Imágenes de página
PDF
ePub

ON

MILITARY OBEDIENCE.

OPINIONS different from the writer's, on the subject of military obedience, have lately been carried so far into practice, and have been expressed by persons of so high authority, that he has been induced to reconsider his own views. He publishes them because he believes the opinions he opposes to be illegal and dangerous. To avoid the imputation of being desirous of inflaming the public mind this essay was begun to be written in Latin; but it appearing probable that the little attention which under any circumstances it might attract, would then be entirely lost, the vulgar tongue was adopted. The fear of being important borders on the ridiculous; but the subject of the following pages is not below contempt, however ineffectively it may be treated. It is, however, hoped that the form in which the publication is made will justify the claim to be considered an advocate for cool although earnest discussion.

One of the Judges of the Court of King's Bench is reported to have said on a late trial, that the soldiery neither are, nor ever ought to be, a reasoning body: and the Grand Jury of a northern county is understood to have thrown out certain bills of indictment, on the ground of the accused being soldiers, subject to indisputable command, and not to be arraigned for acts of obedience. Principle and practice are here consistent. If the dictum of the Judge be sound, the decision of the Jury may be supported ; but it is contended, and it is the object of the following pages to show, that the views thus entertained of the soldier's duty and responsibility are

erroneous.

It is not denied that similar opinions have very generally been entertained, and the discussion is ventured upon with a great desire to preserve due respect for constituted authorities.

The tendencies of military practice unceasingly operate to corrupt the true rule of conduct which, it is argued, consists in a regard to law. The nature of the station which soldiers fill requires a constant recurrence to principle, in order that a correct judgment be preserved.

The subordination of military men is necessarily so much made up of perpetual acquiescence in commands, and habits of unvarying obedience are so likely to be engendered by the common routine of service, that the mistake is not surprising: but it is therefore the more important that the real limit be ascertained and practically acknowledged.

If it be clearly proved that the sanction of law is necessary to the validity of military acts, a standing army will be divested of some of its terrors, and we shall then submit to its many serious inconveniences with a reasonable composure. If a body serving voluntarily from amongst ourselves be strongly impressed with the truth of this principle, we may, perhaps, depend safely on their falling away from any great attempt to destroy independence by their instrumentality: thus we may acquiesce in the asserted necessities of the times with a diminished ground of alarm.

In respect of civil commands, no man is now likely to argue in favor of unlimited obedience to them, independently of their legality. They whose feelings or whose interests carry them towards the old dogmas are generally content with vindicating the character of the great patrons of them in the 17th century; whilst the more hardy disputants of that party only excite the contempt of their injured countrymen. It was probably an oversight in Dr. Mant, when lately printing the Prayer Book with notes, to leave entire the offensive clause in the Act of Uniformity which the revolution repealed. So firmly is the supremacy of the law now established in civil matters, that our judges illustrate the importance of less generally admitted duties, by adducing in argument the fact of the "obedience of subjects being conditional." It is now admitted by all parties to be the clear duty of the citizen not to obey if the command directed to him be illegal.

The soldier in England being only a citizen with new duties of a positive technical character, the same rule must apply to him. In active service and in daily details the discretion of the officer mainly constitutes the validity of command, and they will very rarely be illegal; but nothing can be found in the military code, and little in the incidental observations of the most unbiassed and soundest authorities, which exonerates a soldier from the universal

bond of the general law. The result of a careful inquiry will probably prove that his duty of active obedience to that law is not converted by inlistment into another duty of boundless submission to his military chief. The proposition to be established is, that by the law of England the soldier is to obey only legal commands. An objection is found to this principle in the possible inconveniences military service may suffer from relaxed discipline. Prompt action constitutes undoubtedly a main excellence of an army; and if we could at all times absolutely confide in the officers, those instruments under them might be best whose attention should be exclusively devoted to the performance of orders. I say such instruments might be the best, without venturing to assert that they would not necessarily be deteriorated by the loss of moral energy which their present obligations create. Besides, the English people have hitherto judged it fit to be jealous of military men; and however extended the practice may be of pardoning convict soldiers, they are still responsible in person for illegal acts.

The probability that the soldier obeys in error of the law will generally cause his offence to be lightly regarded: he will in almost all cases rely on ultimate protection in defiance of the strict rule of liability. So that it is probable that the service will not be relaxed by the existence of that rule; our army in fact has florished under it. Having never been without its sanction, it is impossible to say that evil consequences would not succeed to its abrogation.

James the Second relied much on this absolute obedience principle at an early period of his life: it seems to have entered distinctly into his views of government. The following passage is from his own Memoirs: "The Duke of Monmouth desired to be made a general to command all the forces within the realm, that in case any disorder or insurrection should happen, the soldiers and officers might know whom to obey warrantably in the suppressing; for he had been told by several of the officers that without such an authority it would not be safe for them to obey him nor to fire upon any in case of a mutiny. The Duke of York said that by his commission of Captain of the 1st troop of Guards he was already empowered to command any forces that should be drawn out to quell an insurrection as much as he would had he a commission of general, since the words kill and slay? would not be in it as they were not in that of the late Duke of Albemarle; that those officers who gave him this advice and were so nicely scrupulous as to make a difficulty of obeying bis orders upon any such occasion deserved to have their commissions taken from them as being unfit for military employment."

