '• 
 
 Daitor., offic. And ill the third year of the reign of Henry 
 ^cecoiui. ^jj the sheriff's bailiff, to execute a replevy, 
 took with him 300 men, armed (modo guer- 
 rino) sc. with bri^andines, jackes, and guns 
 and it was holden lawful; for the sheriff's 
 officer hath power to take assistance as well as 
 the sheriff himself. 
 
 J'whItSr ^° ^^^° ^^^"' ^^ *^^ contention before the 
 ^^^- ecclesiastical commissioners, at "Whitehall, re- 
 
 lative to the mandate of James II. for appoint- 
 ing a president to Magdalen College, Ox- 
 Life of sir ford, the contumacy of the vice-president and 
 j-eorge c - ^g^^^^g reccivcd an indecorous applause from 
 jograp a. ^^^ scholars, tlic lord chief justice of the 
 King's Bench did not hesitate to declare, that, 
 *' if the civil power could not keep them in 
 order, the military should : " In this applica- 
 i3Cha.ii. tion of his power, (of whatever nature,) he was 
 certainly warranted by law. 
 
 Hence it would appear, that there is no dif- 
 ficulty in the circumstances of an officer or 
 private soldier assisting, with his arms, to keep 
 the peace, the principal person of his county, 
 w. A. 49 Geo. the sheriff, (mce- comes.) &c. or any other, 
 
 [II. c. 12. ' ^ '^ . J > 
 
 Preambk. having legal authority ; particularly when, not- 
 withstanding the legal admission of every Mu- 
 tiny Act, that a standing army, without par- 
 liamentary sanction, is against law, from the 
 
 Kii of Rights, Bill of Rights, it can be but little different 
 from that force of which " many were bound, 
 
RECRUITING, — SERVICE, — DISMISSAL. 237 
 
 by tenure, to follow their lords to the wars, and 
 many were volunteers." 
 
 Still, however, while every one, with every n. Bacon, 
 kind df arms, is understood as bound by law Unit. e. got. 
 
 . , . . , .1 -^ , p. 1, p. C4. 
 
 to aid m suppressing tumults, either at the 
 command of a magistrate, his peace-officer, or 
 even in his own person, it is in a civil capa- 
 city only that this aid is required, nor is there 
 any mode prescribed for their suppression, but 
 what is entirely under the eovernment either 2 Ed. iii. c. 3. 
 
 „ , , ^ , , , -r 34 Ed. in. cl. 
 
 or the statute or common law of the land. In ir> Rich. 11. 
 
 , ,, 1, • 1 17Rich.II.c8. 
 
 no Statute is the smallest allusion to the i3Hen.iv.c.7. 
 strengthening, by the command of any regular 19 Hen. vii. " 
 military force, the arm of the law, nor is it i3Cha.ii.s.i, 
 once mentioned in the repositories of the com- 1 Geo. i. 
 mon law. Even the Mutiny Act, which gives 
 law to the army, (to which also it is confined, 
 any extention of it requiring to be authorised 
 by a separate act of parliament,) describes its 
 purpose to be " the safety of the united king- 49Geo.n1. 
 dom, the defence of the possessions of his ma- Preamble 
 jesty's crown, &c." but includes not the sup- c.Ts.'"*' 
 pression of tumults; and the act for establish- c n. $41. 
 ing a Local Militia in vain authorises magis- 
 trates to call it out for this purpose, in the same 
 or an adjoining county, without some previous riou for Kid- 
 explanation of the law on the subject, since, Koln! uo. 
 indiscriminative as it is, this would be a service 
 of greiit danger and irregularity, or, what is 
 much more likelv, not eftective at all. 
 
238 GENERAL MILITAMY EXTOyOMT,— 
 
 Life of Lord This cqiiivocal OF indeterminate State of th« 
 Bkjrm. Rep. subjcct is Capable of more illustration than 
 this work will admit : and first, in the followinjr 
 extraordinary fact, in the conduct of Sir John 
 Holt, chief justice of the King's Bench, in the 
 reigns of William III. and Anne, whose in- 
 tegrity and uprightness are celebrated by Capt. 
 Taticr. No. 14. ^[^ j^ Steele, under the character of Verus, the 
 magistrate. 
 
 There happened a riot in Holborn, occasi- 
 oried by the practice of decoying young people 
 to the plantations; the persons so decoyed 
 were kept prisoners in a house there, till they 
 could be shipped otf ; which practice being dis- 
 covered, the enraged populace were going to 
 pull dowa the house. Notice of this being 
 senc to Whitehall, a party of guards were 
 commanded to march to the place ; an officer 
 was also sent to the lord chief justice, tp desire 
 him to send some of his people to attend the 
 soldiers. The officer having delivered his mes^ 
 sage, the lord chief justice said to him, "Sup- 
 pose the populace should not disperse at your 
 appearance, what are you to do then } " 
 
 "Sir," answered the officer, "we have orders 
 to fire upon them." 
 
 " Have you. Sir," replied his lordship, 
 
 /' then take notice of what I say; if there 
 
 he one man kiUed, and ^ou are tried before vie, 
 
RECRUITING, — SERVICE, — DISMISSAL. 23^; 
 
 / will take care that you, and &very soldle}* of 
 your party, shall be hanged."" 
 
 " Sir," added he, " go back to those who 
 sent you, and acquaint tJiem that no oflicer of 
 mine shall attend soldiers ; and let them know, 
 at the same time, that the laws of the kingdom 
 are not to be executed by the sword : these mat- 
 ters belor.g to the civil power, and you Jiave 
 nothing to do with them.'' 
 
 Upon tiiis his lordship (says the Biographia) 
 ordering his tipstaves, with a few constables, to 
 attend him, went in person to the tumult, ex- 
 postulated with the mob, assured them that 
 justice should be done upon the persons who 
 were the objects of their indignation, and they 
 all dispersed quietly. 
 
 In the notorious affair of the riots, at Edin-^'"'sandDeaiii 
 
 ct Portcous, At 
 
 burgh, for the execution of Captain Porteous, E<iini)urgh, 
 
 . . . . 1736. 
 
 found guilty in a similar case, and reprieved, 
 whicli so long occupied the Ihitisli parliament 
 of 1737, ^lajor Aloyle, who commanded in 
 the f^arrison of Edinbur"'h, unwilliniijly even Gent. Mag 
 drew out ins troops, but would not serve under 
 any other authority than that of a written 
 order from the lord justice clerk, though the 
 lord-provost sent a verbal message by i\Ir. Lind- 
 say, a member of parliament. His conduct was 05^^'" P*ri. 
 thus justified in the House of Commons, by 
 the commander-in-chief of tl^e forces in Scot- 
 land, General Wude. '' He might, indeed, 
 
240 GENERAL MILITARY ECONOMT, — 
 
 hare prevented the riot, had he, upon the lame 
 warrant he had to take such a step, broken 
 down, or as he owned, upon examination, he 
 would have done, blown up with powder, the 
 city gate ; but then he must have risked his 
 own life, even though he had succeeded. The 
 aversion of the people of that country to the 
 gentlemen of the army is very great, and Mr. 
 Moyle undoubtedly acted the wisest part ; for 
 there is no room to suppose he would have met 
 with much favour from the witnesses, had his 
 conduct been brought to trial in a civil court." 
 Yet this case is described as one in which not 
 only murder was committed ; but, when the 
 chief magistrate approached the mob, unarmed, 
 to calm it, ** several of his company were 
 wounded with stones, and even Jire-arms were 
 levelled at them." 
 
 The counsel for a bill of censure, on the 
 
 lord-provost and the city, also defended the 
 
 conduct of General Moyle. 
 
 Geo' e'l Keids. '^^^ matter of young Allen, the ostensible 
 
 Yoti^^Aiien^ ^''^^im of the mobs created by the extraordi- 
 
 &c. 1768. nary fervour of the patriotism of Wilkes,* is too 
 
 Life of Wilkes, * The popular tumult, excited by tbe artifices of Wilkes, 
 
 by Almoa. must ever be a memento against the weight of public opinion, 
 
 as collected from the conduct of domourcnis and destructive 
 
 Letters of John rabble. This depraved though accomplished, most un- 
 
 1 es, vo . prjijcipiej yet intelligent, man, as it has since appeared in 
 
RECRUITIXG, — SERriCF, DISMISSAL. -41 
 
 recent to require minute description. He was, 
 as sworn, accidentally shot in his father's out- 
 
 various ways, and under his own hand, led after him, through 
 the streets, an idle, undistinguishing, mob, vociferating iu- 
 detinitely the liberties of the people, in the morning; and, in 
 the evening, entreated government to receive his services, in 
 anyway that cbuld place hira in employment, even at Constan- 
 tinople ! In a thousand forms did he offer, to government, to 
 sell himself and his mob; and, at length, sank peaceful into 
 the chamberlain's chair oi the city, solacing himself with the 
 collection of obscene trials and indecent occurrences, for the 
 information of his only legitimate daughter. 
 
 If any thing were wanting, in addition to the pseudo pii- Q^^^ j^j^^ 
 triotism of Wilkes, to shew the irregular judgement of an im- ^7'j7. 
 passioned mob, the anecdote related by the lord-advocate for >8 o«f 
 
 Scotland, on the commitment of the bill respecting the riot, 
 on the death of Porteous, will amply suffice. 
 
 One Green, a master of a vessel, having been forced, by 
 stress of weather, into the harbour of Leith, a report was 
 spread, that he was a pirate who had murdered one Drum- 
 mond, and seized his ship. Upon very irregular evidence of 
 two of his crew, he and his officers were tried, found guilty, 
 and condemned to be hanged. The mob, however, heated 
 by some proceedings against the natives of Scotland, which 
 they supposed harsh and unjust, conceived that the prisoners, 
 being English, would be reprieved. They, therefore, r, at- 
 tacked the lord-chancellor, beat his chair in pieces, and made 
 him fly for his life; then assailed the privy-council, and 
 bawling for the blood of these men, intimidated it into an im- 
 mediate order for their execution. I was so struck (said Mr. 
 Forbes) with the horror of the fact, that I put myself in 
 deep mourning, and, with the danger of my life, attended 
 the unfortunate men to the scaffold, where they died with 
 the most alfccling protestations of their innocence. I did not 
 R 
 
242 GENERAL MILITARY ECOyOMY, 
 
 Annual Reg. housc, bv onc of a detachment of guards, sent 
 
 1768,-1771. ^ ., . ^ c a -i 
 
 to assist the naagistrates or Surrey, m keeping 
 the peace, which had been grossly violated by 
 a mob expecting to see Mr. Wilkes go from 
 the King's Bench prison to the House of Com- 
 mons, on the 10th of I\Iay, 176'8.* In the 
 House of Commons, Mr. Alien was represented 
 as having been noticed in preceding tuniults. 
 His neighbours, respectable in character and 
 number, vouched that they had never heard it. 
 The following approbation is described as 
 having beew given to the military on the occa- 
 
 sion» 
 Apn. Beg, Qrder$. — Parole is Wandsworth. 
 
 The field-officer, in waiting, of the Foot- 
 Guards, received yesterday the following letter : 
 
 stop here, for I c?VTried the head of Captain Green to the 
 grave; aiicl, in a few months after, letters came from the 
 captain for whose murder, and from that very ship for whose 
 capture, the unfottiinate" persons sufiered, informing their 
 fribnds that' "they were all safe ! 
 
 Miiny are the lamentable instances of this km'], probably 
 of more extensive conseqdiences, that can bo collected from 
 the ordinary reading of any man ; and, perhaps, among the 
 liumorous collections formed, that would not be least useful, 
 which ghould exhibit the sehtettces subsequently proved to 
 have been unjustly obtained. 
 
 • The party by whom Redburn, a weaver, was killed^ on 
 the same day, was justified by repeated assaults of the'pe6p1e, 
 after frequent cautions, during which the magistrate w^s Vio- 
 letitlv struck by a Stone. 
 
RECRUITING, — SERVICE, — DISMISSAL. 243 
 
 Sir, Office, May 11, I768. 
 
 Having this day had the honpur 
 of mentioning the behaviour of the detach^ 
 ments from the several battalions of Foot- 
 Guards, which have been lately employed in 
 assisting the civil magistrates, and preserving 
 the public peace, I have great pleasure in in- 
 forming you that his highly approved 
 
 of the conduct of both tl^e officers and men; 
 
 and means that his ^» 's approbation 
 
 should be communicated to them through you. 
 Employing the troops on so disagreeable a 
 service always gives me pain; but the cir- 
 cumstances of the times make it necessary. 
 I am persuaded they see that necessity, and 
 will continue as they have done to perform 
 their duty with alacrity. I beg you will be 
 pleased to assure them that every possible regard 
 shall be shewn to them ; their zeal and good be- 
 haviour upon this occasion deserve it; and, in 
 case any disagreeable circumstance should hap- 
 pen in the execution of their duty, they shall 
 have every defence and protection that the law- 
 can authorise, and this office can give...„i:,-jj , 
 I ^have the honou r to be. Si r, >. rt t>) r,-. ) 
 Your most obedient and most humble servant, 
 
 B: . 
 
 Field-officer in staff waiting, 
 
 for the three regiments of Foot-Guards» 
 r2 
 
244 GENERAL MILITARY ECONOMY, — 
 
 Yet Lieutenant Murray, vho commanded 
 the detachment, and three of his men, were 
 apprehended by the civil power, and charged 
 with murder. The officer was indeed soon ad- 
 mitted to bail, and afterwards the two men 
 who wcff supposed not to have fired. But 
 the soldier who did fire seems to have escaped 
 the very highest infliction of the law only 
 through an error in the proceedings. 
 
 With the supposed enormity of this sacrifice 
 
 to the public peace and its infringement of the 
 
 civil power tlie whole country was caused to 
 
 Annual Kcgist. j-^sound, and the best records of the times were 
 
 at that lirnc ' 
 
 conducted by fiHed ! aud, that no means should be omitted 
 
 idmund Burke. ' ' 
 
 to hand it down to posterity, the decency of 
 sepulture is violated by a long detail of politi- 
 cal party, in a monumental inscription, in 
 which the deceased is considered as " mur- 
 
 il'^^/^New!" dered," and made to exclaim, " O earth cover 
 
 ^"g'""' not my blood !" 
 
 Ann. Beg. It is a little remarkable that, in the justly- 
 
 celebrated charge of Sir John Fielding to the 
 grand jury, at the quarter sessions of the suc- 
 ceeding year, in which this intelligent magis- 
 trate most ably defines the character of the 
 rioter of his times, and instructs 'both grand 
 and common juries in their duties with regard 
 to them, the aid of a' military force is never 
 once mentioned. 
 
RECRUITING,— SERVICE, — DISMISSAL. 245 
 
 On the iGth of April, 1771, a number of Riot and mur. 
 tumultuous persons assembled in Bethnal-green, .."BethnT'' 
 and literally stoned to death one Green, who ^""'"' ^^'^' 
 had been evidence against two men, recentl}^ 
 executed there. Of these persons two were 
 convicted, and ordered for execution on 
 the same spot on the 8th of July follow- 
 ing. 
 
 On this occasion a detachment of Guards 
 of 100 rank and file, under the command of 
 Sir David Lindsay, attended near the house of 
 Mr. Justice Wilmott, in that neighbourhood. 
 Upon hearing of their attendance the sheriffs, 
 Baker and Martin, despatched the high consta- 
 ble to the commanding officer, to acquaint 
 him that the sheriffs were coming to execute 
 the sentence of the law, and were resolved at 
 all events to execute it without the assistance 
 of any military force whatever; and, therefore, 
 as his assistance on that account was unneces- 
 sary, to desire him immediately to quit tlie 
 spot with all his soldiers. The answer received, 
 say the sheriffs, in a letter afterwards published, 
 was such as might well be expected from one 
 who joins to the politeness of a gentleman and 
 the discipline of his profession a just sense of his 
 duty as a citizen. Sir David said, they were 
 there, by order of his majesty and the secretary 
 of state, to protect the house of the justice; 
 and assured him that they should not on any 
 
246 GtNERAL MILITARY ECONOMY, — 
 
 account stir from their post but upon the posi- 
 tive demand of the shenffs, or some of the civil 
 officers. 
 
 The letter quoted goes on to state, perhaps 
 alluding to Lord Weymouth's (secretary of 
 state) letter to the magistrates of Surrey, that 
 " the vain directions of an official letter, dic- 
 tated by fear or the intemperance of its au- 
 thor, can never define the occasion when the 
 military force of the country ought to inter- 
 pose, &c." 
 Riots of Lou- In the riots which, availinor themselves of a 
 
 don, 1780. ' ° 
 
 protestaut association, disgraced London, in 
 
 1780, and threatened to extend themselves to 
 
 every provincial capital, amounting almost to 
 
 Dr. Johnson. rebcUion, the kinjr himself ordered out his 
 
 letter to ThraU, 
 
 &c. guards, and, pmia|>s but for their appearance 
 
 might have beheld the capital of the British 
 Empire in ruins. Of these guards, as alderman, 
 John Wilkes was now anxious to make use — 
 the same John Wilkes who had fermented the 
 same rioters under another form, but a few 
 years before; and who during his sheriffalty 
 issued a turgid proclamation that he would not 
 sufter an}' part of the army to interfere, or 
 even to attend, as on many former occasions, 
 on the pretence of aiding or assisting the civil 
 magistrates. And this, with his colleague, he 
 declared " to the public and to administration 
 to prevent the sending of any detachment on 
 
RECRUITING, — SERVICE, — DISMISSAL. 247 
 
 such service." Still on this occasion, a writer, Bisset. uicof 
 whose loyalty was induhitable, observes, that 74. 
 " the employment of the military, without be- 
 ing called by the civil magistrate, was certain- 
 ly not a desirable measure, but at that time 
 absolutely necessary." And thousands, whose 
 lives and properties had been saved by the 
 measure, regretted it as a violation of their 
 rights. 
 
 Another intelligent Writer also, while he finds laquiry into th« 
 
 . , , , - ... r 1 '*g^' mode of 
 
 it impossible to deny the utility or the troops suppressing 
 on such an occasion, proposes other species of ' ' 
 military force, and observes, that even those 
 must be cautious, and " not unnecessarily 
 march through streets or high roads, or make 
 any the least military parade, but consider 
 themselves entirely as a part of the civil 
 state."' 
 
 From the preceding facts it will appear, that 
 while to the preservation of the peace ezeiy 
 subject is liable to be called, and a soldiery in 
 whatever form among the rest, (for, so far fronj 
 being disenfranchised as citizens, it is the lau- 
 dable care of parliament to confer on them as 
 quickly as possible peculiar privileges in that 
 character,) still the circumstances under which 24Geo. iii. 
 the aid is to be given, are uncertain and con- '^' 
 sequently their proceedings unsafe. 
 
 For instance, in the repository of the whole 
 
248 «EXtRAL MILITARY ECONOMY, 
 
 iiawkini, C.65. common law on the subject, it is stated, notwith- 
 standing all the premises, as to the duty of the 
 sheriff and all below him to suppress a riot, 
 even to a private person, and that at the be- 
 ginning of a riot, or in the interruption of 
 those about to join in one, and even with the 
 use of arms, that " it seems no way safe for 
 them to go so far in common cases, lest under 
 the pretC7ice of keeping the peace they make a 
 more enormous breach of it ; and therefore such 
 violent methods seem only proper against such 
 riots as savour of rebellion, for the suppressing 
 whereof no remedies can be too sharp or se- 
 vere." 
 
 From the conduct of Lord Chief Justice 
 Holt in Holhorn, it would appear, that, in the 
 opinion of the civil power in the suppression 
 of an ordinary riot, the military had no right 
 to interfere ; the riots at Edinburgh evince that 
 general officers acquiesced nearly in the same opi- 
 nion. The case of young Allen, while it shews 
 the necessity, shews also the danger of military 
 interference ; the affair of Bethnal-green evinces 
 the power of the civil magistrate to refuse the 
 aid of a regular force ajs part of the power of the 
 county {posse comitatis) ; and the last mostdis- 
 gracefid tumult that ever stigmatized this or 
 any other nation, that of 1780, is a powerful 
 proof of the utility of some determinate regula- 
 
RECRUITING, — SERVICE, — DISJ^IISSAL. 
 
 tion on the subject, since the necessity and the 
 censure of the employment of the niihtary were 
 equally prominent. 
 
 Hence then, being liable, M'ithout any defi- 
 nite rule of law, to be called upon a service 
 the most obnoxious, frequently necessary but 
 always disagreeable, at the option of the civil 
 magistrate, M'hose own authority is to be ju- 
 diciously exercised, and only under the strictest 
 guidance of law, it is indispensably necessary 
 to the safety both of the public and the indi- 
 vidual, to the dignity of justice and the honour 
 of the military character, that every officer 
 and non-commissioned officer in particular, 
 and it had almost been said every private 
 soldier, liable to such service, should be 
 well acquainted with the legal boundaries of 
 of their duty; that, in a country, the pa- 
 triotism of whose king and the freedom of 
 whose constitution are its greatest boast, they 
 be not unwittingly led against an ordinary mob 
 of idle and inconsiderate persons assembled 
 riotously or routously, as people in open rebel- 
 lion against the state, since in the case of re- 
 bellion they would receive the specific orders 
 of his majesty through his generals ; as again, 
 in a still higher exigency, recourse would be 
 had to the proclamation of martial law. 
 
 -For this purpose it may, even in the present 
 work, be necessary to glance at those laws by 
 
 249 
 
iSO GENERAL MIIlTARlT ECONOMf,-— ■ 
 
 which the civil magistrate himself is governed. 
 
 teWs.mr." It was once observed in parliament, by Mr. 
 Pelham, that, " where a magistrate has a guard 
 of regular troops to trust to, he is apt to neg- 
 lect humouring the j>eople : he despises, and 
 even sometimes oppresses, them, — a little gen- 
 tle usage and calm reasoning will generally pre- 
 vent any mischief, and prvearl with the people 
 to return to their duty; but a magistrate with 
 an army at his back will seldom take this 
 method, for few men will be at the pains to 
 persuade when they know they can compel." 
 It will, however, be seen that such is the 
 bounden duty of the magistrate upon every 
 occasion. 
 
