IMAGE EVALUATION TEST TARGET (MT.3) // ^ A* .v^ y.AILV NEWS STEAM PRINTING HOUSR. 1882. NOTICi: TO SICCONI) HDITION. The first edition was framed on the Army Discipline and Regulation Act, 1879, but the passing of the Army Act, 1 88 1, and the issue of Rules of Procedure that same year necessitated a complete revision of the work. This edition has been re-written anr corrected in accord- ance with the Army Act, Rules of Procedure, and provisions bearing on the subject of Military Law contained in the Queen's Regulations, 1881. A complete index has been added. D. J. KiNcsTON, Canada. | January, 1882. | 1 n 3 u H 7 Al'.r.KJCVIATIONS L'SKl). iscipline i Army It same accord- )visions in the Act (or A. A.) Army Act, i(SSi. A, W Articles of War. C in C Cominander-in-Cliicf. C. O Commandiiij,' Officer. C B Confinement to Harracks. C. M Court or Courts Martial. G. C. M General Court or Courts Martial. D. C. M District R. C. M Rej;,nmental " " Field G. C. M Field General " S. C. M Summary ** F. O Field Officer. H. L Hard Labour.- H. M Her Majesty's. J* A. G Judge Advocate General. J- A Judge Advocate. M. A Mutiny Act. N. C. O Non-Commissioned-Officer. P« S Penal Servitude. R- P Rules of Procedure, i88i. R- W Royal Warrant for Pay, &c., nSSi. Q- R Queen's Regulations, i88i. ^' of S Secretary of State. U. K United Kingdom. (The figures in the margin refer to sections and paragraphs.) 9557 CON Ti: NTS. I. ! CHAPTICR I. CIVIL LAW, MILITARY LAW, AND MARTIAL LAW, COXTKASTliD... I chaptI':r II. Historical Summary of Military Law 5 CHAPTER III. The "Army Act, 1881 " 16 CHAPTER IV. Discipline '. 27 CHAPTER V. Courts Martial 50 CHAPTER VI. Proceed inpfs before trial 65 CHAPTER VII. Duties, responsibilities, etc., of persons officiatinjj at Courts Martial 82 CHAPTER VIII. Proced lire at trial 104 CHAPTER IX. P'ield General, and Summary Courts Martial 141 CHAPTER X. Crimes and Punishments 149 CHAPTER XI. Forfeitures, Stoppages, and Fines 178 CHAPTER XII. Various Regulations, Penalties, etc 183 Contents. CHAPTKR XIII. Courts of IiKiiiiry.'Coniinittecs, and Hoards iS8 chapti-:k xiv. Martial Law 'v4 CHAPTKR XV. ^'^'•^""^^ 206 CHAPTKR XVI. Military Liw as it concerns the Militia of Canada 246 INDKX ^5^, I MILITARY LAW. CHAPTER I. CIVIL LAW, MILITARY LAW, ND MAK1 lAL LAW, CONTRASTEI^. CIVIL LAW. The laws of a civilized country, as applicable to every subject, are derived from two separate sources : I . Statute /rtjc— Statute laws constitute the written code. For a law to become binding' in England it must be pass- ed by both Houses of Parliament and be approved by the Sovereign. II. Common Law. — Thh is an unwritten code, common laws not being set down in any written Statute or Ordin- ance but depending merely upon immemorial usage and custom for their effect. It has been described as a "Judge made Law" derived from precedents formed by the de- cisions of celebrated Judges which are sure to be followed, and tliey become as binding as Statute Laws. The Judges however do not make the law but rather declare what it is, and their decisions are the authoritative evi- d« lice of the law. \l ' Civil Luu.', Miliiary Law, and Martial Lam, (.'ontraslcd. Coininon Law has been altered antl modified in many respects by Statute Law and is ^'radually bein^' replaced by it. The Civil Law of the realm is supreme, and is eijually bindinfj; on all persotis whether civil or military. MILITMIY LAW. I'or the due maintenance of military discipline it has been found necessary to confer special powers on the Military Authorities. As the essential strenj,'th of an army depends on the power and force of many men beinj,^ absolutely subor- dinate to and at the disposal ot the will of one, the first necessity in the existence of such a body is to ensure im- plicit obedience to the orders of superior authority and so to inj^raft this quality into the constitution of the force that every member of it may, accordinj^ to his position, be certain as by a second nature to fulfil the orders he may receive or to enforce those he may find it necessary to K»ve. Further, unless such a body is un<^^ ^ ^^' Ilislon'ciil Siniiiiniry of M Hilary Iauc. not to bo (lishandrd. "Articles of War" were issued for the j;ovornineiit of the troops, aiici a Council of War or Mjirshal's Court was authorized to try soldiers and award punishments. Civilians were also tried by military com- missions which were established in different parts of the country. These commissions exercised their authority so freely that their lej^ality was challenfjed on the lujround that in time of peace the Civil Maj^Mstrate had coj,mi;{ance of all offences, and that the civil population at least wen* not subject to military law. The Common Law of Enj^land, having sprung up in an age when all men bore arms occasionally and none con- stantly, recognized no distinction in time of peace be- tween a soldier and any other subject, consequently Par- liament objected to soldiers being withdrawn from the protection or penalties of civil laws, or to civilians being tried and punished by the military which gave rise to ex- tortion and oppression. This led, in 1628, to the famous "Petition of Right" by which soldiers were not to be withdrawn from the protection of civil law, nor from its punishments. This Bill of Rights made no distinction between civil and military and declared the military com- missions illegal, so that it practically took away the Com- mander's power of enforcing discipline as soldiers had now to be treated as civil criminals. Up till that time the army had been governed by courts acting under the prerogative of the Crown which de- clared what offences should be punishable, as well as the powers of punishment, and as there was no appeal to civil courts an absolute despotism had been set up. Thenceforward, however, these Commissions were clearly illegal and the army was left without any sufficient legal government at ail. When therefore Charles I. by illegal means raised, armed, and paid an army to act against the Scots in 1638 he had to provide for its government and was conse- quently forced to take the further illegal step of issuing a Commission to the Commander-in-Chief and others to 4" 'ft -*■ >sue(l for War or 1(1 award fir}' coni- ts of the luthority 2 jijround }^Mii;{ancc ast were up in an jne con- eace be- utly Par- from the lhs bein},' se to e.\- e famous ot to be from its stinction ary com- ic Com- lers had 3y courts lich de- 1 as the ppeal to set up. e clearly nt lejj^al ; raised, 5 in 1638 ; conse- ssuing a thers to .1. W . Just piisstU by PiU'luiiiiciit in 1O4J. punish offenders aj,'ainst military discipliiu'. Laws ant', ordinances specifyiii},' certain punishments were in conse- quence put forward in 1639 which the army had to obey. This Royal Army was disbanded in 1641. and when in 1642 Parliament undertook to raise an army itself, the Earl of ICssex, its Commander-in-Chief, obtained the sanction of both Houses of Parliament to "Articles of War " which he put forth that year. These articles ajj^reed almost entirely, so far as the discipline of the army was concerned, with those issued for the Royal Army in i(\\(). In order to cover any omissions in the code it wound up with a p^eiieral clause for punishinj^' "according' to the ancient order of marshall discipline" offences "for which no special order is set down." This clause was long known under the name of the '' Devil's Article," and it still exists only in another form in section 40 of the Army Act. The civil wars in England brought numbers into the profession of arms, and at the restoration of Charles II. the army then existing had been raised by the Common- wealth. The Parliament of the Restoration (ibOo) permitted Charles II. to retain, at his own cost, and govern by his own regulations, a body of soldiers 8,000 strong desig- nated " His Majesty's Guards and Garrisons," and ulti- mately forming the " Standing Army," but no sanction was given the Military Law. Parliament feared that if it legislated for these troops the country would have to pay for their maintenance, and conseipiently thi} King was left to govern them under his Royal Prerogative. He there- fore issued a code of laws and ordinances of war in 1662 containing 23 articles relative to the mustering and pay- ment of soldiers, and defining certain offences. Hy these authority was given to the (ieneral Commanding to con- stitute C. M. in peace. If the offence was punishable with death the prisoner was to be tried according to the known laws of the land, if the offence was not so punish- able then the trial was to take phux' by special Royal Connnission under the Great Seal. 8 Hmorical Summary of Military Law. n In the time of Charles II. the discipHiie of the Mihtia, the recogni;ced constitutionjil force, was committed to tlie Lord Lieutenant and his deputies, and offenders were punished by tlie civil magistrate. Occasion for further "Orders and Articles of War" arose on the declaration of war by I'rance in 1666, and again in anticipation of war in 1672. These articles were framed after the code of 1642 ; they were intended only for service abroad. The articles of 1672, known as Prince Rupert's code, more than any other have formed the model on which the present military code and system of military judicature have been framed, and they were also adopted in the United States in 1775. Under these and the preceding articles of war, soldiers were exempt from punishment by the civil magistrate ex- cept for high treason or killing and robbing civilians. All this took place under the authority of the Crown with the exception of Lord Essex' code for a parliament- ary army which had the sanction of Parliament. In 1688 came the Revolution which depof ;d James II. and placed William, Prince of Orange, on the throne ; but this change was not universally acquiesced in by the soldiers serving in the army. After the abdication of James II., when some Scotch regiments were ordered by William III. to embark for Holland, they refused to do so and marched off to their homes in the north saying that James was their King. No constitutional law existed by which the mutinous troops could be punished, as hitherto soldiers in the eye of the law had been regarded only as citizens and amenable only to the civil tribunals. The very existence of a standing army had always been a great subject of controversy in Parliarn'^n^ .-:.l rhis, added to the extreme jealousy of any interu: . • with civil law, were great hindrances to the intro Jr.c^ a of a distinct code of military law. Yet the necessity of having such a code was now apparent and. in 1689, Parliament passed the tirst "Mutiny Act," which stated that "stand- ins armies and courts martial were unknown in England ; J'tnt Mutiny Act ( i()Hg). Militia, (1 to the rs were f War" 66, and les were ed only own as formed 1 system ey were soldiers :rate ex- ms. i Crown liament- imes II. throne ; by the ation of ered by d to do saying existed hed, as egarded bunals. IV ti bt;en .1 this, /: with n of a having liament 'stand- nffland ; >-l t but, in consideration of the perils of the time, no man mustered or in pay of the crown should desert or mutiny on pain of death." The preamble (or 'introduction) also stated that though the raising or keeping a standing army within the realm in time of peace, unless with the consent of Parliament, was against law, and that though no man might be sub- jected to any kind of punishment except after a fair trial of his Peers, still, the necessity being urgent, "any man who shall stir up mutiny, or desert the service, shall be brought to a more exemplary and speedy punishment than the usual forms of law allow." This Act was more severe than tue former Prerogative Code in that it added to the number of offences punish- able with death ; but while giving to the King the neces- sary power to punish offences against discipline commit- ted by soldiers, it was resolved to guard against his employing the soldiers to overturn the Government, and the Act settled a point which had always been a subject of contention with the Crown by declaring that no officer or soldier should be exempt from the ordinary process of law. Mutiny, sedition, and desertion were the only offences legislated for in this Act, they were to be punishable with death though any other punishment might be inflicted, and minor offences were left to be dealt with as before under the King's authority. This M. A. authorized the convening of C. M. by warrant from the Crown or Gen- eral in command. The members of the Court were to be sworn and take evidence on oath. It was to be compos- ed of thirteen officers none under the rank of Captain, and a majority of two-thirds of the Court had to concur in any sentence of death. Henceforward Parliament decided to pay for the mili- tary force out of the public revenues and forbade the Sovereign to maintain any other. Consequently, since the establishment of the army was now sanctioned, its pay providetl, and its discipline enforced by Parliament, it becunie National rather than Royal. r 10 iiill' :i ! i..; i; Historical Summary <>/ Military Law. It was expressly stated that tlie M. A. did not apply to the MiUtia, but only to the standing,' army within the Kin^'dom. The duration of this Act was limited to six months, but it was at the end of that time renewed and, with but few intermissions, it was passed annually ever since up to iiS7(). This Act then (lejitod the Hrst statutory tribunal for the punishment of military sedition and desertion, and it le^'ali/ed capital punishment within the U. K. for those crimes. Althouj^'h at the time of the passin;^' of this first Mutiny Ac:t Articles of War w«Me in existence, no notice was taken of them ; the inference therefore is that Parliament did not intend to abridf^'e the authority of the Crown but rather to strenjjfthen it by permittiuf; the Crown to sup- plement the M. A. by Articles of War. Hence other C. M., not under the statute but under the preroj^'ative of the Crown, were still held for the trial of ail minor offences ; and abroad the army continued to be governed wholly and solely by the A. \\ . and the minor courts which were called the Court of the General, and the Court of the Colonel. There was thus a sort of dual code: ist. Statutory Courts, to try offences enumerated in the M. A. 2nd. Prero^'ative C-ourts to try all other offences. When a Statutory Court was assembled the warrant, issued for the purpose, distinctly mentioned the statute. Gradually, however, the two merj^'ed into one owing to the King's going to Holland when, instead of issuing a specific warrant for each C. M., he issued, before going abroad, general warrants to try military offences accord- ing to the M. A. and also according to the A. W. (or under the prerogative); thus a fusion of the tw,) codes took j)lace. After the passing of the hrst M. A. additional sections were from time to time inserted as it appeared desirable to embody in the statute what had hitherto only appeared in the A. W. fl I ^o ipply to :hin the (1 to six ed and, illy ever il for the , and it or thosi; t Mutiny tice was irliainent rovvn but to sup- cf other i^'ative of il minor ^'overned )r courts and the ted in the es. warrant, statute, owing to issuing a )re going s acxord- W. (or ^v;) codes sections desirable appeared .\liiraliints nuulc in Ihc M. A.Jhiiit tunc lo lime. The following are some of the principal .dterations made in the M. A. from time to time. In 1695, during the nign of William III., its provisions were extendelr lli;il iiiipiisoiiiuciit iiii^ht Im' iiillictfil an iiii iiltcniativr tot (i)r|)()i;il pi.iiiHliiiiciit wuh udoptcd hy I'arliaiiiciit in iMi.