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officer of whatever rank, though each individual member
be his junior. It has been argued, that as there is no corres- Civilians guilty ponding provision in the mutiny act, the article under consideration does not extend to any persons not specially subjected to the authority of courts martial : without adverting to the obligation of “all judges and in all courts whatsoever," to take judicial notice of the articles of war, it does not admit of question, but that menacing language or other contemptuous conduct before a court martial must be held a contempt against the royal prerogative, and punishable by fine or imprisonment, at the discretion of the queen's courts of justice; and it seems very clear that, upon complaint made, the judges in the superior courts of Westminster, Dublin, and Edinburgh, or in her majesty's dominions abroad, would grant an attachment for this purpose.
In those cases where a court martial may not think fit to award summary punishment, and has not the power of ordering into arrest, they may nevertheless require the assistance of a peace officer, or, if necessary, direct the removal by force of any person who may obstruct their proceedings, and who afterwards may be attached as above noticed, or prosecuted for a misdemeanor, or otherwise dealt with as in an ordinary breach of the peace.
Any doubt which may exist as to the power of All courts of a court martial to protect itself from interruption direct cone on the part of persons not of the military profession, must have arisen from the infrequency of the offence, and from the want of reflecting on
(1) Court martial on major Brown. Samuel, 635.
power to repress
the power, inherent in all courts of justice legally constituted, being virtually conceded when the law created them, to preserve order and decorum in their proper place of assembly. As sir William Blackstone observes: “Laws, without a competent authority to secure their administration from disobedience and contempt, would be vain and nugatory. A power, therefore, in the supreme courts of justice to suppress such contempts by an immediate attachment of the offender, results from the first principles of judicial establishments, and must be an inseparable attendant upon every superior tribunal. Accordingly, we find it exercised as early as the annals of our law extend.' He elsewhere writes : “Not only such as are guilty of an actual violence, but of threatening or reproachful words to any judge sitting in the courts, are guilty of a high misprision, and have been punished with large fines, imprisonment, and corporal punishment. And even in the inferior courts of the king, an affray or contemptuous behaviour is punishable with a fine, by the judges there sitting; as by the steward in a courtleet, or the like.”2
All witnesses attending courts martial, who shall refuse to be sworn, or being sworn shall refuse to give evidence or to answer all such questions as the court may legally demand of them, are liable, upon complaint made, to attachment in the court of queen’s bench in London or Dublin, or court of law elsewhere in her majesty's dominions, as laid down by the statute. In these cases courts of record immediately imprison (1) 4 Commentaries, 285. (2) Ib. 125.
(3) Mut. Act, Sec. 15.
Witnesses refusing to be sworn, or to answer a legal question,
may be attached ;
the party for a contempt of court; but, where courts martial cannot enforce the attendance of witnesses, being civilians, except by attachment in the superior courts, it would not be advisable to proceed in a summary manner : if it were apprehended that the ends of justice were likely to be defeated in any particular case, by the obstinacy or perverseness of a witness, perhaps the best course would be to adjourn the proceedings and to lay a statement of the facts and circumstances of difficulty before competent authority for consideration and advice. An officer or military or soldier may be ordered into arrest or confine- be brought to ment, when charges may be preferred against him for contempt ;
or he may be tried for disobedience of the order directing him to attend and give evidence.
It may be observed that the liability of a witness Witnesses are to punishment, for refusing to answer, does not answer all simply arise from the disrespect which may be imagined to be involved in his declining to be guided by the opinion of the court, though doubtless if the question prove rightly admitted, and such as they may legally' demand, (and on this would turn the decision in all cases, such pertinacity would then constitute the essence of the contempt for which punishment would be awarded.
Witnesses taking a false oath before a court Perjury by martial, are guilty of perjury; and, on conviction punishable. in the superior courts of record, are liable to the penalties incidental thereto.”
A court martial may either order a witness Prevarication, at their bar, who may be subject to martial law zable bevat
(1) The privilege of witnesses in not answering will be again adverted to under that head.
(2) Mut. Act, Sec. 79.
and be guilty of prevarication, into arrest, and prefer charges for the offence; or such conduct may be notified in the proceedings, after judgment is recorded, for the information of the authority convening the court martial.
With respect to wilful and corrupt perjury, committed before a court martial by a person subject to military law, Mr. Tytler has given it as his opinion, that such court can, by their own power, immediately inflict such discretionary punishment on the offender as they may judge suitable to the offence.' Sir Charles Morgan, in reference to this remark, says: “I should by no means recommend it to a court martial to punish, by their own authority, a person even of a military description for the crime of perjury committed at their bar, further than by confining him, in order to his being proceeded against at law ;' and even this measure, confining a person subject to military law, for perjury, with a view to proceeding at law, appears to exceed the juris
diction of a court martial. In the case, Moore the President of v. Bastard, in the court of common pleas, 20th
February, 1806, the defendant, a colonel of militia and president of a general court martial, conceiving that serjeant major Warden had been guilty of perjury in giving his evidence, and the plaintiff of subornation of perjury, committed the
serjeant to the guard house, and put the plaintiff, Charge of Lord also a colonel of militia, under arrest. Lord
Mansfield, in reviewing the case, said, “that the verdict of the jury must be for the plaintiff, as the arrest in this case was totally illegal. It was rather strange,” he observed, “ that courts
(1) Page 313.
An action brought against
for charging plaintiff with perjury;
martial should think themselves authorized to commit persons for perjury, or other offences than those upon which they had themselves the power of deciding and punishing. He would ask, for how long, and where, they would commit persons, and how their authority was at all to be defined ? If the statutes by which courts martial are regulated had been properly attended to, no such idea could ever have been entertained with regard to the extent of their powers. His lordship thought the court had proceeded harshly with the plaintiff and serjeant major Warden ; it was extraordinary how it came into the heads of the court martial to commit in a case like this. There is no perjury, nor any thing like perjury; and it was as extraordinary a mistake as any court martial could fall into; Mr. Tonkin stating to the court, both on the Friday and the Saturday, on oath, that if any blame attached, it was to himself alone, as colonel M. was anxious that it should be explained, and as he (Mr. Tonkin) was of opinion the mistake, if any, was quite immaterial ; in which opinion his lordship said he perfectly agreed. Colonel Moore had done nothing improper. In looking at the damages, the jury should consider how unpleasant and hurtful a situation it must be to an officer of rank, to be arrested on charges so serious as those which were alleged against him.” The Verdict. jury retired about a quarter of an hour, and brought in a verdict for the plaintiff, damages three hundred pounds. The grounds of lord Mansfield's opinion are Remarks on the
preceding case ; very clear and intelligible : a court martial cannot commit military persons for any other offences