a The Regimental cannot award point to the officer. a soldier, as from duty in the field or under arms. Such complaints must be preferred in the usual course to superior officers, and if heard by a military tribunal, it must be by a court convened for the trial of the accused, and competent to award punishment on conviction.' The regimental court martial here treated of, Court Martial is solely for the purpose of doing justice to the punishment, complainant; punishment forms no part of its office, unless it be that which, in some cases necessarily and unavoidably, may incidentally arise from the declaration of an opinion, where injustice may be the subject of complaint, and the justifiableness or futility of its assertion, the object of deliberation. It is scarcely necessary or directly to remark, that an opinion cannot be given by character of an regimental court martial, directly pointing to the character of an officer; it must be confined to the merits of the complaint, and simply state whether or not it be founded, and to what extent. From this court martial either party, the Either party soldier alleging or the officer charged with doing the wrong, "may, if he thinks himself still aggrieved, appeal to a general court martial; but if the party appealing be convicted. of having made a vexatious and groundless appeal from the regimental to the general court martial, he shall be liable to such punishment but is punishable as by the judgment of a general court martial may be awarded." The indefinite article a has been substituted for the words the said of the old articles of war; probably with the intention of rendering necessary the subse 3 (3) Otherwise the alteration cannot so well be accounted for. may appeal, by a General Court Martial, if convicted of vexatious and groundless appeal. of an appeal is provided for generally, quent arraignment and trial of the appellant so offending, instead, as formerly, of the summary award of punishment by the court hearing the appeal in those cases when it appeared to them to have been prosecuted for malicious or oppressive purposes, and without any probable cause or ground for encouraging a well-disposed appellant who might have entertained an honest but erroneous impression of his case." 2 The contingency of an appeal from a regiThe contingency mental to a general court martial is incidentally recognized in the mutiny act: "And be it enacted, that no officer or soldier, being acquitted or convicted of any offence, shall be liable to be tried a second time by the same or any other court martial for the same offence, unless3 in the case of an appeal from a regimental to a general court martial." Here an exception to a general provision is made, adverting to appeals, but no general right of appeal is given, nor does the act define the cases in which an appeal will lie, alluding to the subject only in that part of (1) Samuel, p. 509. (2) Mut. Act, Sec. 16. (3) When it is considered that the regimental court martial has not the power to try the officer, and that the soldier cannot by any extension of the terms "doing justice" be considered as upon his trial, it would seem that this proviso in the clause of the mutiny act, which engrafts on the military code the principle of the common law “that none shall be twice jeoparded for the same offence," were unnecessary, did it not contemplate the admission of appeals in cases other than that where the article of war, (121st,) apparently of itself sufficient for its purpose, confers the right: here the same complaint may be tried before a fresh tribunal, yet neither party can be said to be tried a second time, and even should the opinion which has been offered above as to the necessity of his subsequent arraignment be incorrect, and the general court martial have the power under the law as it now stands of convicting of a vexatious and groundless appeal, and adjudging punishment therefore to the appellant, who alone, be it observed, incurs the risk; still, neither acquittal or conviction are in question before the inferior tribunal and a trial involving these consequences is that only of which, from an attentive consideration of the wording of the clause before us, it would appear that the mutiny act would guard against the repetition. limited to this instance. the clause recited. The sovereign, by the but the right is mutiny act, is empowered to make articles of particular war, and directly limits the right to the one case specified, not only by silence as to any other instance where an appeal may, as a matter of right, be demanded, but also by authorizing, generally and without any notice of this right, the execution of sentences of corporal or other punishments awarded by regimental courts martial upon their being duly confirmed. The case here referred to was the only one in which appeals for a long series of years were allowed, and the two only examples' to the contrary, which have been met with in a period extending over seventy years, scarcely afforded ground for question as to the usage of the service in this respect, but recent instances' of a different (1) The anomalous proceedings respecting serjeant Ginger, 34th regiment, at the Cape, in 1803, are reported by M'Arthur; and the second is mentioned in the Gentleman's Magazine, (vol. xxviii. p. 242,) in May, 1758, "a young grenadier, aged about twentyseven, was shot at Plymouth for desertion; what is