*. The iiuiiil)(>r of laslii's ti> he iiiMictod wcru rcduciMl froin time to time, until for a (!otiHi(|(!r!il>lc pniud corporal puiiisliiiu'iit was ri!Stri('t('(t to 50 lashes. Ill iN().S eorpoial piiiiisliiiient was abolished altoKt-'ther in time of peace. Dntnkcniuss. Within the last fifty years several at- tempts have been made to rt.'press this crime in the army. In 1 8 JO was introduced the system of char^'in^' men before ('. M. with tlu' crime of "habitual drunkenness ;" for this a man must have been drunk four times within twelve months, or twice within the same period when on duty or warned for duty, or on the line of march. This |)lan was continued till 1869, and C. M. were crm- stantly assembled for the trial of offenders K'"'hy of drunkenness, but in iH(h) C. O.'s were authorized to pun- ish summarily by tine simple acts of drunkenness, and trial by C. M. for habitual drunkenness was done away with. The Army Discipline Act of 1S79 re-introduced the crime of " habitual drunkenness," and defined an habitual drunkard as one who " has been j,'uilty of drunkenness on not less than four occasions in the preceding twelve months." The Army Act of r88i has again done away with the crime of "habitual drunkenness" but has introduced a fresh offence, termed ** an aggravated offence of drunken- ■ "" ^'^' ness," and defines it as "drunkenness committed on the march or otherwise on duty, or after the offender was warned for duty, or wheii by reason of the drunkenness the offender was found unfit for duty." Artny Discipline Act. — ¥ov some years, prior to the year 1879, on passing the Annual Mutiny Bill promises were made from time to time in Parliament that the existing codes of militarv law should be amended and classified. ■."5. f A liny Aii tiiul Nc^iiLilinii oj the l'\n\>:\ ,li/, i»HtNi. Tliin It'll to till' intriHliiction of ,\ hill in 1.S71) for the pill post' nf passing' " Tlir Aitiiy I)is( ipliiir and Ur^'iiialinii Act, iNjf)," wliicli vva<4 a ronsnliijatioii of the Mutiny ami MariiH- M. A., tin* Articlrs <.f War issii.tj in imisuanci' of tin'sr Acts, ami llir Army I'.nlistiiiriit Act, iN'o. Tliis Act icstiicti'il the intliction of (oipmal pniiisI'Mmt to active Hcivict! and only for such offcncis aswcrr puni^lial>li' liy death, and it was liiiiitcd to .>5 lashes as a ni.i\iiiinin. This Discipline Act was to \n put in lorcc hy a hill siilunitted annually to Parliament, and the "Army Dis- cipline and Ke^'iilatioii I Anmial) A( t, iNSi," aholished corporal pimishmeiit alto^'ether, and enipowend the Si'cretary of Stat«' to frame riihs loi the inllictioii of "snmmaiy punishment" other than Ho^'^'in^'. Army Act. I.aterinthesanu'year the " Army Act iM.Si" was enact(,'(l in «>rder to coiisolidali" the Army Discipline and Ki'i^'ulation Act, iH/ij, and the suhsecpieiit actsaiiieiid- iiiK the same. This is the Act now in force. The '' Regulation i>f the Iu>rees Act, iHHi." which Ix-camo law at tli«! same tiiiu', provides for various amendments in military law (emhodied in and repealed hy tin; Army Act, iHHi,) and further amends the lej^'al position of tlu; Reserve and Auxiliarv I'orces. »5 CHAPTER III. THE "ARMY ACT, 1881.' A. A. This Act makes it lawful for Her Majesty to make A. W. which "shall be judicially taken notice of by ill judges and in all courts whatsoever : Provided that v.o person shall, by such A. W., be subject to suffer any punishment extending to life or limb, or to be kept in P. S., except for crimes which are by this Act expressly made liable to such punishment," and further that no person is "to be punished in any manner which does not accord with the provisions of this Act." The incorpora tion in the Act itself of the old A. W. will probabty ren- der the exercise of this power unnecessary or very rare. The Act also empowers Her Majesty to make " Rules of A. A. 70. Procedure" for the assembly, procedure, convening, con- stitution, execution of sentences, etc., of C. M., also of Courts of Inquiry, provided they are not inconsistent with the provisions of the Act. These Rules are to be "judici- ally noticed" and to be laid before Parliament as soon as practicable. A Secretary of State is also empowered to make rules A.A. 44(5) from time to time for the "Summary Punishment" of soldiers on active service found guilty by C. M. of certain offences. Such summary punishment, other than flogging, "shall 1)L* of the character of personal restraint or of hnrd labour, but shall not bo of a nature to cause injury to life or limb, and shall not be inilicted where the conhrmins; R.P.134 (D) II <;( ,1. .1. and J. ff. Compared. 17 officer is of opinion that imprisonment can with due re- j^'urd to the public service be carried i.. 10 execution." Tlius Parliament has entrusted enormous powers to the Secretary of State for War, powers whicli hitherto it had always jealously kept in its own hands; but it is directed that all such rules are to be laid before Parliament as soon as practicable. It may be mentioned here that the Army Act beinjj a regular Act of Parliament, passed by both Houses and ap- proved by the Sovereign, is binding on civilians as well as soldiers on such points as are therein especially declared to be applicable to the former. Articles of War, on the other hand, should any be issued, are binding on soldiers only. They are ordinances framed by the Sovereign under the authority of the Army Act. They are permanent and remain in force till altered by order of the Sovereign. Consequently all regulations in which civilians are at all involved, such as the apprehension of deserters, com- pulsory attendance of civilian witnesses at C. M., recruit- ing, billets, etc., must be provided for in the Army Act. The "Preliminary" part of the Act consists of three sections : The 1st gives the short title — "Army Act, 1881." The 2nd prescribes the duration of the Act that " this Act shall continue in force only for such time and subject to such provisions as may be specified in Sin annual Act of Parliament bringing into force or continuing the same." The 3d divides the Act into five parts relating to the following matters: Part I., discipline (Sees. 4-75.) Part II., enlistment (Sees. 76-101.) Part III., billeting and impressment of carriages (Sees. 102-121.) Part IV.. general provisions (Sees. 122-174.) A.A. 1. A.A. 2. A.A. 3. i8 The "Annv Act, 1881." !p. I'r Part V'., application of military law, savinj^ provisions, and definitions (Sees. 175-190.) Part II. of the Act relatinj^' to enlistment, deals with the terms of enlistment, reckoning,' of service, appointment to corps and transfers, re-enf(ajifement, discharj,'e, offences relating to enlistment, etc. It alters to some extent the conditions of enlistment, service and discharj^e, and there- fore it applies as respects reckoninfjf of service, forfeiture of service, and liability to be detained in the service, and liability to transfer, etc., only to soldiers enlisted or re- engaj^'ed after the passinjjf of the Act, Jiiid not to soldiers previously enlisted or re-enj,'a}^'ed except with their own consent. These soldiers, in the absence of consent, re- main, as regards the above matters, in their previous position, but if they re-engage they are re-engaged under the Act. Thr isubjott ol oiiHstmont is doult with in the courHe of " Miiituiy Administi'ution " und is thei'ef'ore omitted here. Part III. of the Act deals with the rules relating to the billeting of officers and soldiers on the line of march, and to the impressment of carriages, and lays down certain penalties for the non-observance of these rules. Before marching a "route " is issued to the Officer Com- manding the troops about to move, and on production of this route constables have to supply billets for officers, men and horses in inns, hotels, livery stables, etc., the keepers of which are by law bound to accommodate them, furnishing lodging and attendance to officers and food in addition for soldiers, and forage for horses, for which they are paid a fixed price. Also on production of the "route" a Justice of the Peace on demand of the Commanding Officer issues a warrant authorizing constables to provide the necessary transport, for which a regulated sum is paid. Jt is not coiisidt'i'rd lu'Cessary to t'titcr I'lii'thr" into tin- regu- latioTiH n'dating to {\\i>sr sulnjccts jis they areonly .'ipplifidile on the line of mai-eii, .•ind hesides the pi-ovisions are somewhat <;oinplieated. Ottieers ht>fore proeeedinn- uu a niaiH-h shouUI provide themselves \vitl> a eopy of the Aet. I i VI I 1;,: lii; 1 a!^ m ^^^' '^^m '/7/t' ".litiniiil Ail" hrin^iiif^ tin .1. .1. inln Jin\i\ U) Tlic ^«>i-oii(| iiidI lliinl scli«> !ilt!i('li(Ml lo tli(> Acl u:iv*< A Part \'I. is .kUIimI to tlir Art (Scrs. i()l-H)j). It (Ic'iils Nvitlj the "(OimiK'nctiiucnt aiul application of Act and R(.'peal." It rtxes the date on wliicli the Act is to conu; into force, then specities tl>e soldiers who are suh- ject to it as rej^'ards their service, having; rej^ard to the time of their enhstnient, and Hnally repeals certain Acts spec i tied. The '"Army Act," as mentioned above, is only brouj^dit into force by an annual Act of Parliament. This "Annual Act" commences by quotinj,' the pre- ambles of the old M. A. and Marine M. A.. These pre- ambitus set forth the reason for legislation being necessary and the object of it. The wording of the first assertion is taken word for word from the " Bill of Right" on the acceptance of the Crown by William III. in ib88. "Whereas the raising or keeping a standing army within the U. K. of Great Hritain and Ireland in time of peace, unless it be with the consent of Parliament, is against law." It then asserts the purposes for keeping a standing army: At first it ran, "for the safety of the Kingdom, Protestant religion, reduction of Ireland." Now it runs as follows: " And whereas it is adjudged necessary by Her Majesty, and this present Parliament, that a body of forces shouid be continued for the safety of the U. K., and the defence of the possessions of Her Majesty's Crown." It then states the numbers the army is to consist of for the military year (April to April), including forces '\\\ the Colonies, and the depots of corps in India, but ex- clusive of the numbers actually serving in India. The preamble of the Marine M. A. then follows stating the occasional liability of the Royal Marine P^orces to the Act, vi/ : while on shore, or on board any ships other than those belonging to the Royal Navy. ""W m ao Till' ".Inny Ait. \SS\." The next jmraj^'rapli of tlif preamble thru (lotin(!S the object of the Act, as follows : ** Whereas no man can be fore-jud^'ed of hfe or hmb, or subjecteA .*'■ I '5 .-■4. is ' I ITT iKitts nn nliiih tlw ,1. I . . v/>//vs. if iiiMi(ti')ii n| siitniii.iiN piiiiisliiiit'iit ill li(*ii ot tlo^^'iii^'. It also iiistitiitfti a luw drsi riptinii of C. M. on a» tivr scrviri" tnimvl Siiiiiiiiiiiy ('. M. ny nu'uus i»f a "(on- soli.lation Mill." Till' iliirati(Hi t»t till' Act is lor out- calendar \car. tin- \v,vv coniiiuiuiiij; at ilitti'iriit placi.-s on (litlcii'iit ilatcs to I'liahli" the luw Annual Art to be ronvfvt'd to (listant stations. Tin* dates on wliicli it is to come into force are specilii'd. a wiile marf^'in beinj; left in rase of accidents, hut the new Act may come into force sooner, from the ilate of its receipt and pnhliailion in iiriicrx, and last till the expitatioii of the calendar year coiintiiif,' from tlu; ilate speeihed in the Act. Any one Annual Act may thus he in force for more than one year, !>nt the date of its ex- piration is absolute. Penal lef,Mslature is never retrospective l*'or instance, should some provisions of a new Annual Act he more severe and allow of a heavier |)unishment heinj^ inflicted for any crime than the previous one, a prisoner sh<»uld not he tried hy the new Act if hecommitteil a crime while the old one was in force, thouj,di it would not he strictly ille;^'al to do so. The Act expires after the followini,' dates of each year: In the I'. K., CMiannel Islands, and the Isle of Man, after the joth April. KIsewhere in ICuiope, inclusive of Malta, also in the West Indies and America, after the jist July. h^lsewhere, whether within or without H. M. dominions, after the ,^ist December. Such bein^' the constitutional principles of the Act, the question arises: what would be the effect on the army if Parliament refused to pass the Act, as its assent is essen- tial to the maintenance of an army? Practically the con- m /7ii "Arm .h/, ihM." Hciit nf I'iiiliiMM'iit is ^'ivni lirfun tlir hilt is luoii^'lit up by pasHJii^' tlir vote in supplies, iiiiij tlir luiiiilu'is csti* iniit(><| fill ill this vote air always (opicij in tlit> pnaniMr. Cloilc' sa\s that, shoiijij such an accident occur, the army woiiM he paid hut subject to militar\' law. "Superior officer " when used in relation to a soldier includes a warrant officer and a X. C O. A. A. l.) Attached to or acting with regulars. ((.) On actual military service. {(L) Serving in aid of the civil power. A.A. 176. ^r 26 The '* Army Ad, 1881." ! ■'I ■ \\-V\ A. A. 17 A.A. i:v. A,A. IHO. (8.) N. C. O.'s and men of Volunteers when: — (a.) Uv'iU[^ trained with any re;j^nlars, or with militia when subject to militiary law. ih.) Attached to or actinjj with re^^'ulars. ic.) On actual military service. Bill tlio ('. O. (»l'iin\' vohniloci' fore*', wlioii lu' knows that tho N. (\ O.'s and incMi tnKh'i'hirnaiv ali<»iit to ontor upon any service which will siihjcct Ihcni t<» military law. must provide tor their heini; intormed that thcv will he so siihiect, s() that thev mav ho att'ordetl an opportunity of ahstainin^ from onterini; on that si'rvico. (9.) Persons in the service of H. M. troops when on active service beyond the seas. (10.) Persons who are followers of or who accompany H. M. troops on active service beyond the seas. So far as the laws of India or a Colony has not pro- vided for the {,'overnmcnt and discipline of local forces. S'.'ch ..,_«. when servinj^' with rej^ulars come tmder the prov'*' . ? of the Act. Th' Royal Marines, when borne «)n the books of one of H. M. shi, ' ai.. .-.ubit'ct to the Naval Discipline Act like officers and men of the Royal Navy. If an\- such officers or men of the Royal Marines are employed on land the senior naval officer present may order that they shall be subject to military law. Marines can onl\- he tried hy (J. ( '. M. convened lt\' an oltlcer lioldiiii^ a waiTant from the Admiralty, except when soi'vin/; heyond the seas with other ren'ular forces and there he no such otficer ])resent. when a (I. ('. M. may he assemhied hy an otticer authorized to convene such a coui't. A D. ('. Al. to try a Marino may ho convened hy any ott1<'i'r holdin<; a warrant to convene D. (,'. M. Officers, soldiers, etc., of II. M,"s Indian tbrcei of India, are onlv liahle to Indian inilitar\' law. Iteuijj; natives I s til militia NVM tliat tlio iuy si'i'vico k' fl)r llicir Micy mny 11,1; oil that when on an (»fHct'r I serving ^ no .such an otHtMM" to tiy a in-ani to '4 company not pro- 1 il forces. '1 if nder the .1 of one of Act like 1 officers land the shall be ;• natives w M'i. Mil !!■: ' cii.