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Chapter IX: THE ARMY 1 - Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (LF ed.) 
Introduction to the Study of the Law of the Constitution, ed. Roger E. Michener (Indianapolis: Liberty Fund 1982).
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The ArmyTheEnglish army may for the purposes of this treatise be treated s consisting of the Standing Army or, in technical language, the Regular Forces2 and of the Territorial Force,3 which, like the Militia,4 is a territorial army for the defence of the United Kingdom.
Each of these forces has been rendered subordinate to the law of the land. My object is not to give even an outline of the enactments affecting the army, but simply to explain the legal principles on which this supremacy of the law throughout the army has been secured.
It will be convenient in considering this matter to reverse the order pursued in the common text-books; these contain a great deal about the militia, the territorial force of its day, and comparatively tittle about the regular forces, or what we now call the “army.” The reason of this is that historically the militia is an older institution than the permanent army, and the existence of a standing army is historically, and according to constitutional theories, an anomaly. Hence the standing army has often been treated by writers of authority as a sort of exceptional or subordinate topic, a kind of excrescence, so to speak, on the national and constitutional force known as the militia.5 As a matter of fact, of course, the standing army is now the real national force, and the territorial force is a body of secondary importance.
THE STANDING ARMY
Standing Army. Its existence reconciled with Parliamentary government by the annual Mutiny Acts. A permanent army of paid soldiers, whose main duty is one of absolute obedience to commands, appears at first sight to be an institution inconsistent with that rule of law or submission to the civil authorities, and especially to the judges, which is essential to popular or Parliamentary government; and in truth the existence of permanent paid forces has often in most countries and at times in England—notably under the Commonwealth—been found inconsistent with the existence of what, by a lax though intelligible mode of speech, is called a free government.6 The belief, indeed, of our statesmen down to a time considerably later than the Revolution of 1689 was that a standing army must be fatal to English freedom, yet very soon after the Revolution it became apparent that the existence of a body of paid soldiers was necessary to the safety of the nation. Englishmen, therefore, at the end of the seventeenth and the beginning of the eighteenth centuries, found themselves placed in this dilemma. With a standing army the country could not, they feared, escape from despotism; without a standing army the country could not, they were sure, avert invasion; the maintenance of national liberty appeared to involve the sacrifice of national independence. Yet English statesmanship found almost by accident a practical escape from this theoretical dilemma, and the Mutiny Act, though an enactment passed in a hurry to meet an immediate peril, contains the solution of an apparently insolvable problem.
In this instance, as in others, of success achieved by what is called the practical good sense, the political instinct, or the statesmanlike tact of Englishmen, we ought to be on our guard against two errors.
We ought not, on the one hand, to fancy that English statesmen acted with some profound sagacity or foresight peculiar to themselves, and not to be found among the politicians of other countries. Still less ought we, on the other, to imagine that luck or chance helps Englishmen out of difficulties with which the inhabitants of other countries cannot cope. Political common sense, or political instinct, means little more than habitual training in the conduct of affairs; this practical acquaintance with public business was enjoyed by educated Englishmen a century or two earlier than by educated Frenchmen or Germans; hence the early prevalence in England of sounder principles of government than have till recently prevailed in other lands. The statesmen of the Revolution succeeded in dealing with difficult problems, not because they struck out new and brilliant ideas, or because of luck, but because the notions of law and government which had grown up in England were in many points sound, and because the statesmen of 1689 applied to the difficulties of their time the notions which were habitual to the more thoughtful Englishmen of the day. The position of the army, in fact, was determined by an adherence on the part of the authors of the first Mutiny Act to the fundamental principle of English law, that a soldier may, like a clergyman, incur special obligations in his offidal character, but is not thereby exempted from the ordinary liabilities of citizenship.
The object and principles of the first Mutiny Act7 of 1689 are exactly the same as the object and principles of the Army Act,8 under which the English army is in substance now governed. A comparison of the two statutes shows at a glance what are the means by which the maintenance of military discipline has been reconciled with the maintenance of freedom, or, to use a more accurate expression, with the supremacy of the law of the land.
The preamble to the first Mutiny Act has reappeared with slight alterations in every subsequent Mutiny Act, and recites that
Whereas no man may be forejudged of life or limb, or subjected to any kind of punishment by martial law, or in any other manner than by the judgment of his peers, and according to the known and established laws of this realm; yet, nevertheless, it [is] requisite for retaining such forces as are, or shall be, raised during this exigence of affairs, in their duty an exact discipline be observed; and that soldiers who shall mutiny or stir up sedition, or shall desert their majesties' service, be brought to a more exemplary and speedy punishment than the usual forms of law will allow.9
This recital states the precise difficulty which perplexed the statesmen in 2689. Now let us observe the way in which it has been met.
