Page images

than those upon which they have themselves the power of deciding and punishing: in other words, military persons are not amenable to military courts for offences other than military; than which no truth is more generally admitted or acted on in the army, except where the offence may affect the honor of the army and be chargeable under the articles of war, as scandalous, infamous conduct, unbecoming the character of an officer and a gentleman; and where the trial may take place, and the sentence be in unison with the latter part of the second section of the mutiny act, which provides that no person acquitted or convicted of any capital crime, violence or offence, by the civil magistrate, or by the verdict of a jury, shall be liable to be punished by a court martial for the same, otherwise than by cashiering

Had colonel Moore been placed in arrest and thirt et effect, charged with scandalous, infamous conduct, un

becoming an officer and gentleman, in tampering with and endeavouring unduly to influence the testimony of the serjeant major ; and had the serjeant major been confined and charged with unsoldierlike conduct, in grossly prevaricating before the court martial, it is probable that the charge of lord Mansfield and the verdict of the jury, if an action had been brought, would have been widely different. The court would not then have assumed a power to take cognizance of

crimes beyond its jurisdiction. This appears prevarication from the proceedings of a general court martial

held at Cawnpore, in the East Indies, in November, 1814, on lieutenant R. M. Gilly, of his majesty's 67th regiment of foot, who was tried

Prevarication may have been the same.

Case of Lieut.
Gilly, tried for

and found guilty, and upon whom the sentence of cashiering was carried into execution, on the following charge, viz: “For scandalous and infamous conduct, unbecoming the character of an officer and a gentleman, in having grossly prevaricated in giving his evidence at a general court martial which assembled at Cawnpore, in the month of June last, for the trial of lieutenant George Coote, of his majesty's 67th regiment, such conduct being highly disgraceful, injurious to the service, and in breach of the articles of war.” A similar charge against an officer would be legal in England, or in any part of the world.

The president and other members of all courts Oaths, martial held by virtue of the mutiny act, must be sworn’ at each trial, before commencing any proceedings thereon ; and all courts martial have power to power and authority, and are required by the mutiny act, to administer an oath to every witness or other person who may be examined in any matter relating to their proceedings.


(1) G. O. No. 380.

(2) Mut. Act. Sec. 15. 90 Art. War. Gen. Reg. p. 244. It is curious to mark the gradual return to the system of swearing the members of courts martial which has taken place since the revolution, when parliament first assumed the power to interfere with the exercise of the royal prerogative in the regulation of their proceedings : at first, the vath was administered to general courts martial only, when the offence was punishable by death, and then either by a justice of the peace, the judge advocate, or his deputy.* It was subsequently directed to be taken by members of general courts martial, on ordinary occasions; but no oath was required to be taken by members of regimental courts martial, nor by witnesses before them, prior to the year 1805, although the subject had been brought to the consideration of parliament in 1753, by the earl of Egmont, who then proposed a clause to that effect. The oath of secrecy at first required from members of general courts martial was without limitation; the exception, “unless required to give evidence thereof, as a witness by a court of justice, in a due course of law," was introduced in 1749; and the oath of secrecy, as it now stands, was not enjoined for regimental courts martial until 1829.

* 4 & 5 William and Mary, c. xiii. 1 Ann, c. 16. 2 Ann, &c.

+ “Or a court martial ” has been since introduced. (3) Mut. Act. Sec. 14.

oaths are not

Definition of An oath is an outward pledge given by the an oath,

person who takes it, that his attestation or promise is made under an immediate sense of his responsibility to a supreme being;' who, according to his belief, enjoins truth and will punish falsehood. This solemn appeal to the deity is essential to the nature of an oath, in

that sense in which alone it can be administered as it may be as legally binding in any court of justice, where received by a Court Martial. the necessity of this sanction is imperative by

act of parliament: the form may, and more generally does, either virtually or directly, call down the vengeance or renounce the blessing of the intelligence invoked, as the just and un

doubted penalty of false swearing.' Occasionally The self-asserting atheist cannot consistently administered, be sworn as this term is here understood ; the

moravian has an honest, though perhaps too finelys drawn, objection to the imprecatory character of the usual form ;* the quaker affirms that he, from conscientious scruples, refuses all oaths alike, and many other sects seek to be relieved from the necessity of taking an oath.