\i>Ti.:u i\' I)IS(MlMJNi:. I'^or the maintenance of discipline in tlie army, ('. O's ot re^Mments and l)attali()ns are ^--iven certain powers for tlie summary punishment of minor offences, but forj^Taver offences milifiry tribunals, termed Courts-Martial, are authorized by the Act. These military tribunals are analo^'oiis in their jmisdiction to petty sessions, (piarter sessions, and the hij,dier Courts of Civil Law. The scope of Military Law is, however, ^'enerally restricted to the correction of offences aj^ainst discipline connnitted by ofticersand soldiers, thou^di ordinary offences aj^'ainst Civil Law, except treason, murder, manslauj.,diter, treason- felony, or rape, are frequently dealt with by C. M. It cannot however, be too clearly pointed out that in no case" is military law ever to interfere with civil law when the latter is bein^^ rej^ndarly a.dministered. Persons subject to military law who commit offences a;^'ainst civil law are to be proceeded a^^iinst as civilians in the ordin- ary courts of Justice. But some offences reco^niized by civil law are specially named in the Act and are also punishable by military law,— such as sedition, assault, theft, dama^^e to property of civilians, offences against rules of enlistment and billetinj,% etc. Section jcj of the Act specially provides for the punishment of ail per- sons subject to military law who interfere with the opera- tion of civil law. A. A ri!t. iii Disiipluu-, I The Sovereign is primarily ctitnistcil with tlu' coiii- inaiul of the ariny and with power to iMiforcf (hsciphiir. This power is dt'lej^Mted, in tlu' first instancf, hy tin- Sovcrei)^'n to tlie C. in ('.. and tiiroiij^di him t(» ('i«'iu'ral and othor otliccrs havin;; command imr iiim. General officL-rs conunandinj,' districts or stations have ordinarily entire responsibility and authority over all troops servinjj^ for the time iimler their command. This authority is not required to i'lterfere with the inmiediate command of re|,Mments or battalions, as officers command- ing^' battalions and corps have not only power to punish summarily all ordinary offences, but they are also em- powered to summon K. C. M. when necessary. Thus minor offences are to be punished in the battal- ion or corps, graver ones by authority of the (ieneral commanding the district (to whom is given authority to assemble and confirm the decisions of I). C\ M. and some- times also of G. C. M.), and the most serious crimes by supreme authority of the C. in C, or Her Majesty. Q.R. VI. AfAfNTENANCE o/' D/SCfPL/NE /X A li ATT ALIOS (Hi VO/iPS. Every C. O. is required to keep order in his com- mand and to the utmost of his power prevent disorder, ^- for which all officers are required to aid and support him to the utmost of their power. Q.R. VI. 1. Yhe absence of crime and not its screened existence is the criterion of a well established discipline. Q.R. VI. 4, Offtcers should not reprove N. C. O's in the hearing of privates lest their authority should be weakened and their self respect lessened, unless it is necessary that the re* proof be public for the sake of example. Q.R. VI, Q.R. VI Q.R. VI. t. Deliberations 01' dii^icusslons havini;- the object of conveying praise or con.sure, etc., towards superiors are strict K- prohibited as being siibvoi'sive of discipline, as woll as the presenting of ■ presents or testimonials. »• No meetings, demonstrations, or processions, for ymi'ty oi* political purposes may be taken ]iai't in. ,1 4 tlu' COIM- liscipliiif. .'. I)V the • (ii'iii'r.il ions have ovir all 1(1. This iniicdiatt; Dininaiul- to punish also tun- ic hattal- (iencral horitv to lul some- rimes by y- 'K\ (Hi lis com- li solder, )ort him itence is arinp; of nd their the re- mvcyinic •ohibited jntin^ ol' )ai'ty oi- ili CoiiiM' of Viihi'duri' on Cnmnussion oj (Uf\ni, -•'» (*) N.. iiititniiitiioii if!iitiiiu' '"III' iiiimlirr »ii |iiil)li-lii'i| iKir tnii\ |iilMiril\ tH>u:i\fii Iti iiMliviiliiiil ••|>iiiioii« ih iiMV iiiuiiiii-r iiiiiliiiu: !<• |>i-viiiilKr )|iit'« liuho lliul iiiiiv III iIk' liiiH' l>i> iiiiilfi'uuitiu ollli i:il iiiM'niivfiilioh li\ (III- iMiiiiiii'N aiitlioriliio. AMi)iiytniMi» fiHiipliiirit", iiihI iIh' |iiil>lit'iitii*ii i|ii'iiu;;li llifi^u vi ii liioliiiiii •>!' iIm< pifis 1)1 iiiiMliitiu: I'ltlniliitril lo ml ihiiiiiMiii»'>«l- .»r ilu' -rrx inv Ml- to *\fil»' .li-.riiiitiiii in ilir luiiiy. nil' 'tiiiilv iiKiliiMUil. AKKIiSr AMI I oM I MM INT. ICvi'iv pi'isoti siil)ji'(t ti» «iiilit;ir\' law t liaij^tM with an <)tt"tiK<- |)iiiiislial)lc imy his ('. ()., who will then only placi" him undor arrest if he thinks it necessary to proceed with a, a. ^^ (3) the case. If he prefers charii'i's a^'iuiist an otticer he will in- variably piaco him under arrest, hut he must then report the circumstance without delay to the general otticer c()inmandin<>;. Ottlcers who are not themselves ])ermanently in command but only temporarily so sliould only use this power when it is abso- lutely lu'cessary to make an instant example. All officers are required to at once interfere for the a. a. 4.5(3) prevention of quarrels, frays, or disorders. For this pur- '^^ I: i f io A. A. 1(1. Piscipliiii. pose Jill ntticcr ina\ ordiT iiinlor arrest any (►tticer ofwliat- livcr corps, tlioiij^li lie be of liij^lier rank, enj;a;j;c(l in a (jnarn;!, fray, or clisoalor, for all otKcers of wliatevcr condition liavt; tin- power to (luell disorders. Section lo of the Act provides j)Mnislinient for disobedience of snch an order. In addition lo llu-sr jiu(liori/(Ml rases, tlieiv have heeii otliers which cannot he h>;;'isliitod for hetinvhand, hiil which can only l»e justitied after th<' event, as it is thi-n an illegal act which may \tv necessitati'd liy circnnisiiinces. The senioi- captain once j)hice(l hl.sC. (). inir arri'st t(>r liein;;' (b-nnU on pai'aih*, and nis eoihUH't was approved of hy the ('. in ('. A ]ioculiarit3' in this case was that before taking;" this ste|> the senior Captain consulted with tho other orticers on paraih*; this action was re- marked on l>v the <*. in (\ who stated he would have been l)utter satistled had tho senior Captain actevv\i otiii'i's I can only which limy iptaiii once araih', and uHarity in or Captain on was vv- hccn hot t CI" L'ly on his on a c( mi- st cast's it nor can ho resent, e.\- ■cl, fray, or 11(1 escape len put in ;nowlc(lii;cs viiivs, hv is >nly ho ro- . or hy tho ic, OXCO])t- an ottietM- the arrest 111 t iio case ^' i •^ annot de- d and to arrested. -. O. and I, the re- 1, he may into the 1 S. of S. I'r I I, {• n' iiP! ■J In'cst iiitii ConfDiciitciil. J' The rules in (,}. K. VI. 19, 20, as to the arrest (»f officers *^ "• ^'' ■** apply to N. ('. O.'s. A N. C. O. charj^'ed with a serious offence is placed under arrest forthwith: hut if not serious it may be investij^'ated and :^Uiird room cells. In case of minor offences, such as short absence from tattoo, overstay inj^' a pass, or sli},dit irrej^'ularities, a private soldier is not considered as a prisoner but will only be confined to barracks until the case is disj)osed of, for which purpose he will be ordered to attend at the next orderly room. He will attend all paradis but will not be detailed for duty : he will therefore in mounted C()r{)S have to attend to his horses, harness, etc.. wiiich is a j^neat ad- van taj^'e. 1)1 cei-tain cases, as when in billets or on the line of niiirch, soldiors may ho continod hy an order siLfiied hy their ('. (). in any jnison, jMilicc stati<»n, ete., for a juriod not oxceedinij seven days. A private who refuses to obiy an order distinctlv j^^iven, or resists the authority of a X. C. O.. is to be confined ti.R.vr.aii without altercation. When a N. (". (). confines a soldier he should always obtain the assistance of one or more privates to conduct the offender to the .i^uard room, and should himself avoid comin/^^ in contact with him except under unavoidable circmustances. I he ( onnnand«'r ol ;i j^uanl or a proxost marshal can-. ,• . . A. A. I."i not retusc to receixc an ly (X'lson liamlt'd i)\( ■r to I I'll iim lor ( iistod\ l>\- an oflicer 01 N. ('. (). Tl le i)erson who cnminits a piisoii.-r has to luniish tin (■(^nnuandir of the -^uard with the oft bv 1 cMce m \\ ritiii'; signed iMuself. at the same time or within j | hours, (in th A. A. -n ,'i) J-i Discipline. latter case a verbal report should at least have been ^Mven at the time); but ne^'lect to do so does not absolve the commander of the },'uard from the necessity of receiving the prisoner into custody. The commander of a guard has, as soon as he is relieved from duty, or if not relieved sooner then within 24 hours after the commitment of any prisoner, to furnish the officer *' to whom he may be ordered to report the prisoner's name and offence, and the name and rank of the person who committed him ; and this officer, if no crime is forthcom- Q.R. vi.io ing within 48 hours to justify the detention, will order the release of the prisoner. Soldiers once confined can only be released by proper authority; i.e., if confined regimentally by the C. O. of the regiment, but if confined in a garrison guard, by the officer commanding the garrison. The standing custom in all garrisons is that prisoners confined in garrison guards can only be made over to their regiments by order of the staff officer who manages these duties, because the confinement may have been imposed by garrison authority such as military police. A person illegally or unnecessarily detained in confine- ment has a legal remedy at law by obtaining a writ of habeas corpus from a Superior Civil Court, but law courts will not give damages for any honest exercise of military authority, even though exercised on mistaken facts and on wrong inferences and though prejudicial to the prisoner. A prisoner must therefore have a very strong case indeed to obtain compensation by civil law. If a soldier thinks himself wronged in any matter by an officer other than his captain or by a soldier, he may complain to his captain : if he thinks himself wronged by the latter then t<» his C. O. : and ultimately, if he con- siders himself still wronged, to the general or other officer commanding tln" district or station, who will \v.i\c. to in- <]uire into the matter and if necessary take steps forgiving full redress. A soldier is in no way {»unishable for mak- ing a complaint whether it be frivolous or not. Rut if A. A. 43. MA |i been /j^iven .l)solve the f receiving is relieved n 24 hours the officer ler's name .Mson wlio forthcom- l order the by proper . O. of the d, by the tp; custom garrison ; by order cause the authority n confine- a writ of aw courts f mihtary facts and prisoner, se indeed natter by •, he may oufjed by f he con- er officer ive to in- (ir j^Mviiif^f for niak- . Mut if "' ,« I- "■! ' -' t -I /m (,; : (. I'oh'cr of ('(iiniiuimliiii; Offucr. Ji Mil otiicci ()i° soldier in making' a complaint niaki-s false statciMcnts aftcctiiif; tlu" rliaractt'r of any otiictT or sf>Mier, or if material facts Ix* wilfully siipprt'ssccl, he can hv a.a. sku) punislu'd under A. A. j". An offcndi'r while in arrest or ronlinenient is not to heq.it. vi. ai recjuired to perform any military dnty other than the handinji; omt of any cash, stores, or otllre for which he is responsihie. \\v is not to he permitted to bear arms ex- cept by order of his ('. (). in case of emer;;ency or on the line of march. If hy i-rror, or in case of emerj^'ency, he has been ordered to perform any dnty he is not there- by absolved from punishnu'nt for his offiiuu;. Tlie hiike ()l Wi>llinL>'ton's u|iiiiioii was that, if an otl'oudur was called upon to pci-l'onn any iKiiinrahle din,\°, stieli as to take part ill an action a,u;ainst an eiieiny, this slioiiM 1h> held to con- done till' olVcncc, This is now the f^eiieral opinion lor all ordinary fttt'enecs. tli(»iii;h le^-ally the prisoner is not ahsolvcd l»y hi'liii;' |)iit on such duty. A ditfcrcnt piaclice ohtaiiis in the navy where IVoin the nect^ssity ot' inaniiin^- the ship a sailor is constantly oinployod on diitv and tricil jifterwards. «■ roWKK OF COMMAXDINC Ol' I- ICKK. ICvery description of military offence can technically be (/ K VI Wl tried by any military tribimal, that is, by the C. O. or by any description of C. M. allowed : at the same time a limitation is imposed on the ptmisinnents which a C. O. or the lower descrii)tions of ('. M. can inflict, and it is not the object of the Act that serious offences should in practice be smnmarily dealt with by the CO. or tried by K. ('. M., but that a hij^dicr or lower description of C. M. should be convened accordinj^"^ to the nattire and deji,nee of the offence. Althoufj^h then a ('. (). is not compelled hy the Ad to send any offence before a C". M. yet he must observe the instructions he may receive in the k(!f,'ul^ions as to the offences which he is at liberty to dispose of summarily or lority. The by K.C. M, without reference to superior auth pe Kegulatioiis pres<'riln' that a C. O. ma\ 'I without refer- (^K.VI. !C. fV TT J4 , -I i; ii t i Disiipliiii'. enco to .sii|H'ri(>r authority, disposr siimtiiarily of, or try !)y K. (*. M., a char^'t; for an offence under the foMowinj^ sections of the Act : - .S'(V. lo (i-vn/)/ Stih-SiX. \). («») Striking,' or offering' violciiro to any person suhjeit t(» military law or not, in whose custody he is placed. {^\) Resistin;j: an escort. (4) Hr(!akin;,^ out of harracks, camp, or (piarters, (soldiers only). Sec. II. Xe;,dectin;^' to ohcy any ;^'eneral. jjfarrison or other orders. Sec. 15. -(I) Absentin},'- himself without leave (excepting' absence exceed in},' 21 davs.) (2) Failin;^' to appear at parade, or leavinj^' it without permission. (3) (iom.t,' beyond fixed limits of camp or j^'arrison with- out a pass (soldiers oidy.) (4) Absence from school without leave, (soldiers only.) .SVi. H). Drunkenness whether on duty or not oti duty. .SVi. 24. u > Making;' away with ipawninj;. sl•llin}^^ de- struction, etc.,) arms, ammunition, ecpiipments, clothinj.j. necessaries, horse. (2) Losiu},' any of the abo\t,' by ne;4lect. {\) Milking away with (pawnin.i^, sellinj;, etc.) any mili- tary decoration. ♦ (4) Wilfully injuring' any of the above, or any property belon},Mn}^ to the i)ublic t)r to an oHicer |Mtsr <•( it liiiii-^rtiii|^' liis action iinnir(|i:itt>l\ . Tin ulllccr In wliuiii ilii' ciixf i" ri'fi'iTJ'il iiuiv iiyiiiii itHt il i^.u, vi.tiii lu liinlifi' iiiiiliKfii y. or m.-iv iliifti it in In- (li^pu-cil o|' ?»mii- liiiii'ilv or l»\ li. ( ', M.. nr jl lir lias |mi\\«'I' tiMuii\ cue a I >, ( '. M. lie lliaN rlial>lf Willi ili'alli III- |>. S. « *^.ii. \ i.ia |ii)sci| III >iiiiiiiiai'il\ . or li\ a li. i^v I >. < '. M.. fM'(>|)t iiikIoi* liir ui'ilffx III an nil, (IT i'iii|ii>u ('It'll to ciiiivt'iit' a sf of llu* I'a-i' «^ it \ I ii:i uilliuiil rt'ti'i't'iicc Im lii^lici' aiitlioi'ilN lail llicii In- inii^t i'('[Mii't IiIh at'liuii. Tin; piopci authority to coMvcnc :i K. (". M. is tlu* CO. •^l« vi.i.i of the pi'isot) cliafi^t'd. and altlioii^'-li an oIlictT wlio is autliori/cd to I'oiivt'iM' a (1. (»r a I). ('. M.. of an otllcct" in cominanil of a niixt'd force, has powcf to convent' a K. (". M. lie should, when he orders a case to he disposed of hy k. (". M., direct the C". (). to convene it himself, unless of course the ('. (). cannot form a court with the otHccrs under his command. SIMMAKV I'lNISIlMllNTS. ,\ (". (). on investij,Mtini,' the char^^'e af,'ainst a N. ('. (). a. a. 4ti. or private may dismiss it if the evidence is insiitKcient or .... , if he thinks the chaif^e oiif^dit not to hi' i)roceeded vith ; or he may simpiv admonish the offender. Ill all first otU'iM'cs, ii(»t (>t"aii a;;,'y (". M., he can award the followiii}^' punishments: I. To ii private soldier : ia.) Imprisonment with or without H. L. : not exceed- a. a. »«. inj,' seven days. q.n. vi.n In the case of ahsence without leave this may he ex- tended to 21 days provided the term of imprisonment, if exceedin^^ seven days, does not exceed the munber of days of ahsence. (h.) Fine for drimkemiess not exceedin;,^ ten shillinj^'-s accordinj.( to scale. The award when prescribed by scale is compulsory. I J6 i)iMiphiu . (For Mulf vi.l.' *l |{. VI. .'Hi. I (i.) In ('iiHc of absfiitf wilhoiit li avr. not I'xci'niiii;,' livr •lays. ilay ilir < '. n. iiiaki". no awanl. tis thf pay in cniiiiHilNorily Itirtiitiil hy Koyal Wainuil.i A.A.i.THd.ii) (,/.! |)('(|ii(tiot» from '>r for oiH> hoiii' ill .'I tiinr iiiii';;,'(» any porlion of llu'ir |>iiiiis|iiiH'iii ilrill oiC.ll. wliirli may liavr lap^tl liy irason of tlicir licjiiu,- ill liosjiiial or niiployt'd on f p^iy. '\\\v total amount of deductions (iiicludin;^'^ fincsi must not exceed such sum as will leave to the soldier, af"t<'r payirj^' for his messini,^ and washing:, less than one penny a day. (i.H.vi.iM. Jiiit a soldier forfeits the whoK- of his pay withmit vcsiditc while in hospital for illiu-ss eertilied hy the medical officer to have been caused by an offence. A.A.Hu a) '•' calciilaliiiif tiiiic lor (U'diietioii of pa_\'. «tr tl»r (lays of al>- seiice. or iiiiprisonnu>iit. no time is lu-ckoiM-d as a day imlcss it ainoiini to six hours or upwards, wlu-tlu'r wholly in oiu- rt'V('iit('(i the ahscnler from fiillilliii;.; any military duty which was therchy thrown upon some otlu-r person. A soldier ordered by his ('. C). to suffer imprisonment, or pay a fine, or any deduction from his pay, or who is awarded a punishment which entails any deduction, has a ri{.;ht to be tried by a I). C. M. instead of submitting to such punishment, l^ut as deduction of pay for absence above 5 days is prescribed absolutely there can be no ap- peal in this case, nor can there be any appeal aj,'ainst any minor punishment. The C O. may, after awardin}< a sunmiary punishmtnt, chan}.