An Historical Account of the British Army, and of the Law Military, as declared by the ancient and modern Statutes and Articles of War for its Government: with a free commentary on the Mutiny Act, etc

Front matter

AN HISTORICAL ACCOUNT OF THE BRITISH ARMY, AND OF THE SLato jBtlttarg, AS DECLARED BY THE Ancient and Modern Statutes, and Articles of War FOR ITS GOVERNMENT : WITH A FREE I COMMENTARY ON THE MUTINY ACT, AND THE &ultg anO Articles of SHar ; ILLUSTRATED BY FAMOUS DECISIONS OF chuRTS MARTIAL. i BY E. SAMUEL. Si quid auctoritatis in me est, ea apud eos utar, qui earn mihi dederunt. Cicero, EonJJon : PRINTED AND SOLD BY WILLIAM CLOWES* NORTHUMBERLAND-qOURT, STRAND, 1816.| TO Stye jfkm Supporter of CDrttcr nnJ) JDistlplinc ; THE INDEFATIGABLE PROMOTER OF EDUCATION, MORALITY, AND RELIGION IN THE RANKS OF Œf)t 8xmg ; THE LIBERAL PATRON OF THE OFFICER; THE ZEALOUS PROTECTOR OF THE SOLDIER; THE FRIEND OF ALL; TO HIS ROYAL HIGHNESS Œfje muke of i»orfe an* mbzn%, it*®. Ssc. Use. Ssc. THIS VOLUME, , A' Attempting to Explain and Elucidate THE HISTORY, REASON, AND OPERATION, OF THE &ato Jttartial, IN ITS DIRECT AND RELATIVE BEARING* ON THE Jfttlttari!

Sonetj), AND ON THE CIVIL CONSTITUTION OF THE STATE; OBJECTS AT ALL TIMES DEAR TO THE HEART OF THE PATRIOT PRINCE, AND THE ENLIGHTENED MIND OF THE COMMANDER IN CHIEF OF A BRITISH ARMY, is, mit\j Emission, Most humbly and respectfully Inscribed and dedicated, By His Royal Highness's most obliged, Most obedient and humble Servant, THE AUTHOR.

Preface

. THE great and necessary extent of our Armies at the present day, and the variety and importance of the objects connected wiSi them, have excited, in a more than ordinary degree, the attention of the Public, as well as of those more immediately concerned in the Military Establishments. But notwithstanding the interest taken in the affairs of the Military State, it is a matter of some surprise, that so little pains have been used to describe and explain the Law, by which so delicate, and, it may be added, so fearful a body, in a free State, is to be restrained and governed. Several preceding writers, it is true, have professed to treat at large on the practice of Courts Martial, and in the course of their direct inquiries have incidentally and lightly touched on the Law Military; but, until the appearance of the Essay of Tytler, no work has of late proposed to investigate the principle of that Law, or to consider the provisions, with their peculiarities, of which it is composed.

The learned Author, just mentioned, has entered into the general history of the Law, and has recounted certain curious historical facts and transactions as related with it ; but it appears to have been beyond VI

PREFACE.

. his design to penetrate into the particular obligations of such Law, either as they existed of old, or at the present moment, to shew their relative agreement or discrepancy with one another. His plan, so far as may be collected from the manner of its execution, was to present an outline of the Military State, at different periods of our History ; of the Law, or rather the quality of it, as generally declared for its government ; and of the sources, from time to time, whence it was derived. It had in view, it should seem, to establish certain doctrinal points, as an induction to a great, if not the principal object in the writer's contemplation, — the practice of Courts Martial ; a most useful point to be ascertained, though limited in its end, and narrowed in its scope and application towards those, for whose peculiar benefit the work was expressly intended.

It must be admitted by those, who have perused that elegant and learned Essay, that it has mainly ac complished all it had designed ; but it has not in any manner exhausted the subjects on which it undertook to treat. So far from excluding, it would seem to in vite ulterior inquiry, and has opened the ground, as it were, for the labours of others engaged in similar studies, and interested ir\tiie like pursuits. Anxious alike with the ingenious ' Essayist, to in vestigate and elucidate the condition of the soldier, in his individual and aggregate relation in the society of which he is a member ; to shew the Law, in its operation on his general state, and particular conduct

PREFACE.

