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orders a captain to appoint as president, and a competent number of officers to form a court.
At the period of the first edition of this work, no provision was made for the assembling of a detachment court martial, under any circumstances, by an officer under the rank of field officer; the fact was observed, and the expediency of empowering officers at detached commands and on board transports to convene them was pointed out. A provision has subsequently been made, as just noticed, enabling the senior officer on board any transport or merchant vessel, whatever be his rank, without any other authority than the articles of war, to hold detachment courts martial; but it is perhaps still to be regretted that the spirit of this provision is not extended to situations where there may be detachments under the command of captains, not in daily or frequent communication with the stations from which they may be detached, as in islands, and particularly where detachments under the command of captains are on the march. It will be admitted that there are few occasions where power is more required, than to establish and preserve in discipline a body of detachments acting together ashore or embarked for passages on board ship. The power given to “the senior officer on board, whatever be his rank,” might, if taken abstractedly, lead to the belief that a subaltern in command is empowered to order a court martial, but by turning to the seventy-seventh article of war, it will be seen
that the “ president of every court martial, other circumstances. than a general court martial, not being under the
rank of captain, shall be appointed by the officer
or a Captain, in certa
convening such court martial.” This limitation, as to the rank of the president of a detachment court martial, clearly precludes a subaltern from convening one ; though cases have often occurred and may again happen, where it would be desirable that an officer of this rank, in command of a transport at sea and not in company with a ship having a senior officer, should be expressly empowered. Should flagrant insubordination or even mutiny occur, a subaltern officer must either suspend the punishment which the discipline of the army, and even humanity, may dictate, or assume a power not legally vested in him, and trust his justification to the necessity of the case, to be evinced by proof of the particular facts. If he resort to the form of a court martial, the circumstances must be such as to induce each member of the court to incur the responsibility of participating in an act opposed to the written law on the subject. An inconvenience often resulting from the assumption of unauthorized power, however justifiable and indispensable, is, that the very act which the extremity of the case may dictate, being known to be beyond the law, may foment and render specious a factious and insubordinate spirit. “ Les mêmes procédés qui, autorisés par les lois, ne feroient aucune sensation, paroîtroient le comble de la tyrannie s'ils étoient arbitraires."
It is well known, that in merchant vessels the masters are justified by the common law of England in suppressing any attempt at mutiny by the most violent measures, and the infliction of
(1) Traités de Législation, par M. Jérémie Bentham, publiés par Et. Dumont, p. 336.
corporal punishment on refractory sailors is continually justified by juries of the country. There can be no doubt, therefore, but that under very flagrant circumstances of insubordination or mutiny, a subaltern officer would be justified in deviating from the strict letter of the law, but as the military is a written law, it might be better to provide for the contingency.
Courts of Enquiry, Regimental Board, Military
COURTS OF ENQUIRY. Courts of enquiry are appointed by warrant Courts of directed to the judge advocate general, under the warrant, or sign manual, naming the officers to compose the court, and authorizing the judge advocate to summon such officers as the court may deem expedient for the investigation committed to it :' or, simply by order from her majesty; the comman- by order of Her der in chief ; a general, or other officer in com- or of a superior, mand of a body of troops, of a regiment, or Officer ; even of a detachment. Courts of enquiry depend on, or are an emanation from, the prerogative of the crown, as "the sole supreme government and command of all forces, both by sea and land, ever was and is the undoubted right of his majesty and his royal predecessors, kings and queens of England.” The power of the crown, or of a commander of the forces, to appoint courts of enquiry, and the right to withhold the proceedings when required to be produced as evidence in a supreme court of law, has been recently evinced by the decision of the
(1) See the warrant issued by his majesty George II., for enquiring into the causes of the failure of the Rochfort expedition, 1757.Tytler, Appendix No. 3.
(2) 13 Car. 2, c. 6.
Duties undefined and dependent
not a jndicial body; has no power to administer oaths ;
civil witnesses not compelled to attend.
court of king's bench, confirmed on appeal to the judges.'
The duties of a court of enquiry are undefinfor the order or ed; they depend on the instructions which the
authority convening the court may think proper to give. A court of enquiry, deriving its power from the express authority of the officer convening it, may be invested, as to enquiry and the examination of informers, with any authority, not exceeding that possessed by that officer.
A court of enquiry is not, in any light, to be considered as a judicial body; it has no power to administer an oath, nor is there any process by which to compel the attendance of witnesses not military. And even the controlling power over military men, which compels their attendance before courts of enquiry, arises from the order of a superior officer, and not from any authority, either inherent or communicated, which courts of enquiry may be supposed to possess.
A court of enquiry is rather a council than a court, which any officer in command may take advantage of, to assist him in arriving at a correct conclusion on any subject, which it may be expedient for him to be thoroughly informed on. It is sometimes employed to receive and methodise information only; at other times, to give an opinion also on any proposed question, or as to the origin or cause of certain existing facts or circumstances. The transactions relating to an armistice and convention ;the causes leading to the failure of an expedition, sometimes with, at other times without, a direct allusion to the com(1) Home v. Lord Bentinck.
(2) Court of Enquiry relative to the conventions and armistice in Portugal, 1808.