837 



COURT-MARTIAL. 



COURT-MARTIAL. 



single code for all the native troops of the Company in 1847. By the 

 Act for 'the better Government of India,' the 21 & 22 Viet., c. 106, 

 transferring the powers and jurisdiction of the East India Company to 

 the Crown, the military and naval forces of the East India Company 

 are to be deemed to be the Indian military and naval forces of her 

 Majesty, and are continued on the same footing, and subject to the 

 same regulations, statutes, and articles of war in all respects as existed 

 at the time of the passing of the Act. 



Courts-martial may be of three kinds ; general courts-martial, dis- 

 trict or garrison courts-martial, and regimental courts-martial. 



General courts-martial are assembled under the authority of the 

 queen, or of an officer, having the chief command within any part of 

 her Majesty's dominions, to whom such authority may be delegated by 

 commission or warrant under the sign manual. Regimental courts- 

 martial are held by the appointment of the commanding officer of the 

 regiment. What are called detachment courts-martial, may be either 

 general or regimental, and their appellation is derived from the 

 nature of the command with which the officer convening the court 

 is invested. 



The chief crimes of which a general court-martial takes cognisance 

 are mutiny, traitorous correspondence with the enemy, abandonment 

 of a fortress, post, or guard committed to the charge of an officer or 

 soldier, disobedience of orders, and desertion ; these crimes, if proved 

 to their greatest extent, are punishable with death ; and the penalty 

 extends to any military man, being present, who does not use his best 

 endeavours to prevent them. The crime of desertion includes the fact 

 of enlisting in any regiment without having had a regular discharge 

 from that in which the offender may have last served. The practice 

 of sending challenges between commissioned officers, is punished with 

 cashiering ; between non-commissioned officers and privates, with cor- 

 poral punishment ; and, in all cases, seconds and accessories are held 

 to be equally guilty with the principals. Self-mutilation, theft, em- 

 bezzlement of money or of stores, making false returns of stores, and 

 neglect of ordinary duty, in non-commissioned officers and privates, 

 are punishable with penal servitude, imprisonment with or without 

 hard labour, and in addition thereto with the forfeiture of all additional 

 pay or good conduct pay or claim to pension upon discharge, corporal 

 punishment not exceeding fifty lashes, or discharge from the service 

 with ignominy ; and men of the former class may, in addition to other 

 punishments, be suspended, or degraded to the ranks. There are 

 many offences which might tend to the subversion of discipline, but 

 which are hardly capable of being precisely defined, such as immoralities, 

 and behaving in a manner unbecoming an officer and a gentleman ; of 

 these the courts-martial take cognisance, and on conviction the offender 

 may be dismissed from the service. At home, military men are not, 

 in general, amenable to courts-martial for civil offences ; but abroad, 

 where there may be no civil courts, the case is different. 



The provisions of the Mutiny Act affect not only the cavalry and 

 infantry of the regular army, but extend to the officers and privates in 

 the corps of artillery, engineers, military surveyors and draughtsmen, 

 or in the field or military train, or medical staff corps, or hospital 

 corps ; to all troops serving in India, or serving in the colonies ; to the 

 militia and yeomanry, during the time that they are assembled and 

 being trained, if expressly so provided by the Act embodying them. 

 Discipline in the marines is regulated by the Marine Mutiny Act. 

 All are subject, without distinction, to trial and punishment by courts- 

 martial. 



The rules of the service require that the president of every general 

 court-martial should be a field-officer, if one of that rank cau be ob- 

 tained ; but he must not be inferior in rank to a captain, save in the 

 case of a detachment general court-martial holden out of the crown's 

 dominions, where a captain cannot be obtained. And it should be 

 observed, that none of the members are to be subalterns when a field- 

 officer is to be tried. The president of every court-martial is appointed 

 by the authority convening the court, and it is required that such 

 president shall in no case be the person whose duty it is afterwards to 

 confirm the proceedings, or has been, previously, to investigate the 

 charges on which the prisoner was to be arraigned. A judge-advocate 

 is appointed to conduct the prosecution in the name of the sovereign, 

 and act as the recorder of the court. 



No general courts-martial held in Great Britain or Ireland, the 

 Ionian Islands, or British India, are to consist of less than thirteen 

 officers; in St. Helena, British settlements on the 



i n coast of Africa, Honduras, New Zealand, the Australian colo- 

 nies, British settlements on the coast of China, Prince of Wales' Island, 

 I ii ire and Malacca, of ICBH than five; in Jamaica, the Windward 

 and Leeward Islands, British Guiana, Newfoundland, Bermuda, the 

 Bahamas, the Cape of Good Hope or other settlements in southern 

 Africa, or any place out of the British dominions excepting the places 

 already mentii med, of less than seven commissioned officers. Commonly, 



. cr, a greater number are appointed, in order to guard against 

 accidents arising from any of the members being found disqualified, or 



; sick. An uneven number is purposely appointed, in order that 



1 ' always a casting vote ; and the concurrence of two- thirds 



of the member* composing the court is requisite in every capital 



:n;er serving in the militia can sit in any court-martial 



the trial of an officer or soldier in the regular army ; and no 



in the regular* is allowed to sit in a court-inartial on the trial 



of an officer or private serving in the militia. The members of the 

 court take rank according to the date of their commissions ; they are 

 always sworn to do their duty ; and the evidence on the trial is taken 

 upon oath. 