. VII under any and every contingency, the writer of the following pages has aimed at the same end, by varied or different means. He has confined not his pencil, as it will be seen, to the delineation of the leading traits, but has endeavoured to trace out on his sheet the minute features of the Military Law, by which it may become more familiarly known of those, to whom it claims connexion by bonds of kindred or relation. He has conceived, that through the contemplation of the parts, the whole body and character of the Law may be more accurately comprehended, and more per manently fixed in the mind of the reader, than through the exhibition of a few leading, though strong and characteristic features. Under this impression, he has attempted to trace the Law Military from its primitive sources, and to follow it patiently, through all its windings, to its extreme boundaries.

Sensible, that a clear understanding of every legal provision must be important to those on whom it is intended to bear, the author has ventured, in the following sheets, not only to state the particular enactments and regulations of the Law Military, but has offered a copious Commentary, illustrated by precedents, when they were at hand, or the reasoning of others when it was attainable, on the intent and meaning of the Mutiny Act and Articles of War, the chief, if not the only depositories of the Military Law ; and on those passages particularly, where previous doubt or difficulty has been understood to exist. This portion of the work may be considered novel, and by

PREFACE.

. some, perhaps, superfluous ; but not by those, it is apprehended, who have had any conversancy with Military life, or the proceedings and decisions of Mi litary Courts. On this head the Author would run the risk of being too prolix, rather than of being not suf ficiently explanatory. If he shall be found to be too redundant in any place, he hopes that the error may not have induced a less pardonable fault, the overlooking or neglect of any material part of his design, either in following or describing the growth or progress of the British Army, through all its arbitrary and eventful changes, to its present established and legalized form ; or the history of the Law, in all its correspondent mutations to the condition of the Army, at different eras, to its im proved, if not perfect existing state.

He has attempted, however he may have failed in the accomplishment of his intention, to retain what had been usefully selected by others, who had travelled the track before him, in addition to what hehas himself been able to collect in the same path. He had even looked to achieve more, as will be shewn in the course of the subsequent pages, than under circumstances he has been disposed to at tempt, or may hereafter be competent to perform. TABLE OF CONTENTS. Introduction xi CHAP. I. Of the Military State in the time of the Anglo-Saxons, and of the Law attaching to it 1 CHAP. II. Of the Military Establishment and Command, from the Conquest to the Revolution 12 CHAP. III. Of the Ancient Rules and Ordinances for the Government of the Military State 57 CHAP. IV. Of the Military State at, and from the date of the Revolution 101 CHAP. V. Of the Law Military, as now obtaining 166 CHAP. VI.

Of the Mutiny Act 198 CHAP. VII. Of the Articles of War 224 Section I. — Divine Worship 23 1 Section II.— Mutiny 237 Section III. — Of enlisting Soldiers 288 Section IV. — On Musters 292 Section V. — Returns 319 Section VI. — Desertion 322 Section VII. — Quarrels and sending Challenges .... 347 Section V. II.— Suthng 439 Section IX. — Quarters X CONTENTS. Section X. — Carriages 477 Section XI. — Of Crimes punishable by Law 489 Section XII. — Of redressing wrongs 497 Section XIII. — Of Stores, Ammunition, &c 513 Section XIV. — Of Duties in Quarters, in Garrison, or in the Field 539 Section XV. Rank 611 Section XVI. — Administration of Justice 6 15 Section XVII. — Accounts 653 Section XVIII. — Entry of Commissions and Leaves of Absence 655 Section XIX. — Effects and Credits of deceased Officers and Soldiers, and of Deserters 656 Section XX.— Artillery 66l Section XXI. — Troops raised or serving in the Colonies 663 Section XXII. — Troops in the East Indies 665 Section XXIII. — Troops on board Ships of War. . . 670 Section XXIV. — Relating to the foregoing Articles. .

