Page images
PDF
EPUB

Court.

an address to the throne, praying his majesty to institute such steps as might appear desirable in the case.

It is probable that officers are too much disposed by the Judge to consider, that by acting upon the opinion of attends the the officiating judge advocate, on questions of law, they are thereby exonerated from responsi. bility, both legally and morally. Instances might be quoted where the advice of judge advocates, being civilians,' had been acted on, which could not be supported by reference to the established practice and decisions either of courts martial or courts of civil judicature; and the correctness of which advice, had members permitted themselves to question its authenticity, might have been easily detected. Whatever degree of deference may be due to the advice of the judge advocate, it must be remembered that he is not responsible to any court of justice for the opinion he may give. The most equitable mind may insensibly be biassed in favor of that side which it is a duty to support ; and, since it is the particular duty of the judge advocate to advise on the working of the charge, and, if not always to prosecute in the king's name as formerly, yet to watch the course of the prosecution, that it fail not from want of care in the manner of conducting it; the very reasoning which such duty must call forth, may tend to excite prejudice. Legal men are said to acquire a habit, difficult to be shaken off even by judges, of taking a side in every question that they hear debated ; and it has been justly remarked, that when the mind is once enlisted,

(1) The term civilian is here and elsewhere used, as military men generally apply it in opposition to military, it is not intended to describe a professor of civil or roman law.

N

how appointed ;

their passions, their prejudices, and their professional ingenuity, are always arrayed on the same side, and furnish arms for the contest. Influenced as every member ought to be, by any reasoning which may tend to correct his judgment, he is still bound by his oath to administer justice, when any doubt may arise, according to his? conscience, the best of his own understanding,

and the custom of war in the like cases. Judge Advocate, General courts martial are attended either by

the judge advocate general, appointed under the sign manual; by a judge advocate, also appointed by commission from the crown; by a deputy judge advocate, acting by deputation under the hand and seal of the judge advocate general ; or by a person appointed to execute the office of judge advocate, at such general courts martial as may be convened by general officers, commanding forces abroad. The warrant held by such general officers, containing a power to make such appointments from time to time, in default of a person appointed by her majesty or deputed by the judge advocate general, or during the illness or occasional absence of the person so appointed or deputed.

The presence and assistance of an officiating General Court judge advocate, duly appointed, is essential to Martial;

the jurisdiction of a general court martial : a general court martial assembled at Portsmouth in 1839, sentenced a soldier of the 8th regiment to be transported for a term of seven years. It

essential to the

a

(1) See the reasons of one of the lords of the admiralty for not signing the warrant for admiral Byng's execution.-Smollett, vol. iii.

p. 336.

(2) In the trial of the canadian rebels by martial law, in 1838 and 1839, three persons, one officer and two civilians, were “jointly and severally” appointed to the duty of judge advocate.

appeared that the officer officiating as judge advocate on the trial had not been duly appointed or deputed, in consequence of which the prisoner was released and the punishment remitted, though his conduct had been grossly insubordinate and his character inveterately bad. The duties of an officiating judge advocate' duties, various

and important; are various and important; a minute disquisition as to them may be advantageously supplied by an attentive consideration of the preliminaries to a general court martial, and the whole of the subsequent proceedings. He registers and records” all the acts of the court, and all oral evidence, as near as may be in the very words of the witness. He notes the hour of assembly and of adjournment; and, generally, all incidental occurrences, particularly the clearing of the court, the cause thereof, and, where interlocutory judgments are given, the decision. The judge advocate advises the court on points of law, of custom, and of form, and invites their

(1) The deputy judge advocate provides, under the direction of the superior authority, for the accommodation of the court on assembling, and is authorized, if necessary, to hire rooms for the purpose, for which, as for stationery, postage, fire, and other contingent expenses, he is allowed, on the production of the vouchers and the certificate of the president, to charge; as also, two guineas for each day during the actual session of the court, and for any intervening Sundays; but not more than two days in the whole of any adjournments during the said session. The amount is issued on foreign stations on a warrant of the officer commanding on the station. At home, the account and certificate is transmitted to the judge advocate general.-See Warrant, 30th July, 1830, and Form, Appendix No. 10.

