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COURTS-MARTIAL

THE unexpected nature and extent of the administrative problems which faced army chiefs as the late War unfolded its course have been a constant subject of discussion and illustration in the hands of both military and civil narrators of war experiences. The creation of services and departments hardly dreamt of before the War by even the most imaginative of staff officers had, at its close, produced much amazing improvisation, absorbed much man-power, and added greatly to the congeries of employments which so long defied the efforts of the demobilisation branch of the War Office. But at the outset the necessary services were slow to realise a tenth part of the changes which modern warfare demanded. The military mind notoriously runs in grooves, and, whatever the vigour and initiative displayed in progress along an established track, the first start in a fresh direction is too often a slow and uneasy effort. Army reform is indeed as difficult as law reform, and the conservatism of lawyers is matched by that of soldiers.

It will not, I think, be without interest to trace the progress and effect of what was at once both a military and a legal reform, the development,

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The original Expeditionary Force of six Divisions took with it, attached to Sir John French's Headquarters Staff, a single adviser in military law; officially he was the Deputy of the JudgeAdvocate-General who remained at home, and his prospective existence had been recognised in a single paragraph in Field Service Regulations. The "D.J.A.G."1 in due course established himself as a well-recognised official, helpful, diligent, unprejudiced, and experienced in both civil and military law.

The system of law he was called upon to administer needs an explanation which must in some degree be technical. A soldier upon enlistment provides the clearest modern instance in English law of a distinct legal status such as Roman law defined with so much care. He is not the only instance, for he shares the distinction with infants, lunatics, and trade unions. Without losing in all respects his status as a civilian, he acquires a new status which it is the main function of military law to define and regulate. It is with the internal rather than with the external aspect of this status that military law deals. The relation of the soldier to the civilian remains, for the most part, regulated by ordinary law.

Yet military law is, in its origin and authority and from a technical standpoint, ordinary law. Apart from some few surviving elements of the

1 Brigadier-General Mellor, K.C.

Royal prerogative it is all based on statute. It is in the Army Act that the soldier (if he ever look) finds his duties and his rights; and that Act is, of course, as good law as any other Act of Parliament. But the status it establishes is a thing apart. Once enlisted the soldier has by law-Act of Parliament, that is—to be where he is wanted. Absence from that place (unlike the absence of the office boy whom the attractions of a Wednesday football match have drawn away from the call of his employer's bell) may entail, upon conviction by court-martial, a punishment of two years' imprisonment with hard labour. The soldier must obey orders of superiors; the result of failure again may differ widely from that of the civil breach of the contract of service which a workman commits when he disobeys his foreman's orders; if committed "in such a manner as to show wilful defiance of authority when on active service, it may indeed entail a sentence of death. The mere display of a lack of moral quality-courage-may in similar circumstances have a similar result. Such results are not imposed upon soldiers by the arbitrary will of their commanders (as is sometimes ignorantly supposed), but by the positive enactment of an Act of Parliament.

Rights as well as duties are dealt with and defined by the same statute. The soldier's pay is a statutory right, and cannot be withheld at the caprice of his commander. His status itself is in many ways safeguarded. A soldier once appointed a non-commissioned officer cannot arbitrarily be reduced. A conviction for an

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offence by court-martial, or a special reference to the War Office or other high military authority, is necessary. His right of expressing his grievance, while limited, is rigidly safeguarded by law; collective action he may not take, but he has a statutory right to make complaint to his commander. That commander must in his turn forward the complaint to still higher authority if required to do so.

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It is as a person subject to military law"

that this status belongs to soldier and officer alike. The phrase is the governing one throughout the Army Act, and indicates that a special class with a special status is the main subjectmatter of the Act, and that the Act affects, generally speaking, no one but that class. The status belongs to the soldier wherever he goes, whether at home, or abroad, or in captivity.

It is necessary in an explanation designed chiefly for those who are not lawyers that I should here mention (if only to distinguish it) that "martial law" which means so much more a state of facts than a state of law, and which has no relation to the Army Act nor, apart from special cases, any statutory basis. To the English lawyer it indicates ordinarily the rights and powers of the Government, normally exercised through its military subordinates, to maintain order and security and its own authority. Such an assertion becomes necessary in the face of a hostile foreign army or population, or of insurrectionary movements at home, causing the disruption of the civil order, and failure of the ordinary civil institutions to suppress them.

The clearest case of martial law occurs when the territory of an enemy state is occupied by the military forces of the Crown. Martial law arises here automatically with the laws of war, a branch of international law which is recognised and adopted as the municipal law of this country. Here, as the Duke of Wellington said in the oftquoted phrase, martial law is simply the will of the Commander-in-Chief, bound only by the laws of war. The authority of the enemy state itself is in suspense; and the authority of the invading army is substituted. Upon the Western front no such situation arose until Lord Plumer with the Second British Army advanced into German Territory at the end of 1918. Of the legal system which he then enforced upon the occupied area I shall have a word to say later. It did not affect his own Army, which carried its own status with it.

The system of trial by courts-martial is an integral part of the system of military law which I am discussing.

No court-martial held to deal with the offence of a person subject to military law is the arbitrary creation of a military commander, exercising its powers merely as his delegate. It is a statutory tribunal bound by rules laid down in the Army Act, or in regulations made by the authority of the Act, and its powers are enforced upon it by the Act. By virtue of the Act its sentences are enforceable. The law of evidence prevailing in civil courts is expressly applied by the Act to the proceedings of a court-martial.

By military custom and arrangement military

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