composed of officers of equal, if not of superior, rank, when practicable: Commanding officers to be tried by officers who have held commands. Detail of officers for court martial the Queen's Regulations (8) lay down that "Whenever it can be arranged without serious inconvenience to the service, the members of the court martial assembled for the trial of an officer are to be of equal, if not superior, rank to the prisoner; and in no case, but one of necessity, is a colonel to sit upon the trial of a general officer, or a captain on that of a field officer, or a subaltern officer on that of a captain. On the trial of subaltern officers, two officers of that rank are considered a sufficient proportion to be detailed as members of the court. The members of a court may however be of any rank superior to that of the prisoner." 20. "When the commanding officer of a corps is brought to trial, care is to be taken that as many members of the court as possible shall be officers who have themselves held, or who are holding, commands equivalent to that held by the (9) prisoner." 21. The duty of courts martial, as of all other duties, is duty by roster to by roster. The Queen's Regulations point out the order secure impar tiality. Officers of the army, or Indian service, or marines, may be associated on courts martial, in which this duty is to be detailed, after that of "Duties under arms," (1) and as Her Majesty therein directs that "the tour of duty shall be from the senior downwards," it precludes the possibility, without a glaring breach of the express orders of the sovereign, of selecting or packing a court martial; or rather, it is a means of anticipating or excluding animadversions and insinuations, having a tendency to impeach the composition of courts martial. 22. Where it is necessary or expedient, a court martial, composed exclusively of officers of the army, or of officers of the Royal Marines, or of officers of both those services, whether the commanding officer by whose order such court martial is assembled belongs to the land or marine forces, may try a person belonging to either of these services. (2) (8) Q.R.739. (1) Q.R.836. The general courts martial held in Jamaica for the trial of Ensign Cullen and Staff-AssistantSurgeon Morris, though convened by the general commanding on the spot, were composed of officers sent there expressly for this duty, and the judge advocate received a warrant from the judge advocate general, as it was thought desirable that the constitution of the court should not be exposed to the imputation of partisanship, which might have been the case if it had been composed of officers who were serving in the island at the time of the transactions, which were the subject of enquiry. The (2) A.W.146. M.A.W.127. special provisions as to the composition of the court for trials in the Indian army were left out in the mutiny act of 1868. regulars and militia cannot be associated on courts martial, 23. Officers of the regular forces and of the militia cannot officers of be associated together on courts martial, and are reciprocally ineligible for the trial of an officer or soldier in either service; (3) this, however, has not been held to prevent the association, on courts martial, of officers of regulars, and of militia or other forces actually embodied and doing duty in the colonies in time of actual invasion, or during the proclamation of martial law. (4) 24. Regimental courts martial are in all cases composed of officers of the corps in which they may be held, or of any depôt, which may be attached to it. (5) Other courts martial, excepting only when a district court martial is held for the trial of a warrant officer, [§304] may be composed of officers of any corps, but the articles of war contain special provisions as to the mixture of officers in several special cases. 25. Officers and soldiers of the Life and Horse Guards, for differences arising purely among themselves, or for crimes relating to discipline or breach of orders, are tried by officers serving in any or all of those corps. (6) 26. Officers of the regiments of Foot Guards, for similar purposes, form courts martial, (7) and take rank according to the dates of their regimental commissions. (8) except colonial of actual invamartial law. militia in time sion or under Special promixture of visions as to officers. Association of martial in the brigade; officers on courts household in the three regiments of Foot Guards; corps are 27. Courts martial, arising out of disputes between dif- when different ferent corps, whether of the household troops or of the other interested; forces, are composed, in equal proportions, of officers belonging to the corps in which the parties complaining and complained of do then serve, the president being taken by turns as nearly as the convenience of the service may admit, and in the order of the seniority of the corps concerned. (9) 28. When any proportion of the household brigade or the guards are detached, courts martial for the trial of officers and soldiers of these corps may be composed of officers of different corps; but at least one-half of the officers composing the court must be taken from the corps to which the (3) See § 58. (4) A well-known instance is supplied by the trial of the Rev. J. Smith, a missionary in Demerara, in 1822. A similar practice was expressly provided for by the acts of parliament for the trial by courts martial of offenders in Ireland subsequently to the rebellion (5) A.W.112. when the household troops are on detached duty. Courts martial prisoner may belong, if so many can be conveniently assembled. (1) 29. Officers of artillery for differences arising amongst in the artillery. themselves, or in matters relating solely to their own corps, have courts martial composed of their own officers; but when a sufficient number of such officers cannot be assembled, or in matters wherein other corps are interested, the courts are composed of officers of artillery and of other corps indifferently. (2) (1) A.W.149. (2) A.W.150. The Statutes and Ordinances for the War, set forth by King Henry VIII. in the year 1544, make provision "for Justice within the Retinue of the Ordnance" (Art. 36), that robbery, manslaughter, and "questions among themselves" should be judged and punished by "the master of ordnance, and such as he shall call to him," [§ 1(3)] but with the right of appeal before the marshal. In all cases between them and other persons of the army, they were to abide the judgment of the marshal and his court. 