Introduction

. Military or Martial Law, the subject of this inquiry, is a particular rule of conduct, prescribed by the legislative authority of the State, for the government of the military force of the nation, in contra-distinction to the law, which regulates, or is intended to regulate the general conduct of the people in their civil relations. This is not of any distinct or separate quality, but a branch or portion of that law which applies to the great and common body of the people, and must therefore be presumed to partake of the ge nius and spirit that characterizes the general code. As the universal law of the State adapts itself, from time to time, to the existent condition of things, so does the law, attaching to a peculiar society, undergo the same changes to which the common law is liable ; and is governed, like it, by circumstances, or the fluctuating events of the par ticular association.

This may be pronounced of the law, as affecting the military institution ; which seems to have been subjected, in direct concomi tance, to the many and eventful changes, introduced by accident, or improvement in legislation, into the laws constructed for the general guidance and protection of the State. introduction. It would be beyond the purpose of this work, to enter into any comparative inquiry, with the view of tracing the simultaneous and parallel march of the law military to the same perfection, to which the ordinary British laws are supposed to have at tained. It will be sufficient, for its end, to pursue the Military Law, from its obscure and slender source, to its present distinguished and copious stream. It will be seen, in the progress of the inquiry, that the military regulations, obtaining in the ear lier periods of our history, were not formed, as now, for the control of a separate class of men, but for the whole mass of the people ; not operative on a particular body, but on the members of the com munity at large, every one of whom being* liable, when capable of bearing arms, to the burden of military service.

These regulations enjoined certain duties on citizens, under described penalties, while acting in the capacity of soldiers ; but as such capacity was occasional only, the regulations having reference to it, had but occasional force. Yet as a like service might, at stated seasons, or parti cular intervals, recur, theregulationsAvere not aban doned with the service; but, being calculated to the exigency of the camp, they were continued as a sort of standing legal provision, to be called into operation, as often as the citizens, in the discharge of their military duties, should be summoned to the field.

INTRODUCTION.

. XIII In this manner the military service of the State was performed and regulated, with {ew discernible innovations, for several centuries. No material alteration appears to have taken place in it until the time of the Conquest, when the whole body of the laws, as well as the original institutions of the country, were moulded, by degrees, to the will of the Conqueror. From this period, a gradual, but sensible separation was effected between the duties of the citizen and the soldier, to the utter disunion, at length, of the one from the other. But this was not brought about without much and continued struggle, and often successful opposition on tbe part of the peo ple ; who, from an ardent love of freedom, and consequent jealousy of military power, were always alive to, and suspicious of every military encroach ment, introduced,underfavouringorpredominating circumstances, by various Princes, owing their ele vation, and the stability of their authority to the length and temper of their swords.

This natural aversion was increased at different seasons by the abuse of military power, in the temporary subver sion of the civil rights of the subject. Men in process of time began to lose a part of their fears for more organized armies, as they became acquainted with their utility, from the maintenance of similar bodies by the surrounding nations, and the necessary adoption of them, in a correspondent policy, at home.

INTRODUCTION.

. Even after a military establishment had been tolerated in Britain for a series of years, and the good effects of it had been widely experienced, in the various evolutions of offensive and defensive warfare, to the protection and safety of the country, and the exaltation of the national glory, as well as to the convenience of the unmilitary classes of so ciety, left, by such an institution, to the peaceable pursuit of more congenial, and, individually or nationally considered, more advantageous occupa tions ; the legislature, distrustful alike with the people of the nature of military power, still scru pled, perpetuating the scruple by a solemn yearly recognition, to give it any fixed character ; to sus tain it by any permanent pecuniary fund ; or to protect it by any legal ordinances, but of a temporary and limited duration.

But laws, whether enacted for an indefinite or prescribed time, demand one and the same obe dience, so long* as their obligatory force is declared to enure : they are imperative from the source from which they are derived, and not from the term of their operation. Yet some wild and indigested notions have been indulged, in respect to the supposed quality of Military Law, which would lead one to conclude, that it had been originally much misconceived, or confounded, in an indistinct as sociation, with some other legal provision or practice of State, the authoritative force of which, as genuine law, might fairly be questioned. Such

INTRODUCTION.

