304 COURTS 
pofes, juftly became obnoxious to the people ; and not 
only the propriety but the legality of its being executed 
in times of peace, has been ab'folutely denied. It is laid 
down, zlnjl. 52. that if a lieutenant or other, that hath 
commiflion of martial law, doth in time of peace, hang 
or otherwife execute any man by colour of martial law, 
this is murder, for it is againft Magna Charta. And 
Hale (Hi/l.C.L. c. 2.) declares martial law to be in 
reality no law, but fomething indulged rather than al¬ 
lowed as law ; that the necelfity of order and difcipline 
is the only thing which can give it countenance; and 
therefore it ought not to be permitted in time of peace, 
when the king’s courts are open for all perfons to receive 
juft ice according to the laws of the land ; and if a court 
martial put a man to death in time of peace, the officers 
are guilty of murder. See H. P. C. 4 6. 
As future exigencies however have arifen in the ftate, 
it has become neceftary to alter and amend the old laws, 
and enaft new ones ; and fince the cuftom of keeping up 
Handing armies in time of peace as well as of war, has 
become° prevalent and general throughout Europe, (a 
cuftom as it feejns originally introduced by Charles VII. 
of France about 1445",) the legiflature of Great Britain 
has alfo judged it neceftary, for the fafety of the king¬ 
dom, the defence of its polfellions, and the balance of 
power in Europe, (as the preamble to the mutiny aft ex- 
prelies it,) to maintain, even in times of peace, a Handing 
body of troops ; and to authorife the exercile of martial 
law’ amono- them. A proper diftindtion therefore Ihould 
be made between martial law, as formerly executed, en¬ 
tirely at the difcretion of the crown, and unbounded in 
its authority, either as.to perfons or crimes ; and that at 
prefent eftablilhed, which is limited with regard to both. 
Courts martial are at prefent held by the fame authority 
as the other courts of judicature of this kingdom : and 
the king, or his generals, when empowered to appoint 
them, has the fame prerogative of moderating the rigor 
of the law, and pardoning and remitting punifhments, 
as in other cafes; but he can no more add to, nor alter, 
the fentence of a court martial, than he can a judgment 
given in the courts of law. Martial law is now exercifed 
within its proper limits, by the advice and concurrence 
of parliament; and the condemnation of criminals by 
courts martial afting under fuch authority, cannot be re¬ 
garded as illegal or contrary to Magna Charta; lince 
during the exiltence of the ftatute by which thefe courts 
are held, martial-law, fo modified and reftrained, is as 
much part of the law of the land as Magna Charta itfelf. 
Courts martial cannot fit before eight in the morning, 
or after three in the afternoon, except in cafes which re¬ 
quire an immediate example : the attendance therefore 
of the members does not exceed feven hours at a time : 
and they are at liberty to adjourn from day to day till 
they have fully confidered the matter before them : and 
when they come to give their opinions, they are not un¬ 
der the necelfity of being unanimous, but the prifoner is 
condemned or acquitted by a majority of voices ; except 
in cafes of death, where nine out of thirteen or two 
thirds, if there be more than thirteen prefent, muft con¬ 
cur in opinion. See Articles of IVar, feet. 15. a. 8.9. 
As to general courts martial, the mutiny aft and arti¬ 
cles of war are very explicit, both as to the number they 
lhall conlifi of, and the rank of the officers who are to 
compole them: it being exprefsly direfted, that no ge¬ 
neral court martial lhall conlift of lefs titan thirteen mem¬ 
bers, whereof none are to be under the degree of a com- 
miffioned officer. That the prefident lhall not be under 
the degree of a field officer, unlefs fuch an one cannot 
be had, in which cafe the next in feniority to the com¬ 
mander, not being under the degree of a captain, lhall 
prefide : and no field officer is to be tried by any perfon 
under the degree of a captain. And it is a general cuf¬ 
tom not to put fubaltern officers, particularly thofe but 
of ffiort (landing in the army, on general courts martial, 
provided a fufficiency of field officers and captains can 
OF LA W. 
