a civilian1. He may when in the British dominions. be put on trial before any competent "civil" (i.e. nonmilitary) Court for any offence for which he would be triable if he were not subject to military law, and there are certain offences, such as murder, for which he must in general be tried by a civil tribunal 2. Thus if a soldier murders a companion or robs a traveller whilst quartered in England or in Van Diemen's Land, his military character will not save him from standing in the dock on the charge of murder or theft.

A soldier cannot escape from civil liabilities, as, Civil liability. for example, responsibility for debts; the only exemption which he can claim is that he cannot be forced to appear in Court, and could not, when arrest for

debt was allowable, be arrested for any debt not exceeding £30 3.

No one who has entered into the spirit of continental legislation can believe that (say in France or Prussia) the rights of a private individual would thus have been allowed to override the claims of the public service.

In all conflicts of jurisdiction between a military and a civil Court the authority of the civil Court

1 Compare Army Act, 1881 (44 & 45 Vict. c. 58), secs. 41, 144,

162.

2

Compare however the Jurisdiction in Homicide Act, 1862, 25 & 26 Vict. c. 65, and Clode, Military Forces of the Crown, i. pp. 206, 207.

Compare

See Army Act, 1881 (44 & 45 Vict. c. 58), s. 144. Clode, Military Forces of the Crown, i. pp. 207, 208, and Thurston v. Mills, 16 East, 254.

Order of superiors no defence to charge of crime.

prevails. Thus, if a soldier is acquitted or convicted of an offence by a competent civil Court, he cannot be tried for the same offence by a Courtmartial'; but an acquittal or conviction by a Courtmartial, say for manslaughter or robbery, is no plea to an indictment for the same offence at the Assizes 2. When a soldier is put on trial on a charge of crime, obedience to superior orders is not of itself a defence3. This is a matter which requires explanation.

A soldier is bound to obey any lawful order which he receives from his military superior. But a soldier cannot any more than a civilian avoid responsibility for breach of the law by pleading that he broke the law in bonâ fide obedience to the orders (say) of the commander-in-chief. Hence the position of a soldier may be, both in theory and practice, a difficult one. He may, as it has been well said, be liable to be shot by a Court-martial if he disobeys an order, and to be hanged by a judge and jury if he obeys it. His situation and the line of his duty may be seen by considering how soldiers ought to act in the following cases.

During a riot an officer orders his soldiers to fire upon rioters. The command to fire is justified by

1 Army Act, 1881 (44 & 45 Vict. c. 58), s. 162, sub-ss. 1–6. 2 Ibid. Contrast the position of the army in relation to the law of the land in France. The fundamental principle of French law is, as it apparently always has been, that every kind of crime or offence committed by a soldier or person subject to military law must be tried by a military tribunal. See Code de Justice Militaire, Arts. 55, 56, 76, 77, and Le Faure, Les Lois Militaires, pp. 167, 173.

3 Stephen, History of Criminal Law, i. pp. 204-206, and compare Clode, Military Forces of the Crown, ii. pp. 125-155.

the fact that no less energetic course of action would be sufficient to put down the disturbance. The soldiers are, under these circumstances, clearly bound from a legal as well as from a military point of view to obey the command of their officer. It is a lawful order, and the men who carry it out are performing their duty both as soldiers and as citizens.

An officer orders his soldiers in a time of political excitement then and there to arrest and shoot without trial a popular leader against whom no crime has been proved, but who is suspected of treasonable designs. In such a case there is (it is conceived) no doubt that the soldiers who obey, no less than the officer who gives the command, are guilty of murder and liable to be hanged for it when convicted in due course of law. In such an extreme instance as this the duty of soldiers is, even at the risk of disobeying their superior, to obey the law of the land.

An officer orders his men to fire on a crowd whom he thinks could not be dispersed without the use of firearms. As a matter of fact the amount of force which he wishes to employ is excessive, and order could be kept by the mere threat that force would be used. The order therefore to fire is not in itself a lawful order, that is, the colonel or other officer who gives it is not legally justified in giving it, and will himself be held criminally responsible for the death of any person killed by the discharge of firearms. What is, from a legal point of view, the duty of the soldiers? The matter is one which has never been absolutely decided; the following answer, given by

Mr. Justice Stephen, is, it may fairly be assumed, as nearly correct a reply as the state of the authorities makes it possible to provide

"I do not think, however, that the question how "far superior orders would justify soldiers or sailors "in making an attack upon civilians has ever been "brought before the courts of law in such a manner "as to be fully considered and determined. Probably upon such an argument it would be found that the "order of a military superior would justify his in"feriors in executing any orders for giving which they "might fairly suppose their superior officer to have "good reasons. Soldiers might reasonably think "that their officer had good grounds for ordering "them to fire into a disorderly crowd which to them 'might not appear to be at that moment engaged in "acts of dangerous violence, but soldiers could hardly suppose that their officer could have any good grounds for ordering them to fire a volley down a "crowded street when no disturbance of any kind "was either in progress or apprehended. The doc"trine that a soldier is bound under all circumstances "whatever to obey his superior officer would be fatal "to military discipline itself, for it would justify the "private in shooting the colonel by the orders of the "captain, or in deserting to the enemy on the field of "battle on the order of his immediate superior. I "think it is not less monstrous to suppose that superior orders would justify a soldier in the "massacre of unoffending civilians in time of peace, "or in the exercise of inhuman cruelties, such as the

slaughter of women and children, during a rebellion. "The only line that presents itself to my mind is "that a soldier should be protected by orders for "which he might reasonably believe his officer to "have good grounds. The inconvenience of being "subject to two jurisdictions, the sympathies of which "are not unlikely to be opposed to each other, is an "inevitable consequence of the double necessity of "preserving on the one hand the supremacy of the "law, and on the other the discipline of the army1."

The hardship of a soldier's position resulting from this inconvenience is much diminished by the power of the Crown to nullify the effect of an unjust conviction by means of a pardon 2. While however a soldier runs no substantial risk of punishment for obedience to orders which a man of common sense may honestly believe to involve no breach of law, he can under no circumstances escape the chance of his military conduct becoming the subject of enquiry before a civil tribunal, and cannot avoid liability on the ground of obedience to superior orders for any act which a man of ordinary sense must have known to be a crime 3.

1

Stephen, Hist. Criminal Law of England, i. pp. 205, 206.

2 As also by the right of the Attorney-General as representing the Crown to enter a nolle prosequi. See Stephen, History of Criminal Law, i. p. 496, and Archbold, Pleading in Criminal Cases (17th ed.), p. 105.

3 Buron v. Denman, 2 Ex. 167, is sometimes cited as showing that obedience to the orders of the Crown is a legal justification to an officer for committing a breach of law, but the decision in that case does not in any way support the doctrine erroneously grounded upon it. What the judgment in Buron v. Denman shows is that