. XV conceptions had their origin perhaps, at seasons, when the law military was little else than the de claration of the will of the Prince, or of the General to whom he had deputed his authority, and not as at present the commands of the legislature by especial and positive enactments. Or, possibly, such notions might have arisen out of imaginary resemblances, or from abuse of terms, fancied to be synonimous, but certainly not convertible, in as suming the Law Military to be the same thing with what commonly passes under thedenomination of Martial Law; which will appear, on examination, to be nothing more than the offspring of necessity, covering itself with the clothing and taking the name and place of law, though in reality it be, if not a subversion, at least a temporary supercession of all that is sound in legislation, justified and justifiable only in perilous and critical conjunctures, when social order is vitally threatened ; when vio lence can only be resisted by violence ; when the sense of danger is so imminent, as to overwhelm every other consideration ; where the end or ex istence of society is sustained, in a natural and spontaneous preference, to the means by which it is brought and held together ; when the public safety is preserved at the expense of the public ordinances. From whatever motive or source such opinions may spring, it is clear that they are erroneous ; since nothing can be more obvious, than that the

INTRODUCTION.

. Law Military, derived, as it is, from the same foun tain whence all our laws proceed, must necessarily savour of the virtue that distinguishes the whole. If any inferiority in tbe Military Law be inferred, from the uncertainty of its continuance, something might be arrogated, perhaps, from the frequency of its enactment. It cannot be overlooked, that its provisions are annually submitted to the revision and confirmation of Parliament : and it is no slight evidence of their fitness to their end, that they have been so successively sanctioned. If other Legis lative Acts were to be canvassed with the like strictness, it might be doubted, whether they would equally survive the test. But a dispassionate in vestigation into the principles of the Military Law, and not a panegyric, is here meditated.

With this pre-intimation of the design and in tended execution of this inquiry, I shall proceed, with a short description of the constitution of our ancient and modern armies, and the laws to which they have been from time to time subjected, which have converted them, under wise and po litic regulations, from objects of dread, into anti-. cipated, because approved instruments of safety. AN HISTORICAL ACCOUNT OF THE LAW MILITARY, fye. fye. fye.

Chapter I

Of the Military State in the Time of the Anglo-Saxons, and of the Law attaching to it. A HOUGH there be abundant records of the spirit and warlike achievements of the earliest British armies, there are few, if any, authenticated accounts of the manner of raising and conducting them. The same thing generally occurs in the first stages of society, when military power is resorted to on occasions of mere defence ; when the urgency is sudden, the service, and the preparation for it short, and the remembrance of it consequently transitory. Little is mentioned, with certainty, previously to the Anglo-Saxon government, either of the mode of collecting the military strength of the nation, or of the direction of it to the public advantage. It requires even a nice search to discover, at periods more advanced, any instructive materials on either of these interesting heads ; a circumstance ascribable B in the first place to the antiquity of the subject itself, and in the next, to the barbarous and uncultivated state of the times.

From the scanty sources of ihformation remaining to us, it may be collected, that military service, at this æra, was im posed, by a simple arrangement, as a common duty on the land, and on the entire male population, being freemen, and not incapable by years, debility, or infirmity, of bearing the requisite arms. Landholders, it seems, were generally bound to provide armed men, proportioned to the rated quantity of the land of which they were possessed, but in different quotas, according to the particular customs of different counties. It would appear, however, that one soldier was usually required for five hides of land*. Lands were sometimes liable to peculiar conditions of service, according to the stipulation of the grantor, which their tenants were obliged to fulfil. The holders of "more than five hides were compelled to find sub stitutes, at their own expense, or by some other means of requital, for the quantity of hides in their possession beyond that number, and after the same proportion for every five additional hides.