In the accusation the crime or offence must be clearly expressed, and 

 the acts of guilt directly charged against the accused ; the time and 

 place must be set forth with all possible accuracy ; and, at a general 

 court-martial, a copy of the charge must be furnished by the judge- 

 advocate to the accused, that he may have full opportunity of pre- 

 paring his defence. The accused has the power of challenging any of 

 the members, but the reason of the challenge must be given, and this 

 must be well-founded, otherwise it would not be admitted ; for the 

 ends of justice might be often defeated from the impossibility of getting 

 members to replace those who were challenged. 



The court must discuss every charge brought against the accused, 

 throwing out only such as are irrelevant; and judgment must be given 

 either upon each article separately, or the decision of the court upon 

 all may be included in one verdict. The evidence is taken down hi 

 writing, which affords to every member of the court the opportunity 

 of comparing the proceedings with his own private notes, and of thus 

 making himself completely master of the whole case before he is 

 required to give his opinion. At the last stage of the trial, the 

 decisions of the several members are taken in succession, beginning 

 with the junior officer on the list ; a regulation obviously adopted in 

 order to secure the unbiassed opinions of those who might otherwise 

 be influenced by deference to the members who are superior to them 

 in age or rank. 



District nr garrison courts martial must consist of not less than 

 seven commissioned officers, except in Bermuda, the Bahamas, Cape of 

 Good Hope, or other settlements in Southern Africa, St. Helena, 

 Jamaica, Honduras, Newfoundland, New Zealand, the Australian 

 Colonies, the Windward and Leeward Islands, British Guiana, Hong 

 Kong, and the settlements on the Coast of China, where it may consist 

 of not less than five ; and ill the settlements on the western coast of 

 Africa, where it may consist of not less than three commissioned 

 officers. The president must be a field officer if such officer can be had, 

 and if not, then an officer not under the rank of captain ; and the 

 power of the court is the same as that of a general court-martial, save 

 only that it cannot try a commissioned officer, or pass any sentence of 

 death or penal servitude. 



Regimental or detachment courts-martial are appointed by the 

 commanding officer, for the purpose of inquiring into criminal matters 

 of the inferior degrees ; and they are empowered to inflict corporal 

 punishments or imprisonment, and forfeiture of pay for a limited time. 

 The Mutiny Act and Articles of War require that not less than five 

 officers should constitute a court of this nature, or three when five 

 cannot be obtained. The president must not in any case be under the 

 rank of a captain, save in the case of a court holden on the line of 

 march, or on board a transport-ship, convict-ship, merchant-vessel, or 

 troop-ship, not in commission, or on any foreign station where a 

 captain cannot be had. The practice is to appoint a captain as pre- 

 sident, and four or two subalterns as the case may be ; the court has 

 no judge-advocate to direct it ; and the members therefore must act 

 on their own responsibility. The proceedings are to be taken down in 

 writing, and the sentence cannot be put in execution till it has been 

 confirmed by the commanding officer, or by the governor of the 

 garrison. 



An inferior officer, or private soldier, who thinks himself wronged 

 by a commissioned officer, may, on application to the commanding 

 officer of the regiment, have his cause brought before a regimental 

 court-martial, although no commissioned officer is amenable to that 

 tribunal, and, if the complaint is judged to be well founded, he may on 

 that authority require a general court-martial to be held. 



An appeal by the party who conceives that he has suffered injustice, 

 lies from a regimental to a general court-martial. But upon a matter 

 which clearly lies within the jurisdiction of the courts military, there 

 is no appeal to the courts of law or equity. Yet as courts-martial are 

 bound to act within their proper jurisdiction and in accordance with 

 the ordinary rules of evidence, irregularities, of a character which 

 amount to a denial of justice, will afford a sufficient ground for the 

 Supreme Courts of Law to interfere, either by a prohibition to stay the 

 proceedings, or to set aside the sentence, and discharge the prisoner, or 

 to grant a writ of habcai corpus to bring up the prisoner with a view to 

 staying execution of the sentence, and affording time for further 

 inquiry. 



After the sentence of the court-martial has been ascertained, it is 

 transmitted to the sovereign, who may either confirm it, or, if suffi- 

 cient reason should exist, may, on the ground that the process is not 

 complete till the sentence has received the royal sanction, return it to 

 the court for revision ; or without having recourse to any such step, 

 it is within the royal prerogative to remit the punishment awarded. 



The chief distinction between the trial by court-martial and by 

 jury is, that in the latter the verdict must be unanimous, while in 

 the former the concurrence of a majority only determines the verdict ; 

 but if it should happen in courts-martial composed through necessity 

 of an even number, that the court is equally divided, this is received 

 as a verdict of acquittal. Judgment of death, however, cannot be 

 given but with the concurrence of two-thirds of the court. No 



