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reasonably bear a construction less unfavourable to the
prosecutor than that which the court have thought it their duty to place upon them, yet, upon a full consideration of all the circumstances of the case, his majesty has been pleased to order that lieutenant colonel lord Brudenell shall be removed from the command of the 15th hussars." Courts martial have sometimes declared Court may
animadvert on charges frivolous, vexatious and groundless, their origin. and sometimes malicious, and not originating in a desire to promote the good of the service, but proceeding from warmth of temper and ignorance, insubordination, animosity, resentment, revenge, or conspiracy. So, also, courts martial have frequently declared that, in their opinion, the prosecutor was actuated by no illiberal or improper motive, but a sense of duty and regard for the benefit of the service, or that his conduct has been laudable and honorable,' or regular and impartial:10 such remarks by the court have generally been produced by strong assertions or insinuations of the prisoner, not supported by evidence, and have occasionally accompanied an acquittal, at other times a conviction.
Courts martial occasionally animadvert on the conduct of witnesses; and that they are justified in doing so, appears from many general orders promulgating sentences. On the trial of Case of Captain
(1) G. O. No. 529. (2) G. 0. No. 196.
(3) G. O. No. 209. (4) G. O. No. 292.
(5) G. O. No. 238. (6) G. 0. No. 236 and 291.
(7) G. O. No. 243. (8) G. O. No. 250.
(9) G. V. No. 397. (10) G. O. No. 296.
captain Theobald O'Doherty of the 91st regiment, in January, 1825, “ His majesty was pleased to command, that in consequence of the serious animadversions passed by the court upon the conduct of captain Richardson, and brevet major Creighton, of the 91st Regiment, which animadversions appear to be amply borne out by the minutes of their evidence upon the trial of captain O‘Doherty, these officers shall be required to send in their resignations, with a view to their retiring from his majesty's service, by the sale of their respective commissions.”l
Courts martial have sometimes observed, in terms expressly charging perjury, or falsehood, on the mode in which witnesses have delivered their testimony ; sometimes they have implied censure,* at others praise. Courts martial have also animadverted on the causes which have led to the trial, implicating the conduct of individuals not before the court; and that although they may not be amenable to military law. The execution of this duty must always be considered as a task of very refined and delicate nature; the measure ought only to be resorted to in extreme and particular cases, which admit of no possible explanation, as it seems opposed to the most obvious principles of justice, that an individual should be censured unheard, unless indeed he withdraw from enquiry, or purposely keep (1) G. O. No. 489.
on causes leading to the
(2) G. O. No. 320. (3) G. O. Nos. 259 and 286. (4) G. O. Nos. 451, 483, 506, 533. (5) G. O. No. 243.
(6) G. O. Nos. 447 and 465. (7) It has been observed, by major Vans Kennedy, p. 164, That each individual of a court martial vuld, by censuring inconsistencies and prevarication by witnesses in a civil capacity, be liable to an action for defamation. Cases may, however arise, affecting civilians and calling for an allusion to facts. That reported in the G. O. No. 447, seems one.
not before the
out of the way to withhold evidence which he and on points may be competent to afford. Courts martial affecting peranns also occasionally observe on any irregularity to Court. the prejudice of discipline, committed by persons not before the court, but connected incidentally with the subject of trial :' on the trial of an officer charged simply with striking another in a mess room, the revision of a sentence has been ordered for the express purpose of ascertaining, the senior officer present, when the affray happened ; the sentence of the court being afterwards approved by his majesty : but this could not now happen, because courts martial, when revised, are restricted from the examination of witnesses, or the reception of additional evidence.3
Courts martial would do well to define the Finding should degree of guilt which they impute to the prisoner, or find him guilty of, or the extent to which they may deem the accusation proved; and particularly upon constructive charges, where the essence of the charge, and the applicability of an express punishment, may rest on imputation built or grounded on the facts. Such discrimination is desirable, not only in order to observe an apparent consistency as to the sentence, when contrasted with others resulting from convictions on similar charges (the sentence with the finding and charges only being published to the army), but to render the subsequent duty of the court, in awarding punishment, clear and unobstructed.
