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as where the trial
The mutiny act, however, renders offences, com- offences.com mitted in any of her majesty's dominions,' or home, but punt elsewhere, by persons subject to that act, cogniz- if committed able by courts martial, in any other part of her takes place. majesty's dominions, but only in such degree as if the offence had been committed where the trial may take place. An officer or soldier, on foreign service, may commit an offence not specified in the mutiny act, for which, if tried abroad, he would, by the operation of the articles of war, be liable to the punishment of death ; whereas, if tried for the same at home, death could not be awarded. This distinction is in perfect unison with the ordinary discrimination of british law, and productive of no inconvenience or incongruity.
Courts martial, when supplying the place of Courts Martial courts of british civil judicature, in Gibraltar or of civil judicaother place beyond the seas, are bound to con- by the common form in their sentence to the common and statute
and statute law.
(1) In the mutiny acts previous to 1829, the clause ran : “In any of his majesty's dominions, beyond the seas, or elsewhere beyond the seas ;" from 1829 to 1833, the terms were: “ In any of his majesty's dominions beyond seas or elsewhere ;" elsewhere beyond seas seemed, however, to be understood: but in 1834, beyond the seas was omitted altogether.
(2) What would be the effect of this clause of the mutiny act, when applied to a store-keeper, or other civil officer, emplnyed under the ordnance at a foreign station ? (Mut. Act, Sec. 32.) Such persons employed at home, are not subject to the provisions of the mutiny act; if, therefore, a store-keeper, or other civil officer of the ordnance, atroad, commit an offence for which he is there liable to be tried by a court martial, and be brought home with the charge pending, he would doubtless, from the express words of the clause, be subject to trial by a court martial, but could only be punished as if his offence had been committed " where such trial shall take place;” now, the same act, which, if committed by a store-keeper abroad, would amount to an offence cognizable by a court martial, is, with reference to the jurisdiction of such courts, no offence, if committed by the store-keeper at home; and hence arises a case, unimportant as it may be, not provided for by military law. A court martial is placed, by the legislature, in the strange predicament of being authorized to try, but incapacitated from awarding punishment.
(3) Mut. Act, Sec. 5.
Courts Martial cannot be held on board a ship of war;
On board Indiamen, Commanders to be consulted as to time and place of punishment;
law of England ;' but have no power under the authority vested in them by the articles of war, to award any punishment for offences under the mutiny act. This subject will be more fully adverted to hereafter, as the provision of the mutiny act renders indispensable some allusion to the criminal law of England.
No court martial, whether general, detachment or regimental, can be held on board any ship of war, being contrary to the rules and discipline of the navy and the express orders of the commander in chief.
Courts martial are held on board ships engaged by the honorable the East India Company, at the discretion of commanding officers; but they are enjoined to apply to the commander of the ship, to know the hour and part of the vessel he may consider most convenient for the infliction of corporal punishment, should it be awarded ; and commanding officers are further required to defer the punishment as long as the commander shall think necessary, on his requiring it, and assigning his reason for so doing.”
On board hired transports, whether they carry an agent or not, there is no limitation to the discretion of commanding officers, as to the holding courts martial or inflicting punishment. (1) 120 Art. War. (2) Circular, Horse Guards, 18th December, 1811. (3) It appears, however, that military courts martial were formerly held on board ships of war. In July, 1702, lieutenant Harris, of Fox's regiment, (the 320,) was tried on board the Ranelagh, for mutiny, by order of the duke of Ormond, commanding the land forces, sir George Rooke being then naval commander in chief. Lieutenant Harris was sentenced to death, but was pardoned by the duke of Ormond.
(4) Letter from the adjutant-general to major-general Pigot, 19th April, 1800.
(5) Gen. Reg. p. 414.
No restriction on board transports,
On board troop ships, not under martial' (na- or troop ships ; ; val) law, “ The entire charge of the discipline of the soldiers is to rest upon their own officers, and, therefore, should any cause of complaint arise, it is to be stated respectfully to the officer of the detachment, who will take such steps as the occasion will require."
