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detail of Members for.

;

half-pay of their regimental rank, and brevet officers, whether on half or full pay of their regimental rank, are eligible as members of courts martial; and, when associated on such duty, take precedence according to their army rank.' Instances may be quoted where surgeons and assistant-surgeons have been required to perform this duty; they, as well as paymasters, being competent as members of courts martial; but the custom and convenience of the service forbids recourse being had to them, except in extreme cases. Indeed, paymasters are specially exempt from regimental duty, though having rank in the army, and are prohibited from assuming any military command. It was formerly considered that no member of a general court martial could be of the same regiment with the president such custom has been long obsolete; its origin may be traced to the mutiny act of 6 and 7 William 3, c. 8, which contained such a provision.

2

The duty of courts martial, as of all other duties, is by rollster; her majesty has directed the order in which this duty is to be detailed, after that of guards and piquets, and as her majesty has also declared, that "the tour of duty shall be from the eldest downwards," it precludes

(1) In the reign of James II. no officer below the rank of captain was eligible as a member, so long as seven officers, the number requisite to form a court martial, could be brought together. It appears, that at this time, the governor or colonel was president, and that the court consisted of all the captains in the regiment, or garrison, in which the court was held; it is declared in a code of regulations printed by especial command, for the use of his majesty's forces, A. D. 1686, that "the lieutenants, and ensigns, have a right to enter into the room where the council of war, or court martial, is held, but they are to stand at the captains' backs, with their hats off, and have no vote."

(2) Explanatory directions for Paymasters, No. 12; 17th May, 1828.
(3) Gen. Reg. p.
(4) Ibid.

1

the possibility, without a glaring breach of the express orders of the sovereign, of selecting or packing a court martial; or rather, it is a means of anticipating or excluding animadversions and insinuations, having a tendency to impeach the composition of courts martial.

Marine Officers

may sit

Officers of her majesty's land and marine Land and forces may sit in conjunction on courts martial,' conjointly. and take rank according to the seniority of their commissions in either service.2

Company's

associated.

Officers of the queen's and company's service, Queen's and when serving together, may be associated on Officers may be courts martial; the officers in the East India company's service taking rank with the officers of her majesty's forces, according to the dates of the commissions, held by them respectively, from her majesty, or from authorities duly deputed by ⚫ her majesty.*

Officers of the regular forces and of the militia cannot be associated together on courts martial, and are reciprocally ineligible for the trial of an officer or soldier in either service; this, however, has not been held to prevent the association, on courts martial, of officers of regulars and of militia actually embodied and doing duty in the colonies in time of actual invasion, or under

(1) Mut. Act, Sec. 13. 80 Art. War. (2) Mar. Mut. Act, Sec. 9.

(3) Mut. Act, Sec. 13. 89 Art. War.

(4) 139 Art. War. Previous to the year 1834, this article of war declared, that officers of his majesty's forces should command senior officers, of equal rank, in the East India company's service, if they did not hold also a commission from his majesty. It is understood, that for many years, the commission of the commander in chief in India, granted to the officers of the company's service, was considered so far equivalent to a commission from his majesty, as to enable them to rank according to dates; but the alteration of the article of war is sufficient to show that the conclusion arrived at, however general, was erroneous.

(5) 99 Art. War.

Officers of regu.

lars and Militia cannot be

associated on

Courts Martial,

Militia in time

except Colonial

of actual inva

sion or under

Martial Law.

Life and Horse
Guards, how

associated,

Officers of the

three regiments

martial law; but for the trial, by these mixed tribunals, of civilians and insurgents or officers and soldiers of the local force only, and not of those belonging to the regular army.

Officers and soldiers of the life and horse guards, for differences arising purely among themselves, or for crimes relating to discipline or breach of orders, are tried by officers serving in any or all of those corps, who take rank according to their regimental commissions."

2

Officers of the regiments of foot guards, for of Foot Guards, similar purposes, form courts martial' and take rank according to the dates of their regimental commissions."

when other

corps are interested;

Courts martial, arising out of disputes between the household troops, and guards, and other corps, are composed, in equal proportions, of officers belonging to the corps in which the parties complaining and complained of do then serve, the president being taken by turns as nearly as the convenience of the service may admit, and in the order of the seniority of the corps concerned."

When the household troops and guards are detached, courts martial for the trial of officers and soldiers of these corps are composed of officers of different corps; no less than a moiety of the officers composing the court, belonging to the corps to which the prisoner to be tried may belong, if so many can be conveniently assembled."

Officers of artillery, for differences arising amongst themselves, or in matters relating solely

(1) As a recent instance, see the trial of John Smith, a missionary in Demerara, in 1822.

(2) 95 Art. War.

(5) 136 Art. War.

(3) 135 Art. War.
(6) 96 Art. War.

(4) 96 Art. War. (7) 97 Art. War.

to their own corps, have courts martial composed of their own officers; but when a sufficient - number of such officers cannot be assembled, or in matters wherein other corps are interested, the courts are composed of officers of artillery and of other corps indifferently.'

Jurisdiction of
Courts Martial,

The general jurisdiction and composition of Distinctive courts martial having been already enlarged upon, it now becomes necessary to notice their distinctive jurisdictions as to persons and offences, their respective powers and different composition, which, as regards general courts martial, will be the subject of the next, and the inferior courts will be contrasted with them in the succeeding, chapter.

Commissioned officers are amenable only to a as to persons; general court martial; in addition to this a court is specially constituted for the trial of warrant officers; whilst non-commissioned officers and soldiers are within the resort of every description of court martial.

2

With respect to the distinctive jurisdiction of as to offences; courts martial, as referring to offences independent of the punishments they may entail, it may be observed, that the articles of war specify certain crimes for which soldiers shall be liable to a general court martial, at home or abroad ;2 other crimes for which they shall be subject to a general court martial in foreign parts; some for which they shall be amenable to a general, and district or garrison court martial; and other crimes for which they may be punished by a

(1) 98 Art. War.

(2) 6 to 12 Art. War inclusive, and Art. 18.

(3) 13 to 17 Art. War inclusive.

(4) 19 to 30, 33 to 37, 40 to 42, and 46 to 50 Art. War inclusive.

46

may be

extended by the General Officer ;

except as to

desertion, and absence exceed

days, &c.

2

general, district, garrison, or regimental court martial.' General officers are, however, empowered to extend the jurisdiction of inferior courts martial over the whole body of crime, as declared by the articles of war ; limited, nevertheless, as to the power of awarding punishment, to that inherent in the courts respectively; and excepting that desertion cannot, under any circumstances, be tried by a regimental court martial, nor ing twenty-one absence without leave exceeding twenty-one days. Neither could an officer, under any possible case, forbear to order for trial for desertion, by a general, or district, or garrison court martial, any soldier who may have absented himself exceeding twenty-one days, until the present articles of war enabled the commanderin-chief, under special circumstances, to authorize an exception. Offences on the line of march are also expressly excepted from those for the trial of which recourse must be had to the discretionary power vested in general officers to extend the jurisdiction of courts martial; and the fortieth article of war peremptorily directs the trial, by a general or district court martial, of a soldier, whether on or off duty, who shall become maimed or mutilated by the firing off his musket. Where also the mutiny act specially subjects certain offences, as in the ninth clause, to the jurisdiction of a particular court martial, it is conceived that such specified offences cannot legally be tried by a court martial of inferior jurisdiction.

Grave offences

not to be charged

It has always been considered in the army,

(1) 52 to 54, 61 to 63, and 66 to 70 Art. War inclusive.

(2) 85 Art. War.

(3) 81 Art. War.

(4) 85 Art. War.

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