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Mr. M Arthur


those members who voted for an acquittal, to award a single lash or the slightest punishment. If an inconsiderable punishment were awarded by the minority, with a secondary view, and that to countervail the effect of conviction by the majority; as well might the majority vote for an excess of punishment, not proportioned to the finding, to allow for the neutralizing effect of the votes of the minority, and thus to re-establish the effect of the conviction, and preserve the decision of the court inviolate.

Mr. M'Arthur, following sir Charles Morgan, Opinion of considers that the prisoner ought to have the and Sir Charles presumptive opinion of those members who have absolved him, thrown into the scale with the votes of those who incline to the lesser punishment. Such practice would undoubtedly exempt members voting for acquittal, from an exposure to a violation of their oaths, by awarding punishment where, according to their private judgment, none is due; but it would not obviate the other inconsistencies which must arise from members acting independently, and not in consequence of the collective wisdom and aggregate opinion of the court.

Since the publication of the preceding pages ca cof Lieut. in former editions of this work, this point has been brought to issue under the following circumstances :—Lieutenant H. Reynolds, of the Queen’s royal regiment was placed in arrest by the president of a regimental court martial, and brought to trial before a general court martial held at Camp Lukkee, 6th March, 1839, on the following charge :-“ For irregular and un

(1) Pages 250 and 364.

officerlike conduct in twice refusing to perform his duty as member of a regimental court martial, on the 14th January last, when called upon by me to do so as president of the said court. Signed, G. O. J. Raitt, capt. 2nd Q. R. R.”

Upon evidence being required before the court, and the obligation to secrecy being thus at an end, it was alleged on the part of the prosecution that lieutenant R. had refused to vote on the question of punishment—when he had voted for a finding of not guilty.

The court acquitted the prisoner, which sentence was disapproved by lieutenant general sir John Keane, the commander in chief at the presidency and by him referred to the commander in chief of India, sir H. Fane, from whose remarks, dated Mahableshewar, 29th of May, 1839, the following is extracted :

reference to the judge advocate general of her majesty's army on this point, (namely, refusing to vote as to a question of punishment when the prisoner had been convicted by a majority of a court martial of which he was a member), in the year 1834, he ruled as follows :— Upon a finding of guilty by a court martial, I am of opinion, that although all the members of the court may not have concurred in it, it must be deemed the finding of the whole; and the members who voted for acquittal may be called upon to vote upon the punishment to be awarded on the prisoner as if they had concurred in the finding of guilty.” “ This” in the words of the commander in chief " settles the point as to the interpretation of her majesty's officers.”

66 On


Opinion of the judge advocate given.

nature of

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Where it is not peremptory, and the opinions where opinion's of members differ as to the nature of the punish- punishment, the ment; and, in all cases, on the trial of soldiers decides. where the alternative is corporal punishment, imprisonment, or transportation, it is usual to separate the question, and, before entering on that of the quantum, to ascertain the nalure by the votes of the majority ; nor is it enough that this majority should be relative, it must be absolute : it is not “ sufficient that a greater number of votes should be given for any one punishment than for any other punishment, unless that greater should form a majority of the whole.”

After the nature has been decided on, it is not infrequent, when the members differ as to the quantum of corporal punishment, imprisonment, or transportation, that the aggregate amount awarded by all the members collectively is divided by the number of members constituting the court, to determine the number to be inserted as the punishment, all broken portions being discarded in favor of the prisoner; but it is believed that such custom is decidedly erroneous, as, by adhering to it, the opinion of the majority of the court must often be overruled; whereas, in this as in every case, as just stated, the opinion of the majority ought as before stated to prevail.

Should the court be equally divided as to Votes being the nature or quantum of punishment, it has seniente dentence hitherto been the custom to give the prisoner the benefit of the more lenient judgment; and, indeed, the condition which requires an absolute

(1) Opinion of judge advocate general, 12th Aug., 1834.

majority is, in most cases, literally satisfied by some member, and often the whole court, being found, on re-considering the question, to have coincided with that opinion, which leans to the

side of mercy.

Punishments are either peremplory or discretionary.

The punishments which courts martial are called on to apply are either peremptory, that is, specially enjoined by the mutiny act, or other act of parliament, or by the articles of war; or they are discretionary, that is, the court in its judgment applies such punishment as it may deem proportionate to the offence, the same being authorized by the mutiny act, articles of war, or by the custom of the service. It is not necessary, in this place, to advert to the jurisdiction of courts martial held, under the hundred and second article of war, for the cognizance of crimes not military.

Peremptory punishments for military offences Ollicers, except apply only to officers, except the forfeitures inon dosertion, &c. cidental to a conviction of desertion or absence ties on habitual without leave ;' the forfeiture to be awarded

for habitual drunkenness ;- and the punishments defined in the second article of war.

The offences placed beyond the discretionary by Mutiny Act; power of courts martial by the mutiny act, and

not also specified in the articles of war, are : Clause 39.-Acting contrary to the provisions of the

Peromptory punishments

and tho penal


Offenceg punishable

mutiny act, in any respect, regarding the

enlisting and attesting of recruits : 50.-Unlawfully detaining any officer's or soldier's

pay for the space of one month, or refusing to pay the same when due.

(1) 38 Art. War. (2) 51 Art. War. See Ilabitual Drunkennc38.-Index.

recruits ;

price for Com

As to the first mentioned offence, the statute Enlisting and runs, that the offender upon “proof thereof, upon oath by two witnesses before a general court martial, which is hereby authorized to administer such oath, be cashiered, and disabled to hold any civil or military office or employment in his majesty's service.And as to Dotaining pay. the latter offence, it is enacted, that upon proof thereof before a court martial, the offender shall “ be discharged from his employment, and shall forfeit one hundred pounds.

The 49 Geo. 3, c. 126, sec. 8, an extract of 19 Geo. 3, c. 196. which is given in the general regulations and maintenance orders for the army, declares that any officer mission. who shall accept, receive, or pay a larger sum of money, as the price of a commission, than that established by the regulations, shall, on being convicted thereof by a general court martial, forfeit his commission and be cashiered. It is not, therefore, competent to a court martial, on conviction of this offence, to award any other punishment than that expressed by the act ; which, if it were otherwise doubtful, must be evident from the general order issued on the promulgation of the general court martial on lieutenant W. G. White, of the 94th regiment.

The offences declared by the articles of war offences punishable peremptorily on conviction, no dis- gremptorilor cretionary power vesting in the court, are speci- o War ; fied in the second and fifth, from the nineteenth to the thirty-seventh article inclusive, and from the forty-third to the forty-eighth.

(1) Gen. Reg. p. 51.
(2) G. O. No. 483. 30th October, 1824.

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