 1 Hawk. c. 65. To constitute a riot there must be a tumul- 
 
 i 1. ct seq. 
 
 tuous disturbance of the peace, by three per- 
 sons or more assembling together of their own 
 authority, whether the purpose be lawful or 
 unlawful, with circumstances of awe and ter- 
 ror ; there can be no riot when there are no 
 more than two persons ; nor is an assembly of 
 a man's friends in his own house, for the de- 
 fence of his person against those who threaten 
 to beat him therein, deemed a riot. Nor a 
 quarrel arising at a fair, market, or wake, un- 
 less confederacies be formed to break the 
 peace. Nor assemblies at festivals for common 
 sports, as bull-baiting, wrestUng, &c. Nor 
 can even the sheriff or his ofHcers raise a force 
 
RECRUITING, ^-SERVICE, — OrSMISSAL. ^^ 
 
 for the execution of the king's writ, until re- 
 sistance has been found. And justices seem 
 to be punishable for alarming the county with- 
 out cause. 
 
 The riots thus defined being in existence; — 
 though the interference of private persons and 
 the use of arms is warranted by the common 
 law, still they are described as ** only proper ^^^^ ^^^• 
 against such riots as savour of rebellion ;" and 
 not the smallest allusion in any case is made to 
 an armed soldiery. 
 
 Justices of the peace have power to restrain, i Hawk. & 6*. 
 chastise, imprison, and punish, rioters, &c. they 
 may also autlioiise others to arrest them by a 
 bare parole command, which will hold good 
 in their absence. But a single justice arresting 
 an innocent person would be liable to action 
 of trespass. As soon as the sheriffs and other 
 the king's ministers shall hear of a riot, rout, 
 or other assembly against the peace, they, 
 M'ith the power of the county where such case 
 shall happen, shall disturb such malice with all 
 their power^ &c, — the lords and other liege 
 people shall attend, &c. 
 
 It is not to the present purpose to pursue i Geo i. c. 5. 
 the statute, or common, law through the re- 
 gulations and distinctions found necessary ia 
 unsettled times, the bond to keep the peace, im- 
 position of fine, &c. The statute by which 
 the magistrate is now chiefly directed, suffi- 
 
252 GENERAL MILITARY LCONOJIY,— 
 
 ciently known as the riot act, enjoined to be 
 read at every quarter sessions and leet, prescribes 
 as follows : 
 
 If any persons, to the number of twelve or 
 more, being unlawfully, riotously, and tu- 
 multuously, assembled together, to disturb the 
 public peace, and being required or commanded 
 by any justice of the peace, sheriff of the 
 county, or under-sheriff, mayor, bailiff, or 
 other head ofHcer, of any city or town corpo- 
 rate, where such assembly shall be, by procla- 
 mation made, &c. to disperse, &c. shall, not- 
 \vithstanding, continue together by the space 
 of one hour, it shall be felony without benefit 
 bf clergy ; i. e. death, without any hope aris- 
 ing from a humane and discriminating fiction 
 of law, in favour of learning and religion. 
 
 In delivering this proclamation, the justice 
 of peace, or persons aforesaid, shall, among 
 the rioters, or as near them as he can safely 
 come, with a load voice command, or cause to 
 be commanded, silence, while proclamation is 
 making, and in the same manner promulgate, 
 as Tiear/ij as possible^ the following words : 
 Proclamation of " Q^- sovereiu'u lord the kino^ chargeth 
 
 tiot,a<c. " . 
 
 and commandcth all persons being assembled 
 immediately to disperse themselves, and peace- 
 ably to depart to their habitations, or to their 
 lawful business, upon the pains contained in 
 the act, made in the first year of Kino^ 
 
RECRUITING, — SEllVICE, — DISMISSAL. 253 
 
 George, for preventing tumults and riotous as- 
 semblies." 
 
 Every justice, sheriff, or other head officer, 
 on notice of such unlawful assembly, is to 
 resort to the place, and make the proclama- 
 tion. 
 
 If such persons after all do not disperse 
 themselves within one hour, it shall be lawful 
 for every justice, &c. who are empowered to 
 command all his majesty's subjects of age and 
 ability, to be assisting to seize such persons, 
 and carry them before a justice of peace ; and, 
 if such persons shall be killed or hurt by reason 
 of their resisting the persons so dispersing or 
 seizing them, such justice and persons aiding 
 them shall be indemnified. 
 
 iii. On the Coast, for the Protection of the 
 Revenue, &c. 
 
 This duty is mentioned rather from the im- 
 portance it assumes than from any complexity 
 of legal arrangement for its conduct. 
 
 On any occasion revenue-officers apply " to Gen. Ticg. and 
 
 '^ 11^ Ord. 78. et sc(j. 
 
 the officer commanding at the nearest post," 
 the officer is bound to attend it ; and, " where 
 the posts are not too remote from each other, 
 the several commanding officers shall have di- 
 rections to co-operate to the utmost of their 
 abilities for effecting the intended seizure. 
 
Ci4 GENERAL MILITARY ECONOMY, 
 
 . The money arising to the troops from seizures 
 is to be divided (the usual proportion of rank 
 being attended to) amongst the subiiltern offi- 
 cers, assistant-surgeons, quarter- roasters, non- 
 commissioned officers, and private men, of the 
 regiment generally, and not to be confined to 
 those only who are personally concerned in 
 making tiie seizure. 
 
 The claims of the trbops or account of 
 seizures are to be delivered to the Board of 
 Customs ^nd Excise, on or before the first day 
 of December, in each year. 
 
 There are doubtless other minute regula* 
 tioBs^ both local and fortuitous, which cannot 
 be here detailed ; and, as to the regulations for 
 distribution and furnishing of parties, they are 
 already, by his majesty's order, in every officer's 
 possession. 
 
 7. On^fj€fif€ of Absence, or Furlough, 
 i. Absent Officers. 
 
 His majesty's leave is granted, by courtesy 
 of the -commander-in^hief, to officers to be ab- 
 sent from their corps, in all, cases arising out 
 of their private affairs, whenever it can be 
 done without injury to the service; a " ge- 
 neral leave " is also confided to the justice of 
 
EECRUITING, — SERVICE, — PI9MIS$AL. 255 
 
 commaiKling officers of cgrps during the win-r 
 ter months; to the sick, of course, absence is 
 permitted, without the ordinary limitations* 
 Leave for short absences from regimental pa- 
 rades may also be granted by commanding 
 officers. 
 
 Many limitations, however, have arisen from 
 the frailty of human nature, , the necessity of 
 which will be sufficiently obvious. Thus, to 
 prevent, as before observed, a plurality of 
 posts, or other regimental inefficiencies, which 
 might be fcicilitated by a prodigality of leave 
 in a commanding officer, it is ordered by his 
 majesty's articles that ** all leaves of absence Art. of War, 
 granted by us, or by any of our generals, shall 
 be entered in the books of our secretary ar 
 M'ar, and commissary general, &c." Without 
 considering in this place the details of office, 
 in the regulations, it is there ordered that all Gen. Reg. and 
 applications be regularly made, through the 
 regimental commanding (pfficer, to the general 
 of brigade, thence to the general of the dis- 
 trict, " by whom (in all instances in which the 
 general officers are not themselves competent 
 to decidt) they will be transmitted to the ad- 
 jutant-general for the purpose of being sub- 
 mitted to the commander-in-chief" '' No ib. S5. 
 officer (except for the purpose of joining his 
 regiment, or on especial duty) is on any ac- 
 count to (^uit the kingdom, without the king's 
 
256 GENERAL MILITARY ECONOMY, — 
 
 leave of absence for that purpose having been 
 previously obtained." " No leave of absence, 
 granted by general or other officers command- 
 ing on foreign stations, to be considered as 
 valid for more than six months, except in In- 
 dia and New South Wales, when it will con- 
 tinue to twelve months ; nor can such leave be 
 renewed by any other authority than that of his 
 majesty." 
 
 In respect to the " general leave," it is or- 
 dered that all leaves of absence are to terminate 
 on the 10th of March in South Britain, and 
 the 10th of April in North Britain. It is 
 withheld from corps which are inefficient, and 
 from individuals as a punishment, which latter 
 must not therefore be hastily done. 
 
 Officers in Great Britain, prevented from 
 joining their regiments by ill health, are in 
 due time to transmit to the commanding offi- 
 cers of their regiments certificates of the same, 
 signed by a mihtary medical officer, and, if in 
 any of the capitals, the medical board. This 
 certificate will be obtained from the inspector 
 of hospitals, or deputy of the district, or, if 
 not, runs thus, according to the printed form, 
 with an addition for farther application. 
 
 Form from Me- " I (lo hereby Certify that I have examined 
 
 omcc. — : oj the 7'egimcfit oj • — , 
 
 and find that he is affected uiih in such 
 
RECRUITING, — SERVICE, — DISMISSAL. 257 
 
 degree as to render him incapable of military 
 duty. And I farther declare my belief that 
 
 an extended leave of absence for will 
 
 be necessary before he can resume his military 
 duties. 
 
 Dated at 
 
 this day of < 
 
 Signature and rank of the 
 medical officer. 
 
 / have the honour to forward the above cer- 
 tificate of my ill state of health, which renders 
 me at preseiit incapable of performing my re- 
 gimental duty, and to state that I have already 
 been absent from my regiment^ with leave, from 
 the — day of '■ — 
 Viz. 
 
 Froin the — — — day of " — to the - * 
 
 day of by permission of 
 
 Fro7n the day of to the ■" . 
 
 day of by permission of •— 
 
 F?'0)n the day of to the 
 
 day of by permission of' — 
 
 Signature and rank 
 
 of the regimental 
 
 or other officer. 
 
 Although, of course, no entry takes place of 
 temporary leave from parade, granted by a 
 commanding officer, yet no less justice is to 
 s 
 
258 OENEUAL MILITARY ECONOMY, — 
 
 be assured in the proportion to individuals, 
 or propriety in the occasions, for which it is 
 granted. 
 
 ii. Furlough of Non-commissioned Officers and 
 Soldiers. 
 
 A.ofW.$4. Every colonel, or other field-officer, corn- 
 art. 5. ... , 
 manding a regiment, troop, or company, and 
 
 actually residing with it, may give furloughs to 
 non-commissioned ofiicers and soldiers, in such 
 numbers, and for so long a time, as he shall judge 
 to be most consistent M'ith the good of the ser- 
 vice ; but no non-commissioned officer or sol- 
 dier shall, by leave of his captain or other infe- 
 rior officer commanding the troop or company, 
 (his field-officer not being present,) be absent 
 above twenty days in six mo-nths, nor shall 
 more than two private men be absent, at the 
 same time, from their troop or company, un- 
 less some extraordinary occasion shall require 
 ib.§. it, of which occasion the field-officer present 
 
 with and commanding the regiment is to 
 judge. 
 
 iii. Extension of Furlough by the Magistrate. 
 
 Mut.Act,$95, Any justice of the peace is authorised to 
 grant, in writing, under hi^ hand, an extension 
 
 97. 
 
hecruitixg, — service, — dismissal. 2.>9 
 
 of furlough to any non-commissioned ollicer 
 or soldier applying for the same, on account 
 of any sickness, or other casualty, •which 
 to such justice shall on due inquiry appear to 
 render such extension necessary. And such 
 justice shall make an order in writing, under 
 his hand, upon the churchwardens and over- 
 seers of the poor of the parish, township, or 
 place, where such non-commiisioned officer or 
 soldier shall reside, requiring them to advance 
 to him any sum of money, not exceeding the 
 amount of his pay, for the period to which his 
 furlough shall have been extended, out of the 
 money for the relief of the poor; whKli sums 
 shall be allowed to him by the collectors of 
 Excise, on presentation of this order. 
 
 If the justice shall not think fit to make such 
 order, he shall state his reasons for such refusal, 
 in writing, at the bach of the furlough. 
 
 The no'n-commissionrd officer or soldier ob- 
 taining such extension (which, of course, will 
 be also indorsed on his furlough) Mill not be 
 liable to molestation on account of such ab- 
 sence from his regiment. This exemption, 
 however, does not extend to any case where it 
 is obtained by false representation, or where 
 there shall have been in the application any 
 thing subversive of good order and military 
 discipline. 
 
 5 2 
 
'260 
 
 GEXERAL MILITARY ECONOMY,- 
 
 .Tames, Fx. C. 
 V. 1, 63. 
 
 III. DISMISSAL or OFFICERS AND SOLDIERS, 
 INCLUDING REWARDS, 
 
 The Dismissal of Officers and Soldiers, in 
 disbanding their Corps, must be regulated by 
 Circumstances. 
 
 1. Resignation of Officers. 
 
 No officer can sell out of the army without 
 his majesty's permission : every officer, how- 
 ever, who has purchased his different commis- 
 sions, is intitled to sell, unless he be dismissed 
 the service by sentence of a general court mar- 
 tial, or by the king's order. Those officers 
 who have obtained their situations by favour 
 can only look to the king for permission to re- 
 tire from the service by disposing of their ap- 
 pointments. 
 
 His majesty's ministers, in the upper house, 
 jvw.nrtT'' heing asked, on a discussion of the Mutiny 
 Act, whether an officer, on actual service, 
 might give up his commission, whenever he 
 pleased ? Lord J^oughborough answered, that 
 such a resignation was subject to his majesty's 
 acceptance, in which the chancellor concurred ; 
 but added, that no minister would advise his 
 majesty not to accept such a resignatinn. 
 
 In the Militia commissions are resigned to 
 
RECRUITING, — SERVICE, — DISMISSAL. i^t)'! 
 
 the lieutenant of the county, but generally 
 through the officer commanding; the regiment. , , ^ ^ 
 
 " ... Letter of S. C. 
 
 It is, however, equally liable to his majesty's M..r?an.j.A.G. 
 
 ' . ^ •^, , . ' ' l3thJuiH-.179y, 
 
 acceptance, as is also that of the lieutenant. apud James 
 
 The Royal Hospital, at Chelsea, and its out- 
 pensions, are instituted for the support of the Gros«, mh Ant 
 soldier worn out in the service; and its neces- 
 sary offices furnish excellent resources for 
 unfortunate officers. There are also a ftw 
 other institutions, of a highly creditable nature. 
 And by statute, though dormant, unrepealed, 
 a weekly allowance is to be raised in every 
 county, for the" relief of soldiers that are sick, 43 Eiiz. c. s. 
 hurt, and maimed. 
 
 The Royal Military College, established at ^"^^ ^- ^'^''• 
 Great Marlow, Buckinghamshire, in IViarch, 
 1802, at the instance of his Royal Highness 
 Field-Marshal the Duke of York, offi^rs a grand 
 asylum to thirty sons of officers who have died, 
 or been maimed, in his majesty's service, who 
 are to receive education, board, and clothing, 
 free from expense, and be afterward eligible to 
 commissions; and to twenty more, at very 
 moderate expense. 
 
 Honourary rewards are various, as oeneral Reg R'>yai 
 
 , , , , ,. . . ^ Mil. Cul.i.c. 
 
 medals, honourary titles, distinctions, &c.* 
 
 Adjutants of3,lilitia have experiencetl advan- 
 tages peculiar to themselves on retiring. 
 
 Besides the public rewards of the army here spoken of, 
 
GENERAL MILITARY ECONOMY,— 
 
 2'. Discharge of Private Soldiers. 
 
 The discharge of private soldiers, in every 
 regiment, must be periodically announced by 
 returns to the war-office, which are regu* 
 lated according- to the directions issued from 
 that establishment. 
 
 Regiments of Militia have, in addition to 
 these returns, to make others to the sub-divi-r 
 sion clerks of the lieutenancy. 
 
 Such are the excellent precautions used by 
 the various authorities to preserve the post of 
 honour free from those defections to which 
 the infirmities of human nature might otherwise 
 render it liable. 
 
 Every soldier entitled to his discharge under 
 any orders or regulations made by his ma- 
 jesty, or upon the expiration of any period for 
 which he shall have engaged to serve, shall, if 
 then serving abroad, be sent to Great Britain 
 or Ireland, free of expense, and, on his return, 
 be intitled to, and receive, marching-money 
 
 Adyponlle- there have been many ii)btitutcil by commanding officers of 
 •waids.jic. 2^^ ,j,jjg„(5 in their own corps, which have been highly ad- 
 Manningh. L. "^ ' , , 
 
 Re;;. vantageous. Such were those of Earl Percy in the 3th Foot, . 
 
 General Manwingham in the <)5tl), not to mention many un- 
 written exertions, like those of the brave and well-informed 
 Col. Pack, of the 71st, &c. &c. &c. 
 
RECRUITING, — SERVICE, — DISMISSAL. 263 
 
 from the place of his being landed to the 
 parish or place in which he shall have been 
 originally inlisted, at the rate per diem fixed 
 for victualling soldiers on the march, reckon- 
 ing ten miles for each day's march ; and, if 
 serving at home, he is to receive the same al- 
 lowance from the place of discharge to that of 
 inlisting. 
 
 Officers and soldiers that have been in the 21 Geo. in 
 king's service are at liberty to use any trade '^ 
 or occupation they are fit for, in any town of 
 the kingdom, (except the two universities,) 
 notwithstanding any statute, custom, or char- 
 ter, to the contrary. It need not be added 42 Geo. in. 
 
 '' c. 90. 
 
 that the Militia is included. 
 
 Non-commissioned officers and soldiers, hav- Ar^o^ Y", 
 
 ' $ J, art. 2. 
 
 ing been duly inlisted and sworn, shall not be 
 dismissed the service \vithout a discharge, \x\ 
 writing, signed by a field-officer of the corps 
 to which they belong ; or, if no field-officer be 
 with the corps, by the commanding officer 
 thereof; or, in respect to regiments serving 
 abroad, the colonels of which are absent from 
 Great Britain, by the adjutant-general of our 
 forces, or by the inspector- general of our re- 
 cruiting service. 
 
 These discharges may be, and often are, ve- 
 hicles of praise or censure. 
 
 Having thus concluded the crimes, of which $ci, an. 2. 
 a soldier can ordinarily be guilty, (for, in the 
 
264 GENERAL MILITARY ECONOMY, — 
 
 commission of those which follow, he forfeits 
 that character,) it may be necessary to add the 
 general clause in his majesty's Articles of War, 
 which prevents the escape of offenders, whose 
 crimes have not been recited. All crimes, not 
 capital, all disorders and neglects, which of- 
 ficers and soldiers may be guilty of, to the 
 prejudice of good order and military discipline, 
 though not specified in the said rules and arti- 
 cles, are to be taken recognizance of, by a ge^ 
 neral or regimental court martial, according to 
 the nature and degree of the offence, and to 
 be punished at their discretion. 
 
 IV. CONCERNING MUTINY AND DESERTJON. 
 
 These are crimes that require to be consi- 
 dered by themselves, and come not properly 
 under any head among those committed by the 
 soldier ; since, by the one, he exchanges his 
 character for that of Traitor in the basest 
 acceptation of the term, and, by the other, he 
 throws off every military claim, except that of 
 the severest punishment, 
 
 1. Penalties of Mutiny in Principals and 
 > Accessaries. 
 
 Mut. Act, <; 1. The acts and penalties of Mutiny are thus 
 described in the Mutiny Act and Articles of 
 
RECRUITING, — SERVICE, — DISMISSAL. 265 
 
 "War. Any Person, who is or shall be com- An of War. 
 missioned or m pay as an officer, or hsted 
 or in pay as a non-commissioned officer or 
 soldier, who shall presume to use traiterous or 
 disrespectful words against our royal person, or 
 any of our royal family, if a com.missioned 
 officer, shall, upon conviction thereof, before 
 a general court martial, be cashiered ; if a non- 
 commissioned officer or soldier, he shall suffer 
 such punishment as by the sentence of a ge- 
 neral or regimental court martial shall be 
 awarded. 
 
 Any officer, non-commissioned officer, or An. 2. 
 soldier, who shall behave himself with con- 
 tempt or disrespect towards the general, or 
 other commander-in-chief of our forces, or 
 shall speak words tending to his hurt or dis- 
 honour, shall be punished according to the 
 nature of his offence, by the judgement of a 
 general court martial 
 
 Any officer, non-commissioned officer, or An. 3. 
 soldier, who shall begin, excite, cause, or join 
 in, any mutiny or sedition in the regiment, 
 troop, or company, to which he belongs, or in 
 any other, either of our land or marine forces, 
 or in any party, pojit, detachment, or guard, 
 on any pretence whatever, shall suffer death, or 
 such other punishment as by a general court 
 martial shall be awarded. 
 
 Any officer, non-commissioned officer, or ah, 4. 
 
C6f> GENtRAL MILITAllY ECONO.Air, — 
 
 soldier, who, being present at any mutiny d 
 sedition, sliall not use his utmost endeavour to 
 suppress the same, or, coming to the knowledge 
 of any mutiny or intended mutiny, shall not. 
 Avithout delay, give information thereof to hi> 
 commanding officer, shall suffer death, or such 
 other punishment as by a general court martial 
 shall be awarded. 
 Art. .■>. Any officer, non-commissioned officer, or 
 
 soldier, who shall strike his superior officer, or 
 shall draw, or offer to draw, or lift up, any 
 weapon, or offer any violence against him, being 
 in the execution of his office, on any pretence 
 whatsoever, or shall disobey any lawful com- 
 mand of his superior officer, shall suffer death*, 
 or such other punishment as by a general court 
 martial shall be awarded. 
 
 g. Penalties of Desertion, and civil AiLriliaries 
 for the Apprehension of Deserters. 
 
 Miii.Act.ji. Desertion is thus characterized and de- 
 «6,"art. i/'' nounccd in the same prescriptions. All of- 
 ficers, non-commissioned officers, and soldiers, 
 in our service, who shall be convicted of hav- 
 ing deserted the same, s|jaU suffer death, or 
 such other punishment a^ by a general court 
 martial shall be awarded. And every non-com- 
 missioned officer or soldier who shall inlist him- 
 self in any other regiment, troop, or com- 
 
KECllUITING, — SERVICE, DISMISSAL. 
 
 267 
 
 pany, without a regular discharge from that in 
 which he last served, shall be reputed a de- 
 serter, and suffer accordingly death, or other Mm. Act, § 2. 
 punishment, at the discretion of a court mar- 
 tial. 
 
 Any officer who shall receive such non-com- Art. or War, 
 missioned officer or soldier belonging to another 
 corps, or shall not, after his being discovered 
 to be a deserter, immediately confine him, and 
 give notice thereof to the corps in which he 
 last served, if in Great Britain or Ireland, or, 
 if abroad, to our secretary at war, sliall, on 
 conviction, be cashiered. 
 
 Non-con)missioned officers and soldiers who Art. a. 
 shall desert from, or commit any offence 
 against military discipline in, any regiment, 
 troop, or company, in which they shall have 
 inlisted or received pay, although of right be- 
 longing to, and liable to be claimed by, another 
 corps, in which they have inlisted or received 
 pay, may be tried by court martial, and pu- 
 nished for such desertion or otlier offence, as 
 if they had originally and rightfully inlisted 
 in such regiment, &c. 
 