Persons liable to military service were summoned, in cases of emergency, by the mandate of the king ; and if they disobeyed the summons, were subjected to various penalties. In the case of a freeman having his sac, and able to go where he pleased, he forfeited his land at the pleasure of the king. If a freeman, living under another lord, ab sented himself, the lord was empowered to engage another man in his stead, and to demand a payment from the ab sentee of a suitable sum for the maintenance of the substi tute during the term of service; or if a substitute were not provided, the amount of the sum adequate to such maintenance was demandable of the absentee, as a fine to the king. # Sharou Turner's Hist, of the Auglo-Saxons, to1,4. p. 216. In the time of Ina, it was ordained, that if a sith-cind man owning land, abstained from the fyrde or expedition, he -was to pay 1205. and lose his land.

If not a landholder, or a ceorle, he was to pay 60s. for the fyrde mulct*. The clergy even were not exempt, so far as the sacred character of their function would permit, from participating in the common burden, but were required to aid the general efforts, by the provision of substitutes, or by pecuniary contributions f, commensurate with the glebe in their hands, or with the service required, in seasons of the first, or as it is more quaintly described, trinoda necessitas, the threefold necessity, i. e. in internal insurrection, actual foreign invasion, or the expectation of it, in consultingthe means and facility of defence, by constructing fortresses and public works, and repairing the bridges and highways. This especial duty ended when the particular circumstance, that urged it, ceased to operate or threaten.

The ordinary service, attaching to the common body of the state, seems to have been extremely simple, and of short duration. This constrained all persons, subject to military duty, to provide themselves, at their own cost, with arms, according to their condition, and to appear at a given place and stated time, usually in the spring, for the purposes of review and of exercise. The armour and weapons, consisting for the most part of a helmet and shield, covered with skins, a sword, brand, axe, bill or javelin, then in use, were supplied by little labour, and at small expense, the work manship being rude, aud the .materials of trivial value. Whatever arms or armour the individual selected, or was obliged to furnish himself withal, he was bound to preserve t Sh. Turner's Hist. Anglo-Saxons. . * There are instances, and not few, in which the higher dignitaries of the church served in person, and acquitted themselves, on the most trying occasions, with the most distinguished gallantry.

B2 for future emergencies, and was not suffered on any pretence to alienate, but was compelled to transmit them to his heir or successor. The duty falling on those attached, from rank or posses sions, to the cavalry, was of a more expensive, as well as more honourable order; the horse-soldiery consisting principally of Thanes. The aspiring or better conditioned began to prepare themselves for arms at the age of fourteen *. Personal service was not requited, at this time, by any stipend or pay, though it was customary for the person, finding a substitute, to give to the latter sufficient for his support during the term of service, at the rate of about Us. 6d. per week +. It must be understood, from the gratuitous nature of the service, as well as from the simplicity of the instruments or weapons employed, of which it demanded but moderate practice to acquire the mastery, that the term of it was not, at these periodical reviews, though it might differ at seasons of hostility, either long or inconvenient.

The general body, with the saving, perhaps, of a small number of undisciplined recruits, was in all probability dismissed after a few days' exertion, to the comfort of their homes. From the passage in the doomsday book, referred to in the last note, it might be conjectured that the ordinary term of service, in time of hostilities, was two months ; as the provision for the substitute was calculated for that space. But armies were sometimes kept in the field for a much longer period, and more especially by Alfred, when engaged • Sh. Turner's Hist. Anglo-Saxons, vol. 4, p. 54. t It is mentioned in the doomsday book, that " if the king should send an army any where, only one soldier should go for five hides; and for his victuals and pay every hide was to give him four shillings for two months.'* This money was not to be seat to tbe king, but to be given to the soldier. in his severe and continual struggles with Hastings.

They were held together, however, as it is noticed by the Saxon historians, more by the ingenuity and contrivance of that great and patriotic king, than by the course of the military service. Alfred, perceiving that the surest way of con quering the invader would be by a protracted warfare, rather than by a general action, or a succession of battles, to be fought by the whole and co-assembled body of his people, formed his armed force into two divisions; one of which he suffered to remain at home, for the purpose of pursuing their common employments, whilst the other should be sharing the dangers and the labours of the field. When the one half of his force had completed a certain portion of ser vice, the other was called to supply its place, and in this manner they relieved each other alternately.