A soldier, whether an officer or a private, in a standing army, or (to use the wider expression of modern Acts) “a person subject to military law,”10 stands in a two-fold relation: the one is his relation towards his fellow-citizens outside the army; the other is his relation towards the members of the army, and especially towards his military superiors; any man, in short, subject to military law has duties and rights as a citizen as well as duties and rights as a soldier. His position is each respect is under English law governed by definite principles.
A SOLDIER'S POSITION AS A CITIZEN
Soldier's position as citizen The fixed doctrine of English law is that a soldier, though a member of a standing army, is in England subject to all the duties and liabilities of an ordinary citizen. “Nothing in this Act contained” (so runs the first Mutiny Act) “shall extend or be construed to exempt any officer or soldier whatsoever from the ordinary process of law.”11 These words contain the due to all our legislation with regard to the standing army whilst employed in the United Kingdom. A soldier by his contract of enlistment undertakes many obligations in addition to the duties incumbent upon a civilian. But he does not escape from any of the duties of an ordinary British subject.
The results of this principle are traceable throughout the Mutiny Acts.
Criminal liability A soldier is subject to the same criminal liability as a civilian.12 He may when in the British dominions be put on trial before any competent “civil” (i.e. non-military) 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.13 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, 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 £30.14
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 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 Court-martial;15 but an acquittal or conviction by a Court-martial, say for manslaughter or robbery, is no plea to an indictment for the same offence at the Assizes.16
Order of superiors no defence to charge of crime When a soldier is put on trial on a charge of crime, obedience to superiors orders is not of itself a defence.17
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 bona fide obedience to the orders (say) of the commander-in-chief. Hence the position of a soldier is in theory and may be in 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 the fact that no less energetic course of action would be sufficient to put down the disturbance. The soldiers are, under these circumstances, dearly 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 who 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 inferiors 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 doctrine 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 army.18
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.19 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 inquiry 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.20
A SOLDIER'S POSITION AS A MEMBER OF THE ARMY
Soldier's positino as member of army A citizen on entering the army becomes liable to special duties as being “a person subject to military law.” Hence acts which if done by a civilian would be either no offence at all or only slight misdemeanours, e.g. an insult or a blow offered to an officer, may when done by a soldier become serious crimes and expose the person guilty of them to grave punishment. A soldier's offences, moreover, can be tried and punished by a Court-martial. He therefore in his military character of a soldier occupies a position totally different from that of a civilian; he has not the same freedom, and in addition to his duties as a citizen is subject to all the liabilities imposed by military law; but though this is so, it is not to be supposed that, even as regards a soldier's own position as a military man, the rule of the ordinary law is, at any rate in time of peace, excluded from the army.
The general principle on this subject is that the Courts of law have jurisdiction to determine who are the persons subject to military law, and whether a given proceeding, alleged to depend upon military law, is really justified by the rules of law which govern the army.
Hence flow the following (among other) consequences.
Enlistment, which constitutes the contract23 by which a person becomes subject to military law, is a civil proceeding, and a civil Court may sometimes have to inquire whether a man has been duly enlisted, or whether he is or is not entitled to his discharge.24
If a Court-martial exceeds its jurisdiction, or an officer, whether acting as a member of a Court-martial or not, does any act not authorised by law, the action of the Court, or of the officer, is subject to the supervision of the Courts.
The proceedings by which the Courts of law supervise the acts of Courts-martial and of officers may be criminal or civil. Criminal proceedings take the form of an indictment for assault, false imprisonment, manslaughter, or even murder. Civil proceedings may either be preventive, i.e. to restrain the commission or continuance of an injury; or remedial, i.e. to afford a remedy for injury actually suffered. Broadly speaking, the civil jurisdiction of the Courts of law is exercised as against the tribunal of a Court-martial by writs of prohibition or certiorari; and as against individual officers by actions for damages. A writ of habeas corpus also may be directed to any officer, governor of a prison, or other, who has in his custody any person alleged to be improperly detained under colour of military law.25
Lastly, the whole existence and discipline of the standing army, at any rate in time of peace, depends upon the passing of what is known as an annual Mutiny Act,26 or in strict correctness of the Army (Annual) Act. If this Act were not in force a soldier would not be bound by military law. Desertion would be at most only a breach of contract, and striking an officer would be no more than an assault.