 Or if such a non-commissioned oflicer or Mut.Act.fSv 
 soldier shall he claimed by the corps in which 
 he first inlisted, and be proceeded against as a 
 deserter therefrom, his subse<|uent desertion 
 from any one or more corps may be given 
 
268 GENERAL MILITARY ECONOMY, — 
 
 in evidence against him, as an aggravation 
 of his Clime, previous notice being given to 
 the prisoner. 
 
 Art. of War, Any non-commissioned officer or soldier 
 who sliall, without leave from his commanding 
 officer, absent himself from his troop or com- 
 pany, or from any detachment with which he 
 shall be commanded, shall, upon being con- 
 victed thereof, be punished, according to the 
 nature of his offence, at the discretion of a 
 general or regimental court martial. 
 
 Art 5. Whatsoever officer, non-commissioned officer, 
 
 or soldier, shall be convicted of having advised 
 or persuaded another officer or soldier to de- 
 sert, shall suffer punishment at the discretion 
 . of a general court martial. 
 
 Mut. Act, § 19. A general court martial may sentence any 
 non-commissioned officer or soldier, convicted 
 of desertion, to service, in such country abroad, 
 and in any regiment or corps, as his majesty 
 shall please to direct, or for life, as a soldier, 
 or for any term of years beyond the period 
 for which he shall have inlisted ; and to a for- 
 feiture of all or any part of the benefit, as to 
 increase of pay, premium, or discharge, which 
 might otherwise have accrued from the length 
 or nature of his service. 
 
 j^ .^ A court martial may also adjudge the offend- 
 
 er to be transported as a felon, for life, or a 
 
RECRUITING, — SERVICE, — DISMISSAL. 269 
 
 term of years ; and also to be, at the expiration 
 of such term, at the disposal of his majesty 
 as a soldier for life. 
 
 His majesty may also remit a capital punish- ii*- §^- 
 nient, awarded by a court martial, on con- 
 dition of transportation, as a felon, for life, or 
 for a term of years. 
 
 In either of these cases, the felon returning 
 into or being found at large, before the expi- 
 ration of such period, without leave from his 
 majesty, or the governor or commanding offi- 
 cer of the place to which he shall have been 
 transported, will, on ordinary conviction, suffer 
 death, without benefit of clergy. 
 
 A court may, on a second conviction of de- 
 sertion, direct, in addition to any other pu- 
 nishment, that such deserter be marked on the 
 Jeft side, two inches below the armpit, with 
 the letter D. Such letter not to be less than 
 half an inch long, and to be marketl upon the 
 skin with some ink, or gunpowder, or other 
 preparation, so as to be visible and conspicu- 
 ous, and not liable to be obliterated. This is a veqctius de Rc 
 
 , „ Mil. p. 1, c 8, 
 
 custom as antient as the Roman army. &c. 
 
 For the better apprehending of deserters, ^i"t- Act. § 9i, 
 as has already been observed, the civil power 
 joins its aid ; to which purpose, it is enacted, 
 that, wherever any person, who may reason- 
 ably be suspected to be a deserter, may be found, 
 the constable, headborough, or tything man. 
 
270 GENERAL MiLlTAIlV ECONOMY, — 
 
 or any officer or soldier in his Majesty's ser-» 
 vice, may appreliend him, and take him before 
 any justice of the peace, who hath power to 
 examine him ; and if, by his confession, or the 
 testimony of one witness, upon oath, or by 
 the knowledge of such justice, it shall be 
 found that such suspected person is a listed 
 soldier, and ought to be with the troop or 
 company to which he belongs, such justice of 
 the peace shall send him to the county gaol, 
 house of correction, orothtr public prison of 
 the place ; or to the Savoy, if in London, 
 Westminster, or the places adjacent; or to 
 the provost martial, if in Dublin, or the places 
 adjacent ; and transmit an account thereof 
 to the secretary at war for the time being, in 
 London, or, if in Ireland, to the chief secre- 
 tary of the chief governor, to the end that 
 such person may be removed, by an order 
 from the office of the secretary at war, or 
 chief governor, and proceeded against accord- 
 ing to law. And the keeper of every prison 
 shall receive such subsistence for the mainte- 
 nance of such deserter, during the time that he 
 shall continue in his custody, as by his majes- 
 ty's regulations shall be directed in his behalf, 
 and shall be entitled to one shilling for every 
 twenty-four hours imprisonment of every de- 
 serter. And every keeper of a prison, in 
 every place in which the paiiy or person con- 
 
RECRUITING, — SERVTCE, — DISMISSAL. 271 
 
 veying any deserter shall pass, shall receive and 
 confine every deserter delivered into his charge, 
 by any non-commissioned officer or soldier, 
 without other authority tlian the production of 
 the warrant from the justice on which the 
 deserter was first taken, or some order from 
 the war office, in Great Britain, or secretary 
 in Ireland, and receive one shilling per day as 
 aforesaid. 
 
 As a reward, the magistrate committing aib. §92. 
 deserter must also give his warrant to the col- 
 lectors of land-tax in Great Britain, or re- 
 venue in Ireland, to pay to the person appre- 
 hending, for each deserter, twenty shillings, 
 which will be allowed in the collector's ac- 
 count. 
 
 It has already been shewnhowthemilitary ad- Art. of w,$6, 
 vising or persuading desertion are to be punished; Mut. Act, § 93. 
 on the part of the militar}' or civil classes, if 
 any person shall harbour, conceal, or assist, 
 any deserter from his majesty's service, know- 
 ing him to be such, he shall forfeit twenty 
 pounds for every offence, upon conviction, by 
 the oath of one witness, before any justice of 
 the peace; to be levied by distress and sale of 
 the goods or chattels of the offender, one 
 half to be paid to the informer, and the other 
 to the officer to whom the deserter belonged. 
 If the offender have not goods and chattels to 
 the amount, and shall not pay within four days 
 
272 GENERAL MILITARY ECONOMY,— 
 
 of conviction, such justice shall, by warrant, 
 under his hand and seal, commit him to the 
 common gaol, for six months, without bail or 
 main-prize. 
 
 lb. $122. And farther, if any person or persons shall, 
 
 in any part of his majesty's dominions, directly 
 or indirect!}', persuade or procure any soldier to 
 desert his majesty's service, he or they, on law- 
 ful conviction, shall, for every offence, forfeit 
 to the king, or any person who shall sue for 
 the same, (in any court of record,) one hun- 
 dred pounds; and, if the offender lack goods 
 and chattels, lands, or tenements, to pay the 
 same, or if his crime deserve more punish- 
 ment, he may be committed to prison for 
 twelve months, and also to stand in the pillory, 
 for the space of one hour, in the same or some 
 market- town, next adjoining to the place 
 where the offence was committed, in open 
 market there. 
 
 lb. § 124. The penalties are to be sued for in the courts 
 
 of record in Great Britain, court of exche- 
 quer in Scotland, court of record in Dublin, 
 or any court of record elsewhere; in the royal 
 courts of Jersey or Guernsey, (in which latter 
 are included the islands of Alderney and Sark,) 
 
 j and in any court of record in the Isle of Man, 
 
 or any court of record at Westminster. 
 
 lb. §125. All actions, however, to be brought within 
 
 six months after commission of the oflence. 
 
RECRUITING, — SERVICE, — DISMISSAL. S73 
 
 The penalty of persons receiving or obtain- lb. $9S. 
 ing, in any way, from deserters of horse or 
 foot, their regimentals or necessaries of any 
 kind, the same with that in regard to all other 
 soldiers, is five pounds, imprisonment, and, 
 perhaps, whipping. See ^^ Care of Stores^ S^c.** 
 No commissioned officer shall, however, break ib. $94. 
 open a house without warrant from a magis- 
 trate, under a penalty of twenty pounds. 
 
^74 MINOR MILITARY ECONOMV,'-- 
 
 PART IV. 
 MINOR MILITARY ECONOMY. 
 
 I. ACCOMPTS, (including THE PAYMENl 
 OF THE AUMY.) 
 
 Art. of War, THE accompts of all ic2;inients, troops, or 
 companies, in our service, (say his majesty s 
 Articles of War,) other than our corps of Life- 
 
 ' Guards, Horse- Guards, and Foot-Guards, shall 
 
 be made up and transmitted at sucli times, and 
 in such manner, as we have been pleased to 
 direct by our late regulations, touching regi- 
 mental and district paymasters, and the mode 
 of mustering, paying, and settling the ac- 
 compts of, our army, or according to such re- 
 gulations as we may think fit to establish in re- 
 lation thereto. 
 
 Reg. &c. Pub- The rc":ulations here mentioned regard the 
 
 Egerton. minutcs ot omcc, and are comprised in a large 
 
 octavo volume. 
 
 Mutiny Act, And, tliat a true accompt may l;e kept and 
 ^ IOC. ' . 
 
 rendered by the ,agents of the several regi- 
 
ACCOMTTS, — PAYMENTS, ETC. 2/5 
 
 ments and indepeiulent troops and companies, 
 they are required to observe such orders and 
 directions as shall, from time to time, be given 
 by his majesty, under his sign-manual, chief 
 governor or governors of Ireland, or tlie lord- 
 treasurer or commissioners of the treasury, for 
 tlie time being: and, if any agent shall refuse 
 or neglect to observe such orders and direc- 
 tions, he shall be discharged from his office, 
 and be utterly disabled to hold any such office 
 in his majesty's service. 
 
 No paymaster-general, or paymaster of the lb. §103. 
 army, paymaster of the marines, secretary at 
 war, commissary, muster-master, paymaster of 
 a corps or district, or any other officer what- 
 soever, or their under officers, shall receive any 
 fees, or make any deductions whatsoever, out 
 of the pay of any officer or soldier in his ma- 
 jesty's army, or from their agents, other than 
 those allowed by his majesty's regulations, and i^- $ 103. 
 such other necessary deductions as shall, from 
 time to time, be directed under his majestj^'s 
 sign-manual. 
 
 If any paymaster, agent, or clerk, of any 
 garrison, troop, or company, shall, unlawfully, 
 detain or withhold, by the space of one month, 
 the pay of any officer or soldier, (clothes and 
 all other just allowances being deducted,) after 
 such pay shall be by him or them received ; or 
 if any officers, having received their soldiers' 
 T 2 
 
276 
 
 MINOR MILITARY ECONOMY, 
 
 P«tCBtion of 
 Paj. 
 
 Art. of War, 
 §i3, art. 4, 
 
 Embezzlement 
 of Mone^-s bj 
 Commanding 
 Officer, 
 
 pay, shall refuse to pay each non-commissioned 
 ofiScer and soldier their respective pay, when it 
 shall become due, according to the several 
 rates established by his majesty's orders, upon 
 proof thereof before a court-martial, to be for 
 tliat purpose duly holden and summoned; every 
 such paymaster, agent, clerk, or officer, so of- 
 fending, shall be discharged from his employ- 
 ment, and shall forfeit to the informer, upon 
 conviction before the said court, one hundred 
 pounds, to be levied by seizure of goods and 
 chattels, or these failing, the person of the of- 
 fender to be imprisoned for six months, unless 
 sooner paid, in addition to any other punish- 
 ment. And the informer, if a soldier, (if he 
 demand it,) shall be, and he is hereby (the 
 Mut. Act), discharged from any farther ser- 
 vice. 
 
 If any commissioned officer shall embezzle 
 or misapply any moneys with which he may 
 have been entrusted for the payment of the 
 soldiers under his command, or for inlisting 
 men into our service, or for any regimental 
 purpose, and shall be thereof convicted by a 
 general court martial, lie shall be dismissed the 
 service, and shall forfeit the arrears due to him 
 upon accompt of his pay, or so much thereof 
 as may be sufficient to make good the defi- 
 ciency occasioned by such embezzlement or 
 misapplication. 
 
ACCOMPTS, — PAYMASTER, ETC. S77 
 
 If any warrant-officer be convicted of such By \v»ifMt- 
 oftcnce, by general or detachment court mar- 
 martial, he shall sufter the same; but, if he 
 sliall have been originally inlisted as a private 
 soldier, and shall have continued in the service 
 until his appointment to be an officer by war- 
 rant, he shall be liable, at the discretion of 
 such court martial, to be dismissed, or reduced 
 to serve cither in the capacity of a non-com- 
 missioned officer or private soldier, and to be 
 put under stoppages until the money em- 
 bezzled or misapplied by him shall have beeji 
 made good. 
 Every non-commissioned officer, who shall ^y No»-com- 
 
 *' _ _ missioned Ol- 
 
 he convicted at a general or reei mental court c^er. 
 
 ° ^ . . Art. of War, 
 
 martial of havinar • embezzled or misapplied j i3, art. 5. 
 
 , , ^.. . . , , . Mutiny Act, 
 
 any money with wmqh he may have been m-$io2. 
 trusted, for the payment of the men under his 
 command, or for inUsting men into our service, 
 or for any regimental purpose, shall be reduced 
 to serve in the ranks as a private soldier, be 
 put under stoppages till the money be made 
 good, and suffer such corporal punishment as 
 the court martial shall think fit. 
 
 For the encouragement of the due clothing ^lutAct,^ 104 
 of the troops, the treasury may, if it be deem^ 
 ed convenient, at the end of every two months, 
 issue the money due for the clothing of the 
 forces, notwithstanding the muster-rolls have 
 not been duly returned. And paymasters arc 
 
GENERAL MILITARY ECONOMY,' — 
 
 to make deductions ofallofF-reckonings, and pay 
 to such persons only as have a regular assign- 
 ment for clothes delivered, and their receipt 
 taken for the same. And, when no assignment 
 appears, the off-reckonings to remain in the 
 hands of the said paymaster respectively, until 
 a new contract for clothing, &c. is made. 
 
 All commissaries, upon making up their ac- 
 counts, and also upon returning from any 
 foreign service, shall take the following oath : 
 
 "I do hereby make oath that I have 
 
 not applied any money, or stores, or supplies, 
 under my care or distribution, to my own use, 
 or to the private use of any other person, by 
 way of loan to such person or otherwise, or in 
 any manner applied them, or knowingly per- 
 mitted them to be applied, to any other than 
 public purposes, and according to the duty of 
 my office. 
 
 Sworn before me, ^c. 
 
 This oath, if in any part of the United King- 
 dom, shall be taken before some justice of the 
 peace or magistrate ; and, if taken on foreign 
 service, before the commander-in-chief, or the 
 second in command, or the quarter-master, or 
 deputy quarter-mastcr-general, or any assistant 
 quarter- master-general, of the army to which he 
 shall be attached, a\ ho shall respectively have 
 power to administer the same. 
 
MirSTERS,^ — RE-TU«NS, — ENTRIES. C75 
 
 No officer nor soldier, having been convictcitlib. ^ i6. 
 of* any criminal olFence, shall, while under con- 
 finement in consequence thereof, be entitled 
 to any part of his pay, from the day on which 
 such conviction shall have taken place, till the 
 day of his return to the regiment, troop, or 
 company, to which he belongs. 
 
 Nor shall any soldier, arrested or confined ib. $09. 
 for debt in any prison, be intitlcd to any part 
 of his pay, until tlie day of his return to the 
 
 II. MUSTERS AND RETURNS, ANJ3 EN] RIES. 
 
 l. jllusters. 
 ]\Iusters shall be made, had, or taken, ofib. §34. 
 
 Art. of War, 
 i i. art. 1. 
 
 every i^giment, troop, or company, in hi 
 majesty's service, twice at the least in every 
 year, at such times as shall be appointed, and 
 in such manner as directed by icftimeutal and^p *^""'''' 
 
 •/ O Pay asiCt. 
 
 district paymasters, &c. 
 
 If any person do make or give, or procure M..t. Act. $35 
 to be made or given, any false certificate to ^^'/; Jt' 2)'"' 
 excuse any soldier for his absence from ar.y 
 muster, or any other service which lie ought 
 to attend or peiforn), np(;n pretence of being 
 employed on gome other duty of the regiment, 
 or of sickness, being in prison or on furlough, 
 
280 MINOR MILITARY ICONOMV, — 
 
 every such person shall for every such offence 
 forfeit the sum of fifty pounds, be forthwith 
 cashiered and displaced from his office, and be 
 thereby utterly disabled to have or hold any 
 military office or employment within this realm, 
 or in his majesty's service. And no certificate 
 shall excuse the absence of any soldier but for 
 some one of the reasons above mentioned. 
 Mut. Act,§3r, Every officer that shall make any false mus- 
 Art. ofWar, tCF of mail or hofsc, or muster any person by 
 $4, art. 3,4, ^ wrong name, and every commissary, muster- 
 master, or other officer, who shall wittingly or 
 willingly allow or sign the muster-roll where- 
 in spch false muster is contained, or any du- 
 plicate thereof; and also every commissary, 
 muster-master, or other officer, who shall, di- 
 rectly or indirectly, take or cause to be taken 
 money, or any other gratuity, on or for the 
 mustering of any regiment, troop, or com- 
 pany, or on or for the signing of any muster- 
 rolls, or any duplicate ; on proof thereof upon 
 oath of two witnesses, before a general court 
 martial to be thereupon called, shall for such 
 offence be forthwith cashiered and displaced 
 from his office, and disabled from holding any 
 civil or military employment Nvithin the United 
 Kingdom, or in his majesty's service. 
 Mut. Act, i 39. If any person shall be falsely mustered, or 
 offer himself for that purpose, upon proof on 
 outh by two witnesses as before the next jus* 
 
MUSTERS, — UETURN'S,— ENTRIES. 281 
 
 tice of peace for the county where it is made, 
 upon ceriihcate thereof, under the hand of ilie 
 commissary of the musters, &c. the said jus- 
 tice is to commit such offender to the house of 
 correction for ten days. 
 
 And if any person shall wittingly or willing- 
 ly lend a horse to be mustered, which shall 
 not belong to the trooper or troop so mustered, 
 the horse shall be forfeited to the informer, if it 
 belong to the person furnishing it, if not, the 
 person furnishing, on oath of two Avitnesses be- 
 fore the next justice, shall forfeit twenty 
 pounds, to be levied by warrant, by distress 
 and sale of goods and chattels of the oiFender, 
 or on deficiency of them, and non-payment 
 for four days after the conviction, the offender 
 to be committed to the common gaol for three 
 months, or to be publicly whipped, at the dis- 
 cretion of the justice. The forfeiture to be 
 given to the person that shall give information 
 thereof, and, if in the service, a right to be dis- 
 charged forthwith. 
 
 In Great Britain the deputy of the commis- n.Sio. 
 sary-generalof the musters shall upon every half- 
 yearly muster, at any place ten miles distant 
 from London, close the muster-rolls of the re- 
 giment, troop, or company, within twenty- 
 four hours, and return the rolls so taken, by 
 the post, or other safe conveyance, within seven 
 days, to the office of the coMiiissABY-GENE- 
 
282 3riN0R MILITARY ECONOMY, — 
 
 RAL OF MUSTERS, wlio is to transmit sets of 
 them to the Secretary at war, paymaster-gene* 
 ral of his majesty's land-forces, and the comp- 
 troller of the accompts of the army, on or be- 
 fore the 1st day of i\Iay and 2f)th of September 
 following each such lialf-yearly muster. No 
 alterations or indorsements shall be made on 
 the muster-rolls, other than in the case of or- 
 ders of leave, or dates of commissions, invo- 
 luntary errors, or literal mistakes in writing or 
 transcribing, on pain of forfeiting their respec- 
 tive employments, and the sum of twenty 
 pounds for every offence, to any person that 
 will sue for it. 
 lb. 5 Si.. No commissary (of musters) shall muster 
 
 any regiment, troop, or company, within the 
 city of Westminster and borough of Soutlnvark, 
 and liberties thereof, but in the presence of 
 two or more justices of the peace ; not being 
 officers of the army, under the penalty of fifty 
 pounds, and of being discharged from his 
 ntlice: unless such justices, upon forty-eight 
 imurs notice being given to six justices residing 
 within the said liberties respectively, shall neg- 
 lect to attend such muster; and tlien only pro- 
 v^ded oath be made of this fact before any of 
 his majesty's justices. The justices attending 
 are to sign the muster-rolls, take cognizance 
 tlicreof, and examine their truth, before they 
 iMgn them. 
 
MUSTERS, RETURN'S, 1 NTKlFvS. 233 
 
 2. Returns. 
 
 Returns are minor musters: every otHccr who Articles of Wat, 
 shall knowingly make a false return to his ma- 
 jesty, to the commander-in chief of the forces, 
 or to any of his superior officers, authorised to 
 call for such returns, of the state of the regi- 
 ment, trobp, or company, or garrison, under 
 his command ; or of arms, ammunition, clothing, 
 or other stores, thereunto belonging ; shall, on 
 conviction before a general court martial, be 
 cashiered. 
 
 The commanding officer of every regiment, ib. art. 2. 
 troop, or independent company, or garrison, 
 in South Britain, shall on the 25th of every 
 month transmit to the commander-in-chief of 
 the forces, and secretary at war, an exact re- 
 turn of its state ; and, specifying the names of 
 the officers not then residing at their posts, the 
 reason for and the time of their absence. 
 Whoever shall be convicted of havino^desigfn- 
 edly or through neglect omitted the sending 
 such returns sliall be punished according 
 to the judigement of a general court martial. 
 
 lleturns in like manner shall be made to tbeib. art.s. 
 lord-licutcnant in Ireland, and to the comman- 
 der-in-chief of our forces there; and to the 
 commander-in-chief in North Britain, to be 
 
284 BIINOR MILITARY ECONOMY,- — 
 
 transmitted to his majesty as expedient for the 
 service, 
 lb. art. 4. The same will be made of the garrison at 
 
 Gibraltar, and the regiments, garrisons, and 
 independent companies, stationed abroad ; and 
 transmitted by all convenient opportunities to 
 the secretary at war. 
 
 3. Entry of commissmis and leaves of absence. 
 
 Under this short head in his majesty's arti- 
 cles of war is comprised very much of the 
 justice of the army, as relates to officers, yet 
 it must admit of certain modifications, accord- 
 ing to circumstances. 
 DeReMiiit.&c. Plurality of posts in an army, nay even a sol- 
 *^|\-^"'*-^'^-^-dier's (voluntarily) listing in two different le- 
 gions, was antiently expressly prohibited, upon 
 a severe pecuniary mulct ; which (says Bruce) 
 was very consonant to reason and justice, such 
 a management implying no less than peculate 
 or theft from the public, since no man is able 
 to be in two places at once, 
 lb. 6 86. Plurality of posts, whether in the same or 
 
 Dutch Act. 70. different regiments, is in the Netherlands pu- 
 nished at discretion; which takes place also 
 among the British forces beyond sea; and, ybr 
 preventing and discovering such abuses, it is ap- 
 ReV^"""^ pointed by her late majesty's articles, *' that all 
 
CARE or STORES, — COMMISSARIAT, ETC. SS5 
 
 commissions to officers in pay shall be brought 
 to the commissary of the musters and secretary 
 at war, who are to receive and enter the same 
 in a book fairly written, with certification that 
 no commission officers without such entry shall 
 be alloM'ed in muster." 
 
