Page:Encyclopædia Britannica, Ninth Edition, v. 6.djvu/550

518 COURT-MAI1TIAL 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 Rev. 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 rales 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 The district or garrison court, which superseded in 1829 the older general regimental court, con sists of seven members, the president doing the work of a judge-advocate in summoning witnesses, administering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, ft 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 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 soldiers in any matter respecting their pay or clothing." This 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 courta 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 ludia affirmations are 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 cf 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 charger 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 h 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 he may challenge on the grounds cf defect of rank, inexperience, prejudice, o malice. Formerly, if the prisoner "stood mute," the court-martial entered a verdict of guilty, but this is now altered in 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 tho

frivolous or groundless nature of the charges, or the