The whole subject has undergone most careful scrutiny, and those alterations have been

(1) Nulla gens tam fera, nemo omnium tam sit immanis, cujus mentem non imbuerit Deorum opinio. Cicero Quest. T'usc. I. 13.

(2) The energy of the usual form turns on the particle 80,-upon condition of speaking the truth, may Gud help me, and not otherwise: “So help me God," or some equivalent expression may be found in the oaths of most countries, and in the earliest times.

(3) Tyler, p. 62.

(4) The 22 Geo. 2, c. 30, enacted : “ Every person, being a member of the protestant episcopal church, known by the uame of *Unitas Fratrum,' or United Brethren, which church was formerly settled in Moravia and Bohemia, who shall be required on any lawful occasion to take an oath, shall, instead of the usual form, be permitted to make his solemn affirmation in these words: “I, A. B., do declare, in the presence of Almighty God, the witness of what I say.” This is an oath in the attesting form, which no quaker would take; but later enactments do not draw this distinction.


made in the law which did not appear to remove or weaken any real' security for the discovery of truth, or the performance of public duty.

The acts of parliament which affect the prac- and affirmations tice of courts martial, and enable them to dispense with an oath, are the following. By the 3 & 4 Will. 4, c. 49, quakers and moravians for quakers, are permitted to make his or her declaration’ in all places, and for all purposes where an oath is or shall be required, either by the common law or any act of parliament. The same day, 28th August, 1833, an act was passed for the relief of a very small sect, chiefly found in Ireland, and separatists ; and called separatists, who, instead of the usual form of oath, are permitted to make a solemn declaration, (having much of the essential quali

of an oath,) which by the statute 3 & 4 Will. 4, c. 82, is declared to have the force of the usual form in all courts of justice and other places, where by law an oath is or may be required. By the 1 & 2 Vict. c. 77, every person who shall have been a quaker or moravian, and who shall entertain a conscientious objection to taking an oath, may make a solemn affirmation instead thereof.

By all these statutes it is enacted that the but the punishdifferent persons thus relieved shall, on convic- is applicable. tion of having falsely affirmed, be punished as if guilty of perjury.

The 3 & 4 Vict. c. 37, (the company's mutiny Natives of India act,) and company's articles of war, in case of relieved when

(1) See report of the Lords' Committee.

(2) Form for Quakers, &c.—“I, A, B., do solemnly, sincerely, and truly declare and affirm."

(3) Form of Separatists.—“1, A. B., do, in the presence of Almighty God, solemnly, sincerely, and truly affirm and declare."

circumstances natives of India, enjoin an oath or solemn de

claration, as circumstances may require ; it has been objected to the mutiny act that it does not contain a similar provision, and it may not be out of place to give an argument of lord Mansfield, when solicitor general, on this very subject : “ All occasions do not arise at once ; now a particular species of indians appears : hereafter another species of indians may arise ; a statute very seldom can take in all cases, therefore, the common law that works itself pure by rules drawn from the fountain of justice, is, for this reason, superior to act of parliament.” 1

If this hold good when spoken in Westminster hall, and of the law as there interpreted, how much more does it apply to the law military and the statutory enactments on which it is constructed, when courts martial daily come in contact with new tribes, and are in turn called upon to administer justice in all the countries of the world ?

The law, with a wise forethought, whilst laying down the general principle, that the sanction of an oath is necessary before courts martial, by not mentioning in the mutiny act any particular case of exception which it allows “ in all places and in all courts whatsoever,' would appear not to prevent the extension of this indulgence in other cases which may be provided for as they arise, by act of parliament, and which might thus in strictness? be excluded by the adoption of any partial alteration in the law, such as that which has been advocated. (1) 1 Atkyns, 33. (2) Exceptio probat regulam de rebus non exceptis.

« EelmineJätka »