remarkable, being to receive five hundred lashes by the sentence of a regimental court martial, he chose to appeal to a general court martial, who, instead of confirming his former sentence, inflicted that of death. The young man suffered with great fortitude, having done nothing, he said, to offend his Saviour.' (2) Hough's Military Law Authorities does not make the distinction of cases of appeal from the award of regimental courts martial upon complaints of a pecuniary character, but states generally, page 236, "there have been fourteen appeals from 1817 to 1838," of which five appear to have been in cases of theft; one, disrespectful language; one, embezzlement; one, concealing liquor; and one in a case of absence without leave: this was in the Bengal presidency only, and not including native troops; at least, so it would appear, for the curious array of minute facts and conflicting authorities assembled by this indefatigable and important author, occasionally lose much of their interest and utility from the want of greater precision and of a clearer arrangement. In a queen's regiment on the Bombay establishment, two very extraordinary cases of appeal or second trial occurred within a few months of each other, the last in 1839; one, after the commanding officer had remitted the sentence; the other, where the soldier did not appeal till his imprisonment was over, and then was acquitted on the same charges by a general court martial. Now, it is not argued that there may not possibly be circumstances where justice would not be satisfied without the reversal of the conviction by a regimental court martial; but, as their confirmed and consequently effective sentence can in The former usage of the service was conclusive on this head. 80 but recent practice has opened the question. practice in resorting to general courts martial If this practice were persisted in to any extent in India, or if it were to become general throughout the service, no part of the military code no instance unavoidably superinduce forfeitures, such as necessarily follow convictions of desertion, a crime not justiciable by these courts, it would be very difficult to suppose a case, unless perhaps the extreme and highly improbable one certainly, but the only one which suggests itself, of a commanding officer discovering the innocence of a soldier, who had never before been tried, after he had confirmed the sentence, and wishing to restore him to as good a position for receiving the rewards granted to meritorious soldiers on discharge, as that he was in before the trial; still less is it meant now the period of imprisonment is reckoned from the date of the signing of the proceedings by the president, that its commencement should await the decision of a general court martial, or even of a general officer to whom the appeal may be referred; but, when proceedings affording so striking a contrast to the practice of former years, and so contrary to the commonly received interpretation, can take place under the same law, at least unchanged in all its more important provisions in this respect, it is conceived, and in a spirit very different from that which would raise difficulties where there are none, that the subject of appeals calls for the consideration of those whom experience and station alike qualify and enable to give a right direction to the tone and to control the practice of the service. See alteration of Mutiny Act of this year, Sec. 27. (1) See opinion of Rev. Harry Stuart, and the other evidence before the military commission of 1836. this digression. would seem more to claim the attention of those An apology for who have the power to regulate its operations ; at all events, it is clearly his duty who undertakes the republication of a work of this nature to allow neither the acknowledged delicacy of the subject, nor his inability to treat it satisfactorily, to prevent him from laying these remarks before the reader who may be desirous of forming an opinion, and who, for want of any positive or sufficient data, may refer to these pages, in search of information to assist him in so doing. allowed in 1714, The antiquity of the custom was urged as a No appeals were prescriptive argument for the extension of the power of demanding an appeal at a time, when the right, except in matters connected with pay and clothing, was not only denied, but the mere contingence of an appeal under other circumstances was hardly was hardly recognized and it may tend to remove misapprehension on this head to quote an extract from Bruce's Institutes, the earliest work in which the subject of military law is exclusively treated.' When describing general courts martial, it goes on to say, that this is a general and high court of war, whose business is to cognosce and determine in matters of greater moment; or to discuss appeals in civil causes, for in criminal processes no appeal is allowed." These "civil causes" are elsewhere? described as "such civil controversies between soldiers and their officers, or between soldier and soldier, as relate to their military capacities." (1) Institutes of Military Law, by Alexander Bruce, Advocate. Edinburgh, 1717.-Page 301. (2) Ibid, p. 317. (3) This class of appeals need not now be enlarged on, as Regimental Courts Martial, though they are still competent to "enquire into disputes" between soldier and soldier, (79 Art. War,) are not in the habit of doing so. G |