(e his mind and remand the |)risoner for trial by C. M., but he must do so before the soldier leaves his presence after the award is made. l)n appeal the soldier may demand to be tried by a I). C. M. but otherwise, if the ('. (). thinks tit, he may be tried by R. CM. In all cases when a soldier has a rif,dit of appeal, the ('. (). must inform him of his ri;.(ht and ask iiim if he wishes to be tried. If he omits to ask this (piestion the soldier ma)' at any time on the same day before the hour fixed for the connnitment and release of prist^ners, claim his rij^ht to be tried by C. M. An offender is not liable to be tried by C. M. for any offence which has been dealt witii suunnarily by his C. O., and vice versa. R. p. 7. A. A. 1(1 (7) ji "liiy. I)«'- lioii of their IV i'4'asoii <)t (lednctioiis s will Icavf i| wiishin.i;. hoiit ;vs/(//h' Ileal othcLT • - ilitary duty lisonment, , or who is action, has emitting to or absence 1 be no ap- Lgainst any wardinj:^ a ernand the before the lade. tried by a he may be ippeal, the him if he lestion the e the hour lers, claim I. for any Iv bv his J ( ■ i i|: P(»,i'(T of Cmnmaminv^ Of/ncr y) Dniiikcuticss. WluTf tlic cliiiij^M' ;i;,';iiiist ;i soldier is for (Irii.ikfiiiuss not oil (lntv. ;m«l it is not ;iii " ;i},'j,Mavatf(l A A mco • i.If.VI.M. "I oftiMic'L' of (Ininkfiiiu'ss" (st-c |). i\), the C. ( ). must !nii>'l a scddicr within twelve iiinnllis i>> hctwceii four and einJit. it is oplionid Willi llie ( '. (). I<» (li>|»(>^L' <»l Ihe en>e summarily or lo try it iiy ( '. .M.: lull if lliey ainounl l<» eiijlil llie nflcniier should, :is a rule, he Iried. Kxceplion may he inaile lo ihis i-nk'iil ihe .. if within twelv«' months the soldier has heen iiiiilty of an aet of simple drunkenness ( unaeeompanied hv an\' other olVeni'e) tor which he has lieeii tried and convieted I'V CM. The tweixe months ar«' reckoned without any det l>\ the ('. (). nyi\ .M. [►iscretionary power is :;i\i'n to<'. ( )> of matkinu" oHenec> ot »/ h.vi..vi. short ahs«'nce with(»ut leave .-is eipiivah-nt loan acl of druid\en- ness titr the purpos«> of impioiiii'" a tine, hut such entries in Iht' • leliiidler hook which are s|K-eiall,\ nun'ked "h" cannot he reckoned as instances of druidxcnness for the purpo>e of deler- niininii' liahility to trial. Convictions hy ('. M. for alis«ince without leave or desertion ai'c not to lie counted as cNpiivalent to as. When simi)le diunkenness is in coiiiieetioii with a more serious offence for whi(di the offender is to hi' tried hv (". M.. he should not he {diar,!L;fd with the drunkenness hefore the C M. unless he is liahh to tiial and the C. (). considers it should he tried: hut the ('. ( ). will impose the usual line. -i- ill de;dini^ with a simple ;i(I of druidveiiiu ss iiin oii- lieeti-d with ailothel offence. ( . l\. should oid\ he added */ " ^ ' t>> A fine it the a,t;,i;ia\ated iiutuii- <>f the otleriee seem> to (/.K.V (^K.vl.,v,. ITf ill I 1 40 t|.R.VI.4;i discipline. demand it, and imprisonment is nevor to he awarded fi>r drunkenness not triable by ('. M. except where the amount of unpaid fines amount to jo s., in which case the ('. (). should not award an atlditional tine, but impose itnprisonment or other punishment instead. It luiiMt Im' noti'd that Soc. I!» and Src. Ui ('A) of tin- Act ^ivc rompU'le jurisdiction to ('. M. to try any otUMM'c ol'dnnd^'imesH; hence at a <'. M. a pi'isoner cannot jilead in bar of trial that less than tliin* otten(;es of druidxcnncss have hccn committed within twi'lve months. II. Ti> a NoH-Coinmissioui'd Officer : » N. C O's are not liable to summary or minor pimish- ments, but they may be reprimanded or severely repri- matided by the C. O. A private Hoidier ma}' not be reprimanded. Shouhi a C. O. consider a N. C . C). deservinjjf of punish- ment he must send him for trial to a C. M. •Stopping leave and not reeommen(hn<^ for promotion are not pnnishmentH. Leave is an indulju^enee not a ri^ht, and promo- tion is a reward. These rejnarUs apply als(» to ottiecirs who may he sent to extra parasH; iiil thai less ittcd withiit or j)unisl rel y repri- of piinish- lion lire not iiixi proino- H' Sl'tlt to I CO. cun- th eir per- O. resij^Mi If; trial by eral coin- 1 inent they -T is not to ie rank IS sliould he the(\(). 1 '■•; lit not in so for the VI I tl O (I w l:i J Nirord of Off ernes. 4X \Wllll»s IIV iiKKIt'KUM riiMM\NI»INM IHiMil'S, ll\ rPKId K-4, oU t o.MI' \Nir.i». TlicC.O. may il«M('^,'ati' power to tlirsc omcfts ol ^ awarding; soldiers, for miiK)r offiiiccs, tnitior putiishiiuMits not fxrcftUnj; 7 (lays C B. Such awards may lu- remit- ted Ity the ('. ()., and are to he rei)orted to him hefore the hour for (hspositij; of prisoners. These oftieeis have no power of i)unishment imlt.'ss tlie C (). chooses to dele^^ate ^^n.vI.»l. liis power, but this is usually (h)m'. Subalterns are also S(»nutimes allowiMJ to award men one extra drill for trillin;; offences. Such awards are re- ported in writing' to the C O. throu},'h the Captain ; no record of such punishment is made. KKCOUI) Ol' OIKKNCKS. For the purpose of ket-pin;,' a jiroper record of offences committed by N. ('. (^'sand soldiers three separate books are ki;pt. one or more sheets bein;,' devotecJ to each soldier: I. The Rciiiuicnlal Couii Matiitil Hook contains a record u.kxxii. 48 of the trial of soldiers by C. M. The charj^'es, tindinj^s, sentences, and minutes of confirmation are entered in full. All eonvictjoiis hy C. M. are reconlecl oven if {nuiishiiiont Ih icrnilteil. Acquittals ait) not rccordtMl. and it! he prococM linns are ••(piJiNlu'd " all rccoi'd isera^e(l. Ifai *' Free I'anloti " is^rtaritecl the ceciH-d stamls liiit does nut injuritmsly allect the soliiier all lo.st. sei'vic*' \m\\\f restort'd. This book also contains certified copies of all convic- t^.u.xxn. tions by civil power for which the imj)risoiiment awarded '*" exceeds seven days; these are annexed to the s(dtliers court martial sheet, as well as copii" of the declaration of qk.xxii. a court of iiuiuiry held to record the illegal absence of a soldier. A eohtideriiial ^iiard-hook is also kept containing copies f>foRxxii cliari;'es against otHcers. it' atu'. 47. J. The Rc\i^n'iiiciitiil Dcfaultcy Hook contains all entries in the ('. M. book and all offences for which a punishment q.rxxii of over seven days C\ H. has been awarded, and all re- (hi( tions of N. C, O.'s to a lower j^^rade or to the ranks; also eveiy ease of desertion or fraudulent enlistment in \vhi( h trial has been dispensed with, and every conviction ;l)y livil power where any imprisonment has been under- 3». w 4^ Disnf>liHi, K<>ii«'. If (iiils ;i line has Ixcii paiil the ('. O. may. with the sanction ot'tht< f^cncial, not niakr a ri>;^'inii'ntal entiy. tj.R.xxn. .{• Till' iyi>(if>, lUillcrwor Cinnp^ny />t7i"'//i' />""A' contains all cnliics in tht* ahovc two hooks as will as all minor 44.K.VI.4.1. offt'nci's. All ihai|,'t's a^'ainst piivatc soMiiis air »ntt'titl t'vrii wluMi lIu'V air admonished, hnt when the iharp" is tlismisscd it is not enliU'd. WIk 11 a N. ('. (). is admon- ished for any offence it is not entered a;;ainst him in the dcfanlter hook. Offi'ticcs arc classifu'd as "company" or " rif^'imontal" accordinj^' to tin- pimishmcnt awardecl : rt'j^dmental offences are notified in rej^imental orders, and these only affect ^'ood ( ondnct pay. iittv. '>nfi contains s all iniiioi arc ciilt'M'd •' cliaip" is '. is adiMoii- liiiii ill the «;,'iiiu'iital " ital offt'iKM's only affect I «Mitail rou;i- )S, wlictlu r c subject to ) the Naval [lit a ininoi of the ship Ik piinish- V of H. M. r »)!• soldier onsiders to isenibarked ns|)ort ship inst accord- ( tlu.'i coni- (pior latioii »n, then tli<^ r)e penny a I I 'If !!|' ^ ill ' l*ti>vvsl SLt¥sluii ami ln,i\ti^kiti»n >Vn>l \l\KsM\r. lol till' |i|t)||||)( |t'|i|cy till- (icin'ral ('niniiiaiKliiit; a ImmIv nt I'mreH. Provost iiiai>li.il> .lit t iitiiini>^i(iiK'i a a trial |« rsoiis snl»i«t t Im nnlitai y law •otiiinittinj,' otti'mcs, ainl iii.iy also caiix into cscciition an\ [lunishint nts awaidril l»y i.'. M.. hut tluy cannot inllii t an\ |tnnisliin liaNt- to nciiM- ^^ ami kerp any ju'tson ( mninittrd tn tln-ii cnstodv l»\ aiis ntliiri oi N. ( . ( ). ;4.ii» i.iu;, |IM. 71. (It) l.'>.(4) "^W /,VI7>y7'.'.iy7o.V nF vHMitlE^. As soon as possihU- altci a person is takiii into inilitaiy \ \ lAini (iistody tiir C ( ). invc'sli;^'at(.'S tlif cansi- ot aiirst oi cini- tiiKincnt. lliis iii\i'sli;.,Mtion is lo take phuf withont innicitssaiy dtlay, /.(•.. within 4M ht)iMs. ixihisivi' of Snii- days and holidays, by the (". O. of the ii'^^iimiit, hatlalion, •< I'l*. hattiTy or dctachiniiit as tht' case may he. ICvery case of (li'ti-ntion heyond 4s honrs is to he reported to tin- Ofticer ('otnmandiii;^ the district or station. Prisoners shouhl he disposed of daily (Snnday. < looci (^,|{,\i.:j3. I''ridav and Christmas day exceptech, and when prac- ticahle in the m()rnin;; hi-t'ore the (". ( >.'s parade. In case of ilruiikeniU'S. _'4 hours should he allowi'd to(^ k vi.-i7. elapse helore investij;ation to allow the otl'ender to become peifectly sober. Prisoners befori'theinases areitivesti;;at(Hl areexamined t^.H.vi.sa. by a medical officer with a view to their beiii}^' admitted into hos|)itaI if not in a tit state to nnder;^M) j)nnishment. If the offence is a trivial one it is dealt with by the : officer commanding; the offender's troop or compaiiv, all - charges not so disposed of are investigated by the C. O. : Tqr 44 nisupliiic. R. p. 3. A.A.45(I) R. P. 1. Q.K.VI.IW. l| in the presence of the officer coiinnandinf; the troop or company wlio will attend with the eoinpany defaulter book. ICvery rharf^'c af^'ainst a sohUer is investigated in pres- ence of the accused. If officers and sohliers, not on active service, are to be tried by C. M., anct a delay of more than i'ifj;lit iiishi's him, or awards him a minor pimishiiM'iit. ciitfriiif; such sciiti'iKX' in the j^Miard report (or crinu' slipt, or he remands him tor trial bv f. M., U)V derision of superior authority, or for permission to hand him over to the civil jiowcr. If he thinks the case not sufticiently stirious t(t recpiire trial h\ ( . M., hut is of such a nature as to recpiire a more serious |)unishment than a minor punishment and he can deal with the case liimself, and he purposes aw ardiii},' him a punishment entailing; imprisonment, fine, or deduction liom pay. he will, hifore awarchn;,' such punisliment. in- form the s(^ldier of his ri^^dit to he tried hy 1). C. M.. and will ask him if lu- wishes to he so tried. If the accused is a N.l". (). he can only be admonished, depriM'd of an ap|)ointment or actin}^' rank, or remanded for trial, or foidecision of superior authority or for per- mission to hand him o\t'r to the civil i)owi'r. If the accused is remanded for trial by ('. M., the CO.. as soon as possible, either issues an order for the assembly of a K. ('. M. or applies for a superior C\ M. to be con- vened: any such dtl.iy must not ordinarily exceed \() hours. Where the accused is riMuanded for trial !))• (i. or I). ('. M. the evidence of the witnesses i;i taken down in writin;^' /;/ /)/vsv;/(i' <;/■//;(• /)n.s7»;/fr who, if there is anv vari- ance between such evidence and that previously ^Mven. may put (juestions to the witness with reference to such variance: and such (piestions with the answers are added in writinj; to the i videni:e taken down. The evidence as taken down is then read to each wit- ness and is sij^ned by him. ,\ny statement of the prisoner material to his defence is also taken down. This evidence is taken down in the presence of the ('. (). or of any officer for him, and the C. O. may, if ho thinks ht, re-hear the case and reconsider his decision and dispose of the case summarily. U. I' n. p. 4. u. i: 1 i ' ' 'fii, ''1 ■!:■!* ' ■ 4f> l)lSi iplilh R. I*, tl. K. I', V lint wImii the ( . ( ). h;is oiicc iiwanltd piiiiisluiirnt for an otitiu r lif ( amiot attriwards iiuiease tlu' piiiiislmu'iit. riius it would he illj'^'al tor a ('. ( ). to award ;i siiiiunarv piiiiisliiiK-iit, tlu'ii (-aiu'cl it alti'i the prisoiuT lias left his piL'Sc-mf. ii« all liiin. and tln;n n-niand tlu; tasi* ft>r trial l.y ( . M. Till' ahovf tNidcnri- and statcnicnt (if any), tornu.'d tin- "sunnnary of fvidtiicf," or a trui: copy, is laid before tlu- {\. M.; and if tin- conMiiin^^^ ollicer <<»nsi(U'rs it desirable a trne copy is also }^^i\in to the prisoner ;,Matis, (»r it not. the prisoiii'r may recpiest a copy to he j^'iven him on pay- ment i'fi one pinny foi iveiy seventy-^^^wo words; where the prisonei" has not obtained a copy, the court may per- mit him to inspi'ct the one laid belore the court or may onler a copy to be ;^'iven him j^'ratis. 'I'liis is ill slriri iiccoi-dMiiee with the practice oi' the criminal courts, tin- I here is a Statute on tlie siihjt'rt wliicli states that the prisoner can ;ainst hlni on payiuciit. and aUo lie and his counsel can. at the time of trial, inspect llic depositions a<^aiiist him. It is coii^idcrcl uiiilesiral>l«' to send a <'Mse heloi'c a C'. M. (^u.vi*i, when it appi'a:^ doiiltttul if the evideiici' will secure a eonvic- ti >n, except wlicii it is important that the ii'init or iinio<'ence ol the ac«Mi-.e.l sJiDiiltl he delinitely decideil. In such a ease the charye should noi he |»roeeoded with as A. A. See. 40 retpiircs the ('. ( ). to dismiss it. (j.HVl.:n. Hefore proceedini-- with a casi' it is the duty of tlio (', O. to aseertain that the soldier can he leled and the case pro- eeedi'd with, tf howi'\ I'r the olVem-e is not serious, the nrisoliei should lu' releascfl and the case dismissc>d. pn Q.R.vr.Sit. If durin<;- the invi'siiy'ation of an otU'iice, another ollence is disclosed which c;nino| he immediately pi'occi'ded with, the toianer may he procei'ded with and the latter held over as above. n i> H. In the case of a conunissioneil ofHcer the C. (). investi- gates the case in the same way as for a soldier, and the isliiiuMit for xiiiislinu'iit. :i siiininaiy has left his si' for trial teriiUMl tlic 1 hefoic thf it (Icsirahic , or it not. ill) on pay- in Is ; where t may pcr- irt or inaN f Hie ( riiniiwil atcs that iUv iiist liini oil ime of trial, ore n C. M. •o a tvMivic- mioceiu'o ol a case the KJ ri'(|uircM ho ('. O. (u ^iii^ ivi^ard .liirisdictioii ylicllu'r tlio I here is no t till' time, i f; »m eus- I lilt her evi- easo pro llu,' prisoner 'I it' olleiiee is 1 with, the er as ahove. C). investi- ■, and the N ^ ■■« II, n m ■'^ Appliiiilioii of the .L/ to .V. ( . ().\. 47 j'vidt'iici', if tlu' otiicfi- rciniin's it. is t;ikrii ilouii in wiit- in;,'. i'lu- ( . ( ). t 111 titliti dispost" ot tin- m.ittci hitiiscH or l"iirw;ii\ (*. M. without all)' sucli taking' <»f IN idi'iMC ill his prcsfiicc, an ahstiact of the I'vith'iicc to lie ac drliM-rcd to liini j^'ratis not less tliaii 2\ Imitrs before his trial, and a copy is also laid hefoie tlu- eonrt. It is ii>iiiil In liiivt' ii lull iiit|uii-y hy a i'ri<'iilMr ('mnl of In .mihI exideiiee; lull ll is tint neec'>ary thai the ollieer he liied wlialever I'aels may he aine p!>\vers as a ( '. ().. hiM a siipfijoi' aiilliHiiiy may. haviiiir re;;aid lo liis rank and experience, if lielo\\ ihc rank of Major, reslriet liim from llie exercise of any or- :ill llie powers of ji <'. (). iiieliidiii^i- llie cojiveiiiiin' <»l a li. ( '. M. hut should neces- sity arise lie may ael to ilic tiill cxtc'iil of his powers leportinu: his action without dcla\ . Q. U. IX. \2.) APPLICATIitS (IF TIIK ACT Tn W A lilt A XT oFFICKItS. A Warrant Officer holdiiif,' an honorary commission is a ('ommissioned Officer. A. A 189. Other warrant officers cannot be punished by their C. O. nor tried by R. C M. The I^resident of a C. M. for the trial of a warrant officer must in no case be under the rank of captain. A ('. M. other than a K. C. M. can onlv sentence him to the following punishments, and no other: — Dismissal. Suspension from rank, pay, and allowances for a stated period. Reduction to tiie bottom or any other place in the list of his rank. Reduction to an inferior chiss of warrant officer (if any*. If orij.