1902 Encyclopedia > Court Martial

Court Martial




COURT-MARTIAL. Courts-martial have inherited part of the jurisdiction of the old Curia Militaris, or Court of the Chivalry, in which a single marshal and at one time the High Constable proceeded " according to the customs and usages of that court, and, in cases omitted according to the civil law, secundum legem armorum " (Coke, 4 Ins. 17). The modern form of the courts was adopted by ordinance in the time of Charles I., when English soldiers were studying the " articles and military laws " of Gustavus Adolphus and the Dutch military code of Arnhem ; it is first recognized by statute in the first Mutiny Act, 1 Will, and Mary c. 5. The royal prerogative of issuing commis-sions under the sign-manual for holding courts-martial, although superseded as regards the United Kingdom by the express power to make certain articles of war which the Mutiny Acts confer on the sovereign, still exists as regards courts-martial held abroad. But the Mutiny Acts also provide for the issue to commanders abroad of warrants to convene courts-martial, or to authorize field-officers to con-vene them, and even make it lawful in special cases beyond sea for any officer to convene a detachment general court-martial without warrant or commission. The trial of the militia, yeomanry, and volunteers is provided for by "The Volunteer Act, 1863," and "The Regulation of the Forces Act, 1871." In India the punclwyats, or native military tribunals, are frequently employed. All commis-sioned officers on full pay, officers of the general staff, although on half staff pay, and officers on brevet rank, are eligible as members of a court-martial. The president of the court is necessarily the senior combatant officer present, unless it has been his duty to investigate the charges against the prisoner ; and it is a general rule that the members should be of equal, or superior, rank to the prisoner. Im-partiality is secured by the system of " roster;" i.e., the " tour of duty " is from the senior downwards. The juris-diction of courts-martial is not confined to purely military offences, but, as regards felonies and misdemeanours mentioned in the Mutiny Act or the Articles, is concurrent with, though subordinate to, the jurisdiction of the ordinary criminal courts. The Mutiny Act, indeed, directs that soldiers charged with common offences against the peace should be delivered up to the magistrate. Officers tried in an ordinary court can be punished afterwards by court-martial only by cashiering or reduction. There is a wholesome regulation against sending home for trial accused officers or men, except in cases of unavoidable necessity, but the jurisdiction extends to offences wherever committed. No court-martial can sit in one of H. M. ships in commis-sion, but the "Naval Discipline Act, 1866," subjects land forces on board to its provisions. Half-pay officers are not subject to martial law, but it is thought they ought to be made so, as they derive advantage from retaining their commissions. Even the licensed sutlers, who follow the autumn manoeuvres, are under the Mutiny Act. So are paid recruiting officers, though not themselves enlisted, and, to a certain extent, the "army reserve." But a prisoner of war on parole cannot be brought to trial, and all milt tary offences prescribe in three years. From the adminis-tration of martial law must carefully be distinguished the procedure by court-martial authorized by the 143d Article of War in places where there is no " form of civil judicature in force," and with regard to civil crimes. In such cases the court-martial applies the civil law, bui its jurisdiction is ousted wherever there is a competent civil court under the royal authority, although that court may itself administer not British law, but French, or Roman-Dutch, or any other form of colonial law, and may do so by machinery of procedure quite unfamiliar to British soldiers. This special jurisdiction of courts-martial in non-military offences would also exist where the ordinary courts had been closed by a declaration of martial law (see case of Bev. John Smith of Demerara, June 1824, 2 Hansard xi. 976).