[ocr errors]

Circumstances may arise in the most unforeseen manner in which

he would be guided by it to the preservation of the liberties of the country. It surely is not a rash conjecture, that the existence of this rule, if never exercised, may prevent the issuing of illegal orders: an argument sometimes adduced to justify very different principles. It may be a safety valve which diminishes the immediate force of the machinery, but preserves it. A reasonable man will not be disposed to magnify the evils of a system which operates with so much energy as is not inconsistent with the satisfaction of being secure.

The nature of the subject seems to prevent the danger of a relaxed discipline thus opposed, by certain persons, to the wisdom of the law as it stands. The wise tenderness of the executive authority towards offenders who have only been too obedient, is a direct encouragement to unlimited acquiescence; and a soldier refuses obedience at the highest peril. He will not, therefore, disobey without the most serious consideration; and the slightest doubt will convert him to a simple instrument. How strangely is it then asserted, that the bond of discipline must be relaxed under this rule, which for ages has governed the English army.

All the weight of common prudence, of indolence, and of cowardice, is set against the uncommon influence of a sober inquiry into the nature of particular acts of duty.

If we had to legislate anew on this subject, we should probably yield to the reasons by which our ancestors have been guided, in establishing the principle I now contend for..

One of the earliest of our military laws is the "Ordonnances and Customs for the army," 17th July, 9 Rich. II., of which the fol lowing are two articles :

[ocr errors]

1. That all manner of persons, of what nation, state or condition they may be, shall be obedient to our Lord the King, to his con◄ stable and mareschal, under penalty of every thing they can forfeit in body and goods.

6. Item-That every one be obedient to his captain, and perform watch and ward, and all other things belonging to his duty. Grose's Military Antiquities, 2 vol. pp. 60, 61.

The Statutes of Henry V. in time of war" have the following preamble and articles:

The clemency of the great Creator disposes those under him to be modest, peaceable and chaste; nevertheless, because unbridled avarice, the enemy of peace, daily generates so many new causes for disturbance and litigation, that unless its efforts are repressed by the face of justice, and the sense and intricacy of its questions resolved, all Christian rules for our army would be destroyed, and that common good for which we live and reign extinguished. Therefore law and constitutions are ordained, that noxious appetites may VOL. XVII. NO. XXXIII, L

Pam.

be confined under the rule of justice, by which mankind are informed how to live honestly, without injuring each other, rendering to every one their right. And that our army, as well in peace as in war, may be led in the proper path, and the said common good preserved entire; and also, on the other part, that the constable and mareschal of our said army may judge and determine the more prudently in the causes daily brought before them-We have, with the advice of our peers, lords and nobles, made certain constitutions, promulgating the same in our army, by public proclamation, enacting that all and every one of the captains in our said army, shall have these our said constitutions in writing, that our publica+ tion may be considered as a sufficient warning, and that all those concerned may not pretend ignorance of the said constitution.

Article. What persons all are bound to obey.

Moreover we ordain, that all persons remaining with our army, of what state, dignity, nation, order, or condition soever, shall, in all things LAWFUL and HONEST, obey our constable and mareschal, as ourselves, under penalty of forfeiture of body and goods. Also we direct that soldiers and other persons receiving wages from us or our kingdom, shall be obedient to their immediate captains or masters, in all things legal and honest, keeping watch and ward imposed on the said soldiers, or reasonably to be imposed. Ib. p. 70, These constitutions were solemnly made, and the limitations of the duty distinctly stated.

Grose afterwards states, p. 79, the common garrison orders of the time: they are more general, but reference is made in them to other rules of conduct.

Whereas many captains, &c. usurp greater powers than the King has invested them with, or than is proper, oppressing and plundering, &c.: wherefore the following articles are laid down, &c.: All soldiers and stipendiaries to obey the captains.

That both the captains and his soldiers, &c. be in all things humbly obedient, and assisting to the King's Lieutenant for Normandy, chancellor, treasurer, seneschal, bailiff, &c. And to the end that neither captain, soldier, nor stipendiary, may plead ignorance of these matters, the king has sent certain inclosed articles, &c. further directing, under pain of his indignation, that his captains and lieutenants do attend the premises, and that they do not by any means usurp or encroach on the ordinary jurisdiction belonging to his bayliffs and other justices. Rouen, 15 Apr. 1421.

Ib. p. 80, and Rymer F. tom. x, p. 106. In the commission given to Sir John Radcliff (p. 81. and Rymer, tom. xii. p. 112), he is directed to inquire in what manner the said captains, &c. behave to all, &c., and particularly whether the said

« AnteriorContinuar »