or privr te. FORFEITURE OF entered in soldier's record, Forfeited medals. Restoration of service forfeited on conviction of felony or sentence of court martial, and the insignia of his rank removed from his arm, upon the parade, which is the usual course when it is necessary to make an example, or when imprisoment or other punishment is added to reduction; or else the sentence is made known in orders and the prisoner is released from arrest and ordered to return to duty in the ranks. 790. Forfeitures of service by sentence of court martial, or on conviction of desertion, [§ 185] or wilful maiming, or tampering with eyes, [§ 219] or upon his trial for desertion being dispensed with, [§ 192] or on conviction of felony, take effect on the confirmation of the sentence, and, (as also deductions of service by reason of imprisonment or otherwise) are inserted periodically in the register of soldier's services. (3) Forfeited medals are transmitted to the adjutant general for disposal. (4) 791. Soldiers who have forfeited their service, either absolutely or in part, are not left to serve on without the hope descrtion, or by of regaining the advantages accruing therefrom. The articles of war (5) humanely and wisely provide that any such soldier, if he shall have subsequently performed good, faithful, or gallant services, may, on the same being duly certified by the commander in chief, (6) be eligible to be restored to the benefit of the whole or of any part of his service;-and, should the restoration be approved by the Queen, Her Majesty's order for the same will be signified through the secretary of state for war. Applications for the restoration of forfeited service, in the case of those soldiers who have become eligible therefor, in the terms of the Queen's Regulations, are to be made on the 1st January and 1st July of each year, in a prescribed form, and addressed to the adjutant general. (7) must be approved by the Queen. Soldiers establishing claims for restoration by good conduct, are recommended twice in each year. DISCHARGE WITH IGNOMINY, in order to 792. The following most important general order was issued on the 1st May last:-" The confidential letter to rid the service of general officers, dated Horse Guards, August 8, 1870, No. 110, General Order, No. 1, is hereby cancelled, and commanding officers will henceforth use their discretion in confirming or (3) A.W.168. Explanatory Direc- See next note. (5) A.W.47, 169. Such restoration of service includes the restoration of any medals earned previously to conviction. R.W.564c. Applications for the restoration of forfeited medals are to be made by commanding officers of corps direct to the War Office. Q.R.1391. (6) The conditions and form are laid down. Q.R.783, 784. (7) Q.R.783. G.O. (1872) 47. remitting sentences of discharge from the army, according bad characters. to the character and previous history of the prisoner, it being desirable to rid the army of all incorrigibly bad characters."(1) And it was further directed by a general order of the 1st July, that "as soldiers sent to civil prisons at home, and sentenced to be discharged with ignominy, will be furnished with plain clothes on discharge from prison, the escorts who conduct such prisoners to civil gaols will take back with them their regimental tunics, caps, and trowsers." (2) 793. In the event of the sentence of discharge with ignominy being set aside in consequence of informality, the commander in chief has authority to order the discharge of the soldier, or to authorize general officers commanding on foreign stations to direct his discharge. (3) 794. Soldiers serving abroad who are ordered to be discharged with ignominy, are to be sent home as prisoners, but not to be kept in confinement during the passage. (4) 795-807. A soldier discharged with ignominy or expressly account of bad character, (5) whether from his own corps or at the termination of imprisonment from a civil or military prison, receives railway and passage warrants to convey him to the place of his enlistment, or to his home if not more distant, and a subsistence allowance. If conveyance by rail or steamer cannot be provided, an allowance of 1d. a mile is issued to the man to cover all cost of conveyance and subsistence. (6) (1) G.O. (1872) 44. (2) G.O. (1872) 64. See the evidence of Lieut. General Lord W. Paulet, Adjutant General, 2nd April, 1868.-Courts Martial Commission, Q.1460. The process of degradation or drumming out is described in the Regulations (Q.R.1448), but it has been dispensed with since February, 1868. (3) A.W.20. The Queen, by pre- (4) Q.R.1450. offenders their military deprived of uniform. Power to dislodged in the charge soldiers commander in chief. Offenders home for abroad, sent discharge. Travelling exdischarged with pense of men ignominy. 330 CHAPTER XIX. "EVIDENCE;" how employed the practice of courts martial. OF EVIDENCE. 808. THE term Evidence, considered in relation to the with reference to practice of courts martial, and as employed in the oath taken by members, includes all the means, exclusive of mere argument, or comment, which the law allows as fit and appropriate for the purpose of arriving at the truth in any matter submitted to the determination of a court martial. These are-I. "Parole" or "Oral" testimony of witnesses examined vivâ voce in court as to facts within their own knowledge; and, Oral or parole, written or documentary. Matters judicially noticed by court, II. Written, or Documentary evidence produced in court. 