be conveniently aftembled. See Art. of War , and Mutiny 
aB, feft. 12. j~ 
Although a prefident and twelve members are fufftci- 
ent to conftitute a legal court, yet it is frequently judged 
neceftary to alfentble and fwear in more ; in order as far 
as poffible to guard againft accidents arifing from ficknefs, 
or other cattles for the non-attendance of fome of the 
court. Whilft there is a quorum of thirteen, the prefi¬ 
dent included, of thofe originally fworn in, the court 
may proceed to bufinefs, although others of the court 
do not attend; but if it become neceftary to call in a 
new member, the court muft proceed de novo. The 
crimes that are cognifable by a court-martial, as repug¬ 
nant to military difcipline, are pointed out by the Muti¬ 
ny-aft and Articles ; which every military man is or 
ought to be fully acquainted with, and therefore not ne- 
celfary to be recited here: and as to other crimes which 
officers and foldiers being guilty of, are to be tried for in 
the ordinary courfe of law, it is needlefs to enter into a 
detail of them. 
By the laft article in the code of military laws, courts 
martial are authorifed to take cognilance of all crimes 
not capital, and all diforders and neglefts, w hich.officers 
and foldiers may be guilty of, to the prejudice of good 
order and military difcipline, w’hich are not enumerated 
in the preceding articles, and punifti them at their dif¬ 
cretion. Upon the authority_of this article it has been 
too much the cuftom in the army to try foldiers by courts 
martial, for thefts and other crimes cognifable before the 
courts of law. But it feems quelllonable, whether an 
exception might not in many fuch cales be made to their 
jurifdiftion: for the Mutiny-aft, feft. 62, and Articles 
of War, feft. 11 a. 1, exprefsly direftt, that any officer, 
non-commiftioned officer, orfoldier, who lhall be accufed 
of any capital crime, violence, or offence, againft the 
perfon, eftate, or property, of any of his majefty’s fub- 
jeftSj puniffiable by the law’s of the land, fliall be deli¬ 
vered over to the civil magiftrate by the commanding 
officer, under penalty of his being cafhiered in cafe of 
refufal. There was formerly an article, of late omitted, 
particularly authorizing courts-martial to take cognifance 
of all foldiers accufed of Healing from their comrades. 
The perfons liable to martial law are likewife enume¬ 
rated in the aft and in the articles. The latter mention 
only officer's, foldiers, and perfons lerving with the armies 
in the field. But Hale and others are of opinion, that 
aliens, who in a hoftile manner invade the kingdom, 
whether their king were at war or peace with ours, and 
whether they come by themfelves or in company with 
Engliffi traitors, cannot be punilhed as traitors, but muft 
be dealt with by martial law. 3 Inf. 11. This however 
means martial law in the ftrift fenfe of the word, in 
which it cannot be applied to proceedings under the mu¬ 
tiny aft ; and which kind of martial law is unknown in 
this kingdom. The receiving pay as a foldier, fubjefts 
the receiver to military jurifdiftion. The court of 
common pleas therefore refilled to grant a prohibition to 
prevent the execution of the fentence of a court martial, 
pafted againft one who received pay as a foldier; but 
who aflumed the military charafter merely for the pur- 
pofe of recruiting, in the ufual courfe of that fervice ; 
and this though the proceedings of the court martial ap¬ 
peared, in fome inftances, to be erroneous. Grant v. fir 
Charles Gould. 2 H. Black. Rep. 69. 
The Articles of War, in a few cafes, point out the ex- 
prefs fentence to be palled on criminals, without any al¬ 
ternative : in fome an optional pow er is given, of puniffi- 
ing with death or otherwife ; and in others, offenders are 
punilhed at the difcretion of the court. In cafes where 
an optional power is veiled in the court to punilh with 
death or otherwife, the queftion to follow that of guilty 
or not guilty, (upon the court or the majority of it de¬ 
claring for the former,) is, whether or not the prifoner 
lhall fuffer death? If tw’o-thirds of the court do not 
concur in the affirmative, the votes of the affirmants are 
confidered 