“When troops are embarked on board ships of on board men of war, or other ships regularly commissioned, the to the regula,
. officers and soldiers, from the time of embarkation, are (as enjoined by the 144th article of war) to conform themselves strictly to the regulations established for the government and discipline of the ship in which they are embarked, and to consider themselves as under the command of the senior officer of the ship, as well as the superior officer of the fleet (if any) to which such ship belongs."
“In case any officer, non-commissioned officer, Extracts from or soldier shall be guilty of any offence against Regulations. the laws and regulations established for the government and discipline of the ship in which he is embarked, the commanding officer of such ship may, by his own authority, and without reference to any other person, cause him to be put under arrest, or to be confined as a close prisoner, if the circumstances of the case and naval discipline require it; and may detain him (if necessary) in either of those situations, during his continuance on board : transmitting, without delay, a report in writing, of the charges against such officer or soldier, to his superior officer, or
(1) See the instructions for officers commanding his majesty's troop ships-circulated for the information and guidance of officers of the army. G. O. Horse Guards, 4th December, 1834.
(2) Gen. Reg. p. 405.
authorize immediate punishment of a private
if there is no superior officer present, to the commander in chief of the land forces, in order that he may be disembarked, or removed into a transport the first convenient opportunity and then proceeded against according to military law, if his offence becognizable at a general, or regimental court martial.'
“In cases where the practice of the navy
authorizes immediate” punishment, private solcircumstances, diers (but no others) are to suffer such punish
ment as the commanding officer of the ship may think fit to be inflicted, provided the commanding officer of the troops shall, previously, concur in the necessity of such immediate punishment; but if the latter shall differ in opinion thereupon, (the reasons for which difference of opinion he shall state in writing, and deliver to the commanding officer of the ship,) the delinquents are, on the first opportunity, to be disembarked or removed into a transport, and to be proceeded against as stated in the preceding article."3
(1) Regulations for his majesty's service at sea. Ist January, 1833. Chap. x. $ ii. 2.
(2) A memorandum, dated Admiralty Office, 13th November, 1830, directs that a separate and particular warrant shall be made out for every corporal punishment it may be necessary to inflict: "and no corporal punishment upon either man or boy, so to be awarded by the authority of a captain or officer having the command of one of his majesty's ships or vessels, is, even in extreme cases, to exceed forty-eight lashes, or to take place until twelve hours at least shall have elapsed subsequently to the completing and signing the warrant of punishment hereby ordered ; except in cases of mutiny, when the immediate punishment of the offender may be deemed by the captain or officer having the command, to be absolutely necessary; but under such circumstances, the captain is immediately afterwards to write a detailed statement of the particulars which called for such deviation from the before directed general rule, the degree of punishment inflicted, and all other points required by the usual warrants, always recollecting the heavy responsibility he will incur if he fail to make out, to the satisfaction of their lordsbips, a real and sufficient cause for such deviation from the course now ordered to be adopted."
(3) Ib. chap. x. Ø ii. 3.
“Should any officer or soldier, while embarked or confinement in one of his majesty's ships or vessels, commit military Court any military offence for which he would be amenable to a court martial if serving on shore, requisition is to be made by his commanding officer to the commanding officer of the ship, who will, thereupon, cause such officer or soldier to be put under arrest or confinement until he can be removed in the manner above mentioned, to be brought to trial.'
The naval regulations of 1806 do not pres- The Naval cribe any line of conduct towards land forces previous to the when embarked : those dated 24th June, 1824, are identical as to the terms of the paragraphs above quoted, but vary as to the directions given for the messing of the land officers; these alterations might be out of place in a work on the practice of courts martial, however much they would tend to prove the considerate attention of the lords of the admiralty for officers of the army, and to evince their lordships' solicitude to confirm “the harmony of the two services” which his majesty has declared to be “ essential to the interests and comfort of both,” and when allowing the resignation of an officer who had been subjected by the sentence of a general court martial, held at Chatham in 1826, to a public reprimand for improper language to an agent of transports, was pleased to accompany the communication of his royal pleasure, by an expression of his determination to notice most seriously, on all future occasions, any attempts which may be made by officers of the army embarked in transports, to interfere with, or
(1) Ib. chap. x. $ ii. 5.