13 CHAPTER II. JURISDICTION OF COURTS MARTIAL. Jurisdiction. trial of offences and military discipline, 30. THE ordinary jurisdiction of courts martial extends to the cognizance of offences, declared by or under the powers of the mutiny act, committed either at home or abroad, specific for upon land or upon the sea; (1) and charged against persons to the prejudice who are subject to the mutiny act, [§58] or who within the of good order time [§52] specially limited by the legislature, were subject to the act, the offences so charged being offences against the acts and articles in force at the date of their alleged commission. The penalties, however, depend on the place where, and the rank of the person by whom, the offences may have been committed, and vary also according to the powers of the court by which they may be adjudicated. enquiries. 31. Courts martial are also available for the purpose of and for judicial enquiring into matters which may be brought before them, although no prisoner may be on his trial. (2) with civil 32. Their ordinary jurisdiction is not only for the trial of Concurrent purely military offences, of which the civil judicature takes judicature; no cognizance; or for the trial of offences to the prejudice of good order and military discipline, which although punishable at common law as misdemeanours or felonies, are subject to more exemplary punishment by their award; but it is also, to a certain extent, concurrent with that of the ordinary criminal courts. Inasmuch, however, as every officer or soldier accused of felony or misdemeanour, or any crime or offence-other than those mentioned in the mutiny act, (3)—is liable, on application being made for that pur (1) M.A.15. The ordinary jurisdiction of courts martial is suspended on board men-of-war in commission; but they are competent to take cognizance of offences committed by officers and soldiers on board Her Majesty's ships after their disembarkation, or removal to a transport or ship not in commis- (3) M.A.40, 76. subordinate, or at the option of military authority, but extended to treason and all known laws of the land; pose, to be delivered over to the civil magistrate, this concurrent jurisdiction of courts martial is wholly subordinate to that of the civil courts, with the one exception created by the mutiny act, (4) where the trial of an attested recruit in some cases may be either before two justices or before a court martial, "at the discretion of the military authorities." 33. The ordinary jurisdiction of courts martial is enlarged offences against beyond the seas, in default of a competent civil judicature, and in India at a distance of one hundred and twenty miles from the presidency cities, and then extends to the exclusive trial of military persons for civil offences, for which, with the exceptions recognized or expressly declared by the mutiny act, they are not otherwise amenable to courts martial, (5) except in so far as not being capital crimes they are to the prejudice of good order and military discipline; or else, in the case of an officer, involve "scandalous behaviour unbecoming the character of an officer and a gentleman," or, in the case of a soldier, constitute "a charge of disgraceful conduct." is enlarged in the field. Followers. Aliens and vagabonds. 34. In the field all followers and retainers of the army become subject to the restraint of military law; [§73] and the custom of war and the necessity of the case then also justifies the punishment, by sentence of court martial, of certain crimes against the safety of the army, or the person or the property of individuals belonging to it or entitled to its protection, when the offenders themselves neither belong to nor are connected with the service. (4) M.A.48. (5) Officers and soldiers acquitted or convicted by the civil magistrate or by the verdict of a jury, are not (M.A. 39) liable to be tried for the same crime or offence by a court martial, Officers were liable under the mutiny act of 1846 and previous years, but not to be punished otherwise than by cashiering. The want of power to reduce by court martial, a non-commissioned officer who may commit an offence, rendering him wholly unfit for his situation, and who, after undergoing the sentence of the civil power, may be returned to his regiment, and continue to retain his rank, pending a reference to the colonel or the commander in chief, is felt as a practical inconvenience on a distant station. No opinion is offered as to whether it might or might not have been advantageous to retain the power of having recourse to a court martial to award the punishment of cashiering, in those cases where the honour of the army might be affected; but it may be observed that the mutiny act, as it now stands, seems to restrict Her Majesty to the one alternative of cashiering, in those cases where she may see fit to remove any officer from the service for an offence, which may have been disposed of by the civil power. Nor is this limitation affected by the twenty-fifth section, which applies only the commutation of "a sentence of cashiering." |