(inally enlisted as a soldier : — Remanded to a corps in the same branch of the service as that to which he formerly belonj^'ed. there to occupy the position he hehl before his transfer to be a warrant officer. Remanded to a eorps as above an//(. »//«•;/ •'////.' It? lo W'aifiint Ofjlu'rs, Cimp /•".•//ku'iTv, I'k. ^t) 5 t«> MTvi' ill tlu; tanks as :i soldirr. Hut tlir ,M't| in con* siM|iii>iu r of his siTvict'S hfin;,' no huij^'ir ri«|iiiit'(l. „t .1/ /'/./t'l/'/oA' o/' /'//a; .!'•/• Tn I'KlfsnS's 117/'* /tn \nT hhll.nSii Tn //. .1/. AV;//(7X \ii\ |t«rsi»ii Mihjctt to niilitars law who dins nut lnhnij,' a. a. ih4. tti H. M. loll rs. siK h as fiiiiip lollowris, may hf trird hy aiiN drs( ri|>tioii i>f I". M., nilwr than tin /v. ('. A/., ron- stiitij 1>\ an (dlircr .iiithoi i/«.'d to convi-iii' siirh a ntnrt. \ti\ MM h prixtii whrii attac lird to a corps is undi-rtlu! ( oiiiinaiid of till- C ( ). of that rorps, or wlit'ii not attached to ;iny corps hr is nndi r the romniaiid of any officer name(| for the time hein;; as his (". O. hy the (ietierai or othei ( )tli( II (ommiiiidinj,' the force : hut such person is not liahlc to l»e jjiinished hy a C. C). or hy a K. (". M. ^. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 ■50 ^^ MM ly lU m u 1*0 IL25 Ml 1.4 U& 1.6 <^ ^ >* Photographic .Sciences Corporation 23 WIST MAIN STREET WEBSTER, N.Y. 145 W (716) •72-4503 '^-^\' ^ ^V^ ^ ^ ^ m ^ w. CMAPTKR V. COURTS MARTIAL. ; I ■ ■''1 iiii There are five descriptions of Courts Martial : T. General Court Martial. 2. District Court Martial. ]. Rej^Muiental Court Martial. 4. Field (iencral Court Martial. 5. Summary Court Martial. Of these the Field G. C. M. and S. C. M. can only be assembled under special circumstances and when it is impracticable to assemble an ordinary C. M., and as the rules and provisions relatin^*^ to these courts are except- ional they will be dealt with separately. It may, however, be here stated that a b'ield Ci. C. M. may be assembled by auy officer commanding' iiiiy detach- ment of troops ''in any country beyond the seas" on complaint beinj,' made to him that an oftence has been committed, by a person subject to Military law under his conmiand, aj^ainst the property' or jierson of any inhabi- tant or resident in such country. And a S. C. M. can A. A. 55. only be assembled on acti^'c scn'ict\ and may be convened by auy offictir in immediate commatid of a body of forces on active service. Of the three re;^nilar courts. G. C. M., 1). C. M. and K. C. M.. Ihe G. C. M. is the hii^-liest in jurisdiction and power, and next to it ihc 1). C, M. A^.4!<. fJ,! ) 1 h ' ' 'J , " ■'* i ;, 1 ■i i4 id 1 -: i|i ^^ m , 1 m ' w '''Ji M 1 r j|^ bli..i ('(>it,\'ii!iii' Coiirh Miiiiiiil. 51 All CM. ;irc n-citiirtNl to tiy (Msts hion^^lit hi'ton- tluMii accor'liii},' to the tiTiiis of the Ariii\ Act and to the niK-s of evidence. Tliey luivi- powiM" to a(:(|iiit <>r eoinict. and power to seiitenct! to such punishments as arc autliori/ed by the Act: hut sentences of (". M. cany with them no h'l^'al habihty to punishment until they air "contiiined" by the proper authority. lijSVESiya cnc/rrs maiitiai.. Her Majesty may convene a (1. (". M.; and she is em- .\..\.is.,i powered to issue warrants under Her Si;;n Manual a.a.i*.m1) authori^iijL,^ certain qualitied ofticers, (vi/ : tht; ('. in C. and any officer not below the rank of l'\ O. com- A,.\.i-,\'.(ti> uiandin^ for the time beinj^'any body of rej^ailar forces within or without H. M. dominions, also the Lord Lieutenant of Ireland, the Governor (ieneral in India, and a (iovernor of any Colony on whom the command of any regular a.a.iw.(ii forces is conferred), to convene a G. C. M. for the trial of any person subject to Military law, and to confirm the findings and sentences of such C. M., or to reserve such confirmation by Her Majesty. Her Majesty may also in the same way empower any of the above officers to delegate to any officer under their command not below the rank of F. O. authority to con- vene G. C. M. for the trial of persons subject to military law with", 1 the territorial limits of their conmiand, and to reserve the findings and sentences for their own confirma- tion or to delegate that authority also. In any place out of the U. K. where a l'\ (). cannot be had, and hardship would be inflicted on persons accused of offences if not brought to speedy trial, a C^aptain ma\- have the same authoritv delegated to him as a V. (). The same officer may or may not be appointed conven- ing and confirming officer. a.a.1!«.(3) Warrants may be addressed to officers by name or by .^ ^ ,23 ^. ^nation of their ofHces, and t' desigi power they convey CM. for tlie trial of native otiioers, soldiers, and followers of the Indian army are regulated by Articles of War franietl by the Indian government, though C. M, may be convened for their trial under Sec. 180 of the Act. "^■isi^^ w m .', 5-2 Coui'ls Martial . ft 1 : V:\ 11 [i,\ mnv Ix' liniit(Ml to tlu' ()llic(M" iianifd, or hv oxtt'iKlfd to :i person performing,' his dnties iinrl to his successors in command, ;ind they contain full instructions as to tlie ex- tent of the authority which they convey, and the sjn'cial terms of a warrant are never to he exceeded. Tluis in some cases warrants convey authorit)' to confirm the pro- ceedinjijs of C. M., in other*-, tiiey do not. The powers con- ferred by a warrant, or delej^'ated, may at any time i)e re- voked by the authority whicii j^rants them. A. A. 48(9) ^"y officer authorised by warrant to convene a G. C. M. may convene a D. C. M. and confirm the findiii}^ and A.A. liM.sentence: and he may delejicate his powers to do so to any officer under his connnand not below the rank of Captain. subject to such restrictions as he may see fit to impose. Any sucli authority may be addressed to officers l)y name or otherwise as in the case of warrants for G. C. M., and the same officer may or may not be appointed con- vening and confirming officer. Warrants are issued annually, but the old warrant re- mains valid even should a new one not arrive. The effect of a warrant is n . influenced by its locality. An act may be committed outside the jurisdiction of the warrant, yet the prisoner may be tried under it. Abroad the warrant conveys power to appoint j. A.'s and Provost Marshals. No G. C. M. can be assembled except by an officer holding a warrant; and no D. C. M. except by the above, or by an officer to whom the power has been delegated. Any officer authorised to convene a G. C. M. or a 'D. C. M., also any C. O. not below the rank of Captain, also any officer not below the rank of Captain when in command of portions of two or more corps, also on board a ship not in commission, a C. O. of any rank may, without warrant, convene a R. C. M. for the trial of offences committed by soldiers under his command. General officers or C. O.'s of a mixed force will, how- ever, not themselves convene a R. C. M., but will direct the C. O. to convene such a court himself. A. A. 47.(1), Q.R.VI.78. ' ■ ' ,,m ■J ^If I I, It) Jii j Ij 1 ^1 '! i Cnustilnlii'ii of Coiirls Mtivtial. .-).» Tilt' |)H»|Hi .'iiitliui it\ to coiivciii' :< K. ('. M. is flic CO. nttlu' ii((iis«'(l.(o!isi'(|iu'titIy (Miicriil ( )llir I". ( ).'sot ;i ii)i.\«'(l force, sli(tiil(l, ulicii tlicy order ;i e »lis- |)ose(| of by K. ('. M.. direct the ( . ( ). to convene it unless he is niuible to fonii an ad(:(|iiate conrt from want of ofticiTS. The offences for the trial of which it rests within the i^ discretion of a (". (). to conviMio a K. (". M. are specified in ("hap. I\'., paf,'c \^ ; charj^as for other offenres, except ill cases of emer^'eiicy, being reserved for the orders of superior authority. Ill addition to R. ('. M. the ll»ll(>\viiiu: T. M. nuiy he eonveiied liv olliceis. wlu'tlier thov hold wannnts or not. viz.: JMcId (r. ('. M. and S. C. M. Those court"* are i'onveiiod under the authority of the Army Act hv the ofH<'i'rs therein authorised to do so. u.vio? A. A. 4lt. A. A. .Vj. cnxsTiTiTiitN or fnnirrs mahtial. All ('. M. must be conipf)se(i of commissit.ined officers, n. im«j. and all must themselves be subject to military law. Of the otKcers sittiiigon a Court one otKcer is President, and the others are members. A court, including the President, usually consists of an uneven number. The Act fixes the legal inininiuin number of officersA.A.48,(!i.4) who have to sit on the different C. M., and also specifies their minimum length of service, as follows: No. of LongUi <)(■ Offlcprc. SprTUf. (In the U. K., India, Malta and (i.C.M. (iibraltar 9* 3 I filsewhere 5 3 (In the U. K., India, Malta and D.C.M. Oibraltar 5 2 (Elsewhere 3 2 K.C.M. Anywhere 3 i *Xot loss than five must he not below the rank of r'aptain. A.A4r (3) . . A. A. 48 (9) The President of a C. M. is appointed by name by the a.a..v)(8) convening officer, who cannot himself sit on the court. T i ■{■ ■'*■ 1 1 II I. 1^1*: §. t 54 I'imris MtirtiaL A.A 4»t.(1t» 'I'llO I'lCsidrllt itl'.l (i.e. M. Ml I). C. M. lllMSt ll(»t 1)1' iiiidtr tin- rank <>t" !•'. (). iiiiltss tin- oliKt-r lonvfiiinj,' tlu; court is uiidtM' that rank, or luiluss (in the opiiiioi) of the coiivt-iiih); othctT. snili opinion to hi- rxprt'sst-d in tht; order ("onveninj,' tlir conrt, and to he conchisive*), a I". (). is not. with (hie re^^'ard to the puhhc se-rviee, avail- ahle, when a Captain may be president. Siinihirly for a D.C. M. if a Captain is n. <»ru eorps is l(» \n' Irii'd as nmtiy nieiiduM's as poHsihIo ai'<' ti) he otllcers who have held or arc hoNhii^ eoni- inands o(|iiivaU'iit to that held hy the prjsoiioi'. The President of a C. M. for the trial of a warrant officer must in no case be under the rank of Captain. A.A. 47,(4) rhe President of a R. C. M. must not be under the rank of Captain, except when hehl on t!ie line of march, or on board a ship not in commission, or unless (as above*) a Captain is not available, in which case an officer of any rank may be president. The members of a C. M. for the trial of an officer must be of an equal if not superior rank to that officer, unless (as above*) officers of that rank are not available, and in no ...„,. case is an oflicer under the rank of Captain to sit on a A. A. 48,(1) C. M. for the trial of a V. O. R.p.ai. A.A.Wt.dl IM'.Sl). The officers sitting,'' on a C. M. may belong' to the same or different corps, or may l)e unattached, and may try persons belonj^infi^ or attached to any corps, l^ut, as far as practicable, Ci.C. M. and D.C.M. should be composed of officers of different corps, and in no case are they to be composed exclusively of officers of the same regiment of cavalry or battalion of infantry, luiless other otKcers are not (as above*) available, or cannot be obtained within a reasonable time from superior authority. N I ,! Cttnstitiition n/ Courts \ftntitiJ, SS 'PliiiM nil Mtlt'iiiUM- Miu,\ III' tiiiil li\ It. 4 '. M. h.)tuiili«iiiiiiliii;; iliiMT i* iii» iilllt iT nil tin' riHirl lHi|iiiit;iii:; fo lii» iil'tlir |)fi«i»iit'i' li«>|iiiiu:iiiu; in iIm> iiiixilimv tnrriN, iNVo iim'IiiIm'I'o at Iniot hI' iIk iirt '•liniilij liclmi;; in tlir iiii\iliiir\ jMi'iTN, mill mil' III' IhiiIi -IioiiIiI IicIihil; tn tln'oiinii' liitinrli ul'tlii' ;iiixiliin\\ liti'ro M- till' |iri'iiiiri'. iuili'^.«. (u^ a'H'Vt'.' ) iNVo *iirli iiictiilit'r^ ai'«- tmi availalil«>. WIm'Ii tlir aii\iliai'\ liirrr^ iii'i' -iiliji't t \'> iiiiliiar>' law tins ,'ir»' aliii;;i'llii'i' i't'i.'aii|i'i| a«. |iart ul ilic r»'t,'iilar Hn'rc*. -n ilmt .iHlr»'i> III llii' ri'ifiilar aiiij aii\iliai\ lunr^ mav -if inMcllirr uii < '. M. 'I'liii- l<»i' llir trial III iiii'ii III iln' \ uliiiiit't r<. iitlli'('i> uf tlif it'^iilar aiiiiy nia\ -it nii ilir rmiii ^iil'Ji'ci in llir tiM't'ifniMu; |ll'iiViH(». Thf fi»llf>\viiiK «»Hic«Ts an- (jisiiiialilifd iVoiii sitting,' on (. M. ill addition to thosi- wlin art' iiuli^'iliN' iVoiii want of stTvicu : — I. Tlif ConviininK' otHct'i". \ A.i;*', It IMlt A.A.M.cMli _'. 'riic IM'oscciitor or a witiH'Ssl'oi tlir iMosctiition. ;. Till' otllccr who invi'Sli^^Mti'd tin- tliar^'cs hi'lon' trial. Ill was a nicnibfr of tin; coint of iiKjuirv U'lativt: to tlir rliar;;t'S. 4. 'riic (". (). of tlif |)iisoiK'i-,(>i ,if tln' corp or hattalion tc which he bclon^^'s. 3. Any ofticcr who has a pfis. >ii,il iiitcirst in the case. (t. Any orticcr not siihjfct to niilitar\ law. 7. Thi' continninj^' offircr. a. a. Mm The iiu'iiilicrs of a ( '. .M.takr raiilv aiiiniiusi iliiin*t'l\r> ac 'iii'diiio' III llu- dates of tlicii' army t'i»iiiiiii«>iuM"». i'.\c»'|il u lien tlicy .'ire all oluin' ri'ninu'iit wla-n llit-v laUi' rank n'y'iiiifiit.aliy. Otticcrs lit' the I'i'iliiiiciilal stall', as (^iiarnTiMas|tr>. {'aymasici'^. ami ajsd .Medical utileers are mil exeliided tVom ln'liii!' memlier^ i>\'('. M.. lull the {'resident mil'*! always he a inmliataiit ullieer. It a iiiemlier is |ir) P. S. for not less than five years. (t) Imj)risoment, with or without H. L., for a term not e.vceedinjjf two years. (liii'riiiu' ninl disinissiil Irom llic sfi'viri' is iHtl clcnrly drtincd, ii(»r has il Itct'ii always uh- scrvt'd. ( 'asliit'i'iiii!; is now ri»iisi(U.|'t'i| w *.troiiii»'r ttM'iii than dismissal and is su|i|K)si'd to ivndtT tlu' nfticcr initil lost-ivf lli'i' .Mait'stv auain in anv t.'ipacilN . Casjiifrin^' lias >uint'tiint's lioon tnitii-ati'd t<» disndssal wliicji dues not caiTy with it any liP'thiT jK'nalty. Ilt-i' Majesty may dispi'Msc with ihr sofvici-s of any ottictT. .\n ottictT cannot he st-ntenci-d to In- siis|K'n(ioil tVoin duty or l'".y- soi.DiKRs A{:<'oRniN(; TO rm-: scai.i: koi.i.owinc, : {a) Death. {h) P. S. for not less than five years. (t) Summary punishment as prescribed, hut only on active service. [d) Imprisonment, with or without H. L., for a term not exceeding two years. {e) Discharge with ignominy from H. M. service. (/) Reduction in the case of a N. C. O. to a lower grade or to the ranks. (^) Forfeiture, fines, and stoppages. When a punishment or "■ less punishment " is mentioned in the Act, "less" means lower down in the above lists of punishments. Where a particular punishment is in the Act specific' for any offence, any one punishment lower in the above; scale may be awarded subject to regidations and to the nature and degree of the offence. IJefore an ofKcer is sentenced to P. S. or imi)risonnient he must be sentenced to be cashiered. a.a ■n.(,;,.j) x\n officer may be sentenced to both forfeiture of senior- ity of rank and to reprimand or severr reprimand. 'I! . |)1 iJepi'imand may he cither pnhlie or pi-ivate. A public re inumd is admiuistei'od on parade, a pi'ivate icprimand by th( •escnee of tlic otticers. TIk ■' li ?ginu l>» coutirmiua; officer decides which is to be done. ';« H i f I S8 A.A. iNi) A..\.4« (I) A.A. 41 (11, U) A.A..) \'\g\(\ imprisonment, Xo. 2. [a. ) When sentenced to field iinprisonmcut No. 1 an offender may be kept in irons (fetters, handcuffs), or fettered with straps or ropes in lieu of irons, and secured so as to pre- vent his escape. While imder sentence he is subject to such labour and restraint as are usual in sentences of H. L. For 21 days of the sentence, he may be attached in a fixed position to a fixed object, provided that he be not so attached for more than two hours in one day, or for more than three out of four consecutive days. (I>.\ Field Imprisonment No. 2 is the same as the above except the attaching' to a fixed object. I HI 1 Th e punishment must not cause injury or leave any '•■• -i \V II «: il II 1; ! f ;i f !