THE TERRITORIAL FORCE
TERRITORIAL FORCE. This force in many respects represents the militia and the volunteers. It is, as was in fact the militia in later times, raised by voluntary enlistment. It cannot be compelled to serve outside the United Kingdom. It is from its nature, in this too like the militia, a body hardly capable of being used for the overthrow of Parliamentary government. But even with regard to the territorial force, care has been taken to ensure that it shall be subject to the rule of law. The members of this local army are (speaking in general terms) subject to military law only when in training or when the force is embodied.27 Embodiment indeed converts the territorial force into a territorial army, though an army which cannot be required to serve abroad.
But the embodiment can lawfully take place only in case of imminent national danger or great emergency, or unless the emergency requires it, until Parliament has had an opportunity of presenting an address against the embodiment of the territorial force. The general effect of the enactments on the subject is that, at any rate when there is a Parliament in existence, the embodiment of the territorial force cannot, except under the pressure of urgent necessity, be carried out without the sanction of Parliament.28 Add to this, that the maintenance of discipline among the members of the territorial force when it is embodied depends on the continuance in force of the Army Act and of the Army (Annual) Act.29
See Stephen, Commentaries, ii. book iv. chap. viii.; Gneist, Das Englische Verwaltungsrecht, ii. 952–966; Manual of Military Law.
“The expressions ‘regular forces’ and ‘His Majesty's regular forces’ mean officers and soldiers who by their commission, terms of enlistment, or otherwise, are liable to render continuously for a term military service to His Majesty in any part of the world, induding, subject to the modifications in this Act mentioned, the Royal Marines and His Majesty's Indian forces and the Royal Malta Artillery, and subject to this qualification, that when the reserve forces are subject to military law such forces become during the period of their being so subject part of the regular forces” (Army Act, s. 190 (8)).
See the Territorial and Reserve Forces Act, 1907 (7 Edw. VII. c. 9), especially s. 6, s. 1, sub-s. (6), and the Army Act.
The Militia—the Territorial and Reserve Forces Act, 1907, does not repeal the various Militia Acts. Until these Acts are repealed the statutory power of raising the militia, either regular or local, and of forming thereof regiments and corps will continue to exist. (For the law regulating the militia see 13 Car. II. star. 2. c. 6; 14 Car. II. c. 3; 15 Car. II. c. 4; the Militia Acts. Act, 1802,42 Geo. III. c. 90; Militia Act, 1882,45 & 46 Vict. c. 49; and Regulation of the Forces Act, 1881, 44 & 45 Vict. c. 57.) The militia as long as it exists is in theory a local force levied by conscription, but the power of raising it by ballot has been for a considerable time suspended, and the militia has been in fact recruited by voluntary enlistment. Embodiment converts the militia into a regular army, but an army which cannot be called upon to serve abroad. Embodiment can lawfully take place only in case “of imminent national danger or of great emergency,” the occasion being first communicated to Parliament if sitting, or if not sitting, proclaimed by Order in Council (Militia Act, 1882, s. 18; 2 Steph. Comm. (14th ed.) p. 469). The maintenance of discipline among the members of the militia when embodied depends on the passing of the Army (Annual) Act, or in popular language, on the continuance of the Mutiny Act (see p. 232, post).
The actual position of the militia, however, until the Acts on which its existence depends have been repealed, is worth noting, as it is conceivable that Parliament may think it worth while to keep alive the historical right of the Crown to raise the militia.
In the seventeenth century Parliament apparently meant to rely for the defence of England upon this national army raised from the counties and placed under the guidance of country gentlemen. See 14 Car. II. c. 3.
6 See, e.g. Macaulay, History, iii. pp. 42–47. “Throughout the period [of the Civil War and the Interregnum] the military authorities maintained with great strictness their exclusive jurisdiction over offences committed both by officers and soldiers. More than once conflicts took place between the civil magistrates and the commanders of the army over this question.”—Firth, Cromwell's Army, p. 310, Mr. Firth gives several examples (pp. 310–312) of the assertion or attempted assertion of the authority of the civil power even during a period of military predominance.
1 Will. & Mary, c. 5.
Combined with the Army (Annual) Act, passed each year.
See Clode, Military Forces of the Crown, i. p. 499. Compare 47 Vict. c. 8. The variations in the modem Acts, though slight, are instructive.
Part V. of the Army Act points out who under English law are “persons subject to military law,” that is to say, who are liable to be tried and punished by Court-martial for military, and in some circumstances for civil, offences under the provisions of the Act.
Will. & Mary, c. 5, s. 6; see Clode, Military Forces of the Crown, i. p. 500.
Compare Army Act, secs. 41, 144, 162.
Compare, however, the Jurisdiction in Homicide Act, 1862, 25 & 26 Vict. c. 65, and Clode, Military Forces of the Crown, i. pp. 206, 207.