The old form of field or drum-head court-martial (in which no notice was given, no oath administered, and no written record kept) being now happily extinct, there remain three forms—(1) general and detachment general courts-martial, (2) district and garrison courts-martial, and (3) regimental and detachment courts-martial, which are distinguished by their powers of awarding punishment, and by the dress of the officers attending them—viz., review order, marching order, drill order. The two latter are called minor courts, and commissioned officers are not amenable to their jurisdiction. A great many offences are, by the Articles of War, made appropriate to the different courts, the general rule being that the general court is not to be resorted to except in aggravated cases, punishable by penal servitude or death. By permission of a general officer the regimental court may try an offence expressly assigned to a higher court, but in no case may it try desertion. To a certain extent these rules are set aside on the line of march or on board ship, but there is always a maximum of punishment which each court is bound to observe. In 1868 the number of members required for a general court at home was reduced from thirteen to nine, a judge-advocate being in attendance. The general court can try all military offences in whatever regiment under the command committed, and it is the only martial court which takes cognizance of civil offences; it also hears appeals from regimental courts. The detachment general court which is since 1860 only competent "beyond seas," where it is impracticable to hold a general court, was introduced by Wellington, " to repress the spirit of plunder and outrage which had broken out in the army after the battle of Vitoria" (Supp, Desp. viii. 104). It consists of three commissioned officers, summoned without royal warrant, to investigate any offence against the person or property of an inhabitant of the country where the detachment is. The sentence must be confirmed by the general officer. The district or garrison court, which superseded in 1829 the older general regimental court, con-sists of seven members, the president doing the work of a judge-advocate in summoning witnesses, administering oaths, and transmitting the proceedings to the judge-advocate-general in London. The power of this court to imprison non-commissioned officers and privates was in 1864 extended from six months to two years ; and in 1869 it received additional power to impose forfeitures and to discharge with ignominy. Another form of district court was that formerly called detachment court for the trial of warrant officers (i.e., officers appointed by warrant under the signature of colonels or commandants of corps). The regimental court, summoned by the colonel, consists of five or three members, with power to inflict limited sentences of imprisonment, corporal punishment, solitary confinement, and also fines, stoppages, and other punishments not peculiar to this court. There are also courts or boards of inquiry, called by an exercise of the royal prerogative to inquire into such questions as the failure of an expedition, or the necessity for an armistice or convention, often in order to determine whether or not a court-martial should be held. It was found in the well-known cases of Lord Bentinck (1820) and Lieutenant-Colonel Dawkins (1873) that the Crown may withhold the proceedings of these courts from the courts of law, and that military witnesses are protected from actions of damage in respect of their evidence before such a court. Where an officer is called before the court of inquiry he is not put on oath, or even bound to answer
ARTIAL
questions which he thinks may be prejudicial to him ; and in connection with the celebrated Simla court-martial (1867) this rule was extended to the production of documents. The Articles of War of 1860 introduced a regimental court of inquiry for the purpose of hearing the complaints and redressing wrongs of non-commissioned officers "and soldiera in any matter respecting their pay or clothing." Thi3 court, which is generally held by the captain, also inquires into cases of maiming and mutilation, and all its judgments may be appealed against to a general court. Smaller courts of inquiry examine cases of illegal absence, loss of medals, and the return of officers who may have been taken prisoner by the enemy by their own neglect.
All members of a court-martial take an oath not only to try according to the evidence, but to keep the sentence of the court secret until approved, and to keep secret the votes and opinions of particular members. Even a peer, if serving on a court-martial, cannot use his privilege of giving judgment on honour. As might be expected, the army has a very varied experience in the forms of swearing witnesses. Besides the ordinary Protestant mode of kissing the Bible or Testament, and the ordinary Catholic mode of marking a cross on the closed book, Mahometans are sworn by kissing or placing on their head the Koran, Sikhs upon the Grinth, Hindus upon the Vedas, or by touching the Brahman's foot; and, according to caste custom, Indian witnesses sometimes insist on the oath being administered by a Brahman. But ia India affirmations tire now generally taken. While a Jew insists on wearing his hat, as in the synagogue, all soldiers, though bound to remain covered before the court, remove their caps in swearing, just as a Protestant witness ungloves his hand. Kaffir witnesses before a court-martial have sworn by their own chief, and a Kaffir chief by the king of England. The colonial legislatures, however, have generally made provision for receiving unsworn evidence of barbarous and uncivilized people who have no religious belief. The judge-advocate is a legal assessor and clerk, but in no sense the prosecutor, although the judge-advocate-general still frames and sanc-tions the formal charge? in the indictment. The latter is a Parliamentary officer appointed on change of ministry, and a member of the Privy Council. He advises the Crown as to the legality of courts-martial, reviews proceedings brought under his notice, confidentially advises the com-mander-in-chief, and is the custodier of the court records, The prosecutor is a staff officer, or the prisoner's command-ing officer, or a field-officer of the regiment, or an adjutant. The prisoner n generally entitled to have legal assistance, and also a private interpreter as a check on the translation of the interpreter for the prosecution. He has no peremptory challenges; but lie may challenge on the grounds of defect of rank, inexperience, prejudice, or malice. Formerly, if the prisoner "stood mute," the court-martial entered a verdict of guilty, but this is now altered ia conformity with common sense. Where he does not adduce evidence in defence, the prisoner (contrary to the rule under Denman's Act in criminal courts) has a right to the last word. The judgment of the court is by simple majority, except in capital charges, which require the concurrence of two-thirds. The same distinction holds in the subsequent voting on the sentence. Since 1868 the word "honourably" has disappeared from verdicts of acquittal; and the finding "that the charge has not been proved" has been discontinued. Capital punishment awarded for military offences is generally carried out by shooting, but hanging is also competent. In trifling cases between officers the court frequently dictate the terms of a written or verbal apology ; and in separate remarks they often observe on the conduct of the prosecutor, on the frivolous or groundless nature of the charges, or the intemperate defence of a prisoner whom they acquit. Such remarks are acted on at headquarters. As a general rule the sovereign's confirmation is required to the decision of a general court. Officers commanding abroad (except in India) have a limited power of confirmation depending on the nature of the sentence. The commander-in-chief in India may confirm all sentences ; and this absolute power was also given to Lord Raglan in the Crimea. Even in India, however, a capital sentence by court-martial for a civil offence requires the approval of the governor-general. When a decision, not of acquittal, comes up for approval, it is indispensable that the judge advocate-general should have a personal audience with the queen. Her Majesty may not only disapprove, but may also order revision of the proceedings ; and where the conviction is sustained, the sentence may be remitted or mitigated, but the profes-sional penalties which martial law attaches to conviction cannot be remitted. The members of courts-martial and those who carry out their sentences are of course liable for illegal sentences or irregularities. Thus in 1861, owing to a defect in the Acts regulating the transfer of colonial prisoners, Lieutenant Allen recovered ¿6200 from H.R.H. the duke of Cambridge for false imprisonment.