■ i. 1 i.i ' ' 1 A.A.4N, («) 6o Courts Martial. porinaiicnt mark, and iiiiist Ik? discontinticd if i-Mcrcd projiidicial to tlii' offiMuk-r's health and reported aj^'ainst l»y a mi'dical otlicer. .iriiisincTHfS uF cnrins maiitial. A it. ('. M. is competent to try any pi-rson subject to military hiw, and all classes of offences, atui to award any punishment permitted by the Act. A commissioned otHcor can onlv be tried b\' a (i.C'.M., v.. lield (i. ( . M., or S. ( . M. A iMeld (1. C. M.. and a S. C". M. if of three otHcers. have the same powers as a (i. C. M., and these are the only courts which can award death or W S. A 1). C. M. cannot try an otKcer. but it cm try any other person subject to military law and award any authorized punishment, except deatij or V. S. A A 1- /r> '^ ^'^' ^ ' ^'' cannot try otticers, warrant otticers, nor i8a(i)iHii«> j^,,y jxjison not belonf^'in;^^ to \\. M. forces. It can only try N. C. O's and soldiers. This court cannot award death, 1*. S., discharj^e with ignominy, nor forfeiture of any good conduct pay, service towards pension, nor of any military decoration or reward. The term of imprisonment it can inilict is limited to 4i days. The only offences winch come under the jurisdiction of a K. C. M.. without special sanction of superior authority, are given in Chapter I\'. page 54. An offence punishable with death or F. S. should not ^i^'-^''!*; be disposed of by a 1). ('. M. (or K. (\ M.), except under the orders of an otHcer who has power to convene a G. C. M., but the non-observance of this rule does not invalidate the trial, and in case r)f (>mergency inferior courts may hv. assembled for the trial of such offences, the circumstances being at once reported. A.A. 11 (<•) '^'^y P*^'ii^'»" subject to military law in H. M. dominions nia\' be tried by a competent C'i\il Court ft)r any offence [() r;- If . • 1 ' ( i .1 i f ■ .*' SI tl (•( th :u .It in (■( III or HI IIK tC( or C. by ('III sta ore u t aw ail} IIIU ini< con oiic by jnri\tliitiiiii a/( ,niil\ Miiitiiil. for wliicli In- would lu- ttiaMr il ii<>t ^^iibjit t ttt military l;i\v. hilt tlir Act ^'ivcs al»soIiitr jiirisdictioii to ('. M. tn considiT civil ortriiccs as oftiiurs against iiiilitarv law, Mild i:onsi'(|iirntly a ('. M., (provided tlif iuristlictioii of civil courts is not interfered witlit. can tr\ any person subject to military law for iiny civil off» iice. e\cipt for treason, murder, maiislauj,diter, triasoii-ftloiiy, or tape committed in the l'. K. : and a ('. M. shall not try any of thesi' offences comiuittid within II. M. dominions t>tlier than the I'. K. and (iihraltar, unless committed when on active service, or in a place whi(di is more than one liim- dre(| miles, as measured in a strai-dit line, from aiiv town in which the offender can hi' tried by a competent civil court. When ( . M. try civil ofiVnces the punishments awarde or convicted of an offence by a com; etent civil court, Vu,wi{*u or by a(\ M.. or if he has Ix^en dealt with summarily by his C*. ().. is not liable to be tried ajjfain by (". NL or punished by the C. O. for the same offence. A person sul>ject to Military Law is not. however, ex- empted from the Civil Law by reason of his military'^-^'"'^*-'''* status and he is li.ible to be proceeded ;i;L,'ainst by the ordinary course of law atU.'r conviction or punishment b\" a military tribunal. Tlu; Ait however specifies that in awarding' punishment a civil court must have re^^ard to any previous military punishment the offender may havi- underj^ame: but this does not extend to reduction or dis- missal which can be inflicted without trial. All t)ffences aj^siinst the criminal code of tin ( (»iiiiti\ committed by persons subject to military law are to be at OIK e notitied by tin; (". (). to the poiici- for punishment a.a. n bv the civil tribunab Section ih.i of the Act pn scribes y* ^ M f P lii il" I I ili • I 0^ Cimrts .\fiuti,il. Wirvi ;i, A.A.IANd) fprtnfn pt'iialtiis for olHnrH who in anv way ol>striut <»r iirK'l<'( t to assist (-uiistaMts in a|)|in'lirii(liii^' any hiuli Mtli'iiilorH. It is prrsnilMfl that, m n f>i>iM>ral iiilc unless tlicri* arc pmiliaily rniiipliratcil circninstanci's in (-(iiincction with the case, thi* ( liinr ot theft from a eoinia he siihjec t tu military law, exei'pt for mutiny, desertion or fiaiidnlent enlistment, for whieh offences he may he tried at ntiy time. Hilt this rule does not affect tlu' jin isdiction of a Civil Court in casi; of any offence triable hy such ( ourt as well as hy C. M. Also if the offender is discliar;^'ed or A.A.irwia) dismisstid from H. M. stjrvici- and is also sentence»l to P. S. or imprisonment, he remains suhject to the Act dininj,' the term of his sentence. The above rule is very necessary as a soldier rt!peatedl\ chan/^'cs his status from soldier to civilian and from civilian to soldier. In the K(.'>,Mdar I'orccs this chan;,'e takes place when a soldier is transfern'd to the reserve, and when lu; is called hack to thi' ranks from the reserve. A Militiaman is, as a rule, only for a short tinu: in e^ery year under military law, anil returns a;,Min to civil lite. The \'olunteers too freipiiintly chan^'e their status. Military law is not local 'ike civil Jaw, and an offendei- A. A i:.it. may be tried by C. M. for an offence at any place, either within or without H. M. dominions, which is within the jurisdiction of an otilcer authorised to convene Ci. C. M.. just as if the offence had been committed where thi' trial takes place .md the offemler wisre under the conmiand ol the convenini,' oflicer; but the punishment intlictcd by such C. M. must not be ;^aeater than could have been awarded had the offender been tried where the offence was conmiitted. * Ami liU'tluM', Lhe (^. l». i^ive powrr to olliccr> eouitiiarKlinu" A. A. \m. iiy siu'li lifit' an- ion with KillM he • siibj'ci xly and ir iorps l»j«(t to iiint at tuiy on of a li court ir;^'c(| or iicfd to tin- Art M'atf(lly (I from rliaiif^'t' rtstTvc. resfrvt', vil lifv". )ff('n(lt r , eitlior lin the ('. M.. lo trial land ol ted l)\ Q hecu offence laitums;' 'f '^ It ill •ii • 1 * 'Ii I: Jiifisih'itiiiit of Courts Mtirtial. b ilistricis to coiivciu' ( '. M. ill iiiiy place witliin (lu'ii* comiiiniMls uilinr than wIumt lh»' prisoiici- is sci'viiii:' if it lie niocc ('(»ii- (i.K.vi.rit. vniieut to do so. It'a (•liaim;(' to aiivutliiT \tU\vv onlsidcf llu'ii" i'oiiiiiiaii(l sccnis advisalilc. such as the saving; of expense owini; to ti-ansit ot witnesses ur inenihci's, a|i|)lication would he niadtt l(»r the |tnr|M)se. Wlu'n the case is ti'ied in aiiother coniinand. the eoiii'l will he t'onvened umlei' the oi-ders and on the respon- sihility of tin! (lenoral OtHcer to wimse comniand tlie [trisonei* is reni"»vod. No chan,i;;e of place is to he iiiado howevi-r if tin' |ti'ison«'i' is likely to he prejudiced in hisdefeiu'c hy thechanu*'. Sl'C. 150 is contrary to tlie usual I^aw of tlie land as it (■mi)owi;rs ( . Nf. to take cof^nii/aiicc of crimes not ct)in- luittcd in the phicc where the trial is iield. Civil offences are local and can only be tried by a court sittinj^^ in the district wjiere the crime was committed imless specially provided by Act of Parliament. It must be remembered that military law operates against offenders, not as in- habitants of any particular district, but as soldiers of H. M. .service. No offences can be tried or punished by C. M. if com- a.a.i»)i. inittetl more than three years before the date at which the trial bej^ins, except offences of: (i.) Mutiny, (2) dcscrliou, or {^) fraudulent enlistment. With respect to de- seriion and fraudulent enlistment however, if a soldier has served continuously in an exemplary manner {i.e., if he has had no entry in his Kej^imental defaulter sheet) Q.R.vf.87. lor three years in the re};ular forces, he cannot be tried for any previous offence, unless he deserted on active ser- vice, /.(•., uidess he has been guilty of one of the greatest crimes of which a soldier can be guilty. But in the case of fraudulent enlistment all service prior to such enlist- ment is forf^.^ed. Thus the only two offences for which a soldier is always liable to trial after the expiration of any period of time ;uc mutiny, and desertion on active service. I'he above does not affect the jurisdiction of a civil court for an offence triable by such court as well as by CM. A civilian who is a deserter may be taken into custody and tried at any time. I .!:, 1 K%:r. ■ ■'K SK*^'" BKXy *^-S w % m^ Bf- )i 64 f* i ' 1 i I e) t A. A. IWi. ti.R.VI.H, A. A. 1«H. A. A. 47. A.A.127. ('niii'ls Marl ill!. Thus it is scon that for pt'isons scrvin;,' cfmtiniioiisly (as otticcis and soldiers of the ro^^iilar forces, miUtia officers, etc.) the hruit within which an offender can be tried is three years from date of offence, with the above ex- ceptions; for persons sometimes soldiers and sometimes civilians (as X. ('. ().*s and men of auxiliary forces) the limit is three uuniths. Military C\ M. have no jurisdiction on board H. M. ships in commission (see Chap. W ,, p. 42.) On board ship not in commission the Act applies as if persons were on land, and the officer in command may convene and confirm a R. C. M. no matter what his rank, except that if a person be tried and sentenced while on board ship, any finding and sentence of the C. M., so far as not confirmed and executed on board ship, may be confirmed and executed as if tried at the port of disem- barkation. A subaltern therefore can convene a R. C. M. on board such a ship, but no where else. The only othor C. M. a subultern can convene, under any cir- oumstances, are Field (J. C. M. and S. C. M. There is no regular appeal against the decision of a C. M. to a higher description of court, though a soldier, if he thinks himself wronged in any matter, can complain in the usual manner (vide p. 52.) A C. M. is governed as respects the conduct of its pro- ceedings, the reception or rejection of evidence, or any other matter whatsoever by English Law only, and no C. M. is subject to any Act, law, or ordinance of any legislature whatsoever other than the Parliament of the United Kingdom. . H. M. f7' I ';! f •'li ■ I'i :\l I'i,,. I I 1.1 M ■ 1 1 ■ ■X\ : .! ■■■1 .. : fc^ g; : ; Ij ''\ K ' 1 in m ih'- 11 :.i ' M ;^, ' ' '1v ?jp i ' ■ ,i! ^■n "S CHAP TICK \^I. PKOCKKDINCiS HKFORJ-: TKIAL. W'luMi the complaint prcfinred a^'ainst an officer or soldier does not admit of explanation, or is not summarily disposed of, t!ie offender is placed under arrest or in con- finement, if not done previously, for tlie purpose of brin^- inj; him to trial by (". M. In the case ^.' .i N. C. (). or soldier, if the case is one which can be tried by K. C. M., the C. O. may assemble a Iv. C. M. under his ovvfi authority if the offence does not appear to require more serious notice. IJut if the (". O. considers the case sufficiently serious he has the "summary of evidence" prepared as prescribed in Chapter k. p. 5, I\\ paj^'c 45. The Adjutant would, as a rule, be the officer deputed I)y the C. O. to draw up the summary of evidence. He prepares the char<,'es and application for a C. M. on the proper Army Forms, fills in the summary of evidence, inserts the name of the officer who investi^^ated the case and that of the officer detailed to prove former convic- tions, fills in the descriptive return of the prisoner (except his ;^^eneral character), and extracts of former convictions from tile C. M. and re.^imental defaulter sheets. If the prisoner declines to ^'wc the substance of his defence it is recorded as "The f. prisoner reserves his de- 4^ rucv u \n E.- '^ r.f) K. P. !». Tl Pi'iucctfiiif^s hcfovc Trial. ic ;i|)|)li<;iti(>ii is X\\v\\ sv\\{ with tlw prisoinn to til Medical ol'f'ircr in cliar'^M' wlio. after cxatiiinatinii, tills in tilt' '* Siir;^'iM)ii's Cc'itilicatc."' Tlu! ('. (). thfu sij^Mis tlk" ilociiiiu'iit on tlu; first paj^'r, and in his own handwritin;^' tills in and si;^'ns tlu- prisoner's ^'cneral chaiactcr on tin.' second pai^c. (This character is foinided on the report of the officer commanding' the prison(U"'s company and on the rej^dmentul records). A "char^'i-"" meansan accusation aj^'ainst a jn-rson anu-n- ai)Ie to military law for liavin}^' been ^Miilty of an offence. The char^^'e or chari^^es are entered on a separate sheet c: lied a " char;^n> sheet " which should contain the whole issue or issues to he tried by the CM. It is sijLjned by the C. O. In every case a specific char^'e must be preferred a^^'ainst the prisoner and ('. O's are prohibited from ^i^inj,' in vaj^Mie char^'es aj^'ainst any one with a view to screen him from the le^'itimate consef Q.R.VI.(i3. Ci. ('. M. or 1). t". M.. it is desired to try the prisoner by, accompanied by the separate charj^'e sheet when tlnl\- filled up and si,ijned by the ('. O.. are then forwarded to the officer authorized to convene the court addressed to his staff officer, i.e. ISrij^'adc Major, or Assistant Adjutant General, as the case may be. The convening" officer may either refer the case to a sui»erior officer, convene the hi;^dier court, or order the prisoner to be tried byalowercourt thanthatapplied for. or direct the case to be disposed of bv the CO. If he approves of the trial by the lii,i(lier court he notes the same on the application and char;^'e sheet, which are sent to the Presi- dent of the court who sul)se: All (JKir^^is pnttrird ;i,i,Miiisi ;iii (illli ( r i>r soldier, and •^"•^■'■*"• tlic circiiiiistaiici's oii uliiiii tiu-y aic ritiiinlctl, arc caic- liilly (.jxamini'd by liic coiivniiii;^ nirucr, and llu- »\ idi'iicf should l)i' ill liis opiiiinii siiiruiciitly ( oncliisiNc to jiistilV till" aiiaif,'ii!iii'iit (»r tlu' acciisiMJ i)i'r()ri' ii I". M. '\'\\v • tttiiHT ordi-riii;,' tliti trial is fiijnincd to be ( anfiil to avoid ail) t'xpressioii ot"o|»iiiioii as to tin- ;;iiiit oi iimocfiici; of tin: (trisoiuT. Ho has liist to iiivi'sli;^al(' tin- cliarj^i-s in their hroad hcariiij^'s and is icsponsiMr that iht chaii^i'S an- valid and within tlu; cof^nisancn of the coint, and that the case is a propir om* to hi; tried by the ticsi riplion of ("oiirt he proposes to convene. IJefore conveiiin;^' a C. M. he must Inst satisfy himself that the ciiarj^'es are for offences within tlu- meaiiinj,' of H.v.n the Act and that the evidence justilies a trial on those charj^'es and, if not so satistied, he orders the release of the prisoner or refers the case to superior authority. The evidence must always be sufHciently conclusive to justify the arraif,'nment : no one should \>c tried on the chance ot ij^ettiuf,^ a conviction except imder perfectly un- avoidable circumstances, or when it is advisable to set an example or to clear a man's character. The O. R. prescribe that conveninj^' olficers. in decid- in;^' on the description of court to be assembled, must bear in mind that the powers of 1). C. M. are ample for the maintcnace of discipline amon;^^ N. C.O's and privates aufl that there are few crimes which cannot therefore be effectually dealt with by a 1). C M. The Iii;4her tribunal of a (i. C. M. shoidd therefore not be resorted to except in af,f},aavated oftences f(tr which the more se\ere jamish- ment of P. S. or death can be awarded : but should the state of discipline in a district or corps riMider a serious example expedient, or should the offender bear a bad character and a severe punishment be recjuired.a (i.C*. M. would very properly be held. On the other hand, if the offender bears a fj^ood character, or is a youn^^ soldier, and liasacted presumably in i;^Miorance of the sc;rious ()bli;^'ations of discipline, or without premeditation, or under provoca- tion, the lower tribunal of a R. C M. ma\- be sufticient. (iU.VI.IW. H' iUfJ '■ ; 1 •» i !