 An undue extension of leave of absence was ib.59. 
 also attended with respite of pay ; " and" (say 
 Queen Anne's articles,) ^^ to prevent collusion, 
 all papers and licenses for being absent are or- 
 dained to be brought to the muster-master, 
 who is required to enter the same in a book 
 fairly written." 
 
 Both these purposes are united in the present 
 section, which like some others has been dis- 
 robed of its preamble. It simply directs that 
 " all commissions and leaves of absence, grant- An. of War, 
 ed by us or by any of our generals having 
 authority from us, shall be entered in the books 
 of our secretary at war and commissary gene- 
 ral, otherwise they will not be allowed of at the 
 musters." 
 
 III. CARE OF STORES, AMMUNITION, &C. 
 (including THE COMMISSARIAT, AND 
 ILLEGAL USE OF STORES, &C.) 
 
 The necessity for the whole of the laws com- Rep. Comraiw. 
 prized in this division must be obvious to JJZ 
 
28G MINOR AtltlTARY ECONOMY, 
 
 every one. And a committee of the Howse 
 of Commons, as well as the commissionQrs 
 subsequently appointed by it, for the purpose 
 of inquiry, seem, by a prominent resolution, to 
 have conceived something farther to be equally 
 necessary, an opinion \vhich has been con- 
 firmed by more than one military writer. It 
 was by the comn;iissio.ners unanimously re* 
 commended as necessary, " That no miidary 
 officer should himsdj have a property or interest 
 in any ar tide Xi'hkh hi$ (htty obliged him to pr^r 
 videjor the public service.'' 
 Mut.Act,$ioi. Every commission ofiicer, storekeeper, or 
 
 Art. of War . . . 
 
 fi3,art.i. commissary, or deputy, or assistant commis- 
 sar}', or other person employed in the commis- 
 sariat department, or in any manner in the 
 care or distribution of any rnoney, provisions, 
 forage, ' or stores, belonging to his majesty's 
 forces, or,for their use, that shall embezzle or 
 fraudulently misapply, or cause, or knowingly 
 permit, any money, provision, forage, arms, 
 clothing, ammunition, or other military stores, 
 to be embezzled or fraudulently misapplied, or 
 spoiled, or damaged, may be tried by a general 
 court martial, and adjudged, while in service 
 out of the United Kingdom,, to be transported 
 as a felon, for life, or for any certain term 
 of years ; or to suffer such punishment of pil- 
 lory, fine, imprisonment,, dismissal from his 
 majesty's service, and incapacity from serving 
 
CARE OF STORES, — COMMISSARIAT, ETC. 287 
 
 liis majesty in any ofiice, civil or militaiy, as 
 such court shall think fit, according to the na- 
 ture and degree of the offence. Or that such 
 person shall forfeit two liundred pounds, and, 
 in addition to any other punishment, make good 
 at his own expense the loss and damage there- 
 by sustained, to be ascertained by such court 
 martial, which shall have power to seize the 
 goods and chattels of the person so offending 
 and sell them for the payment of the said two 
 hundred pounds, and such damage. And, in 
 defect of these, the person offending shall be 
 committed to prison or the common gaol, 
 there to remain, in addition to any punishment 
 or imprisonment, for six months, and until he 
 shall pay such deficiency ; and after the sum is 
 recovered it shall be applied as his majesty shall 
 direct. • 
 
 * [See also the oath required to be taken by 
 commissaries returning from foreign service or 
 making up their accomptSy under that head, 
 Part IV. Chap. I. p. 278.] 
 
 Every captain of a troop or company is u^. ^ 13. a.*,. 
 charged with the arms, accoutrements, ammu- 
 nition,* clothing, or other warlike stores, be- 
 longing to the troop or company under his 
 command, for which he is to be accountable 
 to his colonel in case of their being lest, spoil- 
 ed, or damaged, not by unavoidable accident, 
 or on actual service. 
 
28S MiNOk MILITARY ECONOMT,-^ 
 
 Alt. 2. Whatsoever non-commissioned officer or sol* 
 
 dier shall be convicted, at a general or regimental 
 court martial, of having sold, or designedly 
 or through neglect wasted, the ammunition 
 delivered out to him to he employed in the 
 service, shall suffer corporal punishment, at the 
 discretion of such court martial. If a non-com- 
 missioned officer to be also reduced to a private 
 sentinel. 
 
 Art. 3. Every non-commissioned officer or soldier, 
 
 "who shall be convicted at a general or regi- 
 mental court martial of having sold, lost, or 
 designedly or through neglect spoiled, his 
 horse, arms, clothes, accoutrements, or regi- 
 mental necessaries, shall undergo such weekly 
 stoppages (not exceeding the half of his pay) 
 as such court martial shall judge sufficient for 
 repairing the loss or damage, and shall besides 
 suffer imprisonment, or other corporal punish- 
 ment, at its discretion. 
 
 Mut. Act, $ 93. And, with a proper motive to prevent the 
 facility of commission of such a crime, it is 
 provided by the Mutiny Act, *' that, if any 
 person shall knowingly detain, buy, or ex- 
 change, or otherwise receive, from any soldier 
 or deserter, or any other person, upon any 
 account or pretence whatsoever, any arms, 
 clothes, cap, or other furniture, belonging to 
 the king, or any meat, drink, beer, or other 
 provisions, provided under any regulations 
 
CARE OF STORES, COMMISSARIAT, &C. S89 
 
 relating tliercto, or any such articles belong- 
 ing to any soldier or deserter as are generally 
 deemed regimental necessaries, according to 
 the custom of the army, being provided for 
 the soldier, and paid for by deductions out of 
 his pay, or cause the colour of any such clothes 
 to be changed, the person so offending shall 
 forfeit for every offence live pounds. 
 
 Or if any person shall buy or receive any 
 oats, hay, straw, or other forage for horses be- 
 longing to his majesty's service, from any dra- 
 goon or other soldier, knowing him to be such ; 
 or shall move, procure, counsel, solicit, or en- 
 tice him, or other soldier, to sell or otherwise 
 dispose of any such forage, the person so of- 
 fending shall forfeit for every offence five 
 pounds. 
 
 And upon conviction by the oath of one or 
 more credible witness or witnesses, before any of 
 his majesty's justices of the peace, the respective 
 penalties shall be levied by warrant of distress, 
 one half to the informer, and the other to the 
 officer to whom any such deserter or soldier 
 did belong. And in failure of goods and 
 chattels in the offender, and non-payment in 
 four days after conviction, such justice may, 
 by warrant, commit such offender to the com- 
 mon gaol for three months, or cause to be 
 inflicted public or private whipping at discre- 
 tion. 
 
 u 
 
290 MINOR MILITARY ECONOMY, 
 
 IV. CARE OF EFFECTS OF DECEASED OFFICEUS 
 AND SOLDIERS. 
 
 Biackst. Com. Soldiefs OH military servicc may make nun- 
 cupative wills, and dispose of their goods, 
 wages, and other personal chattels, without 
 those forms, solemnities, and expenses, which 
 the law requires in other cases. 
 
 $ i9.tra!'' When any commissioned officer shall happen 
 to die or be killed in the service, the major of 
 the regiments or the officer doing the major's 
 duty in his absence, shall immediately secure 
 all his effects or equipage then in camp or quar- 
 ters; and shall, before the next regimental 
 court martial, make an inventory thereof, and 
 forthwith transmit the same to the office of the 
 secretary at war, to the'end that after payment 
 of such officer's regimental debts and quarters 
 and interment, the overplus, if any, may be 
 paid over to his legal representatives. 
 
 Art. 2. When any non-commissioned officer or pri- 
 
 vate soldier shall happen to die or be killed 
 in our service, the then commanding officer of 
 the troop or company shall, in the presence 
 of two other commissioned officers, take an 
 account of whatever effects he dies possessed 
 of, besides his regimental clothing, arms, and 
 accoutrements, and of liis credits 3 and shall 
 
CARE OF EFFECTS OF THE DECEASED. 291 
 
 take care that the same be applied in the first 
 instance to the liquidation of his re2:iniental 
 debts ; the remainder, or balance, shall then be 
 placed in the hands of the regimental pay- 
 master, and shall be duly paid over by him to 
 the representative of such non-commissioned 
 officer or private, if claimed within the periods 
 limited by our regulation on this head. If not 
 claimed within such limited period, it is to be 
 paid to the regimental agent. 
 
 The effects and credits of deserters shall be ib. art. 3. 
 applied in like manner to the liquidation of 
 their regimental debts, and the remainder, if 
 any, brought to the credit of the public. 
 
 Every present and future paymaster, agent, Mut. Act, $ los, 
 or clerk, of any garrison, regiment, troop, or 
 company, who is, or shall be liable to account 
 with any of the executors and administrators 
 of every officer or soldier, for any of the pay 
 by him or them received, shall, on reasonable 
 demand made by such executor or administra- 
 tor, deliver a just and true account of such 
 moneys received, he paying for the same, and 
 shall account with him for it. Every such 
 paymaster, agent, or clerk, offending herein 
 shall be dismissed the service, and forfeit so 
 much of his arrears as shall make due remu- 
 neration. 
 
 u 2 
 
592 CONCtUSlOW. 
 
 CONCLUSION. 
 
 THUS has it been atteinptcd to sketch 
 somethmg towards the outline of a digest of 
 those admirable laws which hav^e been formed 
 for the military force of Great Britain ; in 
 which the dignity of the service, the rights 
 of the individual, and their various relations, 
 would seem to be equally assured. 
 
 In the first part it has been endeavoured 
 to afford a general view of military law, in its 
 separate capacity; secondly, to examine its 
 various modes of application ; thirdly, to re- 
 gard its operation in the various c^rrt^Tstances 
 of an army, from its formation, through its 
 duties, to its dissolution; and, fourthly, to 
 shew its minor economy, or what relates to its 
 business, its trusts, and accompts. 
 Practiqucdo In thc Consideration of these several parti- 
 apud Berenger. culars it Will be immediately evident, that as 
 bravery is not the only requisite of soldiers, 
 but that tliey should be men of probity also, 
 
coN€Lusioy. 29s 
 
 .30 sliould ofticers possess a variety of know- 
 ledge whigh appears but little compatible with 
 the vulgar idea of an army: — Hence the ne- 
 cessity of a military education, or rather an 
 education including the various knowledge so 
 necessary to the military character.* It will 
 also be evident that law as here applied is 
 not that mere art of quibbling to which un- 
 happily it has been sometimes degraded, but 
 a rule of action, on a strict and voluntary ad- 
 herence to which depends the order and happi- 
 ness of every community. 
 
 The excellence of military law, when its 
 execution shall be guaranteed by a perseverance 
 in the watchful care which has of late years 
 manifested itself, will exhibit a proud pre- 
 eminence over the improvement of its correla- 
 tive branches from the common law of England ; 
 and prove to the satisfaction of every soldier 
 that courts of inquiry are not secret assem- 
 blages to stifle investigation, but to search 
 after the truth ; and courts martial not hidden 
 seats of prejudice to punish the weak and 
 maintain the strong, but courts of law and 
 
 * It may not be unsatisfactory to mention that an elementary 
 work to this effect, and consequently on a new plan, has been 
 announced to the publiq. 
 
2.94 CONCLUSION. 
 
 justice, additionally bound to their adminis- 
 tration by all those solemn ties which must 
 ever characterise the honour of a soldier and a 
 gentleman. 
 
APPENDIX. 295 
 
 APPENDIX. 
 
 PRECEDENTS AND FORMS OF MILITARY 
 LAW. 
 
 I. FORMS. 
 
 THE necessity of /br772,y to the promptitude 
 with which all military business ought to be 
 transacted, renders them, in the opinion of tlie 
 writer, sufficiently important to form a con- 
 spicuous division of his work. In the leisure 
 of the common law an high authority has de- 
 clared that " Technical forms ought not to be Lord Mansfield 
 
 . on reversion of 
 
 departed from ;" and a writer more useful and wiikes's out- 
 equally dignified has asserted of forms, that — 
 *' If once those outworks were demolished, ^''*'^''*'-^'^"'' 
 there would be an inlet to all manner of inno- 
 vation on the body of the law itself" 
 
 That these remarks will apply -with addi- 
 tional force, derived from their expedience, 
 to military law, will be easily seen from the 
 
^9^ APPENDIX. 
 
 constant use of prescribed forms in every 
 department of military government. These, 
 however, which may be had in every office to 
 which tliey relate, it is scarcely requisite to 
 observe, are not included here. Those only 
 which are necessary to the act'uig judge-advo- 
 cate, with the exception, perhaps, of one or 
 two for the civil magistrate, who is not always 
 pronded with the principal statutory law of 
 the army, even in its most compendious form, 
 arc insierted, unless, indeed, a precetlent or twio, 
 as that relating to execution, may be liable to 
 that charge. 
 
 They shall be commenced with a deference 
 due to the civil pOwer, by the form of convic- 
 tion by the civil magistrate. 
 
 1. Fo7'm of Convict io?Zj under the Act for Pu- 
 nkhm.g Mutiny and Desertion^ and the 
 better Faijment of the Army and tJieir 
 Quarters. 
 
 Mut. Act. County of — Be it rp;iien?bpred that, 
 
 49 Geo. III. , 1 c • .1 
 
 0.12.^128. on the——- — day ot "-'— ui the 
 
 year of our lord — at in the coun^ 
 
 ty aforesaid, — •■ — came before me, {or us) 
 
 one (or two) of his majesty's justicjcs of the 
 peace in ai^d for the said county, and informed 
 me {ortLs) upon oath, tliat • of ou 
 
APPENDIX. 
 
 the day of — — now last past, at 
 
 — — in the same county, did (//ere set forth 
 
 the fact.) Whereupon the said , after 
 
 being duly summoned to answer the said 
 charoe, appeared before me, (or us) the said 
 
 justice, {or justices) on the day of 
 
 at in the said county, and 
 
 having heard the charge contained in the said 
 information, declared that he was not guilty 
 of the said offence ; but the same being fully 
 proved, on the oath of , a credible wit- 
 ness, it manifestly appears to me, {or us) the 
 said justice, {or justices) that he, the said 
 -^— , is guilty of the said offence charged 
 ( upon him in ti:ie said information. It is there- 
 fore considered and adjudged by me, {or us) 
 the said justice, {or justices) that he, the said 
 , be convicted. And I {or we) do here- 
 by convict him of the offence aforesaid. And 
 I {or zve) do hereby declare and adjudge that 
 
 the said hath forfeited the sum of 
 
 — — for the offence aforesaid, to be distri- 
 buted as the law directs, according to the 
 statute in that case made and provided. 
 Given, &c. 
 
 297 
 
298 APPENDIX. 
 
 Wanantfor o. JVarront for holdins: a Court of Inquiry ^ 
 
 holding Court . ,,,. , \ r • . /^ it- 
 
 •f Inquiry. usutd oy his Idte Majesty Ueorge 11. tn 
 1757. 
 
 George R. 
 Whereas we were pleased, in August last, 
 to send a number of our troops on an expedi- 
 tion against France, with orders and instruc- 
 tions to attempt, as far as should be found 
 practicable, a descent upon the French coast, 
 at or near Rochefort, in order to attack, if 
 practicable, and by a vigorous impression 
 force that place ; and to burn and destroy, to 
 the utmost of their power, all docks, maga- 
 zines, or arsenals, and shipping, that should 
 be found there, and to exert such other efforts 
 as should be judged most proper for annoying 
 the enemy, as by our several instructions to 
 the commander of the said forces does more 
 fully appear ; And whereas the troops sent for 
 these purposes have returned to Great Britain, 
 no attempt having been made to land on the 
 coast of France ; concerning the cause of which 
 failure we think it necessary that inquiry should 
 be made by the general officers hereafter men- 
 tioned, in order that they may report those 
 causes to us, for our better information : Oi/r 
 will and pleasure therefore is, and we do here- 
 
APPENDIX. 2p9 
 
 by nominate and appoint our right trusty and 
 right tntirely ^cloved cousin and counsellor 
 Charicb Duke of Marlborough, lieutenant-ge- 
 neral ; and our trusty and well-hcloved George 
 Sackville, commonly called Lord George Sack- 
 ville, and John Waldegrave, major-generals of 
 our forces, to examine and inquire touching 
 the matters aforesaid : And you are to give no- 
 lice to the said general officers, when and 
 where tliey are to meet for the said examina- 
 tion : Jind tile said general officers are hereby 
 directed to cause you to summon such persons, 
 (whether the generals or other officers em- 
 ployed on the expedition, or others), as are 
 necessary to give information touching the 
 said matters, or as shall be desired by those 
 who were employed on the expedition: And 
 the said general officers are hereby farther di- 
 rected to hear such persons as shall give them 
 information touching the same ; and they are 
 authorised, empowered, and required, strictly 
 to examine into the matters before mentioned, 
 and to report a state thereof, as it shall appear 
 to them, together with their opinion thereon. 
 All which you are to transmit to our secretary 
 at war, to be by him laid before us, for our 
 consideration ; and for so doing, this shall 
 be, as well to you as to our said general of- 
 ficers, and all others concerned, a sufficient 
 warrant. 
 
300 APPENPIX. 
 
 Given at our Court, at Kensington, this 
 1st day of November 1757, in the 31st 
 year of our reign. 
 
 Barrinatov. 
 To our trusty w^ veil-beloved 
 Thomas Morgan, Esq. judge- 
 ad voqate-general of our forces, 
 pr his deputy. 
 
 wvnnt f^r ap- 3, JV(irrant of ih( Kine appointins General 
 
 piniiting Gene- . 
 
 rai Court Mai- Couv.t Martial. 
 
 George R. 
 Whereas it hais. been most humbly repre- 
 sented unto us, ;that the following charge has 
 
 been exhibited against ■ — -— 
 
 viz. — — ^- which charge 
 
 we think fit should be inquired into by a ge- 
 neral court martial, our will and pleasure there- 
 fore is, that a general court martial be forth- 
 •vvith held upojn this occasion, which is to 
 consist of whom we ap- 
 
 point president thereof, and of a sufficient 
 number of other officers, of competent rank 
 ftnd quality, who can be conveniently sum- 
 moned to attend the same, and you are to 
 order the provost marshal general of our forces, 
 or his deputy, to give notice to the said presi- 
 dent and officers, and all others whom it may 
 
APPB*NDIX. 301 
 
 concern, when and where tlie said court mar- 
 tial is to be held, and to summon such wit- 
 nesses as may be able to give testimony touch- 
 in«p tlie charge aforesaid, the said provost 
 marshal general and his deputy, being hereby 
 required to obey your orders, and give their 
 attendance where it shall be requisite, and we 
 do hereby authorise and empower the said 
 general court martial, to hear and examine into 
 all such matters and informations as shall be 
 brought before them, touching the charge 
 against the said 
 
 as aforesaid, and to proceed 
 in the trial, and in giving sentence according 
 to the rules of military discipline. And for so 
 doing, this shall be, as well to you as to the 
 said general court martial, and all others whom 
 it may concern, a sufficient warrant. 
 
 Given at our court, at St. James's, this 
 day of in the 
 
 year of our reign. 
 
 By his maJQsty's command. 
 
 [Secretary of State's signature.] 
 To 
 Our right trusty and well-beloved coun- 
 cillor, judge-advocate general of our 
 forces, or his deputy. 
 
302 APPENDIX. 
 
 TTa rant fi.r ap- 4. JVarrmit of the Khm appo'mthis: New Mem- 
 
 poiiUii!^- New "^ oil <■ 
 
 ft?etnber» to lers to o Couvt Martiul. 
 
 Conxt Martial. 
 
 George R. 
 SigaManuaJ. "VVhcreas wc wcrc pleased, by our commis- 
 sion, dated on the 31si day of October 1758, 
 to appoint George Sackville, Esq. commonly 
 called Lord George Sackville, then a lieute- 
 nant general in our service, to be commander- 
 m-chief of all our British forces, as well horse 
 as foot, then serving on the Lower Rhine, in 
 our army assembled or to be assembled there, 
 under the command of our good cousin Prince 
 Ferdinand of Brunswick, commander-in-chief 
 of our said army, enjoining and requiring him, 
 the said Lord George Sackville, to obey such 
 orders and directions as should be given him 
 by the said Prince Ferdinand, or such other 
 person as might hereafter be commander-in- 
 chief of our said army, according to the Rules 
 of War: And whereas we were pleased, by 
 our instructions, under our sign manual, bear- 
 ing dat€ the same 31st day of October, 1758, 
 to direct the said Lord George Sackville con- 
 stantly to put in execution such orders as he 
 might receive from our said good cousin Prince 
 
APPENDIX. 
 