See Army Act, s. 144. Compare Clode, Military Forces of the Crown, i. pp. 207, 208, and Thurston v. Mills, 16 East, 254.
Army Act, s. 162, sub-ss. 1–6.
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.
Stephen, History of the Criminal Law, i. pp. 204–206, and compare Clode, Military Forces of the Crown, ii. pp. 125–155. The position of a soldier is curiously illustrated by the following case. X was a sentinel on board the Achille when she was paying off. “The orders to him from the preceding sentinel were, to keep off all boats, unless they had officers with uniforms in them, or unless the officer on deck allowed them to approach; and he received a musket, three blank cartridges, and three balls. The boats pressed; upon which he called repeatedly to them to keep off; but one of them persisted and came dose under the ship; and he then fired at a man who was in the boat, and killed him. It was put to the jury to find, whether the sentinel did not fire under the mistaken impression that it was his duty; and they found that he did. But a case being reserved, the judges were unanimous that it was, nevertheless, murder. They thought it, however, a proper case for a pardon; and further, they were of opinion, that if the act had been necessary for the preservation of the ship, as if the deceased had been stirring up a mutiny, the sentinel would have been justified.”—Russell, Crimes and Misdemeanors (4th ed.), i. p. 823, on the authority of Rex v. Thomas, East, T., 1816, MS., Bayley, J. The date of the decision is worth noticing; no one can suppose that the judges of 1816 were disposed to underrate the rights of the Crown and its servants. The judgment of the Court rests upon and illustrates the incontrovertible principle of the common law that the fact of a person being a soldier and of his acting strictly under orders, does not of itself exempt him from criminal liability for acts which would be crimes if done by a civilian.
Stephen, History of the Criminal Law of England, i. pp. 205, 206. Compare language of Willes, J., in Keighly v. Bell, 4 F. & F. 763. See also opinion of Lord Bowen, cited in Appendix, Note VI., Duty of Soldiers called upon to disperse an Unlawful Assembly.
As also by the right of the Attorney-General as representing the Crown to enter a nolle prosequi. See Stephen, History of the Criminal Law, i. p. 496, and Archbold, Pleading in Criminal Cases (22nd ed.), p. 125.
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 an act done by an English military or naval officer in a foreign country to a foreigner, in discharge of orders received from the Crown, may be an act of war, but does not constitute any breach of law for which an action can be brought against the officer in an English Court. Compare Feather v. The Queen, 6B. & S. 257, 295, per Curiam.
See Wolfe Tone's Case, 27 St. Tr. 614; Douglas's Case, 3 Q. B, 825; Fry v. Ogle, cited Manual of Military Law, chap. vii. s. 41.
See Army Act, ss, 275–184.
“The enlistment of the soldier is a species of contract between the sovereign and the soldier, and under the ordinary principles of law cannot be altered without the consent of both parties. The result is that the conditions laid down in the Act under which a man was enlisted cannot be varied without his consent.”—Manual of Military Law, chap. x. s. 18.
See Army Act, s. 96, for special provisions as to the delivering to a master of an apprentice who, being under twenty-one, has enlisted as a soldier. Under the present law, at any rate, it can very rarely happen that a Court should be called upon to consider whether a person is improperly detained in military custody as a soldier. See Army Act, s. 100, sub-ss. 2, 3. The Courts used to interfere, when soldiers were impressed, in cases of improper impressment. See Clode, Military Forces, ii. pp. 8, 587.
Manual of Military Law, chap. viii. s. 8. It should, however, be noted that the Courts of law will not, in general at any rate, deal with rights dependent on military status and military regulations.
The case stands thus: The discipline of the standing army depends on the Army Act, 1881, 44 & 45 Vict. c. 58, which by s. 2 continues in force only for such time as may be specified in an annual Act, which is passed yearly, and called the Army (Annual) Act. This Act keeps in existence the standing army and continues the Army Act in force. It is therefore, in strictness, upon the passing of the Army (Annual) Act that depends the existence and the discipline of the standing army.
But in one case at least, i.e. failure to attend on embodiment, a man of the territorial force may be liable to be tried by Court-martial, though not otherwise subject to military law. (Territorial and Reserve Forces Act, 1907, s. 20; see also as to cases of concurrent jurisdiction of a Court-martial and a Court of summary jurisdiction, ibid. ss. 24, 25.)
Compare the Territorial and Reserve Forces Act, 1907, s. 7, the Reserve Forces Act, 1882, ss. 12, 13, and the Militia Act, 1882, s. 18, and see note 4, P. 188, ante.
There exists an instructive analogy between the position of persons subject to military law, and the position of the clergy of the Established Church.