In conclusion, it may be stated that treason and other non-military offences, which, if committed in England, would be punishable in the ordinary criminal courts, are tried by a general court-martial, if committed on service at Gibraltar, or in India, 120 miles distant from any of the three presidencies; or elsewhere in the queen's dominions, where there is no competent civil court, or out of the queen's dominions.
Naval Courts Martial.—The administration of the bar-
harous naval law of England was long entrusted to the diS-
CS D
cretion of commanders acting under instructions from the lord high admiral, who was supreme over both the royal and merchant navy. It was the leaders of the Long Par-liament who first secured something like a regular tribunal by passing in 1615 an Ordinance and Articles concerning Martial Law for the Government of the Navy. Under this ordinance Blake, Monk, and Penti issued instructions for the holding general and ship courts-martial with written records, the one for captains and commanders, the other for subordinate officers and men. Of the latter the mate, gunner, and boatswain were members, but the admirals reserved a control over the more serious sentences. Under the Act 13 Car. II. c. 9, the high admiral again received power to issue commissions for holding courts martial—a power which continues to be exercised by the Board of Admiralty. During the 18th century, under the auspices of Anson, the jurisdiction was greatly extended, and the Consolidation Act of 1749 was passed in which the penalty of death occurs as frequently as the curses in the commination service. The Naval Articles of War have always been statutory, and the whole system may now be said to rest on the Naval Discipline Acts of 1860 and 1866. The navy has its courts of inquiry for the confidential investigation of charges " derogatory to the character of an officer and a gentleman." Under the Act of 1866 a court-martial must consist of from five to nine officers of a certain rank, and must be held publicly on board of one of H.M. ships of war, and where three such ships are together. The rank of the president depends on that of the prisoner. A judge-advocate attends, and the procedure resembles that in military courts, except that the prisoner is not asked to plead, and the sentence, if not one of death, does not require the confirmation of the commander-in-chief abroad or of the Admiralty at home. The court has a large and useful power of finding the prisoner guilty of a less serious offence than that charged, which might well be imitated in the ordinary criminal courts. The death sentence is always carried out by hanging at the yard-arm ; Admiral Byng, however, was shot in 1757. The Board of Admiralty have, under the Naval Discipline Acts, a general power of suspending, annulling, and modifying sentences which are not capital. The jurisdiction extends to all persons belonging to the navy, to land forces and other passengers on board, ship-wrecked crews, spies, persons borne on the books of H.M. ships in commission, and civilians on board who endeavour to seduce others from allegiance. The definition of the jurisdiction by locality includes harbours, havens, or creeks, lakes or rivers, in or out of the United Kingdom ; all places within the jurisdiction of the Admiralty; all places on shore out of the United Kingdom ; the dockyards, barracks, hospitals, &c, of the service wherever situated ; all places on shore in or out of the United Kingdom for all offences punishable under the Articles of War except those specified in section 38 of the Naval Discipline Act, 1860. Under the Marine Mutiny Acts the royal marine forces are, while on board, or borne on the books of H.M. ships, subject to naval courts martial. In other circumstances the Articles of War made by the Lord High Admiral for the government of the royal marines are carried out by general courts-martial, district or garrison courts-martial, divisional and detachment courts-martial, courts-martial on the line of march or in transport ships, all held under the authority, mediate or immediate, of the lord high admiral. The regulations of these different courts in the Marine Mutiny Act are very much the same as in the case of courts martial for the land forces. Officers of both services often sit together.
See Simmons On the Constitution and Practice of Courts-Martial,
7th ed. 1875 ; Clode, Military and Martial Law, ]872 ; and
Thring's Treatise on the Criminal Law of the Navy, 1861. The
earlier writers on courts-martial are Adye (1796), M'Arthur (1813),
Maltby (1813, Boston), James (1820), DAguilar(1843), and Hough,
Precedents in Military Law (1855). See also the annual Mutiny
Acts and the Articles of War, and the articles MILITARY LAW and.
NAVY. (W. C. S.)











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