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which would nevertheless of the army,
Colonel Hough any case, legally responsible. Colonel Hough,'
after quoting the above and giving the opinions of several authors on the subject, pronounces his judgment as follows: “Simmons differs from all others as to the right of the judge advocate to * dissent in form,' or to engross his opinion.' I never knew it objected to, and no one but capt. S. entertains the opinion.”
It may be urged in defence of an opinion thus seem to agree unhesitatingly condemned, that it was offered as
the author's impression of the custom of war in like cases, but not without consideration or availing himself of more extended experience : after some thirty years' practical acquaintance with the customs of her majesty's service, though still unavoidably ill-informed as to the regulations binding on the army in India, he did not alter this passage in the second edition : nor since then did colonel Hough's remarks affect his opinion, except as to the practice in that country; which after several years' experience as a deputy judge advocate, he had no wish to see adopted elsewhere. He conceived that the existence of a right, such as that contended for, might tend to promote dogmatism in the officiating judge advocate on general courts martial, and to make members less likely to listen to arguments which, when offered without assumption, would be readily attended to where a point of law had escaped their notice. Under these circumstances it is not very probable that a court martial, after having been put on its guard against committing
(1) Military Law Authorities, p. 71. (2) See the opinion of the judge advocate general, in the next page.
and also to be advisable.
an illegal act, will persist in opposition to an officiating judge advocate, if he had formed his opinion on sufficient grounds, and was able to bring them in a clear and intelligible manner to the attention of the court.
If the court will not attend to such suggestions Rule laid down as he may think it his duty to offer for their Judge Advocate guidance upon a point of law, it then becomes the duty of the deputy judge advocate, in order to prevent the confirmation or execution of a sentence which may not, in his opinion, be warranted by the law, to submit to the consideration of the competent authority, a statement of those circumstances which he considers material as affecting the legality of the proceedings.
It was formerly provided in the articles of war, Prosecutor. that the judge advocate should prosecute in the
(1) A field officer officiating as deputy judge advocate, had stated that in his opinion, the court at which he was officiating as judge advocate, was proceeding to give an illegal sentence, and that “if the deputy judge advocate is not to enter his opinion on the proceedings, he may be supposed to have concurred with the court, and thereby incur undeserved censure :” the judge advocate general, in his reply, (the substance of which is given in the text,) would hardly seem to “entertain the opinion” that the deputy judge advocate may “dissent in form,” or engross his opinion.
(2) The judge advocate formerly instituted proceedings before courts martial, by virtue of his appointment, as in the present day the attorney general files ex officio informations. The older treatises on military discipline, and “compleat reglements,” represent the judge advocate as “ instructing" the court and reading “informations” respecting the charge at issue. In the reign of James the Second, the town major, or the aide major, or quarter master of the regiment, discharged the duties of judge advocate at garrison or regimental courts martial, which appear to have been clearly distinguished from general courts martial or councils of war.
In all cases where a prisoner was committed to the marshal general, the informations against him were directed to be given to the judge advocate within eight and forty hours of his commitment; this was expressly provided for by the 3rd clause under the head of Administration of Justice, in several of the earlier articles of war.
The fifty-second article of the rules and regulations for the better government of his majesty's forces in pay, established in 1686, is as follows: “In all criminal cases, which may concern the crown, his majesty's advocate general or judge advocate of the army, shall inform the court, and prosecute in his majesty's behalf.” Until the alteration of the articles in 1829, the duty of the judge advocate to
Prosecution always at suit of the king.
king's name : by the custom of the service, the actual duties of prosecutor more frequently devolve on the individual originating the charge, or on a staff officer ordered to perform the duty; occasionally, where the accusation involves distinct transactions, the conduct of the prosecution is entrusted to the different persons who may be more particularly acquainted with the circumstances to be investigated ; it is, however, always considered to be at the suit of the crown. It may be observed, that no person, except the judge advocate,' can appear as prosecutor before a court martial, who is not subject to martial law, except, perhaps, in places beyond the seas, where there may be no form of english civil judicature, and the court martial is especially convened for the trial of offences pot military. A prosecution may, and often does, take place at the instance of a person not himself in the service : in this case he becomes the principal witness, and is sometimes called the informant, and after giving his evidence, (which should obviously be the first received,) is allowed to remain prosecute was specified, and “to inform” continued in the marginal note, although expunged from the article.
Thus the duty of the judge advocate to advise the court on points of law would seem to have arisen in the practice of courts martial, and not having been prescribed by any ancient ordinances or reglements, requiring bim to instruct or inform the court.
The bald adoption of French terms might alone indicate the origin of many of these regulations; but the actual comparison of the earlier treatises, published in the two countries on these subjects, affords many other proofs, sufficiently curious perhaps to the military antiquarian, but confessedly out of place when treating of the present practice of courts martial. (See advertisement to the second edition.) As the admission of the meaning in which “ to inform” was used would have spared much discussion by writers ou military law, this endeavour to investigate the sense in which it was originally introduced into our military code may not be unacceptable.
