CIVIL V. MILITARY LAW

Dominion, Volume 12, Issue 265, 5 August 1919, Page 11

CIVIL V. MILITARY LAW

A SOLDIER'S APPEAL

IMPORTANT RULING

In the King's Bench Division recently, on an action brought by Mr. Christopher Henry Hecklon, a solicitor, claiming damages from his former commanding officer in the Royal Army Servico Corps, Major G. C. Evans, for alleged slander, malicious prosecution, and false imprisonment, Mr. Justice M'Cardie, in tho course of a and elaborate prepared judgment, containing many referene'es to old authorities, said that this was a case of grave perplexity. The plaintiff enlisted as a private in the British Army in 1915, and his present action raisedquestions of constitutional importance. The events in question took place between' Juno and December last year at York. In July the defendant caused tho plaintiff to 1)0 placed .under close arrest in respect of two charges, namely, mating a frivolous complaint to liis commanding officer and conduct prejudicial to good order and military discipline. Tho plaintiff was convicted on both oliarges, and was given fourteen days' confinement in barracks. lie asserted that this conviction was beyond tho defendant's jurisdiction. On a subsequent occasion tho plaintiff was charged with other offences and taken into military custody, and ho alleged that the defendant acted illegally in this respect. The plaintiff's claim rested on an allegation that tlm defandnnt, oven though ho . might bavo acted within his jurisdiction, was guilty of maliciously, and without reasonable and probable cause, abusing his authority to the ■ injury of the plaintiff. His iordship was glad to feel that such an action 'as this had beon raro in recent years. Tho rarity of such litigation was a tribute to the justice and propriety which usually marked tho fulfilment of respon-. sible duties devolved upon officers of tho Army. Although such litigation was regrettable, it was his duty to consider it with scrupulous care. Check on Military Law. If the acts of military tribunals or officers with respect to discipline were unsusceptible to supervision by tho Civil Courts tho gravest consequences might ensue. It could scarcely bo that military men were alono the interpreters of military law. If so, they would bo abovo the civil law. To hold this would bo to exclude tho Court fjom one of' their most beneficient functions. The judge were tho interpreters of the law, and military law wns part of the law of tile lealm. It rested on statutory basis. A soldiur was subject to tiio two 30ts of law. military and civil. _ It might bo said that if this principle wero adopted tho disci- 1 plino of tho Army might suffer. Ho . could not think so. He agreed that discipline was tho soul of tho Army, ami was tli© basis of all military efficiency. Tho dignity and self-respee: of ofcicc-rs and soldiers alike wero based upon it. Tho national safety depended mi the armed forces and tho power of rhoso forces rested on tho maintenance of disciplino. Patriotism callcd for tho enforcement of it on the one hand and the ready submission to its requirements on tho oilier. But ho could no; think that discipline would-bo less readily cxercised or less loyally accepted if it worn subjcct at all times to the limitations'created by civil law. Effect of Previous Decisions. Upon the. legal decisions as they stood, ho concluded first that Ihe rulo was sound that a military tribunal or ufliccr would be liable to au action for damages if, when acting in excess or wiluout jurisdiction, they or lis di.l or directed that to be done to another military person, whether ofiiucv oi' pru'ulo, what amounted to tort, lalse imprisonment, or other common law wrong, even if the injury wero dono in the course oi military discipline; second, that ;l an act causing injury to person or property wns within tho jurisdiction and m the course of'military discipline'no action would lio on tho ground that the act done was dona maliciously and without reasonable aiid probublo cause. ' It followed that ho was free to inquire whether the defendant in the present, action acted without juri&dicibn atid. whether a cause of action was established so as to justify an award of damages to the' plaintiff. But iie was not free «> award damages for malicious and frivolous abuse ot authority, t-ven if «e were satisfied that the plaintiff had proven that serious assertion. . There were many regrettaole incidents in tho present case, Mis Lordslnp said, and these might have been avoided bat for misunderstandings wluc,i ougnt neier to have arisen. He was unable to find that the defendant acted beyond his jurisdiction with respect to Ihe several matters complained oi by iho plmntill. Tho plaintiff failed to realise that although he had left 1 ranee .« sti owe a constant duty of °*<I>ence, aitho ugh ho might have suffered hardsi Jud a mailt Imust be for tho defendant.