■' IS 68 i'roi\i'ilin};s bi/i'ii I' rial. «i.M.vi.77. WliiMi a soldier is to Im- arrai),'iii'<| on a snioiis cliarK* . and cliar;,'('s lor minor ortV'iicfs art- pcinliii^' a;,Miiist liiin. ortlic circinnstaiici's of tlic st-rioiis oftiiui' (|is( Insi- iniiioi olTt'iicL's, tilt! i-oiivuninj; otficcr iisr?, Iiis discri'tioti in strik- ing; out any minor ofl'cncc and dircctiiiK' tliat it is not t<> be proc(;ed(>d witli ; and as a rnic no cliarj^c slionid be bruu^dit to trial as an addition to a serious tiiarKt' it it would not othcrwisr have bi't-n tried bv I . M. R.P. 9. Kor Ihstanri'. u soMiei' oiiy;lil nut lo In- (•liary:»'d with two mkIi (.'liai'i^ON as the t'ollowin;!:' : — lluviM<; lieen dniiik on |ianid«>, niiil tor Ills I'itle liavin;;' Ix-en dirty on tjiut pMrade; nor tor h«>sei'tiun and lor iteinu' iin|H'o|)«'rly dri'^*>ed. bein;; in plain elotlies. l*'or it'an|aill(>d on the itnportirnt erinie. luid ^yet tianid u;iiilty on the tritlin;; fault, the eoart eoidd hardly awaid a |iinii>«hinenl, sineu hat tor the tiiel of the s(»ldier 'lavinu' heen aeensed of ihr other erinie he would never have iK-en ^ent 'for trial befor«' a C. M. at all. ('hari;<'>* of (J. <'. Af. in the W K. together with the evidence are sidanitted to the .1. A. (i. who has to decide whether they uro ]>ro|)orly frametj. eo^nisable by tlu- eoin-t. «'te. Th« advisability of thin is doubtful, II »r the(bily ot the.l. A. (i. of investi^iutiui^ the ehar^i-i ;s ineouipatible with his duty of ultimate reteret'as to the leu;ulity of tlu' ehar;;esand of tin' w holr proueudin,L!;s, he beiu^ the ultinuite court of appeal both in points of law and sullleiency of evidence. It would seem mor«' eori'oct if this duty were performed l»y the AdJiHaiit (ieni'ral's J)e])artniunt. PHAMiya CffA/fi.'Es. A charge sheet contains the whole of the issue or issues to be tried by C. M. at one time, and it may contain one charge or several charges. A prisoner may be placed on his trial and charged at the same time for several offences of distinct natures, (this differs from the civil practice), but each offence must form a separate charge and separate; charges must on no account be blended in one and the same charge. But in those cases where civil offences are tried by C. M. the court can only try one oft'ence at a time, for it is then acting as a civil court and would be guided by the customs of such courts. r: „ r'll i ''l.i!. i III It- 1* ' Wi ! 1 1 1 ' 1 1 1 i m I' I timing; I /iiir^VN. ICvi-ry rliarK'" Hhri't i^ ln':iilri| uitli tli«' iiiitiir ami Ar- Hiiiptittii of the lu'iHoii r|i!iiu««l. /.«'.. i< « (.tit;iiiHtlif ?ianir. ii';,'iiii<'tit;tl iiiiiiiIm r if a su|t|i«'i, laiik, itii*l rorpH *if any). llxl il III' (lots lint ImIuIij; to tllr li^'lllill InKiS it ?*hi»uli| j,|i">NN Its tlu' ill sc ii|»ti(HMt| liitn oi tlitn lis l>y an ••\prrss iiMiiiii lit tliat III- is aiiH'iialilr tu iiiilitaiy law in trspL-t I ttj till' Mffrllif « liat^Til. A soldin Imlijiii^ ai tiii;^ rank ix anai^'iuil in liis artin;; rank, Init a suliji* t lioliliii^ an appMintiiirtit is aiiai^niil in liis army rank uitli liis appointniciit also ilcsi^nati-tl. In I asis wi'iv a nian lias liail stvi'ial iilias' it liaN bitn iiiNd tli.tt, \\li>Ti I 'ic itJciititN i)l a piisoni'i' fiillv ainl indispiit- al>ly appears, it is ipiito iinmaliriil wlutlur In- is trinl l>y liis real nanir or by a tictitiniis name, or by two or iiioic nanus ; bnt tlic nainu in \\lii('li a soldier is attested should always be entered. Hacli charj,'e should statt; one otlence only, and in no east' shonid iin offcnec be desi'ibcd in the alternative in the same charKt'. ICach char;,'!.' is divided into two parts: — (I.I The statement of the oljcuic \ and, (J.) The statement of tin- pdrliiiiliiis of the aet. ne;^de('t, or omission constitiitiii},' the olfeiiei'. (I.) 77/t' sUiUiihiit of the ojjcihc should, if not a civil offeiiee. be madi' in the vt;ry words of the Art. The first Appendix to the K. P. ;;ive all the td'fences in proper form and need only be cojtied. In lln'sc I'urms Iwum- moi-i' words are soinetiiiu's hraekcled li)i;'edii'i' one under Mie otiiei'. w^ tor iiisluiiee; — Slrikiiii;' ") I • • III I • • !• ■. ■ I , r his siiiienor ott Cei', leiliu: III ruv ..?. . ..; I... t ^ tile eNecilllon ul lis o lire. OrTei'inii vntloiii't' to ) Here the particular wonl or expression should be used which most accurately describes the offence. Hut where the officer framinj^^ the charj^je is doubtful which expression best describes the offence, he may frame two or moii- idternative clunxes. each char^'e containing' imc of the words or expressions. •"» II.IMi*. r» I'll. A.A.H, 17. % ¥ 70 I'ldCii'iliii^^s I'i/nri Tiiiil. !l^ I !r' ■'...- -. •J 1 * '1. ' r' « \\l u'li. however, two or more siicli expressions w lien coupled to^^tliei with the wold "and" most aeeinately deserihi' tlie otteiiei- this ma}' he (h)m\ hnt two or more such expressions should never be coupled toj^ether with ti ic won or I 'or instance umler Sec. -'4: - M ikmy,' awiiN' wnli l>\' A.A.ai.(l) neiii;;' coiicei'Mi'il ni M lUniji' uwav witli li\- piiwmni;' si'lliii:;- (U'sll lielioii [utlli'l'icixr) Ills MI'lllS. Ills aiiniuniilion. Ills (>i|iiipn)(>nts. ills inslnu.ieiits. his I'luihiiin-. a horse of which he had cliary'e. A man ma\- he cliarj/ed with *' makinjj awa\ with b\ lis ri'iiiiiu'iilal neces- saries. pawninj,-^ his arms, amnumition and necessaries would be wronir to cluuire him with " mak nu lis arms, ammunition ov necessaries. but it th away witn IJnt ot ( ouise he cannot be (diaij^^ed in tlu' same charj^o with '* makint^- awa\' with by pawniii}^ ivui sellinjjc, " as these are two distinct offences each of which should ap- pear in a separa te cl 1 a lire. 'J o ti'aiiie ( il.MI'y- OS so as to nieliide two o rtoiu' c'S III this wav is called tVainiiiii' chariivs ■• in tlu' disiniieti VI'." In 1S(!7 a slore- kei'per was coiivlchMl and imprisoned tor •• I'lnhe/zlini;" or f'raii- diilenlly niisapplyiiii;"."' The (Queens ru'iii-h released him " because the ehai'n'e and eonvietiun were in the alternative, without any eeitainty as to either of the lw'^» ehariies in the disjiinelive." Hut he may be tried on alternative charj.;es when they refer distinctly to the same offence. Thus one charj.;[c ma\' be framed "making;' away with by pawninj.; " and another *' makin.i; away with by selling;-."' Of course the court can only convict on one of several alternative charges, as the prisoner cannot be jj^uilty of more than one. The articles deficient must be enumerated at length but their value need not be stated if it be laid down by regu- lation. (_'.) The statement of the ojjcncc in each charge is fol- I, ; r, ' ■ ' I; :■: tliey :iti(l ^ ;, , : i 1 *, I ''ill mini:, Chiifi^i's. lowed l)y llw ^taicuhiit of ptiiiiciiliirs, coinincmiiifj: with the uolds " in tli;it lie " followed hy tlie past tense, or " ill li;iviii{^'" followt'd by the past participle. 'I'he " particulars" should state sut h ciKMniistaiices ri'spectin;^^ the oflence as will enahle the acciisi.'d to know what it is intended to prove a.i^ainst hini. In the ease of sex'eral oharj^cs tlu" particulars in one char^^'c may refer to the particulars in another; as "in liavin;^' done the acts alle/jfed in the particulars to the first charj^^i',"" or *' in that at the placi- and time aforesaid he was (lelicient in tlu- lu'cessarios above mentioned in the second cluuj^i; which it was his duty to haxc." If ac(|uitted on one char;^'e and not on anotiicr tin; record of conviction must set out in full all the particulars. The statement ot particulars should spi'ciliy all the in- j^rodicnts necessary to constitute the offence ; for example, if the char^^! is umler Sec. () (_M for disobeyinj,^ a lawful command, the '* particulars '" must state tlu> command, (!> the '"particulars" should also show how the command was /^ixeii personally, and how the j^risoner showed wilhil dcHanci' of authority. A f^'eneral description of the place where the offence was committed should also bo f;i\en, such as the station or town or "the line of march," and if it is material to the char.i^e and is known, the exact place. If not known the })repositions " near " or " between " ma\ be used. When the offence consists of " words used," the wor.77/;' should be sufficienth' specific tn enable tht; prisoner to know what he has to answer, and to enable the court to know wliat they are called upon to incpiire into. Char^'es may be amended or fresh charj^'es added at any time before the prisoner i^iirraif^ntcd, due notice bein;^^ LMven to th U' prisoner De»crii)tioii (if priifoner. The following' is an illustration of a complete char^'e sheet with statement of offences and particulars : — ciiAkci; siii;r,i'. The prisoner, No. 15 5, private Thomas Atkins, Koyal Warwickshire Kej^iment, a soldier of the re^Milar forces, is char;;ed with : — FirKt pirst, Usiitfj; ihrcatcniti}:; liini^iiii>:;c In his superior ofjicer- clmri.'P Sfcoiid clinruc in that at Bndbrook Uarracks, Warwick, on flie joth June, iSNi, he said to .Serjj^eant William Robinson, his superior officer. •• I will punch your head." or words to that effect. Secondly. Resis!iii<-- an escort "n'ltose duty it k'hs to have h nil in char<:e-- m that at the place and on the dav mentioned in the first chartre lie kicked Drummer James I^urn. of the Royal Warwick- shire Rej^imeiit. w ho was takin*,-^ him into confinement, and tliereby dama,!^ed a watch and chain of the said }ames l)nrn to tl le amount ol =is. /'/,'JSn.\/J/,'S I'INCIWHATIoX t'iHt I) Kl-'EX ('!■:. w.v. v.. The prisoner for whose trial a (". M. has been oiilercd fi? !!>.: K' j| ; > m ii : ■ , Hi 'l 1 l'iiM)iii.r'\ l'i\p,ii\itiiiii fur Dijiiuc, 73 ti) assi'iiiMr is til lie anuitlcil piomi- opiKUlniiity •'! |»ii- |iiiriii;j: liis drli'iu'i'. and is ;illn\Mil licr ( oiiiiMiiiiii atioii with his uitiirssts Mini with ;iii\ tiiriitl m h';^.il .nhisiT whom he may wish l<» < oiisiilt hrliMc ainl diiiiiij; the liinl \i.c. not ill (Hint hut hi-twc'i'ii its sittiii;;si. hut hr iiiii>>t (U'iiiaii«l to (In so olhciNvisi' he has no rMiisc Should the piisoiit r M'(|iiir(' it tlir Adjutant iiiiisl siip- |)|y him with wiitiii.iL; iiiatrrials to ctiahlc him to |>ii'|);(rr his ih'ltiici'. The (".(). of till- piisoiicr is rcspoiisihlr that \\v is in- K.r. ii. roriiicd hy an oiruiT of tNi-iy charj^c on \\liiili he is to hf tried, and iu- is fninishcd with a copy of the char^^t' slu-i-t. Ill' niiist also he inl'oinicd that, on ;^i\in;4 tlir iiainrs of any witiu'ssos hi; ili-sircs to call in iiis defence, ii'asonahle steps will he taken for piocniin;^^ their atteinlance. This iiiforniation should he ;,Mven, in the case of a K. ('. M. not less than 18. and in the case of any other C. M. not less _'4 hours hefoie his arraij^nineiit. Where the prisoner is a soldier the char;^'es should, if necessary, be explained to him and, if he is illiterate, read to him. The prisoner need not divul^'e who his witnesses are to he, and if he does nanu; any he is not confined to the list he names, hut the court need ;a;/adj(»urn to enable him to summon witnesses whom he mij^dit have called at lirst ; and it rests with the prisoner to secure the attendance of any witnesses for whose attendance he d(jes not re([uest steps to be taken. A list of the names, rank, and corps (if an\), of the im-.k. President and ollicers who are to form the court, and of officers in waitin;^^ (if any), is to he delivered to the jjrisoner // lie desires ii as soon as these officers are de- tailed. Any non-compliance with these ruhis does not invali- date the trial, but if the court think the prisoner is liable to he prejudiced thereby they may adjourn for any omis- sion to be rectified. A copy of the summary of evidence is in practice al- \i \'.\ A i{ iv r'i 1: 'Sjii i .:..i.-w.iii ■<. i \\u I'l'iHi'itlinns hi/oir I'nal, ways j,'ivfii tr) xhv pri^^niuT (hcm- p. .\h) : but tin- pinm'ciitot **•**• "^ is not Ixmnd to call all tin- witinsni's naiiu'l tluniii, tlioiiK'li lie sliotild oKJitiaiily rail tln^c the piisoiur ili*- siii'S to |)c callcil ill onln that lie iii;i\ irosM'CXaiiiiiii IM'. IT,. r.r.i.v tlit-t II. If till- prosecutor iiitcfids to call a witiH'ss whom* »'vl" (Kmjcc is not contaiiH'd in the 'summary.' tioticr must In j,'ivcn to tin; prisoner :i reasonahle time lu-loie tin \\ itness is called. If such witn ess is called withoiii notice hein;^' \^\\v\\ the court informs tin* prisoiii'i (tf hi-- ri^^dit to demand an adjournment, when they may adjourn after takinj,' the i-videiice. ;\ny number of priscuiers may he tried to .er for an offence committed collecti\ilN'. but notice to this eflect must be |;,'iven to each prisoner at the time he is informed of the chaff^e : and any prisoner may claim, either b\ notice to the convening,' oflicer, or when arraijj;ned by notice to the court, to be tried separately on the ■^rouuij that the evidence of one or more of the otiur prisoner^ to be tried witii him will be tnaterial to his defence. Such claim is allowed if the evidence is mati-rial and it the naturo of the char^a- admits of it. ' n- H.r. i«. ll.P. IT. lUinKli ty/f TIIK ASSEMIil.Y OF THE liT. No unnecessary delay sliouUI take place bei. a ('. M. is ordered to assemble. It is directed that a K.C\ M. should be convened as soon as practicable after the invest if,Mt ion of the case by the C. ()., havin;,' re^'ard to K. P. 14, p. 75. If more than 15 days in the L'. K., or more than ,^0 elsewhere, elapse between the time when an officer having' power to convene a (i. C. M. or D. C. M. receives an ap- plication for a C. iM. and the date at which the case is disposed of, either by the assembly of a C\ M. or other- wise, the officer has to report the case and the reasons for the delay to the C. in C. G. C. M. and D. C. M. are assembled b}' an order oi an officer duly authorized on that behalf. This order specifies the description of court, the purpose of its as- thrn'iii. (lur il«'- i'\;uiiiii« lOHJ' v\\- tmist In «»H' till witliuiii 'I ol lii^ ailjuiini r fi>i :iii is ctlrcl tifornit'd itlu r l)\ ,MU'(1 l)\ |i;r<)miil risoiiiT-- lll'ft'llCf. I and il CM. is I. should itij^'atioii 4. P- 75 • tliaii \o r havin)^: s an ap- case is ir otlici- reasons order of is ord(M f its as- f)s«* ' m • i ,\ ' 1 I III i ■* '. .'J / / Order for ilic Assciiihly nf llir ('i>url. soinl>l\, li.M's tlic (l;\lc tiiiu' and place of iiUM-tin;^'. and ap- points the I'lcsidint and I'rosi-iMitor l)V nanu'.and appoints or details tile otIuT ojliceis, tliouj^di their names need not |)e;4i\en. It is iisnal to order eai li hri^^ade or eori)s to fnrnisli so many lii-ld ollu'ers. captains or subalterns as the case may he, and any mnnher of waitin;;^ mcMnhers as mav he recpiired. The order then names the j. A., if any. and states to whom the proceedini^s are to he forwardi'd, followed l)\' any opinion of the convenin;^' oflicer such as when a I'. O. is not available as I'ri'sident, (S:c. In orders for the assembly of K. ('. M. all the officers to form th(> court are mentioned by name icpially with the Pi'esident. Konns lor llic asscinhly of ('. M. iwv ^ivtMi in \l. \\ Si'coiid Appi'iidix, Nns. l-."». Till' coiivi'iiini,'- oflicer siMids the I'residi'iit the orij^inal charf^'t' sheet (Mi which the prisoner is to be tried, and the summary oi evidiMice. On (i. (\ M. at all times, and on minor courts when tlit-re is a prosi)ect of protracted procoedinj^s, it is desir- abli" that a number oxceedin;; that lej^'ally re(piired should be detailed as nuMiibers t<^ j^Miard aj^ainst the inconvenience which mi^dit arise from tin* sickness or di'ath of a menilxM'. The additional members (from 2 to 4) take i)art in all the proceedinj^s. One or more <^ffic(Ms ari" sonu'times detailed in waitiii;^ to ]irovide for casualties on first assembi}', or for the case of challeii;;t' bein;^' al- lowed. ( '. M. duly is cljissilied alh'i • Ki'iiimeiil.'il duties underarms. ■t^K.VIll. v.*. Mild il is direcled that in all dulies tlu' roslei" is lo coinnu'iice iVdiii I lie senior downwards, and in IIm' (»rder of (•lassili«'ation. t^l^vm. This pi-c<'|iii|i's (lie possihilily willioiil a n-lariiii; hreacli of tin- express orders of (lie Sovereign of si>li>clini^ oi* ■•paekini;'" a ('. .M. In l:ir':. ■I '4' j) '- m 'i -""■!# . h ; , ■ ; 4 t ■ ■'.1 ISi"' I Suiiiiinuiiin: Willie ssi s. 79 iM'.;7. iiii;, liiivo llic sanu' pfiviloy;*' iVoin iiri'«'>l ii> if lirliir*' ii Snprrlor ('ivil Coiiii, /. c. IVom aiiH-si on civil protcs-, flu- tU'lil. i't<',. I>iil iii)t ti'ntii niM'cst on a I'l'iiniiitil i'liiii'i''i'. If «'ivil witnesses, not siiltjrct to milit.iiy hiw. jilicr piiynicni A.A.uti. lit' llicir oNpcnst's. nink*' lU'linilt in ntltMHlinic llir ProiiU-nl nniv ct'i'tity tlic ollencc ('oni?nillf<| to a coml of law wliirli lias powt-r l(» |iiinisli witn»'s?