(1) Whether a judge advocate, from being commissioned, or acting under warrant, and receiving pay, is under military law or not, the author is not prepared to say.
in court, that the actual prosecutor may more easily refer to him, and who alone, as would appear due to consistency, counsel not being admitted in court to reply to an accusation, can dilate on the charge. Civilians, appearing before
(1) Tytler (p. 211) offers a different opinion; he refers to the case of a surgeon prosecuted at the suit of a coroner, for neglect of duty, in not paying proper attention to the sick. Mr. Tyiler does not state that the coroner was the actual prosecutor; he was no doubt the informer, probably the principal witness, and, at his instance, the prosecution might have been instituted ; but it is doubted whether he was permitted, as prosecutor, to address the court, and thereby to acquire the right, if not to incur the obligation, of obtruding his opinions upon the peculiar and military duties of a medical officer. The paragraph referred to does not appear to have been written with the accustomed discrimination and judgment of this author, or he would probably have spared bimself the trouble of remarking, that “a prosecution may be brought in a court inartial, at the suit of a person who is himself not subject to military jurisdiction, provided the offence be of a military nature, and committed by a person under the military law.” It never could be imagined that a person not subject to military law could be brought to a court martial ; or, if it were possible, that a court would entertain such a charge against him: and surely, if a civilian were subjected to the jurisdiction of a court martial, in consequence of a declaration of martial law or active operations in the field in a foreign country, it would be less objectionable that the prosecution, conducted by a civilian, should be for an offence not of a military nature.--Mr. Samuel (p. 389) has justly remarked on this subject: “There would seem as little reason as justice in admitting the civil classes, generally, to become suitors in a military court. The parties would stand there, in the first place, on a very unequal footing with respect to one another; the responsibility being all on one side. The court martial may punish one party, if he should be found to be an offender, while it can give no redress against the other, in a contrary event, for a vexatious or malicious prosecution. There is not either any more equity in the penalties to be awarded, than reciprocity in the distribution of justice, inasmuch as the military offender might be absolutely ruined in his fortune and his prospects by the adverse event of a prosecution ; when a civil party would escape, in his own courts, with a nominal penalty. One need not go further than to advert to the misdemeanour of sending a challenge, which, in subjecting the officer to be cashiered, may act as a large pecuniary forfeiture, possibly of all he is worth, besides depriving him of the advantages of his previous service, and the future means of life, while it would expose the other to a trifling fine, and possibly a slight imprisonment. There would seem no fairness in the strife where the odds are so vast. The author has known instances of very unprovoked and wanton challenges, and of gross assaults committed by officers, wearing at the time their military uniform ; and of charges having reference to them, being afterwards preferred to the commander in chief on the spot; which were not however entertained by him, on the impression, and, as it would appear, a just one, that the matter, in respect of the persons implicated in them, belonged to another forum.' It is not denied, but that the same violences, if attended by circumstances which are supposed to throw a discredit on the body of the army, might become the subjects of a prosecution in the military courts; but then it must be on the rela
courts martial, should be precluded, in their character of witnesses, from offering any remark, and confined to the testimony they may have to offer. Incalculable difficulties and embarrassments would arise from a dereliction of this
salutary custom. A most curious A court martial, which excited much interest Court Martial.
at the time, and may still be curious from the subsequent notoriety, was assembled by a special warrant, on the 27th March, 1792, to investigate some charges preferred by Mr. William Cobbett, late sergeant-major of the 54th regiment
against three officers of that regiment. Their Finding of the finding was as follows: “The court martial hav
ing regard to the circumstances of this extraordinary case, and especially to the entire dereliction of the prosecution, by the person who alone preferred and had solemnly pledged himself to prove the several charges against captain Richard Powell, lieutenant Christopher Seaton, and lieutenant John Hall, is of opinion that the said charges are totally unfounded, and therefore,
honourably acquit them of the same.” Opinion of the
The advice of the attorney and solicitor general was taken as to whether Cobbett could be criminally prosecuted. Their opinion' was that unless he could be proved to have conspired, he tion of a military suitor; or possibly, after the common law courts have inquired into them, through indictmeuts preferred for that purpose, they may be subsequently brought under the cognizance of a court martial, if any thing should turn out upon the trials, calling for such further proceedings, in interest of the concerns of the army, under the 18th (now the 2nd) clause of the mutiny act. Except in this way, it is hardly to be wished, from the reasons assigned, as well as for the additional trouble it would give to the military tribunals, that these mixed injuries should be brought before them. The common law is fully competent to redress the wrongs of those who are placed under its peculiar protection, and to whom the military law is, as it were, a foreign law."
(1) Signed, John Scott, John Mitford, dated 25th May, 1792.
Law Officers of the Crown.