an authority derived from and defined and limited by statute.
Although in 1879 the power of making Articles of War became in
effect altogether inoperative, the sovereign was empowered to
make rules of procedure, having the force of law, which regulate
the administration of the act in many matters formerly dealt
with by the Articles of War. These rules, however, must not
be inconsistent with the provisions of the Army Act itself, and
must be laid before parliament immediately after they are made.
Thus in 1879 the government and discipline of the army became
for the first time completely subject either to the direct action or
the close supervision of parliament.
A further notable change took place at the same time. The Mutiny Act had been brought into force on each occasion for one year only, in compliance with the constitutional theory that the maintenance of a standing army in time of peace, unless with the consent of parliament, is against law. Each session therefore the text of the act had to be passed through both Houses clause by clause and line by line. The Army Act, on the other hand, is a fixed permanent code. But constitutional traditions are fully respected by the insertion in it of a section providing that it shall come into force only by virtue of an annual act of parliament. This annual act recites the illegality of a standing army in time of peace unless with the consent of parliament, and the necessity nevertheless of maintaining a certain number of land forces (exclusive of those serving in India) and a body of royal marine forces on shore, and of keeping them in exact discipline, and it brings into force the Army Act for one year.
Military law is thus chiefly to be found in the Army Act and the rules of procedure made thereunder, the Militia Acts, the Reserve Forces Acts and the Volunteer Acts, together with certain acts relating to the yeomanry, the Territorial and Reserve Forces Act 1907, and various royal warrants and regulations. In the Army (Annual) Act 1906 important amendments were made to the Army Act for the purpose of preventing soldiers convicted of offences against discipline under the act, and not discharged with ignominy, being subjected to the stigma attaching to imprisonment. This was effected by creating a new punishment, termed detention, the places in which soldiers undergo detention being termed detention barracks. The change, while principally one of nomenclature, removed an undoubted grievance. The Army Act itself is, however, the chief authority. Although the complaint has been sometimes made, and not without a certain amount of reason, that it does not accomplish much that it might in point of brevity, simplicity and clearness of expression, it is a very comprehensive piece of legislation, and shows some distinct improvements upon the old Mutiny Acts and Articles of War.
When a person subject to military law commits an offence he is taken into military custody, which means either arrest in his own quarters or confinement. He must without unnecessary delay be brought before his commanding officer, who upon investigating the case may dismiss the charge, if in his discretion he thinks it ought not to be proceeded with, or may take steps to bring the offender before a court martial. Where the offender is not an officer he may dispose of the case summarily, the limit of his power in this respect being seven days’ imprisonment with hard labour, a fine not exceeding 10s. for drunkenness, certain deductions from pay, confinement to barracks for twenty-eight days, this involving severe extra drills, deprivations and other =minor punishments. Where the offence is absence without leave for a period exceeding seven days, the commanding officer may award a day’s imprisonment in respect of each day of such absence up to twenty-one. It is only in the case of the imprisonment exceeding seven days that the evidence before the commanding officer is taken on oath, and then only in the event of the accused so desiring it. The commanding officer is enjoined by regulation not to punish summarily the more serious kind of offences, but his legal jurisdiction in this respect is without limit as regards any soldier brought before him, and when he has dealt summarily with a case the accused is free from any other liability in respect of the offence thus disposed of. In any instance where the commanding officer has summarily awarded imprisonment, fine or deduction from pay, the accused may claim a district court martial instead of submitting to the award.
Ordinary courts martial are of three kinds, viz. (1) a regimental court martial, usually convened and confirmed by the commanding officer of the regiment or detachment, presided over by an officer not under the rank of captain, composed of at least three officers of the regiment or detachment with not less than one year’s service, and having a maximum power of punishment of forty-two days’ detention; (2) a district court martial, usually convened by a general officer having authority to do so, consisting of not less than three officers, each with not less than two years’ service, and having a maximum power of punishment of two years’ imprisonment; (3) a general court martial, the only tribunal having authority to try a commissioned officer, and with a power of punishment extending to death or penal servitude, for offences for which these penalties are authorized by statute; it consists of not less than nine officers in the United Kingdom, India, Malta and Gibraltar and of five elsewhere, each of whom must have had over three years’ service, five being not under the rank of captain. There is another kind of tribunal, viz. a field general court martial. It is convened (1) by any officer in command of a detachment or portion of troops beyond the seas when not on active service, or by any officer in immediate command of a body of forces on active service where it appears to him on complaint or otherwise that a person subject to military law has committed an offence. The officer must be satisfied that it is not practicable, with due regard to the public service, to try the person by an ordinary court martial. The quorum of the court is three, if consistent with military exigencies, and each member must have held a commission for not less than a year. The quorum may be reduced when the public service requires it. The procedure of ordinary courts martial is observed as far as possible, and the proceedings always should be in writing when possible. But in the circumstances in which these courts are assembled, it is not always possible to adhere to the technical rules which obtain in the ordinary tribunals, although the broad principles are not violated. The evidence on a field general court martial is taken on oath. The prisoner may cross-examine the witnesses for the prosecution, and may call any available witnesses for his defence. The prisoner is allowed to address the court in his own defence.
The Army Act prescribes the maximum punishment which may be inflicted in respect of each offence. That of death is incurred by various acts of treachery or cowardice before the enemy, or by, when on active service, interfering with or impeding authority, leaving without orders a guard or post, or when sentry sleeping or being drunk on a post, plundering or committing an offence against the person or property of an inhabitant, intentionally causing false alarms, or deserting. Whether upon active service or not, a soldier also becomes liable to the punishment of death who mutinies or incites to or joins in or connives at a mutiny, who uses or offers violence to or defiantly disobeys the lawful command of his superior officer when in the execution of his office. Penal servitude is the maximum punishment for various acts and irregularities upon active service not distinctly of a treacherous or wilfully injurious character, for using or offering violence or insubordinate language to a superior, or disobeying a lawful command when upon active service. The same punishment is applicable when not upon active service to a second offence of desertion or fraudulent enlistment (i.e. enlistment by one who already belongs to the service), certain embezzlements of public property, wilfully releasing without authority a prisoner or wilfully permitting a prisoner to escape, enlisting when previously discharged from the service with disgrace without disclosing the circumstances of such discharge, or any other offence which by the ordinary criminal law of England is punishable with penal servitude. Imprisonment for two years is the maximum punishment for minor forms and degrees of those offences which if committed upon active service would involve death or penal servitude, such as using or offering violence or insubordinate language to a superior or disobeying a lawful command, and for the following offences: resisting an escort, breaking out of barracks, neglect of orders, a first offence of desertion or attempted desertion or aiding or conniving at desertion, or of fraudulent enlistment, absence without leave, failure to appear at parade, going beyond prescribed bounds, absence from school, malingering or producing disease or infirmity, maiming with intent to render a soldier unfit for service, an act of a fraudulent nature, disgraceful conduct of a cruel, indecent or unnatural kind,
drunkenness, releasing a prisoner without proper authority or