16 Impossible today because combatant commissions are not awarded over the age of twenty-five; any later and it is not possible for the young officer to gain all the qualifications needed, including serving the requisite periods at regimental duty, to have a full career. Late entry commissions (the old quartermaster commissions) are still, of course, awarded to deserving warrant officers and senior NCOs.
17 He is often described as having been a trooper. Without undue pedantry, it was only the Household Cavalry that had troopers until the end of the First War; prior to that, the junior rank in the cavalry of the line was private.
18 Many of those whom we now know as ‘War Poets’ had been published commercially before the war. Few publishers will invest in work that will not sell, and from about the early thirties onwards, anti-establishment doom and gloom was always a winner.
19 He may have been quoting a Russian general in the Crimea, when the description might have had a measure of truth, although pots and kettles come to mind.
8
KANGAROO COURTS AND FIRING SQUADS
Military discipline is rather different from the code of conduct found in any other workplace. It has to be. A worker who decides not to bother reporting to the factory on a Monday morning might lose a day’s pay; the army would call it absence without leave and lock him up. A nightwatchman who falls asleep might get the sack; a sentry who does the same on active service risked, until very recently, the death penalty. It has long been recognised, in all armies, that a legal code designed to regulate civilian society is impractical for the business of waging war. When an occupation requires participants to engage in activities that human nature and common sense militate against, it requires its own rules. The natural reaction of any normal person faced with a risk of death or injury is to avoid it. If an army is composed of soldiers whose major driving force is to avoid risk, it loses battles. Armies are often accused of brainwashing their soldiers during training. The British army does not, and did not, brainwash its men, but it does seek to instil into them an automatic reaction to warlike situations so that they react instinctively to them, particularly if they occur when there is no one around to tell the soldier what to do. Training, leadership, inspiration and motivation all contribute to the soldier’s performing his duty as desired by the army, and to back these up there is a set of rules by which the soldier is expected to conduct himself. Most people like to know where they stand. The army says, ‘Do this, and do not do that, and you will have a secure place in the family, honour, promotion and a fair wage; contravene these rules and you will be punished.’ Military law draws a sharp line between what is acceptable and what is not. The man knows that if he stands within the law he is safe; if he goes outside it, he is in trouble. The whole purpose of military law is to maintain the discipline of the army, and acts and omissions that in civil law may be mere breaches of contract (such as desertion or disobedience to orders) must, by the very nature of what the army is for, be made offences that attract penalties; and these penalties must be more severe in wartime, when the effects of transgression are more serious. The army wishes to ensure that men work as a team, obey the orders of their superiors, and use all their talents in the achievement of the team aims. The only difference between an army and an armed rabble is discipline: military law is the bedrock of that discipline.
Military law, as it applied in the army of 1914, was embodied in the Army Act 1881, an amalgam of various acts (including the Mutiny Acts and the Articles of War), orders in council and royal warrants existing before that time. The Army Act, with regular amendments to keep it up to date and relevant to contemporary military requirements, was brought into effect each year by the Army Annual Act. This had to be passed by Parliament, for if it was not, the army ceased to have any legal existence (today the Act must be passed every five years). The Army Act 1881 was part of the statute law of England, from which it was distinct only in that it was administered by military officers and military courts rather than by civilian judges. There was a similar act, the Naval Discipline Act, to regulate the Royal Navy.
Unlike the situation in many other countries, the British soldier, while subject to the Army Act, was not exempt from the provisions of civilian law. If a soldier in the United Kingdom committed a major offence such as murder, manslaughter or rape, whether or not it was committed on military property or against soldiers or civilians, he was liable for trial in a civilian court. Less serious offences (theft or assault) committed by a soldier against soldiers would, for convenience, usually be tried under military law, but the civil authority had the right to demand jurisdiction. As English criminal law did not apply outside the King’s domains, Section 41 of the Army Act specifically made it a military offence to commit an act that would be a criminal offence in England: soldiers could be, and were, brought to trial abroad under the provisions of that section.
The Army Act and its various applications were contained in a book, the Manual of Military Law, which all officers were expected to know and study, and which was issued to every unit and sub-unit. It explained the law, gave practical examples of how a charge under each section should be framed, and laid down the procedures to be followed by those enforcing the law.1
The Army Act dealt with all manner of subjects that regulated the way the army did its business, from terms of enlistment to the number of guns to be fired at a funeral, but the portion of the Act that most impinged on the soldier was that which spelled out offences and punishments. Punishments that could be imposed on other ranks under the Army Act were death, penal servitude for a term of not less than three years, imprisonment (with or without hard labour) for a period not exceeding two years, detention for a period not exceeding two years, discharge with ignominy from His Majesty’s Service, loss of seniority or reduction in rank (if an NCO), fines, forfeitures and stoppages of pay. Originally penal servitude was awarded for a felony while a misdemeanour attracted imprisonment, but by 1914 there was no practical difference between the two. Both penal servitude and imprisonment could be served in a civilian prison (albeit only where British law held sway, that is, in the United Kingdom or in a colony), but the man was nearly always returned to the UK to serve his sentence, which carried with it automatic discharge from the service. A period of detention was served in a military prison and was looked upon as having an improving as well as a punitive function, and the soldier continued in the service on completion of his sentence. A monetary fine had the same effect as a fine by a civilian court; forfeiture of pay was where a man was ordered not to be paid for a period of absence or where he had by neglect rendered himself unfit for duty, or was in detention; stoppages of pay were awarded where a man was to repay the cost of public property that he had lost or damaged. For officers, cashiering or dismissal from the service were substituted for dismissal with ignominy; an officer could also have seniority removed, but could not be reduced in substantive rank. Additionally, an officer could be sentenced to a severe reprimand or a reprimand.