809. There are also certain matters which courts martial are bound to notice judicially. [§ 1022] These, therefore, the members are presumed to know without requiring proof, though they may "refresh the memory" by resorting to such means of reference as may be at hand. "Thus, if the point at issue be a date, the judge will refer to an almanack; if it be the meaning of a word, to a dictionary; if it be the construction of a statute, to the printed copy." (1) The and things snb- members also inspect for themselves any things which may be sufficiently identified by evidence and produced to the court as material to their decision; or they may leave the place where the court is sitting for that purpose, as also "to have a view of any place for the better understanding of the evidence." (2) mitted to their own eyes. The laws of evi dence essentially the same in courts martial 810. The rules of evidence in the criminal courts of England, with certain modifications not involving any principle and in ordinary and for the most part established by express legislation in the mutiny act and articles of war-are those which guide courts martial. Mr. Serjeant Marshall, when he appeared criminal courts of England. (1) Taylor, 30. As to books of reference, &c., see § 490. (2) See § 429 & 523. Taylor, 513520. for Serjeant Grant (3) in the court of Common Pleas, "assumed that a court martial was the creature of the mutiny act," [§65] and laid it down as an indisputable principle, the truth of which it would indeed be difficult to combat, "that whenever an act of parliament erects a new judicature, without prescribing any particular rules of evidence to it, the common law will supply its own rules, from which it will not allow such newly erected court to depart." (4) The English law of evidence so established is equally binding upon courts martial when held beyond the jurisdiction of the English courts, even when held in Scotland, [§ 942(1), 972] where, as stipulated at the Union, the civil courts are governed by the Scotch law. But though everywhere courts martial carry with them the same law of evidence (5) by which to decide whether questions to witnesses are such "as the court may (3) This assumption must be understood of the legal position of courts martial as they are now convened, rather than of their historical [§ 1] position. (4) 2 Blackstone's Reports, 27. (5) After the preceding sheets had been printed the writer obtained a copy of "The Indian Evidence Act, 1872." This act (No. 1 of 1872) received the assent of the GovernorGeneral on the 15th of March, and was to come into force on the 1st of September, 1872. It begins by premising that "It extends to the whole of British India, and applies to all judicial proceedings in or before any court, including courts martial." If this applied to courts martial held under the mutiny act, it would have been necessary to modify the statement in the text; but it is evident that this clause must be read as a part of the general law, and, in the absence of any official information, it may be presumed that, although the limitation is not expressed in the local act, it is to be supplied by reference to the implied intention of the imperial legislature, and also by the express words of the act of parliament which established the local legislature; and therefore, that the Indian Evidence Act is intended to extend only to courts martial held upon officers, or soldiers, or followers of Her Majesty's Indian Army, being natives of India,' respecting whom the mutiny act 66 "that (M.A.1) expressly provides In the first place, apart frem the Now there is no such provision either in the mutiny act, or in any other act of parliament, as respects the Indian law of evidence; and the fact that there is none, is all the more Subject of this and the following chapters. legally demand of them;" (6) and everywhere the mutiny act provides for the attachment of witnesses who “refuse to give evidence," ... "or to answer all such questions," (6) the legal process varies with the court in which proceedings against the witness may be taken, according as it is in England, Ireland, Scotland, or the Queen's dominions elsewhere. 811. It is not within the design of this essay to enlarge upon the law of evidence, or to attempt a scientific inquiry as to the principles upon which it is founded; and it will significant, because the mutiny act But besides these more general con- ... . · . Sec. 22. "The Governor-General in The question of law and of binding force on courts martial would be the same if the Indian Evidence Act were merely a codification of the English law of evidence. As a matter of fact, it differs from it in many particulars, so that, admirable as it is in the main, from the perspicuous definiteness of its language, and the logical method of its arrangement, it is not available for the members of courts martial, even as a text-book. To give a single instance (sec. 132):-"A witness shall not be excused from answering . . . upon the ground that the answer will criminate, or may tend directly or indirectly to criminate such witness." There is a proviso that the answer which the witness is compelled to give shall not subject him to arrest, or be proved against him in any criminal proceeding, but, as is well known, [§ 961] such compulsion of the witness is directly contrary to English law, as embodied in the statute. [$913] The question is not whether this or any other variation from English law in the Indian, or any other local code, is, or is not, an improvement upon it, but whether such variation can be accepted as law by courts martial in the face of the court martial oath, and the fact that the authority of parliament is necessary to alterations in the English law of evidence by which they are bound to abide. If the view here taken be correct, it will follow that any pretence of local legislatures to impose the local law upon courts martial held under the mutiny act, or any regulations by military authorities purporting to enforce such unauthorized legislation, are as little founded in law as it would be to appoint the local magistrate to be president, or to require the court to apply the thumbscrew to a reluctant witness. (6) M.A. 13. The act here referred to is known as the East India Company's Charter of 1833, and this section makes it lawful for the Governor General in Council to make articles of war for the government of the native officers and soldiers in the military service of the Company, and for the administration of justice by courts martial to be holden on such natives. |