 Ferdinand of Brunswick, or such other person 
 as might hereafter be comnlander-in-chief of 
 our said army, according to tlie Rules of War, 
 with regard to marching, counter-marching, 
 attacking the enemy, and all operations what- 
 soever to be undertaking by our said troops : 
 A?id whereas we were informed that the said 
 Lord George Sackville hath disobeyed the 
 orders of the said Prince Ferdinand; which 
 charge we thinking fit should be inquired into 
 by a general court martial, did, by our war- 
 rant, bearing date the 26th day of January 
 last, order that a general court martial should 
 be forthwith held upon that occasion, which 
 was to consist of our trusty and wcU-beloved 
 Richard Onslow, lieutenant-general of our 
 forces, whom we did appoint to be president 
 thereof, and of our trusty and well-beloved 
 Ilcnry Pulteney, Sir Charles Howard, Knight 
 of the Rath, John Huske, John Campbell, our 
 right trusty and well-beloved counsellor John 
 Lord De Lawarr, our trusty and m' ell- beloved 
 James Cholmondeley, James Stuart, our right 
 trusty and well-beloved cousin William Earl 
 of Panmure, our trusty and well-beloved Wil- 
 liam Kerr, commonly called Earl of Ancram, 
 our right trusty and well-beloved cousin Wil- 
 liam Earl of Harrington, our trusty and well- 
 beloved James Abcrcromby, our right trusty 
 
 SOS 
 
and TTell- beloved cousin George Earl of Albe- 
 marle, our trusty and well-beloved Francis 
 Leighton, lieutenant-generals; — our trusty and 
 well- beloved Edward Carr, our rigbt trusty 
 and well-beloved cousin Thomas Earl of Ef- 
 fingham, our trusty and well-beloved Robert 
 Rich, and William Belford, major-generals of 
 our forces ; — all of whom, or the said presi- 
 dent, together with any twelve or more of the 
 said officers, might constitute the said general 
 court martial; which said general court mar- 
 tial hath met, but hath not yet examined any 
 witnesses : 
 
 And whereas it hath been since represented, 
 that the said president, Lieutenant-General 
 Richard Onslow, hath been taken suddenly ill, 
 and is unable to attend : And whereas^ if 
 others of the said members should by unavoid- 
 able accidents be prevented from attending, 
 there may not be a sufficient number to com- 
 pose a general court martial, Our will and 
 pleasure is, and we do hereby direct, that the 
 general court martial for the trial of the said 
 Lord George Sackville, do consist of our trusty 
 and well-beloved Sir Charles Howard, Knight 
 of the Bath, whom we do hereby ap|)oiiU to 
 be president thereof; and of our trusty and 
 well-beloved John Huske, John Campbell, our 
 light trusty and well- beloved counsellor John 
 
APPENDIX. 305 
 
 Lord De Lawarr, our trusty and well-beloved Warrant ap- 
 
 T /^i I 1 1 T o • 1 pointing ntw 
 
 James Lholmondeley, James Stuart, our right members to 
 trusty and well-beloved cousin William Earl 
 ofPanmure, our trusty and well-beloved Wil- 
 liam Kerr, commonly called Earl of Ancram, 
 our right trusty and well- beloved cousin Wil- 
 liam Earl of Harrington, our trusty and well- 
 beloved James Abercromby, our right trusty 
 and well- beloved cousin George Earl of Albe- 
 marle, our trusty and well- beloved Francis 
 Leighton, Robert Manners, Esq. commonly 
 called Lord Robert Manners, lieutenant-ge- 
 nerals; — our trusty and well-beloved Edward 
 Carr, our right trusty and well-beloved cousin 
 Thomas Earl of Effingham, our trusty and well- 
 beloved Robert Bertie, Esq. commonly called 
 Lord Robert Bertie, and Julius Csesar, major- 
 generals of our forces ; —all of whom, or the 
 said lieutenant-general Sir Charles Howard, 
 president, together with any twelve or more 
 of the said last-mentioned officers, may con- 
 stitute the said general court martial : And 
 you are to order the provost marshal general, 
 or his deputy, to give notice to the said presi- 
 dent and officers, and all others whom it may 
 concern, when and where the said court mar- 
 tial, hereby appointed, is to be held, and to 
 summon such witnesses as shall be able to 
 give testimony in this matter; the said provost 
 marshal general, and his deputy, being hereby 
 
 X 
 
306 
 
 Warrant ap- 
 poiiitiri'j; new 
 mepiicrs to 
 court martial 
 
 APPENfirx. 
 
 directed to obey your orders, and give attend- 
 ance where it shall be requisite. And xse do 
 farther authorise and empower the said court 
 martial, hereby appointed, to hear and exa- 
 mine all such matters and informations as shall 
 be brought before them, touching the charge 
 aforesaid, and proceed in the trial of the said 
 Lord George SackvillCj and in giving of sen- 
 tence, according to the rules of military disci- 
 pline ; which said sentence you are to return to 
 our secretary at war, to be laid before us for 
 our consideration : And for so doing this shall 
 be, as well to you as to the said court martial 
 hereb}' appointed, and all others concerned, a 
 sufficient warrant. 
 
 Given at our court, at St. James's, this 6t]i 
 day of March, I76O, in the 33d year of 
 
 By his majesty's command, 
 
 HOLDERNESSE. 
 
 To our trusty and well- beloved 
 Thomas Morgan, Esq. judge- 
 advocate general of our forces, 
 or his deputy. 
 
 4. JVay^rant of the King, einpoxvering the Com- 
 mander-in-chief to appoint Courts Martial, 
 Ssc. 
 
 Whereas an act was made and passed in the 
 
APPENDIX. 307 
 
 last session of parliament, intitled an act for n,-. mnjosty's 
 
 . , . . , , . ^ r 1 warrant empow- 
 
 punisnino- nuitiny and desertion, and tor the tnnu com- 
 better payment pf the army and their quarters; 2'!i7p"iiucoun» 
 and wliereas we have been pleased to establish '""""' " 
 articles of war for the better government of all 
 our forces, which act of parliament and articles 
 of war are hereunto annexed ; we, for the more 
 effectually carrying the purposes of the said 
 act and articles of war into execution Avithin 
 the limits of your command, have thought fit 
 to direct, and we do liereby authorise and em- 
 power you from time to time, as occasion may 
 require, to convene, or cause to be assembled, 
 general courts martial for the trial and punish- 
 ment of nuitiny and desertion, or any other 
 offence committed against the rules of military 
 discipline by any officer or soldier of our forces 
 under your command. 
 
 And we do hereby farther empower you to 
 direct your warrant to any officer, not under 
 the degree of a field-officer, having the com- 
 mand of a body of our forces tl^-re, authorising 
 Jiim to convene courts martial for the trial of 
 offences committed by any officer or soldier 
 under his command, every of which courts 
 martial shall consist of a president and of a 
 competent number of other officers who can be 
 conveniently summoned to attend the same, 
 regard being always had, as well in the appoint- 
 ment of such president as in the rule and qua- 
 X 'J 
 
308 APPENDIX. 
 
 His niajetty's lity of tlic othcF officcFs composing such courts 
 poTer'inJco'm- martial, to the rules prescribed by the said aot 
 "Ippointcourts of parliament and articles of war. And we do 
 martial. hereby authorise and empower such court mar- 
 
 tial to hear and examine all such matters and 
 informations as shall be brought before them, 
 touching the misbehaviour of any commission- 
 ed officer, non-commissioned officer, or sol- 
 dier, by mutiny, desertion, or otherwise, as 
 aforesaid ; and to proceed in the trial of such 
 charges, and in giving of sentence and award- 
 ing punishment according to the powers and 
 directions contained in the said act of parlia- 
 ment and articles of war. 
 
 And whereas it is necessary to have military 
 discipline kept up amongst our said troops 
 under command, in as great exactness as pos- 
 sible, and as nothing can contribute more to 
 retain the soldiers in due obedience to their 
 officers, and to make them diligent in dis- 
 charging the duty incumbent on them, than 
 the bringing delinquents to speedy justice; our 
 •will and pleasure therefore is, and we do here- 
 by farther authorise and empower you, when 
 and as often as any sentence shall be given 
 and passed by a general court martial, legally 
 constituted and appointed as aforesaid, to 
 cause such sentence to be put into execution, 
 or to mitigate or remit the same as you shall 
 judge best and most convenient for the good 
 
APPENDIX. S09 
 
 of our service, without waiting for our farther iiismajcstys 
 orders, except iu the case of commissioned po«erinpcora- 
 
 ,Y. . , ^ . , . , inaii<ler-in-cl)icf 
 
 otticers convicted or capital crimes, or ad- to appoint courts 
 judged to be cashiered, in which case, as in'"""''" 
 other instances wherein you shall think it pro- 
 per to suspend the execution of any sentence, 
 the proceedings of a court martial upon such 
 trial are to be transmitted to our judge-advo- 
 cate-general in Great Britain, iu order to their 
 being laid before us for consideration. And, 
 that there may not in any case be a failure of 
 justice from the want of a proper person au- 
 thorised to act as judge-advocate, we do hereby 
 farther empower you, in default of a person 
 appointed by us, or deputed by the judge- 
 advocate-general of our forces, or during ill- 
 ness or occasional absence of the person so 
 appointed or deputed, to nominate and appoint 
 a fit person from lime to time for executing 
 the office of judge-advocate at any such court 
 martial, for the more orderly proceedings of the 
 same. 
 
 And, for enforcing the adjudication or sen- 
 tence of any such court martial, we do also 
 give you authority to appoint a provost mar- 
 shal, to use and exercise that office, as is usually 
 practiced in the law martial. 
 
 And, for exercising the several powers, mat- 
 ters, and things, herein expressed, these shall 
 be, as well to you, as to the said courts mar- 
 
310 
 
 APPENDIX. 
 
 His majesty's tial, and all others whom it may concern, a 
 
 ■warrant ciu- , ^ j 
 
 powering com- sufticicnt waiiant and authority. 
 
 inaiidcr-in-chicf , 
 
 toappoinicouru Ciivcn at our court, of St. James's, this 9tn 
 
 day of October, 1793, in the thirty- 
 fourtli year of our' reign. 
 
 By his majesty's command. 
 (Signed) Henry Dundas. 
 
 To our trusty and well-beloved David Dundas, 
 major-general, and commander-in-chief of 
 our forces at or to the officer 
 
 commanding-in-chief our said forces for the 
 time being. 
 
 5. JVarrant of a Commander-'m- chief to a Bri^ 
 gadier-generalj empoivering him to convene 
 Courts ]\fartial and appoint acting Judge- 
 advocate. 
 
 By his Excellency Lieutenant-Gencral Thomas 
 Trigge, Commander-in-chief of his majesty's 
 forces in the West Indies, kc. Sec. &c. 
 
 By virtue of a warrant under his majesty's 
 sign manual, bearing date the 25th day of 
 March, 1800, authorising me to empower any 
 officer (not under the rank and degree of a 
 field-officer), having the command of a body 
 of his majesty's forces, to convene or cause to 
 be assembled general courts martial, for the 
 
APPENDIX. 
 
 311 
 
 trial and punishment ofnuitiny and desertion, Warramofcom- 
 
 , ,,. . , • i ii Biaiidcr-in-cliicf 
 
 or any other olrencc committed against the empowering 
 rules of military discipline by any olliccr or tJc^nitnc " 
 soldier under his command, every of which *"°"^'*™°"'^" 
 court martial shall consist of a president and 
 competent number of other officers, who can 
 be convenient!}^ assembled to attend the same, 
 regard being always had, as well in the ap- 
 pointment of such president as in the rank and 
 quality of other officers composing such courts 
 martial, to the rules prescribed by an act of 
 parhament, intitled " An Act for the Punish- 
 ment of ]\Iutiny and Desertion, and Articles of 
 War; you are hereby authorised to convene 
 general courts martial for the aforesaid pur- 
 poses, according to the rules and regulations 
 prescribed. And all such courts martial are 
 empowered to hear and examine all such mat- 
 ters and informations as shall be brought before 
 them, touching the misbehaviour of any com- 
 missioned officer, non-commissioned officer, or 
 soldier, by mutiny, desertion, or otherwise, as 
 aforesaid ; and to proceed in the trial of such 
 charges, and giving sentence, and awarding 
 punishment, according to the powers and di- 
 rections contained in the said Act of Parliament 
 and Articles of War. , 
 
 And whereas it is necessary to have a mili- 
 tary discipline kept up amongst the troops un- 
 der your command in as great cxactnesa. as 
 
^^^ APPFNDIX. 
 
 TOa*nd^!in-S poss'iblc, and as nothing can contribute more 
 empowering ^q retain the soldiers in due obedience to their 
 
 bngadter-gen. 
 
 to convene officers, and to make them diho-ent in dischara:- 
 
 courts maxUa!. ' ^ o o 
 
 ing the duty incumbent on them, than bring- 
 ing dehnquents to speedy justice, you are 
 hereby directed, when and as often as the pro- 
 ceedings are closed of any such court martial, 
 legally constituted as aforesaid, to cause the 
 said proceedings to be transmitted for my 
 consideration. And, that there may not be a 
 failure of justice, in any case, from the want of 
 a proper person authorised to act as judge- 
 advocate, you are hereby farther empowered 
 to nominate and appoint a fit person, from 
 time to time, for executing tlie office of judge- 
 advocate at any such court martial, for the 
 more orderly proceedings of the same. 
 
 Given under my hand, at head-quarters, 
 Martinique, this 31st day of July, 
 1300. 
 
 Thomas Trigge, 
 Lieutenant- General. 
 By hisExcellency's command, 
 
 R. A. Darling, 
 Military Secretary. 
 
 To his Excellency the Hon. A. C. 
 Johnstone, brigadier-general, com- 
 manding his majesty's troops in the 
 Island of Dominique. 
 
APPENDIX. 313 
 
 6. Warrant by a Commander-in-chiefs appoint' 
 ing President of a Generah Court MartiaL 
 
 By the Honourable Charles Stuart, Lieutenant- 
 General and Commander-in-chief 6f his Bri- 
 tannic Majesty's Forces in the Kingdom of 
 Corsica, &c. 
 
 Whereas powers and authority are vested in Warrantofcom. 
 
 ■I ^ .' 1 n y mander-in-chief 
 
 me to convene general courts martial for the appoiming pre- 
 trial and punishment of mutiny and desertion, coiSmaxtS."' 
 or any otlier offence committed against the 
 rules of military disciphne by any officer or 
 soldier of the forces under my command ; I do 
 hereby authorise and appoint you to be presi- 
 dent at the general court martial, ordered to 
 be holden on Wednesday, the 26th instant. 
 
 For which this shall be your sufficient war- 
 rant, 
 
 .Given under my hand and seal, at Bastia, 
 this 2.5th day of November, 1794. 
 (Signed) Charles Stuart. 
 
 Lieutenant-General. 
 By order of the Commander-in-chief. 
 
 (Signed) John Drinkwater. 
 
 Secretary. 
 To Robert Brereton, Esq. Major 
 of the 30th, or Cambridgeshire 
 Regiment of Foot. 
 
314 APPENDIX. 
 
 7. JFarrant of a Commander-in-chief to Pre- 
 sident to assemble Court Martial. 
 
 By Francis Dundas, Esq. Lieutenant- General, 
 and commanding his Majesty's Troops at 
 the Cape of Good Hope, and Dependencies 
 thereof. 
 
 To Colonel John Hamilton, of his Majesty's 
 81st Regiment of Foot. 
 
 Warrant to pre By virtuc of thc pou'cr and authority given 
 bie^court^raar™' 4nd granted to mc by his majesty, I do hereby 
 
 tial. 
 
 constitute and appoint you to be president of 
 a general court martial to be held at Wynberg 
 camp, on AJonday next, the 6th of December 
 instant, at ten o'clock. And the said court 
 martial is hereby authorised and required to 
 hear and examine all such matters and informa- 
 tion as shall be brought before them, touch- 
 ing the misbcliaviour of any commissioned 
 officer, non-commissioned officer, or sohher, 
 by mutiny, desertion, or any other offence 
 committed against thc rules of military disci- 
 pline. And to proceed to the trial of sucli 
 charges, and in giving of sentence, and award- 
 ing punishment, according to the powers and 
 
APPENDIX. 315 
 
 directions contained in an act of parliament Warrant to pre 
 
 ,, • • 1 I <^ 4 ( ,^ T-» • 1 • iideiil to asst-m 
 
 now in force, nititlerl ' An Act tor runishnig Lkcounsmar- 
 Mutiny and Desertion, and tor the better Pay- 
 ment of the Army and their Quarters," and the 
 Articles of '\V:\v. And for so doing, this sliall 
 be, to you and all concerned, a sufficient war- 
 rant and authority. 
 
 Given under my liand and seal, at head- 
 quarters, Wit tie Boom, this 3d day of 
 December, 180S. 
 
 (Signed) Francis Dundas, 
 
 Lieutenant-General. 
 (Signed) P. Abercromby, 
 
 ]\IaJor of Brigade. 
 
 8. Warrant of a Commander'in-chief appo'mt- 
 i)ig Military Jiulge-Jdvocate. 
 
 By his Honour Lieutenant-General Francis 
 Dundas, Colonel of liis Majesty's Scotch 
 Brigade, Governor of Carrick Fergus, in 
 Ireland, Lieutenant-Governor, actinp- Go- 
 vernor, and Commander-in-chief, of his Ma- 
 jesty's Town and Settlement of the Cape of 
 Good Hope, in South Africa, and of the 
 
Sl6 APPENDIX. 
 
 Territories and Dependencies thereof, and 
 Ordinary and Vice-Admiral of the same. 
 
 To Captain Robert M'Nab, of his Majesty's 
 i)lst Regiment. 
 
 Warrantofcom- By virtuc of the powcr and authority to me 
 
 mander- in-chief • , i • . -r i ■, ■, 
 
 appointing givcii by his majesty, I do hereby constitute 
 ^" ^*'' '*^"^' and appoint you, Captain Robert M'Nab, of 
 the 91st regiment, to be deputy judge-advocate 
 at the Cape of Good Hope, and as such to per- 
 form all the duties of that avocation to the best 
 of your abilities and understanding, carefully 
 following and obeying all*such instructions and 
 directions as you may from time to time receive 
 from me, or from any other person command- 
 ing his majesty's forces in this colony. And 
 for so doing this shall be, unto you and to all 
 concerned, a full and sufficient warrant and 
 authority. 
 
 Given under my hand and seal, at the 
 Castle of Good Hope, this 14th day of 
 May, 1802. 
 
 Francis Dundas, 
 Lieutenant-G eneral. 
 By his Honour's command, 
 
 T. C. Smyth, Adjutant, 
 Acting Military Secretary. 
 
APPENDIX. 317 
 
 9. Warrant of a Commander-in-chief appoint- 
 ing Acting Judge-Advocate. 
 
 By Cliarles O'Hara, Esq. Majoi-Geiieral ot* 
 his Majesty's Forces, Colonel of the 22d, 
 or Cheshire, Regiment of Foot, Commander- 
 in-chief of the Town and Garrison of Gi- 
 braltar. 
 
 To John Drinkwater, Esq. Captain in the 2d 
 Battalion of his Majesty's 1st, or Royal, Re- 
 giment of Foot. 
 
 By virtue of the power and authority vested warramofcom. 
 in me by his majesty, I do hereby appoint --f;,i;^„^^^^^ 
 you, the said John Drinkwater, to act as de- i«sjudgc-advo. 
 
 •/ ' ' cate. 
 
 puty judge-advocate during the indisposition 
 of John Morrison, Esq. at all such general 
 courts martial as shall be held for the trial of 
 any person or persons who do or.shall belong 
 to any of his majesty's forces serving within 
 the town and garrison of Gibraltar, pursuant 
 to an act of parliament now in force, viz. an 
 act, intitled " An Act for Punishing Mutiny 
 and Desertion, and for the better Payment of 
 the Army and their Quarters,*' and to such 
 Articles of War as shall be established by his 
 majesty, during the continuance of the power 
 
^^^ APPENDIX. 
 
 Av«rrantofcom- and authoritv hereby mven you to act as afore- 
 
 niander-in-cluet *^ *' ^ *' "^•v-'i>_ 
 
 appointinii act- Saicl. 
 
 ingjudije-advo- 1 , , , 
 
 "te. Uiven under my hand and seal at Gibral- 
 
 tar, the 2d day of October, 1787, and 
 in the twenty-seventh year of liis ma- 
 jesty's reign. 
 
 By order of the Commander-in-chief, 
 
 CharIes O'Hara. 
 
 10. JFarrant of a CommandeMn-chief jointly 
 appointing Court Martial, its President, and 
 Judge- Advocate. 
 
 By his Excellency the Honourable Andrew 
 Cochrane Johnstone, Governor of the Island 
 of Dominica, Brigadier-General, command- 
 ing his Majesty's Troops in the said Island, 
 &c. &c. 
 
 By virtue of a warrant, under his Excellency 
 the commander- in-chief's sign manual, bearing 
 date at head-quarters, Martinique, the 31st 
 day of July, 1800, empowering me to convene 
 general courts martial for the trial and punish- 
 ment of mutiny and desertion, or any other 
 offence committed against the rules of military 
 discipline by any ofiicer or soldier under my 
 command, I do hereby order a general court 
 
ArPENDIX. 319 
 
 martial to be assembled on tlie 19th clay ofwarrantap- 
 
 . _, _, • 1 • 1 1 poiiiliiig prcsi- 
 
 August, 1800, at Tort 1 oung, m tlie island dei.t and judge* 
 of Dominica, at nine o'clock in the morning,^ vocac. 
 for the trial of such prisoners as may be brought 
 before it, wliereof Lieutenant-colonel Guard 
 of the 45th regiment is to be president. 
 
 And whereas I have been further autho- 
 rized to nominate a fit person, from time to 
 time, for executing the office of judge-advo- 
 cate at any such court martial, for the more 
 orderly proceeding of the same, I do, there- 
 fore, hereby appoint Gilbert Salton, Esq. to 
 officiate as judge-advocate at the general court 
 martial hereby ordered to be assembled, and 
 for so doing these shall be, as well to the said 
 Lieutenant-colonel Guard and Gilbert Salton 
 as to all others whom it may concern, a full 
 and sufficient authority for executing the several 
 matters and things herein expressed. 
 
 Given under my hand and seal at arms, 
 at the Government-house, Dominica, 
 this 18th day of August, 1800. 
 
 Andrew Cochrane Johnstone. 
 
 To Lieutenant-Colonel Guard, 45th Regiment, 
 and Gilbert Salton, Esq. the former ap- 
 pointedPresident, and the latter to officiate 
 as Judge-advocate, at a general court mar- 
 tial, . to be convened at Fort Young. 
 
320 APPENDIX. 
 
 11. Warrant of a Commander-in-chief for exe- 
 cuting Sentcfice of Death, 
 
 B}^ the Right Hon. the Earl of Cavan, Major- 
 General of his Majesty's Forces, and Com- 
 mand ing-in-chief in Egypt, &c. &c. &c. 
 
 To Major-General Baird, Colonel of his Ma- 
 jesty's 54th Regiment, &c. &c. &c. 
 
 «ut"nglln'"* Whereas by an act passed in the 41st year 
 tence of death, ^f ^j^g rcign our Sovcrcign Lord George the 
 Third, intitled, " An Act for Punishing Mu- 
 tiny and Desertion, and for the better Pay- 
 ment of the Army and their Quarters," it is 
 enacted, that his majesty may grant his war- 
 rant to the persons commanding -in-chief his 
 majesty's forces, for convening or authorising 
 any officer not under the degree of a field- 
 officer to convene, general courts martial, for 
 the trial of offences committed by any of the 
 forces under their command : 
 
 And whereas by a general court martial, le- 
 gally assembled in the town of Alexandria, on 
 the 23d day of April last, by virtue of a war-, 
 rant, authorising me to convene the same as 
 aforesaid, Cochran Hamlam, private soldier in 
 his majesty's 8Sth regiment, has been found 
 
APPENDIX. 521 
 
 guilty of the crime of desertion, and lias been Warrant for «• 
 
 editing «cu- 
 
 sentenced to be shot to death :* lence ot death. 
 
