be interested; taking rank according to the feniority of their commissions in either service. The king is likewife empowered by parliament to frame and establish articles of war, for the regulation and government of the troops in the fervice of the Eaft India Company; and it is declared, by the mutiny act, that, as often as there may be occafion, officers of his majesty's land forces and thofe in the Eaft India Company's fervice may fit in conjunction at courts-martial, and proceed on the trial of any officer or foldier, as if fuch court were composed of officers of either fervice only; and on the trial of any officer or foldier belonging to the Eaft India Company, regard must be had to the regulations made in 27th year of George II. for punishingmutiny and desertion of officers and foldiers in that fervice. By thefe tribunals alfo may be tried artillery officers, and those ferving in the royal corps of engineers, and perfons ferving and hired to be employed in them, officers and perfons ferving in the corps of royal military artificers and labourers, mafter gunners and gunners under the ordnance, and in the corps of royal engineers, and officers and perfons ferving in the corps of royal military furveyors and draftsmen. For differences arifing among themselves, or in matters relating folely to their own corps, the courts martial on perfons belonging to the artillery may be compofed of their own officers; but where a fufficient number cannot be affembled, or in matters wherein other corps are interested, the officers of artillery fit in courts martial with the officers of other corps, taking rank according to the dates of their refpective commiffions. All troops raifed in any of the British provinces of America, by authority of the governors or governments, are, while acting in conjunction with his majesty's British forces, under the command of an officer having a commission immediately from his majesty, liable to martial law and difcipline, like other troops, and fubject to the fame trials and punishments by courts-martial. The fubjection of the militia to military law has already been mentioned, and its extenfion to volunteer and yeomanry corps, while in actual service; and the courts-martial on each must be compofed of officers of their own class; that is, an offender in the militia must be tried by the militia, and not by regular or volunteer officers; and fo in every cafe. EXTENT OF MILITARY LAW. Military law, as exercised by the authority of parliament, and the mutiny act annually paffed, together with the articles of war framed by his majesty, and the printed regulations from time to time iffued for the regulation of his majefty's troops, has often been confounded by able lawyers and writers, with a different branch of the royal prerogative, denominated martial law, and which is only refort ed to on an emergency of invafion, rebellion, or infurrection, The distinction was ably defined by the late earl of Rofslyn, while lord chief juftice of the common pleas, in the cafe of ferjeant Grant, who moved for a prohibition against the sentence of a general court-martial, by which he was adjudged to receive a thousand lathes, for the being inftrumental in inlifting, for the fervice of the Eaft India Company, two drummers, knowing them to belong to the foot guards. His lordship, in delivering the opinion of the court, faid, " Martial law, such as "it is defcribed by Hale, and fuch alfo as it is marked by Sir "William, Blackstone, does not exist in England at all. Where martial law is established, and prevails in any country, it is "of a totally different nature from that which, by inaccuracy, "is called martial law, merely because the decifion is by a court"martial; but which bears no affinity to that which was for"merly attempted to be exercised in this kingdom, which was contrary to the conftitution, and has been for a century "totally exploded. Where martial law prevails, the authority "under which it is exercifed claims a jurifdiction over all "military perfons, in all circumftances: even their debts are "fubject to inquiry, by a military authority. Every fpccies "of offence, committed by any person who appertains to the army, is tried not by a civil judicature, but by the judicature "of the regiment or corps to which he belongs. It extends "alfo to a great vari, ty of cafes, not relating to the difcipline of the army in thofe ftates which fubfift by military power, "Plots against the fovereign, intelligence to the enemy, and "the like, are all confidered as cafes within the cognizance of the "military authority. In the reign of king William, there was "a confpiracy against his perfon in Holland; and the perfons "guilty of that confpiracy were tried by a council of officers. "There was alfo a confpiracy against his perfon in England; "but the confpirators were tried by the common law. Within a very recent period, the incendiaries, attempting to fet fire "to the docks at Portimouth, were tried by the common law. "In this country, the delinquencies of foldiers are not triable, "as in most countries in Europe, by martial law: but where "there are ordinary offences against the civil peace, they are tried by the common law courts. Therefore, it is totally inaccurate, to ftate martial law as having any place whatever "within the realm of Great Britain. But there is, by the pro"vidence and wifdom of the legislature, an army established in "this country, of which it is neceflary to keep up the establish"ment. The army being fixed by the authority of the legiflature, it is an indifpenfable requifite of that establishment, that there fhould be order and difcipline kept up in it; and "that that perfons who compofe the army, for all offences in their mili"tary capacity, fhould be fubject to a trial by their officers. "This has induced the abfolute neceffity of a mutiny act ac"companying the army. It has happened indeed, at different "periods of the government, that there has been a strong oppofition to the establishment of the army; but the army being established and voted, that led to the establishment of ་ a mutiny act. It is one object of that act to provide for the « army; but there is a much greater cause for the existence "of a mutiny act, and that is, the prefervation of the peace "and fafety of the kingdom; for there is nothing fo dangerous "to the civil establishment of a state, as a licentious and un"difciplined army. The object of the mutiny act, therefore, ❝is, to create a court invefted with authority to try those who " are a part of the army, in all their different defcriptions of "officers and foldiers; and the object of the trial is limited "to breaches of military duty. Even, by that extenfive power "granted by the legislature to his majesty, to make articles of war, thofe articles are to be for the better government "of his forces; and they can extend no further than they "are thought neceflary for the regularity and due difcipline of "the army. Breaches of military duty are, in many instances, "ftrictly defined; they are fo in all cafes, where a capital punifliment