By this happy distribution of his numbers, the king maintained a constant army in the field, to the surprise of his adversary, and to the admiration, as well as ease of his own subjects *. The method of assembling and marshalling the troops, was as admirable in itself, as any other part of the plan. The head of every family was required, at the public call, to lead forth to the spot appointed, its several subordinate members liable to military service. Family after family were marched in this patriarchal manner to the field of ex ercise ; not to be broken aud divided on their arrival there, but to be retained by an humane, as well as judicious arrangement, in their primitive shape. A subsequent, ready process, congenial with their civil customs, formed them into bodies of larger extent, by the communion of ten fa milies one with the other, denominated in their aggregate form, as the term implies, tythings.

Over each of these an officer was set, in immediate command, called conductor, correspondent in authority, if not the same officer, though • Sax. Chron. 92. differently styled, with the borsholder. Ten of these latter bodies were next incorporated, and designated a hundred, commanded by the principal local magistrate, known in his military capacity by the title of hundredary*. Several hun dreds, their numbers varying with circumstances, composed the largest corps, acting at that time in an independent body, called atrything, subject to the command of the trythingman. According to the extent or population of the respective counties were the number of trythings ; but whether they were more or less, the collective force of each county was conducted by a leader of its own choice, chosen usually of the nobility, for his conspicuous and eminent qualities, of wisdom, fidelity, and courage, named the heretoch, dux, or duke.

All the officers, also, in charge of the inferior classes, like this their chief, agreeable to a governing principle . in the £axon constitution, obtaining in all offices of public trust, were elected by the people. Over the entire strength of the country, from whatever counties, or in whatever proportions supplied, the king ex ercised, in time of war, a full and complete sway ; sometimes using it in his own person, at others committing it to the kyningshold, importing the king's lieutenant or general; the commission ceasing with hostilities. In time of peace the command of the force of the counties, respectively, reverted to the heretoch ; whose power in all things relating to the economy, conduct, and government of his contingent, was nearly unlimited ; a power supposed by some to have exceeded the due boundary, as bearing too heavily on the prerogative of the crown, and certainly liable * Grose, in his Military Antiquities, gives this curious and ingenious account of the mode of this officer's election.

" This officer was elected by the hundred, at their public court, where they met armed, and every mem her, as. a token of his obedience, touched the weapon of the hundredary ; whence fee com ts were called wupentakes, a name still kept up in Yorkshire.'' by abuse, of which it was susceptible, evidenced by more than one instance in our early annals, to be directed to the subversion of the kingly authority, and the interruption of the line of succession. The power of the heretochs is de scribed, in the laws of Edward the Confessor, to have been so plenary and absolute, as to be bounded only by their own discretion, it being permitted to them to regulate the force of the county, " prout eis visum fuerit, ad honorem coronæ et utilitatem regni :" " as to them it might seem best for the honour of the crown, and the service of the realm."

These few particulars are all that is traditionally handed down, on the organization, the control, and government of the Anglo-Saxon armies. However imperfect they may be in themselves, they yet tend to shew, that the military asso ciations at that æra were not ill adapted to the spirit of the times, or the condition and genius of the people ; nor alto gether unsuited to the purposes of resistance or defence. They were associations, the most promptly drawn together, and most easily formed ; the most cheaply maintained, the least harshly governed, and demandingthe slightest sacrifices of civil habits or liberties. Such is the small alteration they introduced into the life and manners of the individuals in cluded in them, that the camp must have seemed more like a city, where every man was surrounded by his relatives and friends, and ordinary magistrates, than an assemblage of men in a strange and foreign employment.

The peculiar laws, regarding these associations, must have been few in number, and plain in their nature ; prescribing some particular additions to the general obligations of the members of them, as created by the common law. Some legal provisions might perchance be needed, having respect to the formation of the military association itself, to the preservation of it as a body, and to the combination of its strength ; but these were all that the law-givers could have to frame for the regulation of this truly national force. The rest of the military ordinances might have been left, as occurrences should render them necessary, to the care of the heretoch, for it has been observed that his authority was large; and he being an occasional and elective officer, a power, otherwise so dangerous, might have been reposed, without any unreasonable apprehension, in his hands.