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CHAPTER II.

General Jurisdiction of Courts Martial.

The general jurisdiction of courts martial, as Jurisdiction, independent of the distinctive jurisdiction of the several descriptions of court, must be considered with reference to the class of offences, the description of persons, and the limitation as to the time to which it extends. It extends then as to offences to the trial of the persons and for the offences, declared under the power of the mutiny act, Military whether they be committed at home or abroad; the penalties however varying in certain cases according to the place where, and the person by whom, an offence may be committed, dependent also on the powers of the court by which they may be adjudicated. It extends also, in default and Civil; of a competent court of civil judicature, to the trial of military persons, for all offences against the municipal law of the land; for which civil offences they would not otherwise be amenable to courts martial, except indeed officers, in a limited degree, so far as the honor or discipline of the army may be affected.

By the declaration of martial law, the specific jurisdiction of courts martial is extended to persons ordinarily subject to the civil power; as it is also, in the field, by the custom of war and the necessity of the case.

as to persons;

as to time.

Specific
'urisdiction.

Mutiny Act declares certain

By an express provision of the mutiny act, no person can be tried and punished for an offence committed more than three years previous to the issuing of the commission or warrant for such trial, unless, from having absented himself or other manifest impediment, he shall not have been amenable to justice within that period, when it is extended to any time not exceeding two years after the impediment shall have ceased.'

We shall here advert to the general jurisdiction of courts martial, as affecting crimes and persons, under the powers of the mutiny act; and but concisely refer to the cognizance of offences under special circumstances, leaving further detail

to a subsequent part of the work. The mutiny offences punish act in its first clause recites, that no man can be

forejudged of life or limb, or subject, in time of peace, to any kind of punishment within the realm, by martial law, or in any other manner than by the judgment of his peers, and according to the known and established laws of the land ; yet, for the preservation of discipline, and since military delinquency requires more prompt punishment than the usual forms of the law will allow, it specifies certain crimes which may, by sentence of a court martial, be punished by death, and provides for the further cognizance of military crime, by empowering her majesty to establish articles of war for the government of her forces, which articles are to be judicially

able by death;

empowers
Her Majesty to
make Articles
of War in
conformity
therewith

(1) “ It has been doubted, whether officers and soldiers, retired from the service, are amenable to courts martial for offences committed during the time they were in the service, the terms of the mutiny act appearing to confine its application to those actually in commission or in pay. The better opinion, however, seems to be that they are so liable, if brought to trial within three years, the period within which all offences under the act must be prosecuted, dating from their commission.”—Law Magazine, No. xxix. p. 11.

ments and

United Kingdom

noticed by all judges, and in all courts whatsoever.'

The penalties to be declared by such articles Capital punishare however limited, since no person within the transportation united kingdom of Great-Britain and Ireland, restricted to and the British Isles, are subjected by them to be declared so transported as a felon, or to suffer any punish- the Mutiny act. ment, extending to life or limb, for any crime which is not expressly made liable to transportation or to such punishments, by the mutiny act; nor in any manner, nor under any regulation, which does not accord with its provisions. Capital offences committed by soldiers may, however, be visited by transportation, in the discretion of a general court martial, since it may be awarded instead of death, where the court may not think the offence deserving of this punishment.”

It may be observed, that this limitation, by its such restriction express terms, does not affect her majesty's prero- without the gative, whilst legislating for her armies in foreign parts ; neither does it operate within the United more within it, in Kingdom in time of foreign invasion or civil war; which is evinced by the latter part of the eighth and the tenth articles of war, since the penalty of death is there annexed to crimes, (not mentioned in the mutiny act,) which may be committed in the United Kingdom. That these penalties are intended to apply within the realm is apparent, because the limitation as to foreign parts commences only with the thirteenth article. In fact, the limitation of the power of her majesty to and is nominal, declare crimes punishable by death within the disobedience. United Kingdom, under any circumstances, is by death. rather nominal than real, the mutiny act' ex

realm,

or civil war,

,

(1) Sec. 4.

(2) Mut. Act, Sec. 7.

(3) Sec. 1.

pressly declaring, that to disobey the lawful command of a superior officer is punishable by death, and that whether the offence be committed within the realm, or in any other of her majesty's dominions, or in foreign parts, upon the land or upon the sea. Now it is scarcely possible to imagine a crime connected with military discipline, which may not be charged as disobedience, and still less the infraction of an order emanating directly from the throne. The real limitation, therefore, to capital punishment is to be discovered, not in the mutiny act, as generally imagined, but in the articles of war ; since disobedience to every order of her majesty, committed within the realm, may legally be punished by death, in the discretion of a general court martial, except when the disobedience arises from a violation of an article of war, in itself prescribing a minor punishment.

The persons who, in time of peace, are amenable to military law, and subject to trial by courts martial, are, for the most part, comprehended in the terms of the mutiny act, “any person who is or shall be commissioned or in pay as an officer, or who is or shall be listed or in pay as a non

commissioned officer or soldier.” The word signification of commissioned instead of mustered was introduced

into the mutiny act in 1786 : at which time the debate on the question in parliament would lead to the conclusion, that the statute, as amended, is intended to embrace brevet officers though receiving no pay, but that officers on half-pay are not included in the phrase "commissioned or in pay.”

Jurisdiction as to persons.

Persons commissioned

(1) Sec. 1.

are subject to

pay amenable to

Mr. Tytler prefixes to his Essay on Military whether oficers Law, “a material correction,” in which, refer- Military Law; ring to the opinion he had given, that officers on half-pay were subject to military law, he says, “the author is now certified, on the most indisputable authority, that in the framing of the clause of the mutiny act, as it now stands, by which all officers, commissioned or in pay, are declared liable to its authority, it was not the intention of the legislature to include officers on half-pay in that description; but that officers holding brevet commissions, without pay, were understood to be included.”

However this may be, it is certain that within Officers on half. the last few years, officers on half-pay, though arrest ; not holding brevet rank, or employed on the staff, have been deemed amenable to military arrest; and consequently, it may be inferred, to military law. This appears by the orders which accompanied the publication of the court martial, which took place at Barbadoes, on lieutenant John Mahon, who was arraigned for striking lieutenant Geagan, half-pay 8th West-India regiment, in the mess-room of the detachment 9th regiment infantry, in the barracks at Morne Bruce, Dominica, on the night of the 3d July, 1819. Lieutenant Mahon was found guilty; sei enced to be discharged from his majesty's service ; recommended by the court to, and experienced, the royal clemency. The prince regent was at the same time pleased to command, that lieutenant Geagan should be severely reprimanded for the whole of his conduct in the different stages of this transaction, and “that his deep displeasure should be expressed at the conduct of captain Ogle, who was president of the mess at

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