REVIEWS
| Published date | 01 November 1968 |
| Date | 01 November 1968 |
| DOI | http://doi.org/10.1111/j.1468-2230.1968.tb01220.x |
REVIEWS
CIVILIANS
UNDER
MILITARY
JUSTICE
:
The British Practice since
1689
especially in North America.
By
FREDERICK BERNAYS
WIENER. [Chicago and London: The University
of
Chicago
Press.
1067.
xxx and
846
pp. (including index).
104s.
net.]
FASCINATINCI
to read and
a
joy to handle, this is a most thoroughly researched
work of legal history and beautifully produced hy the Univcrsity of Chicago
Press. Mr. Wiener was counsel in
a
series of cases before the United States
Supreme Court that established the invalidity under the Constitution of
military trials of civilians in peacctime.
The
preparation of these cases
inspired him to pursue further his historical research and this book
is
the
result. Mr. Wiener has studied an enormous range of sources and, in particular,
the hcnclquarters order books of the British Army in North America and the
records of trial recorded in the War Ofice court-martial books, in order to
examine the extent of military jurisdiction exercised by the British Army
over civilians in the Seven Years War and the American War of Indcpendcncc.
Mr.
Wiener has examined the exercise
of
military jurisdiction over two
broad groups of civilians-camp followers,
i.e.,
employees and dependants
of
the Army in the field, and the inhabitants of occupied territory. Many of the
civilians supporting the Services, like sappers and drivers, were brought into
the Army by Wellington’s day, but
as
Sir Charles Oman has graphically
described in
Wellington’r,
Amy,
hosts of women, “expert plunderers
.
.
.
and
much given to fighting” accompanied and impeded the British Army then as
they had done on the American Continent in the previous century and
as
they
were to go on doing till the end of the Crimean War. The trial in wartime of
wornen civilians and other followers by military courts abroad rested on
a
prerogative Article of War, first made in
1747.
Attempts to subject civilians
in peacetimc to military jurisdiction,
e.g.,
in Gibraltar and Minorca, failed
because the Judge Advocate General’s Wce ruled consistently against such
jurisdiction. Mr. Wiener gives much credit for this
to
Sir Charles Could, the
first lawyer Judge Advocate General of the British Army and commemorates
him by reproducing as
a
frontispiece to
this
book the splendid Gainsborough
portrait that hangs in the offices of the Equitable Life Assurance Society in
Ifindon. The author points out that
Sir
Charles
Gould’s
rulings anticipated
what the U.S. Supreme Court was to rule two centuries later in the cases
already referred to.
The other group of civilians over whom the military exercised jurisdiction in
the Seven Years War and the American War of Independence consisted of
inhabitants of occupied territories. Yet it was only in Wellington’s day that
the legal justification based on the law of belligerent occupation was articulated.
The interesting aspect of thi’s part of the story is that although
Sir
Charles
Could in
1768
(when Deputy
JAG.)
had strongly asserted that there was no
such jurisdiction,
156
inhabitants were tried by court-martial in New York
during its occupation by British Forces between
1776
and
1783
and, with but
feeble protest, Sir Charles (who had now become Judge Advocate General)
seems to have acquiesced. Mr. Wiener refers to Sir Charles’s “mildness” in
this matter might have been
a
better word)’ but is unable,
to explain it.
It
does surely point to an inherent weakness in the
J.A.G.’s
position that makes less surprising the failure of historians to remember
Sir
Charles of which Mr. Wiener complains.
For anyone who wishes to engage on the history
of
English military law
which, as Mr. Wiener emphasises, has yet to be written, the excellent text of
711
712
THE MODERN LAW REVIEW
VOL.
81
this book is niatchcd by excellent footnotes and appendices.
For
every piece of
information that
Mr.
Wiener has qirarricd from his sources, he has laid bare
yet more sources for the researchers of the future, both lawyers and historians.
One small rexret-many descriptions of punishn~cnts awarded by courts-
martial
are
givcn but none
of
how the trials were conducted. The way in
which court-martial procedure has dcveloped over the years would be
a
most
intercsting ficld of study.
GonwN
BORRIE.
LEGAL FICTIONB. By
LON
L. FULLER.
[Stanford University
Press.
EXISTENTIALISM
AND
LEGAL SCIENCE. By
GEORGE
CORN.
[New
Tirt
first
of these two books constitutcs the
first
publication in book form of
three articles which were published in the
Illinois
Law
Review
in 1930 and
1931.
They were well worth republishing both for their intrinsic merit as well
RS
for the distinguishcd reputation of their author, who has now for many
years been
a
Professor of Law
at
the Harvard Law School. Views on the
role of fictions in the law have tendcd to oscillate between the two extremes of
Bentham, who once wrote
of
“the pestilential hrcath of Fiction,” and of
Blackstone, who referred to fictions
as
“
highly beneficial and useful.” Little
attempt has, however, been made to analyse the precise character
of
legal
fictions and their role in the legal process. The first two chapters of this book
subject the wholc question of
Icgal
fictions to
a
searching analysis, both
from
the point of view
of
thcir character, and also from the point
of
view of thcir
motivations. There is little doubt that any lawyer will derive considerable
clarification from the careful analysis in this portion of the
book.
On the othcr hand, the author is well aware that there is
a
decper under-
lying philosophical problem
as
to the nature
of
fictions generally, and their
bearing on conceptual thought in general, and legal concepts in particular. In
his final chapter Professor Fuller attempts to probe these deeper aspects of
the subject mainly in the light
of
the somewhat outmoded, but by
no
means
totally discredited philosophy of IIans Vaihinger,
as
expounded in his
celebrated book,
The
Philosophy
of
“A8
If.”
This book was first published
in
1911
and made somc philosophical impact
at
the time by its novel approach
to the theory
of
truth. Vniliinger apparently thought that there were many
analogies between the character
of
certain fundamental fictitious assumptions
in physical scicnce and certain types of legal fiction. Professor Fuller, while
rccognising that Vailiingcr did little to clarify the nature of legal fictions
as
such, regards this as
a
valuable insight. He agrees that there
are
serious
criticisms that can be made of Vaihinger’s general position, but he still argues
that the lawyer can increase his understanding of the legal techniques and the
cliarncter of
“
conreptualisrri,” by invoking some of Vaihinger’s doctrines. To
a
modern reader, however, it must be confcssed that though the doctrines of
Vaihinger are certainly not devoid of interest
at
the present day, the present-
day scekcr after philosophic truth underlying the law and its analysis is unlikely
to dircct his attention very actively, if
at
all, in this particular quarter.
The second of these books bears
a
somewhat niislcading title, since
it
has
nothing whatsoever to do with Existentialism
as
understood in contcmpornry
philosophy. In effect, what this book amounts
to
is
a
strong plea in favour
of
gctting rid of
“
conceptualism
”
in jurisprudence. This book, which
is
trans-
lated from the Gcrnian, proceeds from the prcmiss that there is something
startlingly novel in its approach
to
legal concepts. This may conceivahly be
so
for those
to
whom the book was originally addressed, but it sccms most
improbable that any common lawycrs in this country
or
the United States
will find anything either particularly startling
or
illunlinnting within
its
covers.
1067.
xiii and
142
pp.
86s.
net.]
York
:
Oceans Publications fnc.
1067.
148
pp.
$6.1
LLOYD
OF
HAMPSTEAD.
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