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General of the army formerly
statute to con. authority from His Majesty, may now do
It may be remarked that some of the first empowered by mutiny acts authorized the general of the army Martial, without to assemble courts martial directly, without a
commission or warrant for that purpose from the so in a certain sovereign : and by the mutiny act now in force,
there is one case,' in which a general court martial may be assembled by any officer in command, without any authority from her majesty, either director delegated, and this assumption of power by the legislature, to the diminution of the royal prerogative, is remarkable, since the clause is operative only beyond the seas, out of her majesty's dominions. It forms a contrast to the mutiny acts before alluded to, and is an important exception to the ordinary mode of convening courts martial; the court is singular in its composition and mode of approval, and will be adverted to more particularly hereafter.
The authority for convening courts martial of inferior jurisdiction formerly depended on the royal prerogative, or on that general power conveyed to his majesty of making articles of war for the government of his forces,,' and of constituting courts martial for bringing offenders against the articles of war to justice ;; and, in the present day, though the composition of a district or garrison court martial and its jurisdiction are strictly defined by the mutiny act, yet there is no clause pointing out the mode of its formation, as there is for the convention of a general court martial. The mutiny act, though it decrees certain powers to regimental courts martial, is altogether silent as to its convention and composition.
(1) Sec. 12. (2) Sec. 4. (3) Sec. 5.
By the act for regulating her majesty's marine Courts, for the forces when on shore, the lord high admiral, or the commissioners for executing the office of lord high admiral, may erect and constitute courts martial, or may grant a commission to any officer of the royal marines, not under the degree of a field officer, for holding general courts martial.'
The East-India company mutiny act empowers for the trial of the governor general in council, and the governor Forceau in council for the time being, at the presidencies of Fort William, Fort St. George and Bombay respectively, to appoint courts martial, and to authorize and empower the general, or other officers commanding any body of the forces employed in the said company's service, to appoint general courts martial; as well as to authorize any officer under their respective commands, not below the degree of a field officer, to convene general courts martial, as occasion may require, for the trial of offences committed by any of the forces under their several commands, whether the same shall have been committed before or after such general officer shall have taken upon himself such command.
Thus, notwithstanding the prejudice raised against them by the observations of some learned lawyers, whose remarks might be applied to martial law and the ancient courts of chivalry with greater propriety than to the law military and courts martial as now, and with certain alterations from the time of William and Mary, existing, it must be evident that courts martial are as strictly derived from, and from part and parcel of, the law of England, as any courts depending on
(1) Marine Mutiny Act, Sec. 5. (2) 3 and 4 Vict. c. 37.
Warrants for convening
statute can be. It has been aptly observed by Mr. Tytler, that the mutiny act is, by the very limited term of its duration and frequency of its renewal, more truly and immediately framed by the people itself, than any other of the existing statutes of the realm.'
In conformity with the power conveyed by the Courts Martial, mutiny act, warrants, under the sign manual,
annually issue to generals in command on foreign stations, empowering them to convene general courts martial, and to delegate that power to any other officer, not under the degree of a field officer, having a command of a body of the forces; also to appoint a deputy judge advocate for the time being, in the event of her majesty, or the judge
advocate, not having appointed or deputed one." at home. At the same period, warrants issue to general
officers commanding districts at home, and to the governor or officer commanding for the time being at Guernsey and Jersey, to convene courts martial, but not to delegate that power, nor to appoint a deputy judge advocate.
A warrant from the officer thus vested with authority, is directed on the assembling of a general court martial to an officer, not below the rank of a field officer, (unless where a field officer cannot be bad, but in no case below the rank of captain,) constituting him president thereof."
On particular occasions, special warrants issue under the sign manual for the trial of individuals named in the warrant, and on charges therein recited.
Warrants for holding courts martial under a former mutiny act, remain in force under the
on special occasions.
under former Act, con ve in force under existing Act.
(1) Tytler, p. 7.
(2) See Warrant, Appendix, No. 1. (3) Mut. Act, Sec. 6.
existing mutiny act; and proceedings of any court martial upon any triał begun under the authority of a former act, are not discontinued by the expiration of the same.' This provision was introduced into the mutiny act in consequence of the occurrence which happened in 1760, on the trial of lieutenant-general lord George Sackville; the mutiny act having expired during the trial, it was deemed necessary, on the opinion of the attorney and solicitor general, that the proceedings should commence de novo, the court and witnesses being re-sworn.
The operation of the warrant formerly addressed Cognizance of to an officer in command, was, by the terms of the limits of it, restricted to the limits of the command, and to the trial of offences committed by officers and soldiers, previous to or after he shall have taken upon him the command; a special warrant under the sign manual, as observed in the preceding edition of this work, was, therefore, indispensable to the assembling of a general court martial for the trial of an officer or soldier, charged with an offence committed within the precincts of a command distinct from that to which the accused may have been removed subsequent to the occurrence of the offence. A court, the proceedings of which were approved by his majesty, has declined to enter into the examination of a charge, upon the express grounds that it appeared to have arisen out of the limits of the command of the general who convened it :' but the restrictive clause in the warrants no longer exists; it was first omitted in the year 1830, and the fifth
(1) Sec. 20. (2) Note of sir Charles Morgan, appended to Tytler.
(3) Court martial on lieutenant John Read,- September, 1799.
whether it be abroad or at home
clause of the mutiny act was altered to correspond with it in 1834; it now declares that a person subject to the mutiny act, who shall in any of her majesty's dominions beyond the seas or elsewhere, commit any of the offences for which he may be liable to be tried by courts martial, by virtue of the mutiny act, may be tried and punished for the same in any other part of her majesty's dominions where he may have come after the commission of the offence, as if the offence had been committed where such trial shall take place. It must be particularly observed, that an offence committed in foreign parts, if the offender be tried at home, can only be visited by the punishment assigned to the offence when occurring at home.
A warrant for holding a general court martial, including not only the nomination of the president, but naming also the members to compose the court, has occasionally issued direct from his majesty ; but the nomination of the members in the warrant is not of frequent occurrence : were it otherwise, it would induce a question as to whether the challenge of members thus appointed, should be disposed of, as in ordinary cases, by the jurisdiction of the court itself; or, as in the case of exception to a president, where the court adjourns for further instruction; the decision of the validity of the challenge resting with the sovereign ; or the responsibility of the decision of the question attaching to the officer to whom the power of convening courts martial may have been delegated.