Military law, courts martial and the Canadian Expeditionary Force, 1914-1918

Itl AhsÉracÉResearch into the history of Canadian military law during the Great War has received scant attention by historians.Eritish studies into the subject have, until recently, been political in nature, with a focus on discrediting the legality and conclusions of courts martial during the war.However, the research done on ûre subject has been plagued by methodological problems, resulting in political conclusions r¡¡hich are not supported by historical evidence.In an effort to redefine the subject of military law during the Great War, this study critically engages the previous work done on the subject, establishes the legal status of the Canadian forces during the waq re-constructs the theory of military law and the procedures and legislation of courts marrial during the war, and provides concrete examples of specific court martial cases.The significance of the conclusions derived from this study demonstrates that there is reason to doubt the predominant assumption that courts martial during the war were arbitrary, and questions the arguments in favour of pardons for those executed during the war.Finally" this study illusfrates the need for analyses of court martial trials specifically, rather than crimes, in an effort to provide a more accurate historical understanding of Canadian military law during the Great War.prosecutor or defence; the prosecution had five witnesses and the defence had four'.The accused was found not guilty of the charge.This case demonstrates part of a trial, and illustrates the systematic procedures of court martial trials; however, without analysis and explanation of the procedures there is no way of fully understanding what had taken place or of making any claim as to whether Aldous received a fair trial.3Any groundwork for the historical study of Great War Canadian military law requires: (1) a historiographic analysis of the subject; (2) a construction of the history of military psychiatry during this time period, particularly of'shell shock' and its relationship to military law; (3) a constluction of what Canadian military law was, why it was understood as such, and what developments were made throughout the war; (4) an analysis of the fundamental and conceptual differences between military and civil laws, with specific focus on the theoretical foundations of military law; (5) an analysis of the legislative framework of the military legal system during the peliod in question; (6) and the demonstration, using specific case files, of standalds applied in court martial trials.A note on terminology: terms, common to this subject matter, require clarification, particularly the terms 'Militaly Law' and 'Martial Law.' Militaly law is a legal system which governs the administrative as well as disciplinary aspects of life in the armed folces.Thus, military law governs enlistment, terms of service, and courts martial, among othel things.aDut'ing the Great War, the military law which applied to Canada was the British Army Act, originally approved by the British parliament in 188I and 3 'Foi.'can only be measured if the procedures established within the legislation govelning military law and courts martial were fbllowed.a Burlell M. Singer and Lieut.-ColonelR.J.S. Langfold, Handbook of Canaclian MiLitaDt Lqyy (Tolonto: The Copp Clark Cornpany LTD, 1941), 1. reassessment of the trials and findings, as well as for blanket ol specific pardons for those executecl for desertion and cowardice.This thesis opposes that historiography and is critical of the claims and research methods of Godefroy, Putkowski and Sykes, and Babington.It strongly supports the thesis presented by Cathryn Corns and John Hughes-Wilson in Btindfotd and Alone.t0However, rather than simply reassess and leinforce their thesis, which they have strongly and concisely presented, my wolk complements and further develops the concepts of military legal theoly and the application of legislation in this time period.The findingswill argue that the military legal system which the Canadian Expeditionary Force was subject to was in fact systematic, with clearly established procedures, and that there is no historical evidence to support a claim that those procedures were ignored ol in any way distorted by military officers and courts.Furthermore, military law differed from civil law in that the military legal code was, and remains, plemised on the concept of discipline and control, whereas the civil justice code is plemised on an abstract construction of justice.Conversely, both the military and civil laws were, and remain, equally premised on the concept of detelrence.Thelefore, when faced with total war-, where soldiers risked death daily, the lack of capital punishment would have arguably resulted in a significant problem for military commanders.The pllrpose of law, both civil and military, is to ensure ordel by constlucting the consequences for a crime as more severe than the consequences if the crime was not committed.In the case of war, if a soldier is faced with death on the front line, the punishment for avoidance such as r0 Cathryn Corns and John Hughes-Wilson, Blinclfotct and ALone; British Milirar¡, Executions itt the Great War, (London: Cassell, 2005).desertion must be severe; otherwise the result of committing such a crime proves to be more beneficial than to obey the established law.The study of Canadian courts martial during the Gleat War is complicated by the condition of the primary source records.As mentioned, the courts maltial records are heid at Library and Archives Canada, which has composed an index available online.Included in the "Descriptive Records" of the coul'ts martial records is a statement confirming that the records were microfilmecl by the National Defence Microfilm Unit between 1 December' 1950 and2 September 1954;the original records were subsequently destroyed.llThe microfilms of the courts martial, forty-five in total, lack organi zation, with the files identifiable only by the name of the accused, are filed in reverse order on the reel (the first page following the title page of the file is the lasr page of the actual file) and in some cases repeat offences and trials are all filed together with no clear distinction as to which page refers to which trial.This organization demeans the usefulness of the index available, as most files lack file numbers, which the index uses to identify the individual files.Thele are no other identifying marks on the reels, save for breaks spread thloughout, which are potentially useful in attempting to Lìse as a marker to locate files.Finally, the qualities of the reproductions ale particr,rlarly poor, which further hampers research into the subject.All of this contributes to significant methodological problems in regards to sampling: representative samples are not possible without analysis of the entire collection because the files are not organized by crime, date, location, finding, sentence or name.Therefore, the only possible sampling method is a random sample of the " Libraly and Archives Canada, "Descliptive Record: Courts martial lecorcls" http

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