Some sections of the Army Act prescribed one level of punishment for an offence committed in peacetime, with a higher level applicable on active service. A soldier who contravened Section 6 of the Army Act by ‘breaking into a house in search of plunder’, in peace, anywhere other than in the United Kingdom (where he would be dealt with by the civilian courts for burglary), could be sentenced to imprisonment for up to two years. The same offence on active service carried the death penalty. The reason is obvious: ill-treatment of civilians in a war zone was liable to turn the local inhabitants against the occupying force. This could lead to partisan warfare with all its attendant horrors, as the French found to their cost in Spain during the Peninsular War, and the Germans in Russia in the Second World War. By 1914 British soldiers were not inveterate looters, but in the previous century they had been, and the law reflected this.
As the Act applied during the Great War, offences were divided into groups. Section 4 dealt with offences in relation to the enemy, and included shamefu
lly abandoning a post, giving up a post, casting away arms in the face of the enemy, giving intelligence to the enemy, giving arms or ammunition to the enemy, voluntarily taking service with the enemy, misbehaving in front of the enemy in such a way as to show cowardice, and knowingly assisting the enemy. Encouraging others to commit any of the offences listed was treated as severely as was the offence itself. On active service, death, or ‘such lesser punishment as is in this Act mentioned’, could be the penalty.
Section 6 covered looting, leaving a post, striking a sentry, assaulting a person bringing supplies or provision to the forces (who might be a civilian), intentionally causing false alarms, giving away the password to a person not entitled to receive it, being drunk while on sentry, sleeping while on sentry, and leaving a post while on sentry. All these offences carried the death penalty if committed on active service. It is sometimes asked why a soldier, who may be exhausted, wet and hungry, should be executed for falling asleep on sentry, however hard he tries to keep awake. Soldiers who are resting, sleeping, or working in an exposed position rely entirely on the sentry to warn them of an enemy approach. The life of everyone depends upon the sentry remaining awake and alert, and failure to do so is rightly regarded as a most serious offence. In practice the army did its best to ensure that sentries did not go to sleep. A lone sentry was rarely posted; normally there would be two, each man doing a two-hour shift with one being relieved every hour. Inevitably men did go to sleep, but it was difficult to prove and most officers and NCOs did their best to avoid having to charge a man with the offence. Although 449 men were sentenced to death for sleeping at their post between 1914 and 1918, in only two cases were the sentences actually carried out, and in both cases the circumstances were very grave.
Section 7 dealt with mutiny, perhaps the most serious offence in the military glossary. Mutiny is resistance to lawful military authority, and it is a collective offence – that is, it cannot be committed by one man alone but requires two or more acting in concert. As mutiny strikes at the very heart of military discipline it could result in the death penalty in peace as well as war.
Section 8 made it an offence punishable by death to strike, or threaten to strike, a superior in the execution of his office. Section 9 laid down the death penalty for disobedience of a lawful command, provided such disobedience showed wilful defiance of authority. Disobedience without wilful defiance rendered the offender liable to penal servitude. The Manual of Military Law made it very clear what was a lawful command and what was not, explaining that an order which was clearly in contravention of the laws and usages of war (the example given is of an order to open fire on an unarmed civilian bystander) must not be obeyed, and that an order unrelated to military duty and given for the attainment of a private end need not be obeyed; the rather quaint example of the latter being an order to a soldier to deliver a letter dealing with private theatricals. At the same time, in a long chapter dealing with the laws and usages of war on land, and listing offences proscribed by international law, the Manual said: ‘It is important, however, to note that members of the Armed Forces who commit such violations of the recognised rules of warfare as are ordered by their government or by their commander are not war criminals and cannot therefore be punished by the enemy.’2 In other words, ‘superior orders’ was an absolute defence to prosecution for acts committed in contravention of international law. This paragraph was not deleted from the Manual until April 1944, when it dawned belatedly on the British governments’ legal advisers that such a clause would scupper their plans to try German and Japanese officers and soldiers for war crimes.3
Section 12 prescribed the death penalty for desertion while on, or warned for, active service, attempted desertion, or the encouragement of others to desert. Desertion was the leaving of the service with the intention never to return, as opposed to the lesser offence of absence without leave. Normally the prosecution had to show that the offender did not intend to return, and unless he had burned or thrown away his uniform or assumed a false identity, this was very difficult to prove. On active service, however, there was a presumption of desertion if the offender absented himself without reasonable excuse.
