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Published online by Cambridge University Press: 16 January 2009
Page was not the first British soldier to “murder” a foreigner on foreign soil, nor was he the first to be tried and convicted by a court-martial for so doing. He was, however, the first to take advantage of the passing of the Courts-Martial (Appeals) Act, 1951, upon such a conviction. His case thus provided at last an authoritative ruling on a point which had previously been the silent responsibility of the Judge Advocate General, namely, whether such a killing could indeed be murder within the meaning of section 41 of the Army Act, 1881.
2 R. v. Page [1954] 1 Q.B. 170.
3 The sentence has since been suspended, and Page released, The Times, December 16, 17, 1953.
4 Art. 4, British-Egyptian Convention concerning the Immunities and Privileges to be enjoyed by the British Forces in Egypt, annexed to the Treaty of Alliance, T.S. No. 6 (1937).
5 By the Army Act, s. 159, the court-martial would apparently have had jurisdiction if it had been convened elsewhere. Under the very similar section in the Mutiny Acts, however, a distinction seems to have been drawn between purely military offences, which might be tried anywhere, and ordinary crimes, which were triable only in the place where the offence was committed. See Clode, , Military Forces of the Crown, i, p. 187Google Scholar, and the opinions of Law Officers cited by him. These were, however, given before the section was inserted io the Mutiny Acts in 1770.
6 [1954] 1 Q.B., at p. 174
7 3 Inst. 47.
8 [1954] 1 Q.B., at p. 173.
5 Ibid., at p. 175. See 26 Hen. 8, c. 13, and 32 Hen. 8, c. 4.
10 See the statutes cited, note 9.
11 See Nicholas, , Proceedings and Ordinances of the Privy Council, vol. 7.Google Scholar
12 1 Lords' Journal, pp. 169b et seq.
13 See 23 Hen. 8, c. 1.
14 Nicholas, , op. cit.Google Scholar Nor do the Letters and Papers of Henry VIII shed any light on the matter.
15 Dyer 131.
16 See 3 Inst 26.
17 Treason committed abroad, which might haver suggested this use, was dealt with under the later 35 Hen. 8, c. 2. Dyer 131, 298, 360.
18 Mentioned in 1 Shower 6. 3 Keble 785 is confused and confusing.
19 Mentioned in R. v. Athos, 8 Mod. 144.
20 (1815) Russ. & Ey. 294. See (1845) 2 C. & K. 53, 101.
21 (1830) 4 C. & P. 394.
22 [1954] 1 Q.B., at p. 177. The writer's italic.
23 Articles of War are elusive documents. They are impossible to trace under that title. The only satisfactory collection is contained in the War Office Library, but a complete list of their whereabouts is to be found in the Journal of the Society of Army Historical, Research, iii, 166, v, 202, and vi, 188.
24 For these Articles, see Gross, , Military AntiquitiesGoogle Scholar, vol. 2. There seems to have been no special provision about murder, other than that of clerics. Apparently the medieval Tommy was more licentious than bloodthirsty.
25 Gross, , op. cit. (1788 ed.), p. 192.Google Scholar
26 Gross, , op. cit. (1788 ed.), p. 113.Google Scholar
27 See Clode, , Military and Martial Law, p. 53Google Scholar, Military Forces, i, p. 158. The Army Act has made inroads on this supremacy: all but five civil offences are now triable by court-martial (s. 41) and a civil court must take into consideration any sentence imposed by such a court (s. 162 (1)). On the other hand, a conviction by a civil court is now a complete bar (s. 162 (6)). See also the Courts-Martial (Appeals) Act, 1951, s. 16.
28 See the Articles of William and Mary for their troops in Ireland (1689), and those of Anne for her forces in the Low Countries (1706): Articles 19, 20, 37 of both.
29 It is unnecessary here to consider the way in which the prerogative power was gradually superseded by the statutory.
30 Article 45 of 1725.
31 Gibraltar has survived even the Army Act: see s. 41.
32 Sect. XX, Article 2, of 1749.
33 The Article for 1800 is set out in R. v. Suddis, 1 East, at p. 311.
34 Thus lack of officers prevented trial of a murder in the Fort of Placentia in 1733. See the opinion of Willes, A.-G., cited Clode, Military Forces, i, p. 529. See also the opinion of the same Law Officer on the illegality of trying civilians by court-martial in Gibraltar, and the advisability of using 33 Hen. 8, c. 23, op. cit., p. 533.
35 See Lieut.-General Hawley's letter, cited Clode, Military Forces, i, p, 534. For Wellington's views, see his Dispatches (1852 ed.), iii, p. 350.
36 Article 145 of 1878.
37 This provision was originally evolved in the Mutiny (East Indies) Acts, which governed the troops of the East India Company between 1754 and 1857. After the Indian Mutiny, the provision was incorporated in the Mutiny Acts (Act of 1864, s. 105). It had already appeared in the Articles of War.
38 Articles 130, 131 and 132 of 1856.
39 This provision is unfortunately omitted without indication in the reproduction of s. 41 in [1954] 1 Q.B. 170.
40 The Treachery Act, 1940, s. 2, has added treachery to the list.
41 The proviso to s. 41 makes a clear distinction between the five offences and all others, but it is far from clear why a distinction is made in the body of the section. One can think of reasons why this or that offence should be distinguished (e.g., the absence of any discretion in the penalty for murder), but there is no one reason which will cover all five. There was virtually no alteration in s. 41 after it had first been presented to Parliament in the Army Discipline and Eegulation Bill, 1878–9 (Parlt. Papers, 1878–9, i, p. 89). One has to go back to Sir Henry Thring's first attempt to merge the Mutiny Act and Articles of War. In his original Bill, there were to be only three civil offences: murder, manslaughter and rape. These were to be subject to the restrictions eventually contained in s. 41 of the Army Act. All other crimes were to be tried as conduct to the prejudice of good order and military discipline. This idea was then dropped, perhaps because of an unwillingness to extend even further this vague offence. Other crimes therefore became civil offences, but the original list remained and was added to. See the Report of the Select Committee on the Mutiny and Marine Mutiny Acts (Parlt. Papers, 1878, x, p. 253), Minutes of Evidence, p. 74, and Appendix, p. 146. The reference to “regulations” at the beginning of the section is also curious. They are non-existent. The word seems to be a mistake for “restrictions.”
42 II Cnut, 61. See Pollock, 1 L.Q.E., p. 44.