is to be inflicted. In other inftances, where "the degree of offence may vary exceedingly, it may be necef"fary to give a diferetion with regard to the punishment; and in fome cafes, it is impoffible more ftrictly to mark the "crime, than to call it a neglect of discipline." The military law is, in fact, fubordinate to the civil and municipal laws of the kingdom, and does not in any way superfede thofe laws, but they materially aid and co-operate with each other for the good order and difcipline of the army in particular, and for the benefit of the community in general. Thus it is declared by the mutiny act, that "nothing in that statute "fhall extend, or be conftrued to exempt any officer or foldier "whatsoever, from being proceeded against by the ordinary "course of law." And that if any officer, foldier, &c. fhall be accused of any capital crime, or any offence against the perfon, eftate or property, of any of his majesty's fubjects, which is punishable by the known laws of the land, the commanding officers of all regiments, troops, or parties, are required to use their utmost endeavour to deliver over fuch accufed perfon to the civil magiftrate, and to affift the officers of justice in apprehending fuch offender; and this, under the penalty of being ipfo facto cafhiered, and declared incapable of holding any civil or military office, within the united kingdom of Great Britain Britain and Ireland, or in his majesty's fervice. But this fentence is not put in execution till the conviction has been affirmed at the following quarter feffion, and a certificate tranfmitted to the judge advocate in London, or Dublin, according to the country where it took place; and the judge advocate is to certify the fact to the next general court martial, which court is by the articles of war bound to cafhier the offender. Martial law is proclaimed by authority of parliament, and prevails generally or partially in a kingdom for a limited time. The authority under which martial law is exercifed, when it prevails in its full extent, claims a jurisdiction in fummary trials by courts martial, not only over all military perfons in all circumftances; but it also extends to a great variety of cafes, not relating to the difcipline of the army, but relative to that state which fubfifts by military power; as plots against the fovereign; intelligence to the enemy; which are all confidered as cafes within the cognizance of the military authority. The statute, for putting in execution martial law, ufually gives a power to arreft or detain in cuftody, all fufpected perfons, and to cause them to be brought to trial in a fummary manner by courts martial, and to execute the fentence of all fuch courts, whether of death or otherwife; and declares, moreover, that no act done in confequence of thofe powers fhall be queftioned in any of the king's ordinary courts of law; and that all who act under the authority of fuch ftatute, fhall be responsible for their conduct in the fame only to fuch courts martial. By fection 26 of the mutiny act it is provided, that no officer or foldier fhall, by the articles of war, be fubjected to any punishment extending to life or limb, for any crime which is not expreffed to be fo punishable by that act, nor for fuch crimes as are expreffed to be fo punifhable in any manner, or under any regulations which fhall not accord with the provisions of the act. But his majesty having the power at all times, to make and iffue regulations for the army, thofe regulations embrace all the inferior offences for which a court martial may inflict correfponding punishments, not extending to life or limb. That the laws may not be infringed through ignorance, it is provided that the articles of war for the navy shall be printed, and hung up, or affixed in the most confpicuous parts of every fhip; and for the army, that all the rules and articles are to be read and published, once in every two months, at the head of every regiment, troop or company, mustered or to be mustered in the service.. CRIMES COGNIZABLE. The crimes cognizable by naval or military courts martial, may be divided into felonies and mifdemeanors; or, more properly, into capital offences, and offences only only criminal and not capital. Those which are comprehended and fpecified in the naval as well as military articles of war, may, for the fake of perfpicuity, be claffed under the following general heads: 1ft, Thofe that are immediately against God and religion 2dly, Such as affect the executive power of the ftate, or infer a criminal neglect of the established articles and rules of difcipline, in his majefty's fervice. 3dly, Such as violate or tranfgrefs the rights and duties, which are owing to individuals and 4thly, Offences in themfelves ftrictly military, and fuch as are peculiarly the object of martial law. 1ft. Against God and Religion. In this divifion are claffed the, offences contained in the first and fecond of the naval articles, viz. neglecting public worship, and being guilty of profane oaths, curfing, execrations, drunkennefs, uncleannefs, or other fcandalous actions; the punishment of which is left to the difcretion of the court martial. And although the higher offence of blafphemy is not particularifed in thefe articles, yet it is unquestionably implied, by the words profane oaths, curfings, and execrations. By the military code, all officers and foldiers, not having juft impediment, fhall diligently frequent divine fervice, and fermon, in the places appointed for the affembling of the regiment, troop, or company to which they belong; fuch as wilfully absent themselves, or being prefent behave indecently or irreverently, fhall if commiffioned officers, be brought before a court martial, there to be publicly and feverely reprimanded by the prefident; if non-commiffioned officers or foldiers, every perfon fo offending, fhall for his firft offence forfeit twelve-pence, to be deducted out of his next pay; for his fecond offence he fhall not only forfeit twelve-pence, but be laid in irons for twelve hours; and for every like offence fhall fuffer and pay in like manner; which money fo forfeited, shall be applied to the ufe of the fick foldiers of the troop or company to which the offender belongs. It is alfo ordained, "that no "officer or foldier fhall use any unlawful oath or execration, "under the penalty expreffed in the first article. Whatsoever "officer, non-commiffioned officer, or foldier, fhall prefume to "fpeak against any known article of the Chriftian faith, fhall "be delivered over to the civil magiftrate to be proceeded "against according to law: whatfoever officer, non-commif"fioned officer, or foldier, fhall profane any place dedicated "to divine worship, or fhall offer violence to a chaplain of the "army, or to any other minifter of God's word, fhall be liable "to fuch punishment, as by a general court martial shall be "awarded. No chaplain who is commiffioned to a regiment "or garrifon fhall abfent himself, except in cafe of ficknefs, or "leave of abfence, upon pain of being brought to a court "martial, |