be precise ;
1 G. O. Nos. 447, 450, 465. (2) G. O. No. 452.
(3) Mut. Act, Sec. 16. (4) Some observations bearing on this question are elsewhere offered under the head, It is sufficient to prove the substance of the issue or charge.-Chap. XIII.
animadversions direct, nit general ;
case arising on the trial of
It is also incumbent on a court, that its animadversions, as affecting witnesses or third parties of any description, should be specific, not general: this appears from the observations of his majesty on the promulgation of the
sentence on ensign Stanton of the King's. Ensign Sluntun. The court had noticed “the unjustifiable con
duct of assistant surgeon Brown, in regard to the prisoner, as it appeared in evidence.” “ His majesty expressed much regret that he (the assistant surgeon) should in any instance have subjected himself to the severe censure which the general observation conveys ; but his majesty at the same time remarked, that the court martial, impressed with such sense of his conduct, ought to have specified in direct terms, and in a manner which might have been acted upon, those parts of the assistant surgeon's behaviour which drew from them so pointed an animadversion.”
INQUIRIES AS TO PREVIOUS CONVICTIONS AND
Upon a finding of guilt, the court re-opens for inquiries as
Upon a finding of guilty, either of the
whole or of any part of the charge, the court, to previous con- in the case of a soldier, must necessarily
re-open, as it is bound in this stage of the proceedings to inquire, in presence of the prisoner, into his previous character', and record his previous convictions, if any, and provided due notice has been given him that they will be brought forward.
(1) G. 0. Horse Guards, 28th September, 1805. (2) Gen. Reg. p. 246.
(3) 84th Art. War.
An exact adherence to the terms of the other desertions, mutiny act would also seem to point out this as the period for enquiring into any other desertions; but it has become the practice, and has passed without animadversion, to include in the charge all desertions other than that for which the prisoner may have been taken into custody, and for which he may not have been already tried; whilst other desertions, of which recent practice prisoners may have been convicted, are treated evidence of. as any other previous convictions, and in strict conformity with the provisions of the mutiny act, not received in evidence until the court reopens after a finding of guilt.
(1) Where the wording of a legislative enactment will bear a construction directly opposed to the prevailing practice, it would seem advisable in all instances to remove any doubt, as to that being right in law which is unquestionably just in practice. The alteration of the twenty-seventh section in the last mutiny act affords an example of how judiciously this may be effected, as in explaining the duties of gaolers it has done away with any doubt as to the power of commanding officers to remove a prisoner undergoing the sentence of a court martial from the “place" they had originally directed, and to recomunit him to another place of imprisonment on arrival at another station. The use of " such place” and not “places as the commanding officer shall appoint,” taken in connection with the clause in the marine mutiny act, which expressly provides for the removal of marines under similar circumstances in civil custody, bad induced the author to hazard a doubt as to this practice; the judge advocate general liad (it appears) distinctly declared that it was illegal, and where it was known, this opinion was acted on; but in many, perlaps in most cases, and more particularly on foreign stations, comnianding officers on the move of a regiment, habitually took their prisoners with them, and then recommitted them; acting in the spirit, if not to the letter of the law, and, at the same time, not doing the prisoner any injustice : for the court in awarding the sentence and leaving the place to he fixed by the commanding officer would in most cases have contemplated this contingency. Upon similar grounds it would appear expedient expressly to legalize the arraignment of deserters not only on the charge of desertion upon which they may have been taken into custody, but also for every other previous or subsequent desertion for which they may not have been already tried. Some remarks are elsewhere offered on the distinc. tion between the crimes of desertion and absence without leave.. (See “ desertion,” under " sentence.") Connected with the subject of rendering the punishment of the systematic deserter more sure and effectual are other alterations which might possibly be made with advantage, such as making forfeiture of future service a consequence of a second desertion, and rendering it imperative in commanding officers to apply for a general court martial when a third desertion is to be investigated.