(2) By the articles of war of 1686, this office was performed under the express sanction of an oath. “ XLVII.-At a general court martial there is a clerk who is to be sworn to make a true and faithful register of the proceedings of that court."

(3) AMICUS CURIÆ.—It has hitherto been the avowed anxiety of military men to prevent their proceedings from being overlaid with unnecessary technicalities, borrowed from the practice of civil courts, and it must surely be from inadvertence that “ Amicus Curiæ" has been so prominently brought forward to designate the prisoner's friend, or a legal adviser of the parties before a court martial; if this law term must be made use of at all, would it not be more applicable to the officiating judge advocate?

Sir Charles

soner.

attention to any deviation therefrom. It is generally understood that the parties before the court have a right to the opinion of the judge advocate,

either in or out of court, on any given question how far bound of law arising out of the proceedings. Tytler

considers that the judge advocate is bound to assist the prisoner in the conduct of his defence ;' but it is more in consonance with the custom of the service, that the judge advocate should only interfere to the extent to which the court itself is bound to interpose ; to take care that the prisoner shall not suffer from a want of knowledge of the law, or from a deficiency of experience or ability to elicit from witnesses, or to develop by the testimony, which in the course of the trial may present itself, a full statement of the facts of the case, as bearing on the defence. To this extent, the court martial and judge advocate are bound, it is conceived, to offer their advice to the prisoner. Justice is the object for which the court is convened, and the judge advocate appointed ;

Sir Charles J. Napier,* on this very subject, remarks that soldiers have a language of their own : it has always been allowed to stamp good metal with the current die; but the licence to coin a new word must find its excuse in the necessity which arises, when the thing exists without having a name which will at once suggest the idea : there is the same authority for the use of an old word in a new sense;

Dixeris egregiè, notum si callida verbum

Reddiderit junctura novum : and, so far, borrowing from the lawyers may occasionally be desirable, where it prevents unnecessary circumlocution or needless paraphrase.

In this instance, however, neither of these reasons would seem to hold good; the already received words express all that is wanted and are too easy to be misunderstood : apart from which the adoption of this law term into our military vocabulary appears the less desirable, as it has been appropriated in a manner so very foreign to that in which it is ordinarily used. Some little pains have been taken, but the expression has not been found any where in law books with a different sense from that which is given to it by the commentator, who is esteemed the first of all: “If a judge is doubtful or mistaken in matter of law, a stander-by may inform the court as Amicus Curiæ."-2 (Coke) Inst. 178. * Remarks on Military Law by major-general sir Charles Napier, K.C. B., p. 93.

(1) Page 362.

to this aim all their enquiries and attention ought to be directed, and if, in the prosecution of the design, the prisoner should be benefitted, the efforts of the court, or of the judge advocate, will have been satisfactorily and legitimately exerted.

If at any time, by inadvertence, a member, in not entitled as passing sentence, should deviate from the letter nions given in of the law, or assume a power at variance with it, it is clearly the duty of a judge advocate to point out the error : but, in opposition to the opinion in Tytler, it is believed that, should the court decline acting on his advice, the custom of the service will not only prohibit a record of the judge advocate's dissent in form, but that it will exclude it in any shape ; and that he will not, as a matter of right, be permitted to engross, on the face of the proceedings, any opinion, either on a controverted point or otherwise, which, at any period when the court is closed, he may think it his duty to offer. The record is confined to the proceedings of the court; it is not usual, nor would it be right, to detail the grounds which might have led the court to the result finally adopted. The decision only of the court, both as to interlocutory and final judgments, is made known, but in no case the judgment of individuals. As well may an individual member claim a right of protesting as the judge advocate, and · on much more plausible grounds, the members of a court martial being individually amenable to a superior court of justice for the sentence which the court may record, whereas the judge advocate, having no deliberative opinion, is not, in

a matter of right to record opi

closed court,

(1) Page 352.

« EelmineJätka »