cognizable under the provisions of the articles of war: or, at home, where the proceedings of all general courts martial are submitted to the Queen, unless he has a warrant to convene such courts, and consequently by implication, as assumed in this case, a discretionary power to dispense with their assembly. But abroad, an officer authorized merely to assemble general courts martial, or, at home or abroad, an officer authorized to assemble a district court martial cannot dispose of any case which is not clearly within the cognizance of that description of court, without the permission of the competent authority, that is, of the officer invested with the power of confirming the proceedings of the higher tribunal. 265. It had always been considered in the army, that an offence which a special article made cognizable by a general court martial, if charged in the express terms of that article, could not be tried by an inferior court. Mr. M'Arthur observed, "should a non-commissioned officer or soldier be brought before a regimental court martial for mutiny, desertion, or any of the higher crimes cognizable by a general court martial, he might not only plead the incompetency of the regimental court martial to try him; but should this regimental court, even without a soldier's availing himself of such a plea, proceed in the trial, and adjudge a punishment for a crime not within the jurisdiction of the court, the members would, collectively or individually, be liable to prosecution in a court of justice, for the illegality of their proceedings." (4) This reasoning, or rather this exposition of the law, still holds good, and is especially applicable, as commanding officers are expressly forbidden to give in against a prisoner "vague and indefinite charges," (5) and thus try before a regimental court martial, offences which are directed to be tried by general, or district, or garrison courts martial. In cases where these grave offences may admit of less serious notice, and when commanding officers (4) M'Arthur, 1813, i. 158. (5) A.W.140. Previous to the direct injunction to the contrary in this article, it was customary to modify the charge, so as to avoid the express offence declared cognizable by a superior court, and, by these means, to bring it within the jurisdiction of an inferior court martial. Thus facts which might Permission to be shall deem it advisable to proceed to trial by a district, obtained from the superior officer, and referred to in the heading of the proceedings. Authority for extending the jurisdiction of an inferior court martial to be laid before it. The want of it vitiates the proseedings. Trials on the garrison, or regimental court martial, they are enjoined to lay a statement of the case, together with the charge they intend to bring, before the general or other officer commanding the brigade, district, or garrison, with an application so to proceed; who is to exercise his discretion in directing the description of court by which the offender shall be tried. Should he accede to the application, the hundred and fortieth article of war of the present year for the first time provides that his permission shall be recorded in the heading of the proceedings of such court, in addition to being noticed as hitherto in the monthly return of courts martial sent to the adjutant-general. (6) 266. Though it is not directed by the article, it would seem desirable that the permission of the superior officer to try a soldier for a crime expressly declared to be cognizable by a superior court, should be laid on the table, or otherwise brought to the notice of the court martial of inferior jurisdiction, as their authority for the variation in the heading of the proceedings, inasmuch as the members of a court martial are not only responsible to military authorities, but are amenable to courts of civil judicature, for any undue exercise of jurisdiction or illegal assumption of power. 267. Where an inferior court martial has proceeded without due permission to the trial of an offence triable by a superior court, the sentence "cannot be legally enforced." (7) 268-9. Offences on the line of march had been previously expressly excepted from those, for the trial of which recourse must be had to the discretionary power vested in the general officer; and it has now for many years been provided that not only on the line of march, (and that, whether halting, or on the move, and whether by railway, canal, dâk, or other mode of conveyance,) but also on board of any ship, not in commission, the jurisdiction of a regimental or detachment court martial may be extended to mutiny or insubordination, accompanied with personal violence, or other offences, in the discretion of the officer in immediate (6) A.W.140. (7) Letter, J.A.G. Office, 16th Jan. 1867. command of the troops, by whom the sentence, not exceeding that which a regimental court martial may ordinarily award, may be confirmed and carried into execution on the spot; every sentence so confirmed being noticed in the monthly return of courts martial, and, if on the line of march, reported to the general commanding. (8) (8) A.W.135. M.A. 11. 118 Constitution. Composition, when legally sufficient, for trial of field officers, CHAPTER VI. GENERAL AND DETACHMENT GENERAL COURTS MARTIAL. General Courts Martial. 270. GENERAL courts martial, as provided by the mutiny act, [sec. 6] may be held by special commission or warrant under the sign manual. They are ordinarily convened by officers duly authorized by warrant in that behalf. (1) 271. General courts martial in the English army, originally consisted of twelve members besides the president, according to the Swedish, Dutch, and German custom. In the time of James II. " the council of war, or court martial," was to consist of seven at least, which Sir James Turner describes as the French practice; (2) but from the time of the first mutiny act in 1689 until the year 1868, general courts martial have consisted at home, as at first, of thirteen commissioned officers. In that year the number was reduced to nine; but with the proviso, that each of them shall have a commission from Her Majesty for three years before the assembly of the court. The article of war embodies this proviso, as respects all other cases, and fixes the minimum in the East Indies, Malta, and Gibraltar at nine as at home; in Nova Scotia or Bermuda at seven; and in any other colony, or out the Queen's dominions, reduces it to five. (3) All general courts martial are moreover necessarily attended by a judge advocate, or person officiating as such. (3) 272. The composition of a general court martial, as regards its legal competence, is not in any case affected by the rank of the prisoner, except that no field officer can "be tried by any person under the degree of captain." (4) (1) See before, §7-11; Appendix (sec. 8) provides only for the British I. II. III. & IV. Isles. See $2. (2) Pallas Armata (1683), 208. (4) M.A.13, A.W.152. classes of This provision in the articles of war dates back from the and other very first, and is absolute under all circumstances. It was officers. only in 1837 that additional rules [§19, 20] were prescribed in the general regulations. These, as now modified, have been already quoted; and they are necessary to be observed, if possible, in forming the detail of these courts, when ordered for the trial of commanding officers of corps, or other officers. of president, by warrant or abroad by warrant or order, 273. The president is appointed, under the restrictions Appointment already specified; [§16, 17] sometimes, as in India, in orders, at home, but more usually by warrant. The warrant may be, either for the trial of a prisoner specially named, or generally "for the trial of such prisoners as may be brought before the court;" or else it may be, "for hearing and examining into such matters as may be brought before the court," which last form is now generally used, and appears that which may be preferably adopted; it is applicable on appeals from regimental courts of inquiry, and on all other occasions. (5) members. 274. The other officers to form the court are appointed in and other orders, [21] except in the now uncommon case of their being named in the warrant. warrant. 275. Warrants for holding general courts martial have Convention by been issued under the sign manual, directed to the judge advocate general, appointing the president, and embodying the charge, and have in several instances specified the names of all the officers appointed to form the court. (6) For the trial of permanent volunteer staff. 276. General courts martial for the trial of officers and non-commissioned officers of the volunteer permanent staff, consist of not less than nine members. The president must be a field officer of the volunteer force appointed by the secretary of state, [§5] and the other members officers of the volunteer permanent staff. (7) 277. General courts martial only are competent to try Distinctive every description of person subject to the mutiny act, and every offence declared under it, and to award the punishments of death and penal servitude (8); they can receive appeals from regimental courts of enquiry, under the thirteenth article of war; and can alone supply the place of courts (5) See form, Appendix VI. (6) This precedent was followed in the case of the Canadian rebels, tried at Montreal in 1838 and 1839. (7) Volunteer Act, s. 22, 1863. [§22(1)]. (8) M.A.8. jurisdiction, |