The Devil's Article

• Author: Wing Commander D. B. Nichols
• Pages: 03

1. INTRODUCTION

   Conduct to the prejudice of good order and discipline is on8of the offenses which form the hard core of military law, For several centuries, it has served military law well. It has been a basic weapon in punishing conduct contrary to the prevailing service ethic. It has enabled British and American armies to adapt their standards to the stress of wars and to developments in the techniques and technologies of war. It has also served in pioneering new countries, in the development and control of empires, in military occupations, in cold wars, and in all the varied uses to which armies have been put. It has been a weapon adminiatered primarily by laymen. Whether it will mrve equally well in the present era in which lawyers play a greater part, particularly throuph court-martial appeal courts, remains to be seen.

   The comments of Lord Reid in a dissenting judgment in the House of Lords on a recent civil appeal against a conviction far conspiracy to corrupt public morals illustrate the broad problem posed by the change in military law from a layman's law to a lawyer's law :

   Finally I must advert to the eonsequensea of holding that this very general offence exists. It ha9 always been thought to be af primary impor-tance that our iaw, and particularly our criminal law, ihould be certain: that 1 man ahauld be able to know what eandwt is and what in not criminal, particularly when heay. penalties are involved. Same nuggestion was made that it does not matter if this offence is wry wide: no one would eyer prosecute and if they did no jury would ever convict if the breach was venial. Indeed, the Suggestion p e r even further: that the moaning and application of the words "deprave" and "Corrup',' (the traditional worda in abaeene libel now enacted in the 1959 Act) or the werda "debsuch" and "oomqt" in thia indictment ought to be entirely for the jury. 80 that any conduet of this kind is criminai if in the end a

   * The opinions and conclunionn presented herein are thaae of the &"tho. and do not neeeassriis represent the view8 of The Judge Advocate General's School or m y other governmental agency, or of the Australian Depirir.w~t of Air.

   ** Director of Legal Services. Depanment ai Air, Commonwealth of Australia; B.A.. LL.8.. University of Melbourne. 1941.

   A00 6il'B 111

   MILITARY LAW REVIEWjury think it 50. In other words, you cannot tell what 1s ~r~mlnal except

   by gueiiin~what Y L ~ W

   B jury w11 take and mrm views may vary and may change wlfh the pamng oi time Normally the meamng of words is B peatian ai law for the court. For example, it LQ not left to B wry to determine the mesmng of nagl~geree they have to connder on evidence and on their hnaaledge a m ~ c h mole ipeeifie questlon-Xauld B realon-

   the whole of Its fur.cliona 81 censor moium, the lmwill be whatever m y jury ma)- happen to ti.' o be. and this branch of the law will

   OYr law 1

   For centuries, the court-martial has been the censor morum. It ma? be ~nCOr.patrble iqith the appellate function of court-martial appeal courts and with the advent of professionals that this should survive. The offense has not been without its critics. Lord Hardinge in his evidence to the Royal Commission on Military Pun-ishments in 1836 stated that it was commonly known in the British Army as the "Devil'a Article."

   The technical problems involved in the transition have not been finally resolved. Is it sufficient for the law officer and the appeal court to define what is meant by conduct to the prejudice of good order and discipline, to use Lord Reid's analogy with negligence? Is it proper for an appeal court to go further and say as a matter of law that certain types of conduct cannot amount to this offense? Is the question one of law or of fact? Is the court or the law officer the censor moruml Can the court apply its general service knowledge and take judicial notice of the cus-tomary use of this offense? Or should this facility be transferred to the law officer and judicial precedent replace military custom? Are the problems too great far resolution by military lawyers and should they be left to the legislature?8 Which is preferable, the common law approach of L'nited States t. Kivksev' or the Congressional prescription of the bad check offense?

   The purpose of this article is to explore these problems pri-marilv in the light of military legal history and the case law

   1[1961] 2 1.11 E R. 446. 460.2 5 J ARMY HISTORICAL RESEARCH SOCZ PO2 i19261.1 One aspect of this question w88 dealt with by Captain J. A. Hags" in 10 MIL. L. REV.

   114 i19601. The writer wishes to acknowledge st the outiiet his indebredners to Csptain Hagan's stirnviating wmey of the problems posed by the general art~cle.

   ' 6 USCYA 556, 20 CirlR272 (19551.