 And whereas I have found it expedient, for 
 tJie good of his majesty's service, to approve of 
 the judgement of death, thus given against 
 this prisoner, and to direct that the same shall 
 be carried into execution. 
 
 I do therefore hereby require that you, ma- 
 jor-general Baird, do on Wednesday next, the 
 5th day of May, between the hours of five and 
 twelve o'clock in the morning, carry the said 
 sentence into execution, by causing the said 
 prisoner, Cochran Hamlam, to be shot dead;* 
 and for so doing this shall be to you, and to all 
 others concerned, sufficient warrant and au- 
 thority. 
 
 Given under my hand and seal, at head 
 quarters, Alexandria, this 4th day of 
 May, in the year of our Lord 1802. 
 (Signed) Cavan, 
 
 Major-General, Commanding-in-chief. 
 By his Lordship's command. 
 
 (Signed) S. J. Popham, 
 
 Captain, Secretary. 
 
 * If to be hanged,—" to be hanged until he is dead," are 
 the terms to be substituted. 
 
322 APPENDIX, 
 
 II. PRECEDENTS. 
 
 1. Notification of Judge- Advocate on a General 
 Court Martial to the President, 
 
 Horse- Guards, 2'3cl Feb. 1792. 
 
 Sir, — I take the earliest opportunity of ac- 
 quainting you, that his majesty has signed a 
 warrant, by which you are appointed president 
 of a general court martial, which is proposed 
 to be holden at Portsmouth, for the trial of 
 three officers of the 54th regiment of foot, 
 upon sundry articles of charge which have 
 been exhibited against them. I shall take care 
 that you have convenient notice, when a day 
 can be fixed for the meeting of the court mar- 
 tial, and will also send you a copy of the re- 
 spective charges. The present intimation is 
 intended only to apprize you of the intention, 
 that you may not, from want of knowing it, 
 remove to a distance from Portsmouth less con- 
 venient than Chichester. 
 
 Can you have the goodness to recommend a 
 proper person to assist as judge-advocate upon 
 the occasion, and who may be acceptable to 
 you? 
 
 I have the bonour to be, sir, 
 
 Your most obedient and most humble servant, 
 Charles Gould. 
 Major-General Crosbie. at Chichester. 
 
APPENDIX. 3C^ 
 
 2. Notification of Judge- Advocate to President ^ 
 individuallij to attend. 
 
 Judge-Advocate-GeneraVs Office, 
 7th October, 1809. 
 His majesty having been pleased to sign 
 two special warrants, in which you are named 
 president, directing that a general court mar- 
 tial be holden for the trial of John Watts and 
 Solomon Everill, private soldiers, in the King's 
 Own Staftbrdshire Regiment of Mihtia, I have 
 to acquaint you that the same is appointed at 
 the Royal Hospital at Chelsea, on Thursday 
 next, and to desire that you will be pleased to 
 meet the other officers there, who are ap- 
 pointed for that duty, at teu o'clock in the 
 morning. 
 
 I have the honour to be, &c. &c. 
 
 R. Rider. 
 Colonel B . 
 
 3. Notijication of Judge-Advocate on a General 
 Court Martial to the Prosecutor. 
 
 Horse-Guards, SSd Feb. 1792. 
 Sir, — Having received his majesty's warrant 
 for convening a general court martial, for the 
 Y 2 
 
APPENDIX, 
 
 trials of Captain Richard Powell, and Lieute- 
 nants Christopher Seton and John Hall, of the 
 5-tth regiment of foot, upon several charges, 
 which I an) given to understand have heen pre- 
 ferred by you against those officers respec- 
 tively, as specified in the paper hereunto an- 
 nexed, I am to desire you will inform me whe- 
 ther there are any witnesses necessary to prove 
 those charges, whom you wish to be officially 
 summoned. 
 
 When I shall have received your answer, and 
 the answers of the officers to be tried to the 
 like question, I shall be enabled to form a 
 judgment of the probable time of the court's 
 meeting, which is proposed to be holden at 
 Portsmouth or at Hilsca barracks. 
 
 I am, sir, your humble servant, 
 
 Charles Gould, 
 Judge-Advocate General. 
 
 Mr. William Cobbett, late Ser- 
 jeant-Major of the 54th Regiment 
 
 of Foot, No. , Felix-Street, 
 
 Lambeth. 
 
 4. Notification of Judge- Advocate on a General 
 Court Martial to the Prisoner. 
 
 Horse- Guards, 23d Feb. 1792. 
 
 Sir, — Having received his majesty's warrant 
 
 for convening a court niariiul for your trial, 
 
APPENDIX. 325 
 
 and also for the trials of Captain Powell and 
 Lieutenant Seton, of the 54th regiment of foot, 
 upon charges exhibited against you and them 
 respectively, I take the earliest opportunity of 
 sending you a copy of those charges which re- 
 spect you ; and am to desire if there are any 
 witnesses whom you wish to be officially sum- 
 moned as material for your defence, that you 
 will transmit their names and address. 
 I am, sir, 
 
 Your most obedient and most humble servant, 
 Charles Gould.* 
 Lieutenant John Hall, of the 
 
 54th Regiment of Foot. 
 
 5. Notificatio7i of Judge- Advocate to the Com- 
 manding Officer of a Regiment to pi^oducc 
 intnesses and Regimental Books. 
 
 Horse-Guards, 15th March, 1792. 
 My Lord, — I believe your lordship was in- 
 formed that his majesty had deemed it neces- 
 sary, all circumstances considered, that the in- 
 tended court martial, for the trial of Captain 
 Powell, Lieutenant Seton, and Lieutenant Hall, 
 of the 54th regiment, upon the charges ex- 
 
 • If the etiquette of a letter be subtracted, the same form 
 must serve for a private soldier. 
 
325 APPENDIX. 
 
 icotification of hibltcd against them respectively by Mr. Wil- 
 ttTCpZTc" liam Cobbett, should be held in London, which, 
 mental dlcu- SO far as TCspects myself personally, I had 
 nients. abundant reason to wish might have been as- 
 
 sembled at Portsmouth. 
 
 Having reason to suppose that all the wit- 
 nesses necessary, for supporting or repelling 
 the' charges, can be had upon a short notice, I 
 ' now propose to convene a general court mar- 
 tial, the latter end of next week, Friday the 
 23d, or Saturday the 24th, at the latest. 
 
 And in consequence of a formal application 
 made to me in writing by the prosecutor, the 
 said WilHam Cobbett, stating those several 
 papers and books to be necessary documents, 
 I am to request that your lordship will give 
 such orders as may insure their production at 
 the trial, under the direction of the court mar- 
 tial, of *' all the regimental and company 
 books, containing accounts from the 1st Sept. 
 1787, to the 1st Oct. 1791."— By the regi- 
 mental books the prosecutor explained, ''that 
 he means the review- book, the description- 
 book, the register of appointed and reduced, 
 &c. non-commissioned officers, the montlily 
 return-book, the orderly-book, the distribu- 
 tion and annual account book, the abstract- 
 book, the two monthly state books, and the 
 quarter-master's books : " by companies' books, 
 he means the books of every company in the 
 
APPENDIX. 327 
 
 regiment, where the particular accounts of the NotiCcaUon of 
 
 • . 1 iii 1 , judge-advocate 
 
 non-commissioned omcers, and men, are kept, lor the produo. 
 I have the honour to be, I\Iy Lord, Tentd dSu- 
 Your Lordship's most faithful "'"^*' 
 
 and most obedient Servant, 
 
 Charles Gould. 
 Major Lord Edward Fitzgerald, 
 of the 54th Regiment of Foot. 
 
 €. Smnmojis of Judge-Advocate to JVitnesses. 
 
 Judge-Advocate's Office, Horse-Guards, 
 
 17th IMarch, 1792. 
 A general court martial being appointed to 
 be held here on Saturday next, the 24th inst. 
 at ten o'clock in the morning, for the trial of 
 three officers of the 54th regiment of foot, 
 upon several charges respectively preferred 
 against them by Mr. William Cobbett, late 
 serjeant-major of the said regiment ; and your 
 testimony having been represented by him as 
 material upon the said trial, I am therefore to 
 desire you, and you are hereby summoned to 
 give your attendance, in order to your being 
 examined as a witness. 
 
 Charles Gould, 
 Judge-Advocate General. 
 Mr. Jacob Margas. 
 
APPENDIX, 
 
 7. Minutes of Proceedings, including a written 
 Address of a Soldier, stating his Cause of 
 Appeal from Jlegimental to General Court 
 Martial, 
 
 Castle of Good Hope, 17th May, 1802. 
 This day assembled, agreeably to the general 
 orders of Lieutenant-general Dundas, the ge- 
 neral court martial, consisting of Brigadier- 
 general J. P. Vandaleur, president, 
 
 MEMBERS, 
 
 Lieutenant-colonelJames Catlin Craufurd, c)ist 
 ^lajor William Parr, — — 22d, 
 
 Robert Gordon, — 34th. 
 
 Captain J. li. Fitzsimmons, — 65ih, 
 
 ■■ B. Fenwick, — R. A. 
 
 John Culton — — do. 
 
 A. Campbell, — Cape R. R. 
 
 Major George Dodsworth, — 34th. 
 
 William Kersleman, — R. E. 
 
 Richard Stewart, — 65th. 
 
 Captain J. B. Garstin, — do. 
 
 Stephen R. Chapman, — R. E. 
 
 Edward, — _ 81st. . 
 
 Captain Robert M'Nab, 91st Regiment, De- 
 puty Judge-advocate, 
 
APPENDIX. 
 
 Major Glegg, 91st regiment, being, from 
 sickness, unable to attend his duty as a mem- 
 ber, the court proceed with the remaining 
 fourteen members, having previously given the 
 parties concerned notice, in public court, that, 
 when the opinions of the members are to be 
 collected, the junior officer will not vote, pro- 
 vided at that time the court should continue 
 fourteen members.* 
 
 The president, members, and judge-advocate, 
 respectively sworn. 
 
 The prisoner before the court being Serjeant 
 Joseph Ginger, of the 34th regiment, who 
 appeals from the sentence of a regimental court 
 martial ; and which court assembled on the 
 26th of April last, at Stellenbosch, consist- 
 
 S29 
 
 ing of 
 
 Captain W. Tenwick, 34th regiment, president. 
 
 MEMBERS. 
 
 Lieutenant Dickens — 34th reg. 
 Johnson, — tlitto. 
 
 * A variation in the form naturallj euggcsts itself in this 
 place, namely, the commanding officer's orders for asscm- 
 lling the general court martial should be read and inserted ni 
 the preamble of the minutes; and it Nvould not be amiss to 
 insert also the appellant's petition or memorial to the com- 
 mander in chief, in the same manner as letters of accusation 
 are done in the minutes of naval and military courts mar- 
 hal. 
 
APPENDIX. 
 
 Lieutenant Terriwest, — 34th reg. 
 
 ■ Tew% — — ditto. 
 
 Charges upon which the appellant was tried 
 before the said regimental court martial : 
 
 " Serjeant Ginger, 34th regiment, confined 
 by order of Colonel Dickens, commanding 
 34th regiment, for disobedience of orders, be- 
 ing out of his barracks after hours, and unsol- 
 dier-like behaviour to Lieutenant Dawson, on 
 the night of the 18th Apiil." 
 
 Sentence pronounced by that Court Martial. 
 
 ** The court are of opinion, that the pri- 
 soner, Serjeant Ginger, is guilty of the crimes 
 laid to his charge (being a breach of the Arti- 
 cles of War), do therefore sentence the pri- 
 soner to be reduced to the ranks to serve as a 
 private soldier, and also receive five hundred 
 Jashes, in the usual manner, at such time and 
 place as the commanding officer may think 
 proper. 
 
 (Signed) W. Fenwick, 
 
 President, and Captain 34th Regiment.*' 
 *' Approved and ordered to be put into 
 Execution at the Castle of Good 
 Hope, upon Wednesday, the 28th April, 
 1802. 
 
 (Signed) 11. M. Dickens, 
 
 Colonel, commanding 34th Regiment.'* 
 
APPENDIX. 
 
 Colonel R. ^f. Dickens, comniandinf^ the 
 34th regiment, duly sworn, acknowledges that 
 the regimental court maitiid holden on Serjeant 
 Ginger, and now hefore the court, assembled 
 by his order, and the sentence approved of by 
 him, as docketed on the proceedings of the 
 court. 
 
 The prisoner being asked by the judge-ad- 
 vocate, in open court, if he was the person 
 who appealed from the sentence of the regi- 
 mental court martial; he answered, yes; and 
 pleaded not guilty to the charge on which he 
 was tried, and now before the court. 
 
 Appellant's Address. 
 
 " ^Ir. President, and Gentlemen of this 
 most honourable Court. 
 
 *' I am extremely sorry to be under the ne- 
 cessity of giving you so much trouble. 
 
 ** Nothing but the fullest conviction of my 
 having been extremely ill-used and degraded, 
 which, I trust, I shall prove by my conduct 
 never to have merited, being conscious of hav- 
 ing at all times, and in every situation I have 
 been placed in, supported a character free from 
 reproach ; my anxiety to clear it from tin; stain 
 it has received, and rescue? it from the further 
 ignominy that must be attached to it, by sub- 
 mitting to the sentence of the court martial at 
 
 ZZ\ 
 
332 APPENDIX. 
 
 Stcllenboscli, could have induced me to appeal 
 to this most honourable court. 
 
 " To say nothing of the abuse I received 
 from Mr. Dawson, which was adjusted by a 
 court of inquiry, on the day following that 
 transaction. 
 
 *' I cannot but observe, that a man of the 
 worst conduct and character, and charged 
 ■with committing the most atrocious crime, 
 could not have been escorted to Stellenbosch in 
 a more ignominious manner. 
 
 " And, I conceive, both in the formation 
 and proceeding of that court martial, it will 
 appear somewhat singular ; in the formation, 
 b}'' placing, as one of the members, an officer, 
 who was, at that time, on other duty, and in 
 the proceedings by my being debarred of hav- 
 ing the principal evidences necessary to enable 
 ine to support my defence. 
 
 " And, I also consider, that the charges ex- 
 hibited against me were not substantiated by 
 any evidence that could warrant the severe 
 sentence awarded against me. 
 
 " On reviewing minutely my conduct, du- 
 ring the whole of this affair, I feel myself to 
 liave been most unworthily treated : and, it 
 appeared to me, that no other means pre- 
 sented itself of obtaining any redress than by 
 laying my grievances before a general court 
 martial. 
 
APPENDIX. S33 
 
 *' Mr. President, and Gentlemen of this ho- 
 nourable Court, I have now stated an imperfect 
 outline of the motives that influenced me to 
 appear before you ; and, confident, that you 
 will have the goodness to make every allowance 
 for a man in my situation, I commit myself 
 into your hands, fully persuaded that your de- 
 cision will be guided by the principles of ho- 
 nour and justice. 
 
 (Signed) *' Joseph Ginger.'' 
 
 Resolution of the Court. 
 
 The court proceed to examine the several 
 witnesses who had given their testimony before 
 the regimental court martial, and called in the 
 same order. 
 
 Lieutenant and Adjutant Dawson, 34th re- witnw. 
 giment, duly sworn; and, the following evi- 
 dence given before the the regimental court 
 martial being read over to him, he confirms it. 
 
 Evidence by Mr. Dawson. 
 
 Lieutenant and Adjutant Dawson informs 
 the court, that, about eleven o'clock of the 
 night of the 18th instant, he met the prisoner 
 out of his quarters on the works of the castle ; 
 that he ordered him twice or thrice home, and 
 
534 APPEJ^DIX. 
 
 that the prisoner did not appear willing to 
 obey the orders, but entered into a conversa- 
 tion of a very irritating nature, and at last 
 said he would go when he got his hat, upon 
 which the evidence ordered him home without 
 it; the prisoner attempted going for his hat, 
 when the evidence took him by the collar to 
 prevent him. Serjeant Ginger then said, he 
 would not suffer such usage from any man, 
 and immediately struck the evidence on the 
 face; a scuffle ensued, when several blows 
 passed on both sides. The above circumstance 
 happening near the quarters of the drum- 
 major and Serjeant Quintin, the noise brought 
 them out. 
 Qncstion bj the Was the busiucss of the night of the 18th 
 
 appellant. . 
 
 April brought before a court of inquiry by order 
 
 of the commanding oflicer ? 
 Answer. Jt ^^^5 thc ucxt morniug. 
 
 Quest icn by the After that court was closed, did you apolo- 
 
 • appellant. , n ^ t 1 i • 1 
 
 gize to me tor the treatment 1 had received 
 from you on the preceding night, in pre- 
 sence of some Serjeants, and from that time 
 did you consider the matter to have been 
 finally settled ? 
 Answer. After the court of inquiry I saw the pri- 
 
 soner, and from his misconduct of the night 
 before, which caused me to strike him, his 
 face was a good deal hurt; I sent for the 
 
APPENDIX. 
 
 *|j'35 
 
 tliree serjeants who were present at part of 
 the business, and mentioned before them to 
 the prisoner, that, in consequence of my strik- 
 ing him as I had done, I would forgive him ; 
 but desired him to notice, that, if I had 
 brought the matter forward and had not 
 struck him, the serious situation he would be 
 in; which he admitted. I added, that I was 
 sorry I had used him so, but that his miscon- 
 duct had occasioned it, as he was a person I 
 had a respect for. 
 
 In the conversation you had with me in the Question by tu* 
 
 orderly-room, after the departure of the ser-*^ 
 jeants, do you recollect that I observed to 
 
 you, that my epaulettes were lost and my trow- 
 
 sers spoiled ? 
 
 1 do. And ordered him a new pair of trowsers, Answer. 
 
 adding I should pay for them as well as his 
 
 epaulettes if he could not find them. 
 
 The court adjourned till to-morrow at eleven 
 
 o'clock. 
 
 Castle of Good Hope, 18th May, 1802. 
 
 Lieutenant Dawson, Adjutant of the 34th 
 regiment, duly sworn. 
 
 Was I serjeant-major of the regiment on the Q"«t'<"> ''y »ii» 
 night of the 18th April, and mustered regu- 
 larly in the regiment as such on the 24th of the 
 preceding month ? 
 
 He was, and mustered as such. Answer. 
 
330 APPENDIX. 
 
 Question by tiie ^V'as hc Tcduced by the sentence of any court 
 •""'■ martial from the situation of serjeant-major, 
 
 until the regimental court martial assembled at 
 Stellenbosch on the ^6th April last ? 
 Answcf. He was not tried, but Colonel Dickins or- 
 
 dered him to be reduced from serjeant-major 
 to Serjeant. 
 
 Colonel Dickens in the court acknowledges 
 that the prisoner was mustered as serjeant- 
 major and reduced by him from that situation 
 to Serjeant, by his regimental order, issued the 
 £4th April, a copy of which here follows: 
 
 Copi/, Regimental Orders by Colonel DickeuSy 
 Q4th Jpril, 1802. 
 
 " Serjeant-major Ginger is no longer to be 
 considered as serjeant-major of the 34th regi- 
 ment, or to be obeyed as such. He is trans- 
 ferred to the grenadier-company, and to be 
 sent over immediately to Stellenbosch in hand- 
 cuffs, under the charge of one serjeant, one 
 corporal, and twelve privates. Lieutenant and 
 Adjutant Dawson, Serjeant Quintin, Neale, 
 and Baker, are also to repair to Stellenbosch 
 immediately on receipt of this order." 
 
APPENDIX. 337 
 
 Resolution of the Court. 
 
 It liaving been clearly proved to the court, 
 that the appellant was serjeant- major of the 
 34th regiment, and regularly mustered as such, 
 and tried by the court-martial from which he 
 has appealed as a serjeant: it therefore ap- 
 pears to the court, that the proceedings of the 
 regimental court martial are invalid, inasmuch 
 as that the appellant was not, by any sufficient 
 authority, reduced from the rank and pay of 
 scrjeant-major to that of a serjeant. The ge- 
 neral court martial, therefore, rest their pro- 
 ceedings, until this opinion be submitted to 
 the commander-in-chief, and receive his orders 
 as to any farther investigation. 
 
 (Signed) J. P. Vandeleuh, 
 
 Brigadier-general and President. 
 (Signed) Robert M'NaB. 
 
 Deputy Judcre-advocate. 
 
 The court adjourned till to-morrow at eievea 
 o'clock. 
 
 Castle of Good Hope, 19th May, 1 80i>. 
 The court assembled, and the following let- 
 ter received from Lieutenant-general Dundas, 
 read : 
 
33S APPENDIX. 
 
 Government-House, 19th May, 1802. 
 Sir, 
 I have had the honour to receive an extract 
 from the; proceedings of the general court 
 martial of which you are president, submit- 
 ting to my consideration a difficulty which 
 has arisen in the progress of the appeal made 
 from a regimental court martial by the serjeant- 
 major of the 34th regiment, arising from his 
 previous reduction from the rank and pay of 
 scrjeant-major to that of seijeant, which ap- 
 pears to the court to have been done without 
 sufficient authority ; and I have to signify my 
 concupence in opinion with the court, that 
 as there is not any competent regimental au- 
 thority by which a non- commissioned officer 
 can be degraded, unless by the sentence of a' 
 court martial, I have to request that the general 
 court martial, of which you are president, will 
 not proceed in the investigation of the appeal 
 at present before them, until the court have 
 inquired, in the first instance, and reported to 
 me the particulars which may have occasioned 
 the degradation of Serjeant-major Ginger to 
 the rank of Serjeant, together with such other 
 circumstances as may have occurred in his 
 subsequent trial by a regimental court martial, 
 in order to enable me to judge how fiir the pro- 
 
APPEXDTX, S3.9 
 
 ceedings in this case have hecn regular and 
 agreeable to the rules of his majesty's ser- 
 vice. 
 
 I have the honour to be your most obedient 
 and most humble servant, 
 
 (Signed) Francis Dundas, 
 
 Lieutenant-general. 
 To Brigadier-general Vandeleur, 
 
 President of a General Court 
 
 Martial. 
 
 In consequence of the foregoing letter the 
 court desired Colonel Dickens, who was duly 
 sworn, to state the particulars accordingly. 
 
 Stateinait by Colonel Dickens. 
 
 Statement of the circumstances which in- 
 duced Colonel Dickens to reduce Serjeant Gin- 
 ger from serjeant-major to Serjeant. 
 
