ceased to exist. Still the presence of such a force could not but be an object of great jealousy to the country. In the "Declaration of Rights" framed by the two houses, and solemnly assented to by the new sovereign, it was expressly stated that," the raising and keeping of a standing army in time of peace, without consent of parliament, is contrary to law." It became therefore necessary to provide for this consent in the way not only least detrimental to the constitution, but most palatable to the people. Another difficulty arose from the statute of the 13 & 14 Car. 2, by which, as before mentioned, the supreme command and disposal of the military force were declared to be in the crown. Any attempt to limit or modify this authority would have been dangerous. The king's jealousy in such matters was well known, and his impatience had already been testified at the small number of troops proposed to be kept on foot. To have abridged his powers in this respect would perhaps have proved the readiest way to induce him to realize his frequent threat of retiring into Holland. The efficiency of the army, too, required that his paramount authority should remain untouched. Still the parliament, full of uneasy recollections, was reluctant to deprive itself of every check upon the exercise of so momentous a trust. To meet these various difficulties, it was proposed, that a bill should be passed authorizing the raising and maintaining a given number of troops, for a specified time, leaving them, during that time, at the entire disposal and command of the sovereign. By this plan, the prerogative of the crown would remain precisely as it is declared by the above statute, at the same time that the danger to be apprehended from so vast a power, would be sufficiently cared for, by rendering the maintenance of the army dependent upon the will of parliament, whenever the period for renewing the act should arrive; that thus, to use the quaint language of Whitlock, though the king would have the power of the sword, the parliament would have that of the purse, so that they must both agree to draw the sword, or else leave it in the scabbard, which is the best place for it."

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This was the origin of the first mutiny act, which was passed in 1689, and, with two or three interruptions, has been annually renewed ever since. The provisions of the act, ori

ginally very confined, have been extended in succeeding acts, and others have been added, as they were from time to time required, by the increasing importance of our military establishments, and the course of legislative improvement. The mutiny act being in force only for a year, the provisions of each act, unless expressly retained in the succeeding one, necessarily become void by omission, though a clause is always inserted, by which offences against former acts are made cognizable by courts-martial, if prosecuted within three years from the time of their commission. We shall therefore confine our observations to the act as it now stands.

By the fourth section of the act, the king is empowered, "to make Articles of War for the better government of his majesty's forces, which articles shall be judiciously taken notice of by all judges and all courts whatsoever." This power, absolutely essential to the discipline and efficiency of the army, has been much objected to by those, who, besides losing sight of this important object, have paid no regard to the limits within which it is confined. In the first place, as it is restricted to "the better government of his majesty's forces," the operation of the articles is confined solely to military persons, and even in respect to them, provision is made, that no person "shall by such articles of war be subjected to be transported as a felon, or to suffer any punishment extending to life or limb, except for crimes which are by this act expressly made liable to such transportation, or to such punishment as aforesaid, nor to be punished in any manner, or under any regulations, which shall not accord with the provisions of this act." These restrictions, which take away the authority of the articles to impose original penalties in cases of capital and grave offences, reduce this power to that of enforcing order, by providing for those minor infractions of discipline, which, though too various and minute to come within the observation of the legislature, would, if unchecked, speedily demoralize the army, and render it the terror, instead of the safe-guard, of society. We suspect that many of the declaimers against this power in the crown, have been led into gross error, from the manner in which the articles have been usually framed. As they are generally regarded by military men as containing the substance of the military code, and as such are frequently

read to the troops, it has been usual to include in them all those offences which in the mutiny act are punished with death, transportation, or other great severity. These are punishments which, it will be recollected, can only be inflicted in the instances specified in the act; and by embodying the cases in the articles, the king is made apparently to assume a power, which in reality resides only in the legislature. But as the power of the king, as the head of the army, is undoubtedly very great, it will be as well to state to what it extends before proceeding further with our subject.

