A statute passed in the reign of Charles II, entitled 'An Act for ordering the forces in the several counties of this kingdom,D recites that 'within all his Majesty's realms and dominions, the sole and supreme power, government, com mand, and disposition of the militia, and of all forces by sea and land, and of all forts and places of strength is, and by the laws of Eng land ever was, the undoubted right of his Majesty, and his royal predecessors, kings and queens of England.D With the exception of some slight encroachment on the part of the Crown, and protests on the part of the Parlia ment, matters remained in very much the same state till the Revolution, at which period mili tary law assumed a permanent and definite form as it now exists. The only allusions to the military power of the Crown, in the Bill of Rights, are 'that the raising and keeping of a standing army in time of peace without con sent of Parliament, is contrary to law)); and that 'subjects, if Protestants, may have arms for their defense, suitable to their condition, and as allowed by law.p In the first year, how ever, of the reign of William and Mary, Brit ish regiments, jealous of the supposed prefer ence shown by William for his Dutch troops, mutinied at Ipswich. The King suppressed the mutiny with a strong hand, at the same time communicating the event to Parliament. Par liament, anxious to devise means for the con venient application of a code of laws for the regulation and management of the army, and at the same time determined to place a check upon the exercise of the military power of the King, passed, on 3 April 1689, for a period of six months only, the first Mutiny Act, the pre amble of which is as follows: "Whereas, the raising or keeping a standing army within this kingdome, in time of peace, unlesse it be with the consent of Parlyament, is against law; and whereas it is judged necessary by their majes tyes and this present Parlyament that, during this time of war, several! of the forces which are now on foote should be continued and others raised, for the safety of the kingdome, for the common defence of the Protestant re ligion, and for the reducing of Ireland. And whereas no man can be prejudged of life or limb, or subjected to any kinde of punishment by martiall law, or in any other manner than by the judgment of his peeres, and according to the known and established lawes of this realme; yet, nevertheless, it being requisite for retaining such forces as are or shall be raised during this mdsgence of affaires in their duty, that an exact discipline be observed; and that soldiers who shall mutiny or stirr up sedition, or who shall desert their majestyes' service, be brought to more exemploary and speedy pun ishment than the usual formes of law will al low.* The act provides for the assembling and constitution of courts-martial, for the oath of members, for the punishment of desertion, mutiny, sedition, false musters, etc.; for the regulation of billets; and is ordered to be read at the head of every regiment, troops, or com pany, at every muster, "that noe soldier may pretend ignorance.* No power is, however, reserved to the sovereign to make articles of war. This act was renewed soon after its ex piration; and with the exception of about three years only, viz., from 10 April 1698, to 20 Feb. 1701, has been annually re-enacted (with many alterations and amendments).
Under the Constitution of the United States, Congress only can make rules of government and regulation for the land forces, and those rules, commonly called articles of war, were originally borrowed jointly from the English Mutiny Act annually passed by Parliament, and their articles of war established by the King. The existing articles for the government of the army of the United States, enacted 10 April 1806, are substantially the same as those orig inally borrowed 30 July 1775, and enlarged by the old Congress from the same sources 20 Sept. 1776. The act consists of but three sec
tions. The first declares: "The following shall be the rules and articles by which the armies of the United States shall be governed"; and gives 101 articles. Each article is confined, in express terms, to the persons composing the army. The second section contains the only exception in the cases as follows: "In time of war, all persons not citizens of, or owing allegi ance to the United States of America who shall be found lurking, as spies, in or about the forti fications or encampments of the armies of the United States, or any of them, shall suffer death, according to the taw and usage of nations, by sentence of a general court-martial.* The third section merely repeals the previous act for governing the army. The articles of war, therefore, arc, and under the Constitution of the United States can be, nothing more than a code for the government and regulation of the army. Or, in other words, within the United States these articles are as system of rules superadded to the common law for regu lating the citizen in his character of a soldier,* and applicable to no other citizens. Beyond the United States, another code is essential; for although armies take with them the rules and articles of war, and the custom of war in like cases, in a foreign country, the soldier must be tried by some tribunal for offenses which at home would be punishable by the ordinary courts of law. It is impossible to subject him to any foreign dominion, and hence in the ab sence of rules made by Congress for the gov ernment of the army under such circumstances, the will of the commander of the troops, ex necessitate ref, takes of law, and the declaration of his will is called martial law. The most casual reader of the articles of war will be struck by the fact that whereas the Mutiny Act of Great Britain is annually sub jected to the supervision of Parliament, and altered or modified according to circumstances, yet the rules and articles of war passed in 1806 have remained upon our statute-book from that day to the present without any general revision. Another fact equally important is that while the King of Great Britain not only commands but governs the British army, and therefore modifies the government of the army at his pleasure, the President of the United States is simply the commander of our army, under such rules for raising, supporting, governing and regulating it as Congress may appoint.
The articles of war, as revised in 1916, mod ernize the proceedings of courts-martial. There are no radical changes, and the most important are those which harmonize the proceedings of the military courts with those of modern civil courts. The reviewing authority of .the pro ceeding of the court-martial includes: (a) The power to approve or disapprove a finding and to approve only so much of a finding of guilty of a particular offense as involves a finding of guilty of a lesser included offense when in the opinon of the authority having power to ap prove the evidence of record requires a finding of only the lesser degree of guilt; and (b) the power to approve or disapprove the whole or any part of the sentence.
Under the new articles it is no longer man datory for a court to sentence an offender to dismissal for drunkenness while on duty in time of peace. The court can use its discretion. For the first time military authorities are per mitted to adjudicate the affairs of deceased officers and soldiers and to hold inquests. Rights to remove civil suits or criminal prose cution against military persons from State to Federal courts are conferred upon military au thorities. These cases include acts done in the line of duty. Depositions are authorized in many cases which were not provided for under the old articles of war.