 When Lieutenant-general Dundas visited 
 Stellenbosch in the latter end of April, I heard, 
 from a report brought by Lieutenant Baker, 
 his aid-de-camp, that a very serious breach of 
 discipline had taken place in the 34th regi- 
 ment ; that Sergeant-major Ginger had struck 
 Lieutenant and Adjutant Dawson, and be- 
 haved in a most mutinous and unsoldier-like 
 manner. In consequence of this report, I 
 
APPFNDIX. 
 
 wrote to Major Dodsworth, expressing my 
 surpri;?e that such a circumstance should have 
 occurred without its being reported to me. I 
 received an answer from Major Dodsworth, 
 inclosing me the proceedings of a court of in- 
 quiry which had been held on the business; 
 and I was so forcibly struck with the impro- 
 priety of Serjeant Ginger's conduct, from what 
 he himself urged in his justification, that I 
 issued a regimental order that he was no longer 
 to be obeyed as serjeant-major ; but transferred 
 him as serjeant to the grenadier company, and 
 ordered a regimental court martial, which 
 tried and found him guilty. The sentence 
 of that court martial he had appealed against. 
 
 ]\ly letter to Major Dodsworth, as well as 
 the regimental order, which I beg to read, 
 will shew that my opinion, from the first, was 
 decidedly that Serjeant Ginger should have 
 been tried by a general court martial in the 
 first instance. But the steps which had been 
 taken before the matter came to my knowledge 
 having rendered that measure ineligible, I was 
 under the necessity of marking my disapproba- 
 tion as strongly as I could of such mutinous 
 and unsoldier-like conduct. 
 
APPENDIX. 341 
 
 Copy of the Regimental Ordei^s referred to in 
 the foregoing Statement. 
 
 27th April, 1802. 
 R. O. 
 
 The regimental court matial of which Cap- 
 tain Fenwick is president, and by which Serje- 
 ant Ginger was tried for disobedience of orders, 
 being out of his barracks after hours, and un- 
 soldier-like behaviour to Lieutenant and Adju- 
 tant Dawson, on the night of the 1 8th instant, 
 having found the prisoner guilty of the crimes 
 laid to his charge, have sentenced him to be 
 reduced to serve in the ranks as a private sol- 
 dier, and to receive five hundred lashes in the 
 usual manner, at such time and place as the 
 commanding officer shall think proper. 
 
 Colonel Dickens approves of the above sen- 
 tence, and directs that it be carried into execu- 
 tion on Wednesday, the 28th instant, at such 
 time as Major Dodsworth shall appoint. 
 
 Colonel Dickens cannot, consistently with 
 his duty, omit, on this occasion, to observe, 
 that had not particular circumstances pre- 
 vented it, he would most assuredly have brought 
 this matter to a much more serious issue, which 
 the good of his majesty's service, and the dis- 
 
APPENDIX. 
 
 cipline of the 34th regiment especially, appear 
 to him to have demanded. 
 
 (A true Copy.) 
 (Signed) William Dawson, 
 
 Adjutant 34th Regiment. 
 
 Report of the Court in Obedience to the fore- 
 going Letter, 
 
 The court having, in obedience to the di- 
 rections of Lieutenant-general Dundas, called 
 upon Colonel Dickens to state the circum- 
 stances that occasioned the degradation of Ser- 
 jeant-major Ginger: 
 
 The cqurt beg leave to refer the lieutenant- 
 general to Colonel Dickens' statement, given 
 on oath, No. 1, with the regimental orders of 
 the 24th and 27th of April, issued by him. 
 
 The court have to state that Colonel Dickens 
 commanded a detachment of the troops at 
 StfUenbosch, and ordered the prisoner to be 
 sent to that post, where he was tried by 
 officers of the 34th flank companies on that 
 detachment. An^ it appears that previous 
 thereto, the officer commanding the 34th regi- 
 ment in the castle, (at which place the offisnce 
 is stated to have been committed,) had, after 
 inquiry into the circumstances which happened 
 on the night o,f the 18th April, permitted the 
 
APPENDIX, 
 
 prisoner to return to his duty, and continue 
 at it until the receipt of the order issued by 
 Colonel Dickens. The court have farther to 
 add, that the two field-officers and senior cap- 
 tain, on the spot, having made every possible in- 
 quiry, conceived it the best for both parties, 
 and the credit of the service, that the matter 
 should be made up privately ; more particularly 
 as they had strong grounds for supposing that 
 the adjutant was much in liquor, and had 
 acted with unbecoming violence. 
 
 (Signed) J. P. Vandeleur, 
 
 Brigadier-general and President. 
 
 (Signed) Robert M'Nab, 
 
 Deputy Judge-advocate. 
 Castle of Good Hope, 19th May, 1802. 
 
 The court adjourned till to-morrow at eleven 
 o'clock. 
 
 Castle of Good Hope, 20th May, 1802. 
 The court assembed and adjourned till to- 
 morrow. 
 
 Castle of Good Hope, 2 1st May, 1802. 
 The court assembled this day, and the fol- 
 lowing letter from Lieutenant-general Dundas, 
 addressed to the president, together with the 
 whole proceedings and letters, as duly recorded, 
 were publicly read in court, and in the presence 
 
 343 
 
APPENDIX, 
 
 of Colonel Dickens, commanding the 34th re* 
 giment, and the appellant, Serjeant-major Gin- 
 gpr, of the s^me regiment, 
 
 CqP^ of Lieutenant' general Dimdas's Letter to 
 the President, 
 
 Government- House, 2 1st May, 1802. 
 Sir, 
 I have the honour to acknowledge the re- 
 ceipt of your letter of the day before yester- 
 day, stating, in compliance with niy wishes, 
 as expressed in my letter of the 19th instant, 
 the circumstances which have occasioned some 
 irregularities in the trial of Serjeant-major Gin- 
 ger, of the 34th regiment, by a regimental 
 court martial, the proceedings of which are 
 now in appeal before the general court martial 
 of which you are president; and having duly 
 considered all the particulars of the case, as 
 stated by you in the aforesaid report, I have 
 to inform you, that the proceedings of the 
 regimental court martial, held on Serjeant- 
 major Ginger, 34th regiment, having been 
 irregular, must therefore be cancelled accord- 
 ingly. And I have to desire you will signify 
 to the general court martial of which you are 
 president, that the proceedings of the 34th re- 
 gimental court martial having thus become 
 
APPENDIX. 345 
 
 invalid, the appeal from the sentence is conse- 
 quently no longer a matter to be submitted to 
 the consideration of the general court mar- 
 tial, it being my intention to order Serjeant- 
 major Ginger to be released, and return to 
 his duty as serjeant-major of his majesty's 34th 
 regiment. 
 
 I have the honour to be your most obedient 
 and most humble servant, 
 
 (Signed) Francis Dundas, 
 
 Lieutenant-G eneral. 
 Brigadier-general Vandeleur, Sec. Sec. 
 
 (Signed) Robert M'Nab, 
 
 Deputy Judge-advocate. • 
 
 8. General Orders, includhig Line Orders, for 
 
 an E.V edition. 
 
 GENERAL ORDERS. 
 
 Adjutant-general's Office, 
 Alexandria, Egypt, May 4, 1802. 
 The Artillery, Engineers, £6th Dragoons 
 dismounted, and the whole of the Infantry, 
 will parade at half-after- five o'clock to-morrow 
 morning, on the low ground in rear of the re- 
 giment of Dillon, instead of the garrison pa- 
 rade, as directed in the general orders of the 
 28th ult. for the purpose of witnessing the ex- 
 
346 APPENDIX. 
 
 Cen. orders for ecutioii of thc prisoncrs HOW undcv sentence of 
 
 an execution. 
 
 death. 
 
 The general commanding expects that re- 
 giments and corps will, on this occasion, pa- 
 rade as strong as possible. 
 
 Five execution parties, consisting of a Ser- 
 jeant and twelve rank and file each, will parade 
 at a quarter before five o'clock to-morrow- 
 morning, at the provost-martial's guard. 
 
 Four of these parties will be given by the 
 88th, and the fifth by the 6lst Infantry. 
 
 The provost-martial \vill take the immediate 
 command of these parties, at their arrival at 
 his guard, and will communicate their orders 
 to them. 
 
 All the guards of the garrison and advanced 
 posts, with the exception of the quarantine 
 guard, those of forts Cretin, CafFarelli, Turk, 
 and Cleopatra's redoubt, will leave their sentries 
 at their respective posts, and repair themselves 
 to the provost-martial's guard, at a quarter 
 before five o'clock, for the purpose of escorting 
 the prisoner to the place of execution. 
 
 All these guards, as well as the execution 
 parties, under the immediate direction of the 
 provost-martial, will be commanded by the 
 field-officer of the day, coming on duty, and 
 Mill receive such further directions from him as 
 may be necesbarv. 
 
APPENDIX. S47 
 
 Gen. ordert, &c 
 for an execu- 
 tioa. 
 
 Line-Orders, by Major-general Baird. 
 
 The several corps of the line will parade to- 
 morrow morning, at the appointed hour and 
 place, three deep, but be prepared to form two 
 or four deep, as may be necessary, and they 
 will draw up, so as to form the three sides of a 
 square. The Artillery, Engineers, the Dra- 
 goons dismounted, 10th Infantry, and the 
 right wing of the Gist regiment, forming the 
 first or right face; the left wing of the 6 1st, 
 the guards of the day, and the 88th regiment, 
 the second or rear face; and the regiments of 
 Roll, Dillon, Watevilles, and Chasseurs Bri- 
 tanniques, the third or left face. 
 
 The execution parties in divisions, preceded 
 by a band of music, and a corps of drummers, 
 with the provost-martial on horseback at their 
 head, will march, in ordinary time, in front of 
 the prisoners, the music playing the dead 
 march in Saul. 
 
 The Guards, formed in divisions also, M'ill 
 march in rear of the prisoners. The captain of 
 the day will command the main guard, which 
 will lead, and the other guards will follow in 
 succession, according to the rank of their re- 
 spective regiments. 
 
348 APPENDIX. 
 
 Cen. orders. &c. Tlic processioii M'lll comc iiito tlic SQuarc 
 
 for an execu- * ' 
 
 *»""• from the rear, by the right of the Artillery, 
 
 and the music and drums, of each corps, will 
 beat to the slow march in Saul, as the proces- 
 . sion passes along its front. 
 
 The execution parties are to march along the 
 front of the whole line, and as far as the centre 
 coffin, where the three first divisions will halt, 
 and wheel back on their right pivots in line. 
 The fourth and fifth divisions will continue to 
 advance, until they can form opposite to the 
 three first, by wheeling back into line on tlieir 
 left pivots. 
 
 The music will then cease. 
 
 The guards will march along the right face 
 only of the square, and will form between the 
 left wing of the 6Jst and &8th regiments, by 
 dressing on their left pivots on the latter corps, 
 and wheeling backwards on their left into 
 line. ' 
 
 The officers commanding the guards, must 
 be cautious to preserve an interval sufficient for 
 the division preceding them. 
 
 The band and corps of drums will be fur- 
 nished by Dillon's regiment 
 
APPENDIX. 349 
 
 9. ylct of Parliament foi- the Proclamation of Proclamation 
 
 -^ ^ -^ ol iMarUal Law. 
 
 Martial Laxc. 
 
 Statute passed in Ireland, anno 1798, for the 
 Enactment of jMartial Law, entitled, ''An 
 " Act for the suppression of the RebeUiou 
 " which still unhappily exists within this 
 " Kingdom, (Ireland,) and for the Prolec- 
 *' tion of the Persons and Properties of his 
 *' Majesty's faithful Subjects within the 
 " same." 
 
 Whereas a traitorous conspiracy, for the 
 subversion of the authority of his majesty and 
 the parliament, and for the destruction of the 
 established constitution and government, hath 
 unfortunately existed within this kingdom for 
 a considerable time, and hath broken out in 
 acts of the most daring and open rebellion : 
 
 And whereas his Excellency Earl Camden, 
 then Lord- Lieutenant General and General 
 Governor of Ireland, did on the 30th of ]\Iarch, 
 1798, by and with the advice of the privy 
 council of this kingdom, issue his most direct 
 and positive orders to the officers commanding 
 his majesty's forces, to employ them with the 
 utmost vigour and decision, for the immediate 
 suppression of the said rebellion, and did, by 
 
550 APPENDIX. 
 
 Proclamation 
 ef Miutiiil Lav 
 
 Prociatna.ion^ j^jg pFoclamation of thc same date, by and with 
 
 the advice of the privy council, notify the 
 same : 
 
 And, whereas, notwithstanding the said 
 orders, so issued as aforesaid, the said rebel- 
 lion did very considerably extend itself, inso- 
 much that large bodies of armed traitors did, 
 openly, array themselves, and make the most 
 daring and violent attacks upon his majesty's 
 forces, and committed the most horrid excesses 
 and cruelties on the properties and persons of 
 his majesty's loyal subjects : 
 
 And whereas, for the more effectual sup- 
 pression of the said daring and unprovoked re- 
 bellion, his Excellency the said Earl Camden 
 did, on the 24th of May, 1798, by and with 
 the advice of the privy council, issue his orders 
 to all general officers commanding his majesty's 
 forces, to punish all persons acting, aiding, or 
 in any manner assisting in the said rebellion, 
 according to martial la\v^, either by death or 
 otherwise, as to them should seem expedient, 
 for the punishment and suppression of all re- 
 bels in their several districts, and did, by his 
 proclamation of the same date, by and with 
 the advice of the privy council, notify the 
 same : 
 
 And whereas his Excellency the said Earl 
 Camden diil, by message, duly communicate 
 his said orders and proclamations, notifying 
 
APPENDIX. 351 
 
 Proclamation 
 
 the same respectively to the Lords Spiritual ;;^(j''7J^^ 
 and Temporal, and Commons then in Parlia- 
 ment assembled, who did, by their addresses 
 to his Excellency, express their cordial ac- 
 knowledgements for his said messages, and 
 their entire approbation of the decisive measures 
 so taken by his Excellency, by and with the 
 advice of the privy council, however deeply 
 they lamented the necessity by which they 
 were dictated ; and the said Lords Spiritual 
 and Temporal, and Commons, did, by their 
 addresses, pledge their full engagement of sup- 
 port of every measure of firmness and vigour, 
 which might be necessary for the speedy and 
 effectual suppression of the said rebellion: 
 
 And whereas by the wise and salutary ex- 
 ercise of his majesty's undoubted prerogative in 
 executing martial law, fbr defeating and dis- 
 persing such armed and rebellious force, and in 
 bringing divers rebels and traitors to punish- 
 ment in the most speedy and summary manner, 
 the peace of this kingdom has been so far re- 
 stored as to permit the course of the common 
 law partially to take place, but the said rebel- 
 lion still continues to rage in very considerable 
 parts of this kingdom, and to desolate and lay 
 waste the country by the most savage and 
 wanton violence, excess, and outrage, and has 
 utterly set at defiance the civil power, and 
 
^^^ APPENDIX. 
 
 SmS w, stopped the ordinary course of justice and of 
 the common law therein : 
 
 And whereas many persons Mho have been 
 guilty of the most daring and horrid acts of 
 cruelty and outrage, in furtherance and prose- 
 cution of the said rebellion, and who have been 
 taken by his majesty's forces employed for the 
 suppression of the same, have availed them- 
 selves of such partial restoration of the ordinary 
 course of the common law, to evade the pu- 
 nishment of their crimes, whereby it has be- 
 come necessary for parliament to interpose : 
 
 Be it therefore enacted by the kings most 
 excellent majesty, by and with the advice and 
 consent of the Lords Spiritual and Temporal, 
 and Commons in this present parliament as- 
 sembled, and by the authority of the same, 
 That, from and after the passing of this act, 
 it shall and may be lawful to and for the lord- 
 lieutenant or other chief governor or governors 
 of this kingdom, from time to time, during the 
 continuance of the said rebellion, whether the 
 ordinary courts of justice shall or shall not, at 
 such time, be open, to issue his or their orders 
 to all officers commanding his majesty's forces, 
 and to all others whom he or they shall think 
 fit to authorise in that behalf, to take the most 
 vigorous and effectual measures for»6uppressing 
 the said rebellion in any part of this kingdom. 
 
APPENDIX. 
 
 which shall appear to be necessary for the pub- 
 lic safety, and for the safety and protection of 
 the persons and properties of his majesty's 
 peaceable and loyal subjects, and to punish all 
 persons acting, aiding, or, in any manner, as- 
 sisting in the said rebellion, or maliciously at- 
 tacking or injuring the persons or properties of 
 his majesty's loyal subjects in furtherance of the 
 same, according to martial law, either by death 
 or otherwise, as to them shall seem expedient, 
 for the punishment and suppression of all rebels 
 in their several districts, and to arrest and de- 
 tain in custody all persons engaged in such re- 
 bellion, or suspected thereof, and to cause all 
 persons so arrested antl detained in custody 
 to be brought to trial in a summary manner by 
 courts martial, to be assembled under such au- 
 thority, and to be constituted in such manner, 
 atid of such description of persons, as the said 
 lord-lieutenant or other chief govei^vjr or go- 
 vernors shall, from time to time, direct, for all 
 offences committeil in furtherance of the said 
 rebellion, whether such persons shall have been 
 taken in open arms against his majesty or shall 
 have been otherwise concerned in the said re- 
 bellion, or in aiding, or any manner assisting, 
 the same, and to execute the sentences of all 
 such courts martial, whether of death or other- 
 wise, and to do all other acts necessary for such 
 several purposes. 
 
 A A 
 
 353 
 
APPENDIX. 
 
 And be it enacted, That no act which shall 
 be done in pursuance of any order which shall 
 be so issued, as aforesaid, shall be questioned 
 in his majesty's court of King's Bench, or in 
 any other court of common law. And, in 
 order to prevent any doubt which might arise, 
 whether any act alleged to have been done in 
 conformity to any orders so to be issued, as 
 aforesaid, was so done, it shall and may be 
 lawful to and for the said lord-lieutenant or 
 other chief governor or governors to declare 
 such acts to have been done in conformity to 
 such orders ; and such declaration, signified by 
 any writing under the hand of such lord-lieu- 
 tenant or other chief governor or governors 
 shall be a sufficient discharge and indemnity to 
 all persons concerned in any such acts, and 
 shall, in all cases, be conclusive evidence, that 
 such acts were done in conformity to such 
 orders. 
 
 And be it further enacted, That all officers, 
 non-commissioned officers, and soldiers, who 
 shall act under any such orders, as aforesaid, 
 shall be responsible for all things which shall be' 
 done under such orders to such courts martial 
 only, by which they shall be liable to be tried 
 for any offence against the Articles of War, 
 under any act then in force for such purposes ; 
 and such courts martial shall have full and ex- 
 clusive cognizance of all matters and things 
 
APPENDIX. S55 
 
 which shall be objected against such orticers, 
 non-commissioned officers, and soldiers, respec- 
 tively, and all proceedings shall be had thereon 
 in the same manner as for offences against the 
 Articles of War, and not otherwise ; and the 
 court of King's Bench, or any other court of 
 justice, civil or criminal, shall not take cogni- 
 zance of any act, matter, or thing, which shall 
 be done by any such officer, non-commissioned 
 officer, or soldier, in pursuance of this act ; 
 and if any proceeding shall be had in any such 
 court against any such officer, non-commis- 
 sioned officer, or soldier, for any such act, 
 matter, or thing, by indictment, action, or 
 otherwise, all such proceedings shall be stayed 
 by summary order, on application to the court 
 wherein they shall be had. 
 
 And be it enacted, That, if any person who 
 shall be detained in custody, under the powers 
 created by this act, shall sue forth a writ of 
 Habeas Corpus, it shall be good and sufficient 
 return to such writ, that the party suing forth 
 the same is detained by virtue of a warrant, 
 under the hand and seal of some officer, or 
 other person, duly authorised by the chief 
 governor or chief governors for the time being, 
 to issue such warrant under the authority of 
 this act. 
 
 Provided nevertheless, That the name of such 
 
356 APPENDIX. 
 
 ofiicer or other person so authorised, as afore- 
 said, to issue such warrant, shall have been 
 previously 7iotified by the chief governor or go- 
 vernors, or his or their chief secretaryy to the 
 court of King's Bench, by writings signed by 
 the said chief governor or chief governors, or 
 his or their chief secretary, and signifying to 
 the said court that such person or persons was, 
 or were, so authorised, as aforesaid, to exercise 
 the powers specified by this act ; and, when 
 such return shall be made, it sliall not be ne- 
 cessary to bring up the body of the person who 
 is so detained. 
 
 Provided always, and be it declared and 
 enacted, That nothing in this act contained 
 shall be construed to take away, abridge, or 
 diminish, the acknowledged prerogative of his 
 majesty for the public safety, to resort to the 
 exercise of martial law against open enemies or 
 traitors, or any powers by law vested in the 
 said lord-lieutenant, or chief governor or go- 
 vernors, of this kingdom, with or without the 
 advice of his majesty's privy council, or of any 
 other person or persons whomsoever, to sup- 
 press treason and rebellion, and to do any act 
 warranted by law for that purpose, in the same 
 manner as if this act had never been made, or 
 in any manner to call in question any acts here- 
 tofore done for the like purposes. 
 
APPENDIX 357 
 
 And be it enacted, That this act shall con- 
 tinue, and be of force, until the first day of 
 the next session of parhament, and for two 
 months after the said day, and no longer : 
 And that it shall and may be lawful to repeal, 
 amend, or alter, this act during this session of 
 parliament. 
 
INDEX. 
 
 ^ For General Heads of Military Economi/, variou^s Courts 
 Martial, ,^c. *§c. see Contents. 
 
 JBSENCE o( prosecutor on a trial, how acted upon, UC; 
 of witness, 110; of a military person from duty, how pu- 
 nished, 
 
 Abusive language in a commanding officer, its consequences 
 and punishment, 150. 
 
 Accessaries and principals, the distinctions between, stated, 
 129. 
 
 Accompts, SZ-l-. 
 
 Account of authors to whom military law has been cliiefly in- 
 debted, {Introduction) Hale, Hist, of Com. Law — Coke, 
 Commentary on Magna Charta. — Davis, apud Grose, Mi- 
 litary Antiq. — Bruce, Institutes of Mil. Law, xvii. ; Black- 
 stone, Commentaries on the Laws of England.— Adye, 
 Treatise on Martial Law, &c. xviii ; — Sulivan, Thoughts on 
 ^lartial Law, xix. — Williamson, Military Arrangements. — 
 Lord Loughborough, case of Grant, Term Reports, 179"-. 
 XX ; — Tytler, Essay on Military Law, &c. xxi. — M'Ar- 
 thur. Principles and Practice of Naval and Military Courts 
 Martial, x.xii. 
 
