MARTIAL and MILITARY LAW do not mean the same thing ; and though they are here joined for convenience, our observations shall bo made upon each severally, without confounding it with the other.
31artial law, better known to some as drum-head law, is the arbi trary exercise of military power and authority for the purpose of enforcing complete submission, and is exerted, in the way of war, to whatever degree it be necessary, in quelling disturbance, dispersing mobs, repressing all signs of resistance, and punishing summarily on the spot any act of inimbordination. It depends entirely on the will of the officer in chief command ; who usually does, however, delegate this arbitrary power to a court-martial, composed of officers on the spot to judge of offences and to award punishment; and this is sometimes called a drum-Head court-martiaL It is this bitter kind of government, the most awful known in any state of civilised society, that the illustrious Duke of Wellington, upon an occasion still remembered in the house of Lords, when the present Earl Grey had made an inconsiderate appeal to the example of the distinguished soldier, deprecated being thought capable of ever applying to any civil community, except under modifications so extraordinary that one would scarcely have deemed the illustrious warrior's r6gime correctly entitled martial law. (Hans. Deb., 1 Apr. 1851.) By the Riot Act, the imperial par liament of this country has enabled the civil magistrate, when muni cipal authority Is for the time set at defiance, and no longer avails to preserve the peace, to call out the military, and to give the com manding officer authority to disperse the people by force. The unfor tunate condition of Ireland has frequently occasioned the express intervention of parliament to suppress insubordination by this kind of authority; and the lawless state of the people, evinced by agrarian outrages, and the perpetration and subsequent concealment of murder, under circumstance. which demonstrated a cruel conspiracy of many and a general approval of the deed, has too often required the enforce ment of a general Act, which enables the lord lieutenant to procleini any district stained by such crimes and to place it under the surveil lance of armed police, in greatly increased numbers, with greatly increased powers. These, however, are very modified instances of the application of martial law.
Military law, sometimes confounchx1 with the other, la now in this country a well-known code of discipline applicable to her Majesty's land forces and marines, both in timed of peace and war. It enianatea necessarily from the authority of all laws in this country—the civil it is applicable only to the regular forces, unless by Act of arliament the militia and volunteer forces, when enrolled, are placed under it. Civilians are amenable to the municipal law and no other, and any one who inflicts upon such a person in this country not in stand papillari any punishment whatsoever except by authority of that law and the civil magistrate, la answerable for his conduct in a court of justioe,civilly to the sufferer for the wrong done him, and criminally to the sovereign for the public offence.
This distinction between the two classes of persons with respect to military law is clearly expressed in the "Mutiny Act," as it is called, which was first passed in the reign of William. III. After stating that the subjects of this realm cannot be punished in any other manner than conformably to the common laws of the country, an exception is immediately enacted in the case of military persons; and then follow several provision. for the purpose of bringing soldiers who shall mutiny, excite sedition, or desert from the service, to a more exemplary and speedy punishment than the usual forms of law will allow.
Immediately after the Norman conquest of this country the military law consisted in the obligation imposed on the vassals of the crown to follow the king to the field, under penalty of a pecuniary tine or the forfeiture of their land. But the first known record concerning the
regulation of the army is believed to be that which was made in the reign of John ; and this relates chiefly to the purchase of pro visions at the sales held for supplying the army with necessaries. The ordinances of Richard II. and of Henry V., and the statutes of Ilenry VIII., contain many useful rules for the government and dis cipline of the army. They prescribe obedience to the king and the commanders ; they award punishments for gaming, theft, and other crimes; for raising false alarms in the camp, and for the seizure of religious persons. They also contain regulations concerning the dis posal of prisoners taken in battle, and concerning the stakes, famines, ladders, and other materials for military operations, with which the soldiers were to provide themselves. (Grose, ' Mil. Ant.' voL ii.) The early kings of this country do not appear to have exercised, generally, a discretionary power over the army ; for a statute of Edward I. states that the king had power to punish soldiers only according to the laws of the realm. The court of high constable and high marshal of England had for many years an exclusive jurisdiction in all military affairs, and this was sometimes extended over the civil courts. But the power of that court was restrained bye statute in the reign of Richard II. (1386); and the court itself, with the whole feudal system on which it was engrafted, gradually fell into disuse, and was displaced by an order of things with which it had little in common. No one however can point to the time that exactly divides the two eras. An interval occurred when it would have been difficult to say what was abiding. All was in a state of change : old things were passing away, and all things were becoming new. Charles 1. was so unfortunate as not to discern the signs of the time. He placed himself in the breach, and hoped alone to stem the tide of progreas; and there was a romantic chivalry in men's hearts which induced many to join him. They were borne down, and the genius of a great military system arose in Oliver Cromwell. The man himself was discipline ; be made his soldiers, and they made him. The Stuarts returned with the Restoration. The army of 5000 men which Charles 11., contrary to the constitution, maintained constantly in this country, became under his successor a body of 30,000 troops, arbitrarily levied, and therefore with difficulty retained to their standards on Hounslow Heath. Desertions became rife : pettier acts of insubordination were of course committed. The civil law knew no authority which could retain a man in the ranks against his will; and if ho beat his officers, they might indict him for assault and battery, and the jury might refuse to convict. The celebrated Lord Holt, afterwards Chief Justice, was then Recorder of Loudon. He maintained the law of England against the authority of James, who wished to enforce a discipline that rested entirely on his own sanction. Even Chief Juatico Herbert found the demand of his sovereign too great for him, and he also maintained the civil law. Readier instruments were therefore found for the bench in London and at Westminster; arbitrary sentences followed ; and death penalties and severe punishments astounded all the country, although applied to the army. The revolution at length succeeded this state of things, under the discenimeut of statesmen who knew the thnes were altered, and provided for them in accordance with the con stitutional law of the country.
Prendergast, Law of Ojcers of the Army ; Grose, Military AntiguNies ; Tytler'e Essay on Military Law, by Charles James ; Samuel, Historical Account of the British Army ; Major Adye, Treatise on Military Law ; Major-General C. J. Napier, Remarks on Military Law. See also COURTS-MARTIAL.)