Section 41 made it legal to try, under military law, an officer or soldier serving abroad for an offence which, if committed in England, would be an offence under criminal law. Murder was punishable by death, with no other sentence open, and treason could be punished by death. In both cases these were the same punishments as were laid down by the civilian law of the time.
With the exception of murder, for which, as in civilian law, no sentence other than death could be handed down, offences carrying the death penalty could also be punished by any lesser punishment allowed by the Act. Accepting that imprisonment and detention were not always practical under the conditions of active service, and that confinement to barracks was pointless, the Act allowed the imposition of ‘field punishment’. There were two grades of field punishment, both of which allowed the offender to be manacled and to carry out fatigues. In the case of Field Punishment Number One he was also tied to a fixed object (often a gun carriage) for up to two hours a day. Otherwise the soldier undergoing punishment could be made to bear arms and carry out all the normal duties of a soldier. It was a degrading punishment, effectively the successor to flogging, but could be imposed swiftly and in any conditions.
Military law originates from a different source than does English civilian law, and its procedures reflect that. Civilian law is adversarial: that is, it is the duty of the court to hear the prosecution and the defence and to decide which has made its case. It is not the task of the court itself to extract evidence, or to call witnesses, or to question witnesses except to clarify what they have said. Military law, on the other hand, descends from Roman law and the process is inquisitorial: it is the duty of the court to discover what actually happened. There is a prosecution and a defence, but the court is perfectly entitled – indeed required if need be – to summon and to question witnesses. As the person or persons trying the case are themselves soldiers, they have full knowledge of the circumstances under which the offence may have been committed. Modern critics say that this means that the army is judge and jury in its own case; but this is to miss the point that it is soldiers, and only soldiers, who fully understand the significance of an act or an omission in the military context. To hand the administration of military justice over to civilian courts or to magistrates would not only be impractical and time-consuming, it would negate the very purpose of military law, which is to maintain good order and military discipline and allow an army to operate as it should. A soldier joining the army surrenders some of his civil rights, and in an army, particularly an army at war, individual rights must be subservient to the rights and duties of the force as a whole.
This is not to say that military justice in 1914–18 was oppressive or unfair. Sections of the Army Act were regularly read out to soldiers on parade: there was no excuse for not knowing the law, or for not being fully aware of the punishments that might be inflicted for contravening it. The rules of evidence in military law were exactly the same as those in civilian law, and the rights of the accused were laid down in detail in all the rules of procedure.
The sentence that could be passed depended not only on the available penalties for the offence, but also on the level of the court trying it. At the bottom of the scale was the commanding officer, the officer in command of the offender’s unit. His powers were very limited, much more so than those of a commanding officer today. Under the 1914 Act a commanding officer could investigate any offence but could only deal with minor offences (drunkenness and absence without leave being the most common). The maximum punishments the commanding officer could impose were twenty-eight days’ detention, a fine of ten shillings (for drunkenness), stoppages of pay (for lost or damaged equipment), confinement to barracks, or extra guards and piquets. He could reduce a lance corporal to the rank of private, or any other NCO from his acting to his substantive rank. O
ther than lance corporals and NCOs with acting rank, the commanding officer could not punish an NCO at all, except by admonishment or reprimand. Even for a man holding the acting rank of colour sergeant or above, the commanding officer had to have the agreement of his own superior before he could proceed. On active service the commanding officer could award field punishment to a private soldier, but not to an NCO.
A commanding officer could, and usually did, delegate to company and equivalent commanders the power to investigate and try most minor offences, but their powers of sentencing were limited to seven days’ confinement to barracks. If, after trying the case, the commanding officer felt minded to impose a punishment that would affect the man’s pay – a fine, stoppages, and also detention (during which a man was not paid) – the soldier had to be given the option of either accepting the commanding officer’s award or being tried by court martial. The vast majority accepted the commanding officer’s decision.4
For an offence that the commanding officer was not permitted to try, or where the commanding officer considered that a punishment greater than that which he could impose was called for, a soldier was tried by court martial. There were four types of court martial: Regimental, District, General and Field General. The lowest court was the Regimental Court Martial, composed of a minimum of three officers, normally of the accused’s regiment, each member to have held a commission for at least a year. The president of the court had to be of at least captain’s rank. By 1914 Regimental Courts Martial were hardly ever convened, as commanding officers’ powers had recently been increased to allow them to award up to twenty-eight days’ detention.
A District Court Martial consisted of a minimum of three officers, of different regiments, each having held a commission for at least two years. The president had to be a field officer (major or above). The court could not try an officer, neither could it impose the death penalty or penal servitude.
Mud, Blood and Poppycock: Britain and the Great War (Cassel Military) Page 25