INDEX. 
 
 Adjutants of militia, their peculiar- privileges, l68, C6l. 
 Administration of Military justice, how regulated, 27- 
 /lliens subject to Military Law, 14. 
 Andreossiy General, (Decade Philosophique, 1802), quoted, 
 
 Introduction, xxix. 
 Annoyance, a sort of system subversive of all military cfTi- 
 
 ciency, 147. 
 Appeal, from the minor courts to general courts martial, power 
 of, proved, and mode of proceeding on, 79. 
 
 From general courts martial to the higher courts of 
 law, described, \66. 
 Apprentices, inlistment of, laws relating to, 190. 
 Army, mode of entering it by ofBcers, he. 179' 
 Arrest, regulations respecting duration of, 37. 
 
 Charges foreign to the cause of, admissible on trial, 
 
 121, 
 May be taken off by a superior officer wiihout trial. 
 Articles of War, their character in the statutary law of the 
 army, 5. 
 
 Quoted as follows : — 
 
 Sect. i. Art. i. 22; ii. 23; iii. 23; iv. 23p 
 V. 23 ; vi. 24. 
 ii. Art. i. 265; ii. 1S6, 193, 265; iii. 
 
 186, 265; iv. 186,265; v. 266. 
 iii. Art. i. 184, 185, 187, 194- ; ii. 263. 
 iv. Art.i.279; ii-279; iii- 280; iv.280; 
 
 V. 258. 
 V. Art. i. 283; ii. 283; iii. 283; iv. 284. 
 vi. Art. i. 186, 266; ii. 267 ^ iii. 267; 
 
 iv. 283; V. 271. 
 vii. Art. i. 27; ii. 28, 29; iii. 28, 29; iv. 
 
 28; v. 28. 
 viii. Art. i. 214; ii. 215; iii. 215; iv. 215; 
 V. 215. 
 ix. Art. i. 207, 221 ; ii. 207, 221; iii. 
 200; iv. SOO; v. 211, 213. 
 
INDEX. 
 
 Articles of jyar,Sect.-s. Art. i. 222. 
 
 xi. Art. i. 9; >i. 10,83. 
 x.i. Art. i. 44, lG3 ; ii. 43, S6, 60, 82. 
 
 84, 87. 
 xiii. Art. i. 286; ii. 288; iii. 70, 135,218; 
 
 iv. 276; V. 277; vi.287. 
 xiv. Art. i. 199, 220 ; ii. 217 ; iii- 200, 212. 
 217; iv. 200, 217; v. 2l6; vi. 2l6; 
 vii. 217; viii. 216; ix. 200,218; x. 
 218; xi.219;xii.2:0; xiii. 218, 220; 
 xiv. 200, MS, 217, 219; XV. 217; xvi. 
 217; xvii. 219; xviii. 219; xix. 218, 
 220; XX. 213, 219; xxi. 213,219. 
 XV. Art. i. 175; ii. 69; iii. 176; iv. 176; 
 
 V. 176; VI. 177; vii. 177. 
 xvi. Art. i. 95; ii. 95; vii. 98, 103; 
 viii. 95; ix. 134; x. 65, 96; xi. 141 ; 
 xii. 69, 95 ; xiii. 65 ; xiv. 58 ; xv. 92 ; 
 xvi. 103; xvii. 103; xviii. 65; xix. 6S, 
 108; XX. 26O; xxi. 100; xxii. 37, 
 64 ; xxiii. 37, 65. 95 ; xxiv. 38 ; xxv. 
 38; xxvi. 38; xxvii. 39 ; xxviii. 9- 
 xvii. Art i. 274. 
 xviii. Art.i. 81, 180, 255, 285. 
 xix. Art. i. 56, 290 ; ii. 290; iii. 291. 
 XX. Art.i. 13; ii. 176; iii. 13. 
 xxi. Art. i. 13; ii. 177- 
 xxii. Art. i. 177; >i. 178. 
 xxiii. Art. i. 228. 
 
 xxiv. Art. i. 5; ii. 14, 23, 156, 263; iiL 
 13 ; iv. 13 ; v. 2. 
 Artillery, sec B.ank. 
 
 B. 
 
 Barham Downs, unjust punishment at the camp of, 80. 
 
INDEX. 
 
 Browne, Major, fined and suspended for disreipect to court 
 martial, and cruelty to a soldier, 137. 
 
 C. 
 
 Carriages, their provision for the army, 223. 
 C'fliC5 of Lieutenant Kingston, charged unfoundedly with un- 
 natural propensities by Captain Goakman and Keel- 
 ing, who were tried and cashiered for it, 32. 
 A juror fined for inebriation, 6g. 
 A soldier refused appeal and punished at Barham 
 
 Downs, 80. 
 Serjeant-major Ginger reinstated without punishment, 
 on appeal from the sentence of a regimental court 
 martial, of reduction and five hundred lashes, 85. 
 Major Browne fined and suspended for disrespect to 
 a court martial and cruelty to a soldier, 85. 
 
 Lieutenant B and Corporal James cejmired by 
 
 Marquis Cornwallis for leaving their guard, 137. 
 Lieutenant-colonel Jephson suspended for abusing and 
 
 ill-treating Assistant-surgeon Tilt, 150. 
 Captain Titchbornc cashiered for abuse and un- 
 
 oOicer-like conduct to Lieut. Fynmore, 151. 
 A Reprieved soldier shot by too minute attention to 
 
 forms, 152. 
 Colonel Dcbbiege reprimanded for writing disrespect- 
 ful and injurious letters to his superior officer, 152, 
 note. 
 Adjutant-general Jackson, &c. dismissed the service 
 
 with infamy for cowardice, 159. 
 Sir Thomas Rich dismissed for not conforming to the 
 
 opinion of a general board, l65. 
 Lieutenant Frye, recovering damages for the excessive 
 sentence of a general court martial, remitted by his 
 majesty, IG7 
 
INDEX. 
 
 Honourable Captain Lake, on a motion in parliament, 
 
 for having left a man on an uninhabited island, 172. 
 
 A grenadier shot at Plymouth, ignorant of his oath, 
 
 196. 
 A Sentry assaulted in thoexecution of traditionary but 
 unnecessary orders, with impunity, 234. 
 Challenging to duels, regulations respecting, 28, et scq. 
 
 of members of courts martial as jurors, 102. 
 Chaplains, laws by which they are governed, 23. 
 Civil classes, their relations with the military, 9, &c. 
 
 Power of bringing military persons to a 
 court martial ;)rora/. 111. 
 Clothing, minute regulation respecting, off reckonings, 277. 
 Penalties of persons buying or receiving from de- 
 serters, 2S9. 
 Respecting the regulations by which it is conducted, 
 see Adicrtiscmcnt, &c. 
 Commanding officers of corps, tlioir judiciary duties, &c. 44. 
 Commissions, entry of, to prevent plurality, 284. 
 Common Law relieved by a military judicature, 156. 
 Council of inquiry among private soldiers, its nature, 9I. 
 Courage, where useless and unnecessary, 31. 
 Courts military, judiciary, see Courts Martial. 
 
 Non-judiciary, set Inquiry, General Board. 
 Crimes punishable Oi/ (Common) Laic, to be so punished, 10, &c. 
 Criminals, how apprehended, 36. 
 
 who are capable of being punished, 128. 
 
 Palrymple, his Military Essay, quoted. Introduction, xxix. 45. 
 
 Dcbbiege Col. reprimanded for writing disrespectful letters to 
 his superior, 152. 
 
 Desertion, how punished, 266. 
 
 Dcspagnac, his authority fur confirming every fact by re- 
 ference, cited. Introduction, xxviii. 
 
Dueliing, how regulated, 29, et seq. 
 
 Rules and instructions for seconds in, 31. 
 j>tf/i« in quarters, in garrison, or the field, 1^9> (t stq. 
 
 E. 
 
 Effects and credits of deceased officers and soldiers, and ol 
 
 deserters, 2f)0. 
 £m6arr<7s.y;nenf of a prisoner to be regarded leniently, 122. 
 Embezzlement of pay by paymasters, 275; by commanding 
 
 officers, 275 ; by warrant-officers, 277 ; non-commissioned 
 
 officers, 277. 
 
 of money or stores by the commissariat, 285. 
 Entry o( commissions and leave of absence, 284. 
 Evidence, laws of, stated, 114. 
 
 What is admissible, II6. 
 £xcep;io«s against members of courts martial as jurors, how 
 
 governed, 102. 
 
 Fiction of law by which capital crimes are subjected to regi- 
 mental courts martial, 61. 
 
 Fines for neglect of divine service, 22. 
 An extension of, its utility, 138. 
 
 FomtSy their necessity and utility, 295. 
 
 Frycy Lieutenant, his injuries, and punishment of the court 
 martial for an unjust sentence, besides recovery of large 
 damages at common law, 167. 
 
 G. 
 
 Garrisons, officers and private soldiers may supply eatables or 
 
 drinkables, but not violate any contract, 215. 
 Gingery Serjeant-major, reinstated without punishment, on 
 
INDEX. 
 
 appeal from a sentence of a regimental court martial, of re- 
 duction and five hundred lashes, 85, 
 Gttorrf unregulated by specific orders, its legal dangers, 231, 
 
 note. 
 Guards for protection at home, how governed by law, 229« 
 Guischard, Charles, his obscurity as a subaltern no objection 
 to his woiks, Introductiun, xxvii. 
 
 H. 
 
 //t»&, Lord Chief Justice, his determined conduct in respect 
 to military interference in tumults, 238. 
 
 J. 
 
 /jf/iA/Z/fo- soldiers, 183. 
 
 Jackson, Aiijutant-gcneral, dismissed the service with infamy 
 
 for cowardice, 159- 
 
 James, Corporal, his sentence of two hundred lashes for leav- 
 ing his guard, commuted for a reprimand, on account of 
 the disproportioned sentence of his officer for the same 
 crime, 145. 
 
 Jcphson, Lieutenant-col. suspended for abusing his assistant- 
 surgeon, 150. 
 
 Judge-Advocate, his duties, g^, &c. &c. 
 
 Acting, forms and precedents for the use 
 of, 295. 
 
 Jurisdictmn of military law, 13. 
 
 Juror fined for inebriation, 69. 
 
 Justice, military, its peculiar necessity. Introduction, xvi. 
 
 K. 
 
 Kingston, Lieatenant, his redress for an injured character 
 3;jaiust his superior officers, 3'J. 
 
INDEX. 
 
 Lalce, Hon. Captain, dismissed for leaving a man on a desert 
 island, brought by motion before the house of commons, 
 172. 
 
 Law briefly described, 1, see aho Military Ldw. 
 
 M. 
 
 Magistrates who are officers of the army, acting in both ca- 
 pacities, illegal, 185, QOQ, &c. 
 ilia;'^??ja/ reference to Articles of War, quoted as law, 98. 
 
 To Mutiny act, 210, 225. 
 Martial Law described, Ip. 
 
 Members of courts martial, their knowledge of law how ac- 
 quired, 63. 
 Mercy, his majesty's, always open to application, 174. 
 Military law, general view of, 2; its promulgation, ib. re- 
 wards, 3; cause of its complexity, hitrodudion, xvi. 
 Justice, its peculiar necessity, Introduction, xvi. 
 Militia, Appointing of officers in, how regulated by law, 182. 
 Musters, incorrect in the smallest degree, punishable with 
 
 very great severity, 279> ^t ^cq. 
 Mutiny Jet, its character in the statutory law of the army, 5. 
 Its various sections quoted as follows : — Pream- 
 ble, 236. 
 Sect. i. 217, 229, 237, 267; ii. 267; iii. 267; 
 iv. 268; v. 269; vi. 269; vii. 269; viii, 136; 
 ix. 137 ; X. 137 ; xi. 60, 95 ; xii. 153 ; xiii. 9. 
 xiv. 9, 83; XV. 17, 153; xvi. 279; xvii. g5, 
 96; xix. 268; XX. 268; xxi. 13; xxiii. 17; 
 xxiv. 6O; xxvii. 143; xxviii. 142; xxix 143; 
 XXX. 5; xxxi,278; xxxii. 278; xxxiii. 279; 
 
INDEX. 
 
 xxxiv. 279; xxxv. 282; xxxvi. 279; Kxxvii. 
 280; xxxviii. 280; xxxix. 280; xl. 281; 
 xli. 12, 201, 202; xlii. 214; xliii. 202; xliv. 
 205 ; xlv. 205 ; xlvi. 205 ; xlvii. 206; xlviii. 
 206; xlix 206; 1. 203; li. 203; lii. 204; 
 liii. 206 ; liv. 207 ; Iv. 207 ; Ivi. 203 ; Ivii. 
 222; IviiJ. 223; lix. 225; Ix. 222 ; Ixi. 226 ; 
 Ixii. 12, 227; Ixiii. 227; Ixiv. 227; Ixv. 
 209; Ixvi. 227; Ixvii. 227; Ixviii. 209 J 
 Ixix. 228; Ixx. 228; Ixxi. 11; Ixxii. 184; 
 Ixxiii. 185, 187, 194; Ixxiv. 183, 189; 
 
 Ixxv. 190; Ixxvi. I9O; Ixxvii. 19O; Ixxviii. 
 
 190 ; Ixxix. 19O; Ixxx. 191 ; Ixxxi. I91 J 
 
 Ixxxii. 191 ; Ixxxiii. 101; Ixxxiv. 192; 
 
 Ixxxv. 192; Ixxxvi. 192; Ixxxvii. 19-; 
 
 Ixxxviii. 193; Ixxxix. 193; xc. 26O; xci. 
 
 11, 269; xcii. 269, 271; Nciii. 12, 271, 
 
 273, 288; xciv. 10, 273; xcv. 12, 258; 
 
 xcvii. 10, 258; xcviii. 11; xcix. 10, 279; 
 
 c. 10, 278; ci. 286; cii. 277; ciii. 82, 275; 
 
 civ. 277; cv. 275; cvi, 274; cvii. ISO; cviii. 
 
 291 ; cix. 13; ex. 13; cxi. 13; cxii. 14, 193; 
 
 cxiv.210; cxv. 14, 194; cxvi.4, 14; cxvii. 13 ; 
 
 cxviii. 14, 156; cxix. 15; cxx. 15; cxxi. 15; 
 cxxii. 15, 272; cxxiii. 16; cxxiv. 16, 272; 
 
 cxxv. 272; cxxvi. 17, 97; cxxviii. 296; 
 cxxix. 17; cxxx. 12. 
 JSIutiiiv, how punibhed, 264. 
 
 N. 
 
 Naval officers, on-board ship, their power over the military, 
 
 228. 
 Negroes ia the service, how reguhited, 193. 
 
INDEX. 
 
 Oath of allegiance and inlistment, 187. 
 
 Of commissaries returning from service, 278. 
 
 Attention to religious duties necessary on account of, 
 24; and due attention to its solemnity, 195. 
 
 Form of, used on regimental courts martial, Q6. 
 
 Used on general courts martial, 103. 
 
 Of an interpreter of foreigners on courts martial, IO9. 
 
 Of witnesses, &c. of various religions and countries, 
 109. 
 Officers. Commissioned, duties of, in the redress of wrongs, 45. 
 
 Where subject to regimental court martial, 60. 
 Order, Laws of, on regimental courts martial, 69. 
 Orders, Specific and written, how necessary, 231. 
 Orrery, Lord, his Memoirs of Service, Introduction xxviii. 
 
 P. 
 
 Farliamcnt, Its privilcg-js dispensed with in favour of ^liliiary 
 
 Law, 17- 
 Pasdiigham,Co\oi\e\,h\s trial for horrid calumnies, quoted, 32. 
 Pai/, To be stopped from officers and soldiers imprisoned, 
 
 279. 
 Vaymastcrs, Not to make deduction from pay, unless war- 
 ranted by his majesty, under the severest pe- 
 nalties, 275. 
 31. 
 Penalties under the Rlutiny Act, &:c. how recoverable, \6, 
 ct scq. of witnesses (summoned, not appearing, 
 17. 
 
INDEX. 
 
 Plea, Prisoner offering none, how proceeded against, 106. 
 
 In abatement or bnr of trial described, 107- 
 Porteous, Captain, Riot occasioned by the death of, at Edio- 
 burgh, quoted on some important particulars, 239, 
 et seq. 
 Principals and accessories, the nature of, stated, 129. 
 Privileges of pariiament dispensed with in Military Law, IJ. 
 Proceedings necessary to be had on various punishments, 134. 
 Proceedings, see Case. 
 Proclamation of Martial Law, 18. 
 
 Prosecutor, Absence of, at a trial, how acted upon, 112. 
 Protest of judge-advocate against irregular proceedings on 
 
 courts martial considered, 141. 
 Protost Marshal, his duty, 39, et seq. 
 Punishments of regimental courts martial, 62, 71- 
 
 Corporal, where mentioned in the Articles of 
 
 War, not always flagellations, 76. 
 Various kinds of, inflicted by Military Law, and 
 
 procedures on, 134. 
 So severe, as cannot be inflicted at one timcy 
 
 proved to be unjust, 135. 
 Legal regulations respecting, 134. 
 Capital, order of their execution, 157- See also 
 /ijipendix. 
 
 Quarrels and sending challenges, regulations respecting, 29, 
 
 et seq. 
 Quarters, Behaviour of officers and soldiers in, 199- 
 
 Persons liable to have officers and soldiers quartered 
 
 on them, 201. 
 
 For whom to be provided, 205. 
 
 For troops raised abroad, 210. 
 B B 
 
INDEX. 
 
 Of officers, their accommodation, 211. 
 Lists of, in the vicinity of the metropolis, to be 
 made and furnished, 205. 
 
 R. 
 
 Rani, its nature, 177. 
 
 Retunts, False, in any the most trifling respects, punishable 
 
 with great severity, 283, et seq. 
 Redressing U'roDgs, 42, l63. 
 
 Reprieved soldier, shot at Plymouth by accident, 152. 
 Reprimands of courts martial to persons concerned in trials 
 illegal,. 1+2. 
 
 To officers, without previous trial, punishable. 
 Returns, Public. 
 
 Reuards of British officers and soldiers, C'6l. 
 Rich, Sir Thomas, dismissed, for not conforming to the opi- 
 nion of a general board, l65. 
 Riots, in which the military have been concerned, their re- 
 sults ;— in Holborn, 238 ; Edinburgh, 239 ', St. 
 George's Fields, 240; Leith, 241; Belhnal-Green, 
 145 ; London, 249. 
 Opinion of Mr. Pelham, &c. regarding military in- 
 
 terference in, 250. 
 What constitutes them, 250. 
 
 How far a military force may justly interfere, 233, 251. 
 Proclamation on, commonly called reading the Riot 
 
 Act, 252. 
 Case of cruelty and injustice arising from, 241, note. 
 
 Seconds to duels, rules and instructions for, 31. 
 Sentences of courts martial, necessary considerations on, 7'^, 
 131, 144, et seq. 
 How modified, 130, 132. 
 Service, General duties 6f, in a probable iufgrcss'ion, how 
 governed by law, as follow : — 
 
INDEX. 
 
 Recruiting ihe army. 
 
 Commissioning officers, IJQ, and inlisling private 
 soldiers, 183; troops in quarters, IQQ, and bil- 
 leting, 201 ; in garrison, 212, and Suttling, 214; 
 in the field, 2lC ; in camp, 217 ; on foreign ser- 
 vice, 219; on the roarcli, 220, and pressing car- 
 riages, 222 ; on-board ships of war, 228 ; at 
 home, on guards, 229 > suppressing riots, 232 ; 
 on the coast, employed against smugglers, 2J3 ; 
 officers on leave of absence, 254-, and soldiers on 
 furlough, 2J8 ; soldiers' furlough reiiewcd by the 
 civil magistrate, 258 ; Dismissal of the army- 
 resignation of officers, 260, and discharging of 
 private soldiers, 262 ; concerning mutiny and de- 
 sertion, 26i. 
 Sick Officers, the great responsibility of regimental surgqoiis 
 respecting, 26. 
 Their legitimate mode of obtaining leave, '256. 
 SuldUr, Private, unjustly refused appeal at Barham Downs 
 
 camp, 80. 
 Stores, Ammunition, S,c. C-\rp of, inclMding the Cuminibsuriat, 
 285. 
 Penalties of persons improperly receiving thorn, 2S9. 
 Supplementary Miljtia, specially authorised by statutc-huv, to 
 
 suppress tumults, 233. 
 Surgeons, \,a\vs by which they are governed, 25. 
 
 Attending corporal punishments, answerable for 
 life, 26. 
 Suttling, Legal regulations of, 211. 
 
 T. 
 
 Titclibourn, Cajjlain, cashiered for abusing lii.-> licul«Mi.i:il, 
 
 151. 
 Traditionary Orders, their ill etTects, 234. 
 Troops raised, or serving in the colonies, 13, 210, sec alt,o llank. 
 
 In the Last Indies, sec lianL 
 
 On-bo;\rd ships of war, 2'JS. 
 
INDEX. 
 
 Tumults, How far to be suppressed by military means, 233. 
 Statutes relating to the suppression of, (marginal note 
 to) 237.— See also Riots, 
 
 V. 
 
 Volunteering from the Militia, 183. 
 
 W. 
 
 JVest-India-Dock guard, irregularity respecting, 231. 
 Wilkes, His riot, account of, from his own mou4h, 24.1. 
 Willes, Lord chief justice, his determined conduct in relation 
 
 to courts martial, \69. 
 U'illSf Verbally pronounced, without any form, sufficient to 
 soldiers on service, 290. 
 Executors of soldiers, to obtain due satisfaction re- 
 specting, 2.''0, et seq. 
 Witnesses, Oath of, 108. 
 
 Permitted to read their depositions, 10/. 
 Of various religions, how sworn, I09. 
 Absence of, how acted upon, 110. 
 What are competent and credible, 115; 
 Ignorant when they may be believed, I96, note. 
 Women, Children, &c. where permitted to travel with the 
 
 army, 225. 
 Wrongs, How redressed, 43, l63. 
 
 Y. 
 
 Young Officers, Their inititation into the principles of Mili- 
 tary Law, 63. 
 
INDEX, 
 
 Noviciate, previous to entering upoii abso- 
 
 lute command, 332. 
 Necessity for farther preparation conceived, 
 
 293. 
 
 Z. 
 
 ZitUn, General, mutual affection between, and the officers of 
 his regiment, 46. 
 
 1