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that an offence made by a special article cognizable indefinitely and by a general court martial, could not, charged in by an inferior the express terms of that article, be tried by an inferior court. Mr. M'Arthur has observed, u should a non-commissioned officer or soldier be brought before a regimental court martial, for mutiny, desertion, or any of the higher crimes cognizable by a general court martial, he might not only plead the incompetency of the regimental court martial to try him; but should this regimental court, even without a soldier's availing himself of such a plea, proceed in the trial, and adjudge a punishment for a crime not within the jurisdiction of the court, the members would, collectively or individually, be liable to prosecution in a court of justice, for the illegality of their proceedings." This reasoning, or rather exposition of the law, still holds good, and is especially applicable, as commanding officers are expressly restricted, by giving in against a prisoner“ vague and indefinite charges, " from trying before a regimental court martial, offences which are directed to be tried by general, or district or garrison courts martial. In cases which may admit of How a less serious notice than the superior courts res- proceed to pectively are calculated to inflict, and when jurisdiction of commanding officers shall deem it advisable to Courts Martial. proceed to trial by a district, garrison, or regimental court martial, they are enjoined to lay a statement of the case, together with the charge they intend to bring, before the general or other officer commanding the brigade, district, or garri. son, with an application so to proceed; which application, when the superior officer's permission
Authority for extending the
Court Martial to be laid before it.
Trials on the line of march,
has been obtained, is to be noticed in the monthly return of courts martial sent to the adjutant
general.' Though it is not rendered necessary jurisdiction of by the articles of war, it may be inferred, that
the permission of the superior officer to try a soldier by a court martial of inferior jurisdiction, for a crime expressly declared to be cognizable by a superior court, should be laid before it, as the members of a court martial are not only responsible to military authorities, but are amenable to courts of civil judicature for any undue exercise of jurisdiction or illegal assumption of power.
On the line of march, the jurisdiction of a for insubordina- regimental court martial may be extended to
mutiny or other offences, in the discretion of the officer in immediate command of the troops, by whom the sentence, not exceeding that which a regimental court martial may ordinarily award, may be confirmed and carried into execution on the spot ;' a report of the same being subsequently made to the general or superior officer, and the sentence noticed in the monthly return
of courts martial.3 Grare charges Previous to the direct injunction to the confied and tried by trary in the articles of war," it was customary
to modify the charge, so as to avoid the express offence declared cognizable by a superior court, and, by these means, to bring it within the jurisdiction of an inferior court martial ; thus, facts which might amount to mutiny have been charged as disorderly conduct, to the prejudice of good order and military discipline ; desertion (1) 85 Art.
(2) Mut. Act. Sec. 10. 80 Art. War. (3) 85 Art. War.
(4) 85 Art. War.
not to be modi.
to a certain
has similarly been charged as absence without leave. Such custom, as before observed, is absolutely prohibited, except to a limited extent except desertion in case of desertion, which, if not attended by extent. the essential and aggravating characteristics of this crime, is often tried as absence without leave by a regimental court martial.
The contingency of trying desertion by a district or garrison court martial is noticed in the eighty-first article ; and a conviction of that offence is recognised in the ninth clause of the mutiny act and seventy-seventh article of war ; but no direct power is given to a district or garrison court martial to try desertion : on the contrary, the seventh article, in connection with the seventeenth, renders desertion a general court martial offence; it can, therefore, only be brought under the jurisdiction of a district court martial by the order of the superior officer, and in no case be tried by a regimental court martial.
General and Detachment Courts Martial.
GENERAL COURTS MARTIAL.
A general court martial must consist of not less than thirteen officers in the settlements of the East India Company and in any part of the queen's dominions, except Jamaica, Newfoundland, or the Bahamas, where, or if convened out of the queen's dominions, it may, with equal jurisdiction consist at least of seven officers; and except in St. Helena, Africa, Honduras and the Australian Colonies where the minimum is rereduced to five commissioned officers :' all general courts martial are moreover necessarily attended by a judge advocate or officer officiating as such.?
The composition of general courts martial is the same for the trial of all persons, except that no field officer can be tried by any person under the rank of captain, and in addition to this provision by the articles of war, the existings
regulations make essential alterations as to the Courts Martial rank of members for the trial of officers. “No
officer, in any case where it can possibly be avoided, is to be appointed a member if he belong to a class inferior to that in which the prisoner is serving: this regulation recognises three classes of officers in the army; viz. 1, (1) Mut. Act, sec. 6. 71 Art. War. (2) 90 Art. War.
(3) p. 244.
for the trial of Officers to be composed of Officers of the same class;
general officers, of all ranks: 2, field officers and colonels : 3, company officers comprehending captains and subalterns. In every case where such a court can be assembled without serious embarrassment or inconvenience to the service, and to be of the members ought to be of equal, if not when pracsuperior, rank to the prisoner, and in no case but one of absolute necessity, is a colonel to sit upon the trial of a general officer; or a captain on that of a field officer; or a subaltern on that of a captain: and on the trial of a subaltern officer, two officers of that rank are considered a sufficient proportion to be placed as members of the court. Of course there can be no objection to the members of the court being of any rank superior to that of the prisoner, and the greater the proportion of officers of superior rank, the better and more respectable the constitution of the court will be considered."
“In cases in which it becomes necessary to concernandine bring the commanding officer of a regiment or who have held battalion, or even of a depôt, to trial, care must be taken that as many members of the court as possible shall be officers who have themselves held, or who then hold, commands.”
General courts martial only are competent to Jurisdictive try every description of person subject to the mutiny act,' are empowered' to receive appeals from regimental courts martial, and by the hundred and second article can alone supply the place of courts of civil judicature for the trial of offences other than military.:
(1) Mut. Act, Sec. 6. (2) Mut. Act, Sec. 16. (3) This contingency and the punishments then necessarily awarded, form the subject of another chapter and need not be enlarged upon in this place.
tried by Officers