To the king, then, belongs the sole power of appointing all persons to commissions, or offices of trust and importance, in the army; and wherever any part of this power is usually exercised by persons holding certain offices, it is always expressed to be done in his name, except in the case of the appointments made by the Board of Ordnance. All promotions, honors, and rewards, proceed likewise from him, and in the advancement of individual officers, he is restricted neither by law, nor by the custom of the service, though, where no interference is exercised by him, the last is always supposed to hold good. So jealously is this prerogative preserved, that by the General Regulations and Orders published for the guidance of the army in 1822, any discussion of the merits and talents of officers appointed to commands, is strictly prohibited, "as being an assumption of power which belongs to the King alone, or to those officers to whom he may be pleased to intrust the command and discipline of his troops." As the King's authority to appoint and promote officers is thus unlimited, so is his authority to dismiss them from his service, whenever he chooses. All officers hold their commissions solely at his will, and may be deprived of them at pleasure, without the formality of a court-martial, or even reason assigned; and this, though they may have given large sums for their commissions. The case of Sir Robert Wilson is in point, and numerous other other instances might be adduced. 1 So far this power, however at first sight objectionable, is, for reasons

1 In the last century it was by no means unusual for an officer to be deprived of his commission upon grounds exclusively political. Pitt (the first Earl of Chatham) was deprived of his commission by Sir Robert Walpole, on account of the violence of his opposition to Sir Robert's ministry in parliament.-Edit.

It

which we have not space to detail, essential to maintain the character and efficiency of the army, provided it be always exercised under the responsibility of a particular minister,— but who this minister is, whether the First Lord of the Treasury, or the Secretary at War, does not appear to be ascertained. But a very objectionable extension of this power is the dismission of officers, who have been actually tried by a court-martial, and either acquitted of the charges brought against them, or sentenced to a more lenient punishment. It is very true that this power is always exercised on the ground of the King's right to dismiss an officer when he pleases, and ostensibly without reference to the sentence of the court, which it is not competent to the crown to alter or reverse. is contended, that no other punishment can be substituted for that affixed by the court; that the dismission is not in such a case, a punishment, but a discretionary act of the crown, exercised for the benefit of the public. But a court-martial, like every other court, is always assumed to be instituted, not less for the protection of innocence, than for the punishment of guilt; and if an officer is, under cover of the prerogative, liable to be dismissed (a circumstance generally attended with utter ruin to the individual) for an offence of which he has been acquitted by a court, or for which he has been sentenced to some lenient punishment, it is difficult to conceive what protection he derives from such a tribunal. Unquestionably it would be better for the dignity of the crown, and the interests of justice, if this part of the prerogative were abandoned. It cannot, in fact, be exercised, without subjecting the sovereign to the unseemly suspicion of a personal feeling, and abrogating in effect the sacred rights of a court of justice. A more popular and more beneficial power, that of pardoning or remitting the sentences of courts-martial, in common with those of all criminal courts, is lodged in the crown. The pardon may be granted either simply or conditionally. By the latter mode, capital punishment is sometimes commuted for transportation, and sometimes, as in the frequent instance of deserters, to service for life in the colonies. The pardon is sometimes granted on the recommendation of the court, but the power of the King to grant one, either simple or conditional, is entirely unlimited, whether proceeding upon such recommendation or not.

We have already noticed the authority given by the Mutiny Act to the King to make articles of war "for the better government of his Majesty's forces." The last power which we shall enumerate, and the most important of all, is contained in the fifth section of the act, by which, in order to bring offenders against the said articles of war to justice, his Majesty is empowered "to erect and constitute courts-martial within the united kingdom of Great Britain and Ireland, as well as to grant his royal commissions or warrants to the chief Governor of Ireland, the Commander of the Forces, or the person or persons commanding in chief, or commanding for the time being any body of his Majesty's forces, as well within the united kingdom of Great Britain and Ireland, and the British Isles, as in any of his Majesty's dominions beyond sea, for the purpose of convening, as well as authorizing any officer under their command, not below the degree of a field officer, to convene, courts-martial for the trial of offences committed by any of the forces under their several command.” As the offences cognizable by the military courts vary of course considerably in their nature and importance, it is necessary that some courts should be invested with higher powers, and more extensive jurisdiction, than the others. Accordingly there are four denominations of these courts, viz. general courts-martial, district or garrison courts-martial, detachment courts-martial, and regimental courts-martial. This last court, which is the most limited in its powers, must consist of officers of the same regiment, and is entirely of a domestic character, confining its attention to offences touching the discipline and interior economy of the regiment. Commissioned officers are not amenable to its authority. the proceedings of general courts-martial alone possess matter of public interest, we shall confine the rest of this statement to the practice of those courts; premising that the principles by which they are governed are, for the most part, applicable to the inferior tribunals, though the forms of the latter are necessarily more simple.

As

A General Court-martial, if convened in the King's dominions (Bermuda, the Bahamas, Africa, and New South Wales, excepted), or in the Company's territories in India, must consist of not less than thirteen commissioned officers, including