   *GO 171tB

   DEVIL'S ARTICLE

   emerging from the American, British, Canadian, Australian and New Zealand Courts-Martial Appeal Courts. The civil law is primarily of value in providing a setting.' Even offenses such as public mischief fall considerably short of conduct to the prejudice in breadth.

   11. THE EVOLUTION OF THE BRITISH GENERAL ARTICLE

   The general article crystallized in the seventeenth and eighteenth centuries. It took a number of forms in the seventeenth century, and first appeared in the Articles of War for 1625.These Articles provided: "All other disorders whatsoever are to be punished, as these formerly nominated."' It took a rather different form in the Articles for 1627 which provided: "60. All other abuses and offences not specified in these Orders shall be punished according ta the discipline of warr and opinions of suchofficers and others as shall be called to make a Councell of Warr."' Its form differed again in the Articles issued by the Earl Marshal in 1639 which provided:

   In whsterer eaaea or accidents that may ~ceurre, for rhieh there is nospeoisll order aet dowe in the laves here published, there the ancient eoum of marshall discipline shall be observed untlll such time as his Excellence The Lord General shall came some further order8 to be made and published in the Armie, which shall thence foward stand in force upon the paines therein exprensed.8

   In the Articles issued in 1640 by the Earl of Northumberland and those issued in 1642 by the Earl of Essex, it took a common form: "All other faults, disorders and offences, not mentioned in these articles, shall be punished according to the general customes and laws of warre."' In the Articles for 1643, it took yet another form: "Matters, that are clear by the light and law of nature,.%re presupposed: things unnecessary are passed over in silence; and other things may be judged by the common customs and constitutions of war; or may upon new emergents, be expressed afterwards." 10

   At this stage, it may be pertinent to point out that the general article was not native to English military law. No trace of any such article may be found in the Ordinances of War issued before the seventeenth century. A hallmark of the earlier Ordinances had been their certainty. The remarks of Lord Chief Justice Cockburn in R. ti Irlsoa and Brmd in 1867 bear repeating. Speaking of the Ordinances of Richard 11, he stated: "They form an elaborate code minute in its details to a degree that might serve as a model to anybody drawing up a code of criminal law."" They recognized that soldiers should be punished only for offenses which they knew. The Ordinances of Henry VI11 charged the captains "to cause the same twse or ones at the least in euery weke holly to be redde in the presence of theyr retinue." 12

   The void left by the disappearance of marshal law was filled in the first half of the seventeenth century by Continental law. The Swedish Articles of Gustavus Adolphus issued in 1621 contained a general article in the following terms:

   116. Whatsoever is not eontalned ~n there Artieier, and is rqvgnant to Military Discipline, or whereby the miierable and innocent eountry may against ail right and reason 'be burdened nithall, whatsoever offence Rnnlly ahali be committed against these orders, that shall the severall Commanders make good, or see severally punished unlesie themaelves will stand bond to pive further satisfaction for it.13

   Just as the council of war was a reversion in time of stress and doubt to the General's equivalent of the Curia Regis, so the stresses and doubts engendered a preference for custom aa understood by the council of war rather than express and certain articles. But it must be kept in mind that the practice was less objectionable because the General wa8 given power by his commission to issue articles of war. His power to issue orders included a power toprescribe offenses.

   The general article in the latter half of the seventeenth century was substantially similar to the 1640 and 1642 version%. According to Waltan, the Articles provided: "68. All other faults, misdeameanours, disorders and crimes not mentioned in these articles. shall be punished according to the Law and Customs of TYar, and discretion of the Court Martial." The concept of conduct to the prejudice was introduced at some stage between 1100 and

   DEVIL'S ARTICLE

   1166. In the Articles for 1766, it took the following form: "All Crimes not Capital, and all Disorders or Neglects, which Officers and Soldiers may be guilty of, to the Prejudice of good Order and Military Discipline, though not mentioned in the above Articles of War, are to be taken Cognizance of by a Court-Martial and bepunished at their Discretion."

   The circumstances under which the concept was introduced inta the general article can only be, at present, a matter for conjec. ture. Three points may be noted. Winthrop pointed out that the Punctuation of the article indicated unmistakably that the word8 "to the Prejudice of good Order and Military Discipline" qualified crimes not capital a8 well as disorders and neglects.1' Snedeker has drawn attention to the difference between the British military general article and the naval general article which was not...