^('s it'i;Miilly of liki' olVciici's in tliat conrl. and Midi court ma}' piniisli the witm-ss as if tlir (»lV«'iMr had Ik'oii ('nininilli'd ln'toi't' it. The Cotivoiiiii}^' ()t'tic(!r. Of, aftcf tlic assembly of the court, the Picsideiit, take the proper steps to prortire the attendance of tlie witnesses whom tlie |)roseciitor or prisoner desires to call, and ^^ilose attetidanct' can he reasonably procured, but the person reipiirin,L,' the atten- dance of a witness may be rempt from bein,t( summoned as witnesses, and all, if siimmoiu'd. are bound to attend; but they are not boiunl to disclose niattors con- nected with their governments or coimiKUids. Ill IS'57 a circiiiai' was issued on this Mih jl'Cl lull. OWIIIM' lo tlieC. ill ( '. in India Iieinn' siiniinoiicil iiiinetessaiily. an extra [ii'ovision was inserted that .any ollierr oi- soldier so doiii<;' i- lialil<> to Ik' tried for \exalioiisly siiiiinioiiiiiL; i lie ( '. <). ollroo|»s 1 V .' i; I « ' y . m- ill K ' % i 1 li ''■ f: i • ■■ ' 80 n.p. 78. ProccciUui^s before Trial. Any person |)resent in court may be summoned .is a witness then and tiiere without notice (as far as tlie wit- ness is concerned.) Thus, the otticers of the court an- not prechjded from bein^ witnesses for or aj^'ainst tlie prisoner, thouj^'li it is advisable that, as far as possible, they should be totally unconnected with the case; also, if possible, no officer who is to be called as a witness should act as prosecutor. A discretionary power as to the summoning' of wit- nesses must necessarily rest with the conveninj,' officer. He may dispense with the sununoninj,' of witnesses and withhold the summons if they are at '^xvwi dis- tances or not likely to be of use. The court can, how- ever, rectify any omission subsecpiently In* adjourning' until the necessary witnesses have been summoned; and care has to be taken, in refusing' to sunnnon witnesses, that the prisoner does not thereby sufler r.ny material harm. If the proper steps for procuring' the attendance of material witnesses have not been taken, or if witnesses are not present, the court adjourns and report to the con- vening officer. Ill iiiililary loiirts tlio cxponsos ot'proeuriiii; tln> ntloiidancc of wilMo^sst>s arc generally paid for by tlu^ piiMic. and the prcsi- (U'lil lias to fcrtify that the claims ofljio witiu'sscs arc just and reasonable; hut it many witiiossis arc asked for and the I'x- pciises heavy, the prisoner (or prosecutor) may he i-eqiiired to jiay the expenses. Ortiocrs summoned as witnesses toi- llic defence of an otticer arc not paid if the latter is toiind guilty. N(> expenses ai'e allowed to jier-soiis liviiii; in t he |)lace where tlie ('. ^r. is sittinsr. In civil courts ])risoners have always to summon their wit- nesses at their own responsibility and expense. IHJTIKS /' CO/.'JfT. On tlu,> morning of each da}' the court is ordered to sit the Adjutant has the prisoner medically examined by the (i.K. VI. H!». medical ()ffic(>r. and (*. O.'s are held responsible that n(» prisoner is brought before a C M. who in the opinion of the medical officer is unfit to undergo his trial. In the i m Wlt- 'It'tT i ()st|><»iir(|. Ofticeis atul warrant otliiiMN ail' t-Ncinpt from iiicdiral examination piwious to trial. I'risoiR'is arc inou^lit lu-forc a ('. M. atti-ndud by mi j^.u.vi.iki ofriitr oi" N. (". (). Iia\in;4 tluiii in iiistody, {»r l»y an escort. I'iii' otiicer t»r N. (". ( ). in ciiarj^e is responsible for tlit'ir safe conibut. but must obey the (lirections of the court while tlu; prisoner is belore the (ourt. In the case of a soldiiT otic N. C. ( ). and (jnc private usually form the escort. The Atljutant also details an Orderly Ser^^^eant to attend the court. In the case of an K. ('. M. he furnishes this serj^eant with the recjuisite stationery, Army Act, ( hieeii's Ref^'ulations, Bible, blank I'orm of Proceedinj^s, to;;ether with a certified extract from the rej^'imental orders coii- venin},' the court, or the :)rij,Mnal order. He also forwards to the President the ori;;inal loose charj^'e with order for trial thereon, at the back of whicli he should record that the prisonei has been warned, together with the medical officer's certificate. In the case of 1). ('. M. the above documents are furnished by the staff oftice. The Adjutant has the prisoner marched to the i)lace of assembly of the court, so as to be there ten minutes before the hour named. The orderly sergeant takes the above; stationery to the place of assembh' of the court and sees that the room is duly prepared. In case of a I). ('. M., he obtains from the staff oftice the list of mend)ers (k;tailt;d with dates of their commissions, the order for assembly of court, charge sheet, sunn«iary of evidence, etc. He then places himself under the orders of the President, and remains so until dismissed. JV 'It I'll I'li liir CHAPTICK VII. DUTIES, KESPONSIHILITIKS, iS:c., OF PKKSONS OlFICIATINCi AT COURTS MARTIAL. 'f^V> ' ») iK .1 A. A. 170. H.P. 38. PRESIDENT AND MEM/tEJfS. So lon^ as a C. M. does not exceed its jurisdiction no other court 'is comj)etent to stay its proceeding's or to revoke its sentence, but the officers of the court are col- lectively and individually responsible to the Supronu- Courts of Civil Judicature, not only for any abuse of power but also for any ille^'al proceed inj^'s: but so Ion;,' as the proceedings are legal all officers composing the court are exempt from proceedings at civil law for what tlu y do or say in the discharge of their duty. Any pi'oseciitiou iiislitiUud a^iiiiist 0113- ]»ei'soM lor any aol done (or m*^leet in doin^) in jHU'suaiict' ot tlio Act must In- comnKMieed within twelvo nionthH (jftlio coinmission of the ad eomplained of, and it can only bo bi<»nglit hetbiv a (\)iirt of Superior Jurisdiction. With the exception of mere clerical corrections, C. M. have no authority to arraign a prisoner upon charges other than those submitted to them by the convening officer. At any time during the trial the court may correct any mistake in the charge sheet relative to the name or des- cription of the prisoner. Also if it appears to the court, at any time before they have begun to examine witnesses, that any addition or alteration is required in the charge m (M lit H 1 •\J U.V.-.'A III flic iiili'irsts of j»isii«r. till' «omt fiiav iuljourn aii;r and iliifct the trial to prnncil with >ii('li aiiicti(l( prisoner. ( '. M. Iiii\i> ill II '••■pMi'iiii' jt'tli-t' iiiiiininlvei'U'il on the <'|iai'L;eM «lll>llliltei| tu them iiH hriiiix iniiliciuiiH, tri\ iilmis, vomiIIoiis, \r.; 1IM it, iitnl JidWevi'l* ilijliriiMlo nllch l'eniul'l\K Illliy U^ to rhiil'lielrl*, (Ve., IlieliilierH iil'(« |>i'i\ ileLfeil ittwl euiiiiot lir |iro<-t>r<|fi| iii;iiin»t I'ot' *leriiniiitioii ot' I liiniu'it'i', hut any muIi reinaikK r«e|iai'atu lellt'l*. 'I'lie eoiiri may iil><> he iiiHJer the iieci'NMity ol' |)larin^' on rcntiii its y:ravr |»le;i*iir«' at the lanjiiia;;e or roiHliirt of any |t«'i''>oii'« lietiit'e it. a^ " 'riie roiirt |x ot'o|iiiiion thill the |»iiH(>eii- loi-H reiiiarivs are iinealled lor ami repreliensihie.' 'Che eoiirt may in laet take iiiilieial iiotiiM* of all nialtet'H of ijiitoricly. inejiiijin^ all inatlerM within their p'lieral military kiio\vl»M|^i>, A ('. M. has onlcierl an ottleer int«» arrest <'ven th<>iii;|i ho was senior to e\ciy otlict'i- of iIm' court. The court liavt; to stop the prosecutor if he refers to r p 50 any matter not reltjvant to the char/^'e. and tluiv have to restrain any undue violence of lanj^'ua^'e or want of fair- ness f)r moderation on the part of the prosecutor. Hut tile prisoner should he allowed ^'reat latitude in makin;^' ills defence : he must, however, abstain from contemptu- ous or disrespectful n^marks towards tin; court and from coarsi! or insultiiijj; lanjrally and tlu; credit of a corps, tlu' confirminj^' iiuthority usually {,'ives the assailed party the opportunity "f lefutin.i; them for his.satisfaction, but not in court. u 'i S^ Diilics, lu'sf)tiiisihtlili tS, i •(' >/ptrsi>its ofj'uiiiliiii; ill i oiirls Miwtuil. The court m.iy caution tlic jirisoiUT as to the iir»'lc\- ancc of liis (icrciicc but slioiiM not, iinlfss in special cases, s toi ) his (lelence so|i-|\ on such i^roiinc A. A. r.'ti. A. A. \W, A. A.'iH. F. P. 58. If ii\il witui'sses not suhjeci (o Militarx Law (after payment of tlu'ii' expenses, make default in atlemlin^M, ri'lnse to take an oath Ie;;ally reipiifetl. or do not answet (piestions or proihice tlocuinents which can he lej^Mlly thMuanded : or if they or any othii civilians present, in- iludin;^ the prisoner's counsel, are icfractory. cause inti'iTuption or disturhance, do not ohey the injunt'tions of tlu conit. or are uMiilty of an\ contempt of com* thev may he ifuiovcd liom court, and the president ma\ ceitily the offi-nce committed to a lomt of law which has power to coimnit lor contempt, ami such lourt max pmiish the witness as if the offi'iice had heeii I'ommitted l)ef( ore it. Should ;iny person suhjeit to military law (when or- dered to atti-nd a (". M.. make (U-faiilt in attendinj,M I'cfusi' to taki- an «>ath, .inswi'r ipiestions. prodiu'c docu- ments, iVc.. let^ally ii'ipiiiid. of is L;iiilly of conieinpt of court l)\' usin;4 insultiui^ oi tlutMlenin;^ laniL^iia;^^-, or In causiu}.,' inti-rruption or disturhance, he is liable to be tried hy (". M.. other than the court hetoii- whom the offence is committed. Hut in case of coiiti'inpt of court (as above) the (". M, may, instead of the offemler bein^' tried by anotlu'r C'.M.. by older of the president sentence him to inipi isonnu'ut with or without hard labour not ex<'ei'din}.,' _'i days. The President is ii sponsible lor the trial bein,L;(onduct- ed in proper or' m ami in accordance with the Act, K. W ;ind (K K., and he must take care that e\erythin<; is con- ducted in a nianiu>r behttinj4 a Court of justice. It is his duty to S(H' that jiistire is administered, and that the })risoner has a lair trial .and does not suffer an\' ( lisad van- UVfi^v in consecpieiice ol his position as a prisoner, or of his ij^Miorance or incapacitx to r\aiiiiiie or cross-examine witnesses ; he is icipiired in I'act to hold tlit(»u_i;liout a strictly impartial position titwanls him and the conxeninj; )fficei. lie is the eliaimcl I ' Miimunicat ion between Uirihil. irt'lov- spt'tial (after mswct lit. iii- causc U'tioMS I tluv t IIIMV ell has t may mittt'd I'll »>r- (lotll- lipt of (»r In to lu- III tlu' roiiit ln'iiij^' lltt'llCl- iir not iidiicf- K. r. S I'Oll- [ is Ills It tlif ulvaii- o|- of aiiiiiif lioiit a Miiiiii; 'twcrll ■^4 ?i 11' »3 i IWli^ n % President and Members. H tlu' court ;ui(l the convi-niiiL; ;iiitli(»iit\' : lie is rt'si)()iisil)lt." tliat cv(!iy person iitteiKliii;^^ tlu" court is treated with l)roi)er respect. His powers e\tc ..<1 not only over ineni- hers, l)nt over e\er\ body i)rest'nt in court whether senior to him or not. He seats the iiienihers accordin;^^ to rank, collects \()tes, (S:c. He smninons witnessi-s if necessary, and where there is no J. A. he swears the ineinhers iind witnesses, takes char;;e of the proci!ediii;,'s, forwards them for conlnination, sees that a proper reiord of the pro- cee(liniL,'s is made, and he is the reco},Miisi'd adviser of the court in law and procedure ; in fact, l)esides his own j)articular duties, he performs those of a J. A. If another otHcer administer the oaths, or write the proceedin;^s, \\v (h)es so inider the president's authoritx' and hy his order. Ill ordtTs :i ('. M. is (>llici:iljy dcsiifiialed as ilie court of which so and so s jircsidciil. ("ourts martial, like; courts of ci\il law, an- open courts, hut as hy authority all voti's are taken secretely, the court is from time to time cK'ared of all persons not sworn to secrecy (i. e., except the officers of the c<»urt, j. A., and officers under instruction*, and all deliherations of the court take {)lace with closed doors. The court mav either retire or may cause the place wlnrc the\ sit to he cleared by order of the President. ICxccpt as above mentioned all the proccediiij^'s includ- wv^ the \iew of any place take place in j)ul)lic and in the [irescnce of the prisoner, subject howcM-r to the amount of room available and the convtMiience of th( court and parties before it. The President orders the clearin;^ of the court for de- liberation on any incidental dis(Mission when he ma\ deem it expediitiit, or at the instance of a member or the |. A. It is I'oinpetciil lo:(('. M. to I'oiliiil ilic piiiili<-:ii ioii ul' :i n- |iort of (lie I rial (hl^ill^• il'^ (•oiitimiiniic : aii'l it the niiiil noiifies this to ihr ,'iiidit'iicr and waniv in wriiiiii:' iIk' |iiil'li^hi'i'.s of lu'WspaptTs. >iich (li'cisjon is liiiidiiiii' and any oirmdcr may he [d'oifi'dt'd auaiii'-t fiiiiiiiialK' in ihf <''iiiit of <,hi(fn s P.cncli. A A .^J, (,')) R. P.t.3. A..\..vi.(:) H vS^ V IE \ 14 '* '-'.'' ti «■■ I.-: i I i; fl- '] * 1i 1 » 5 : fU ! 1 . ' . ■ ■* ^l , <^ -! , ■ J ' ^11 ■' il iliikil.^... IIP. «4. 86 Dudes, Responsibilities, i-c, of persons officiatinff at Courts Martial. Tho ^(.'in'ral practice is however to admit rc|»(»rtoi's witlioiil iiii |»oHiii^ any restrict ion. n.p. 63. A c. M. may sit between tlie hours of a. m. and p. M. as may be directed, but if tlie comt consider it necessary to continue a trial after 6 i*. m. they may do so recording; their reasons. In cases recpiirin^' an immediate example, or when it is expedient, trials may be held at any hour, and even if necessary on Sundays, Christmas day, or (iood Friday. The Q. 3{. limit the liours to between 10 ,\. m. and I p. m.. or Q.n.vi.HS. \\ ;v. M. and 5 p. m. in tho l'. K.. and to six honrs oi* at most S hours darinijoneday. Ahroaii tho hoiu's otsittin^are ieu:ulale in {■ill nei ll.'l: 1 api wo lio) wil rec Prcsidoti itiiif yicmlwrs. 'V Iltlu' Prrsidtnt dies nv is otlioiwiso iiriaMf to iittend, -^-^ ■'"•' and till' court is not rcdiirtd lu'low tlu: li'^'al miiiimiim, till' roiivi'iiiii}; ottici'i may appoint the st'iiior niembir, if of siitHciiMit rank, to I>l' I'lvsident and tin- trial pnuHuds, hut if ho is not of siirtkit;nt rank thu court is dissolved. lint it at a h. (*. M. tlu'st'nior iiK'iidK'f is a captain it is iisiial tor the lU'St V. (>. on tlic rostiT to Ik; appointed I'rusidi'Ut, and tlu'rcfoi'j' thf trial lit'uiiis alri'sli. If, on account of the illness of the prisoner before the a. a. sua) lindin^', it is iinpossilde to continue the trial, the court is dissolved. In all these cases, and in any case of doubt arising;, the court adjourns and a report is inunediately made to the convening,' ofticer who is the authority for dissolvinj^' the court. In case of the death of the prisoner or of such illness as renders it impossible to continue the trial, the court ascer- up w tains the fact of the death or illness by evidence, record the same and adjourn, transmittinj^ the proceedinj^s to the conveninj,' otHcer. Where a C. M. is dissolved before the lin(lin;,^ or in u. p;k. rase of a findinjjf of fj^uilty before the sentence, the pro- ccidings are null and the prisoner may be tried aj^'ain before another C. M. If an officer be* promoted durin;^' the tiial he would take his seat next day accordinj^' to his new rank, except in the case of his becoming senior to the President who cannot be displaced. The absence of any mend)er during' any part of the trial up ,1-. necessarily prevents his restnniu}^' his seat. No new member can be ai)pointed after the prisoner lias been arraij^med. If durinj,^ the trial a new President or a new member is appointed the trial must bcj^dn afresh. In such a case it would s^enerally be sutficient, if the prisoner raised no objec- tion, that the evidence formerly f^nven be read over to the witnesses re-sworn, anti that the latter be allowed to cor- rect their evidence and be cross-examined : but each n ^41 i 1 ' f.i . i rt w iS.S l)i{liis, /\,Vs/)o;/s/A///7/i\,in., n/ffirsons oj/'uiiiUn^ til i't'iirls Mtiiiiiil. witiit'ss must l>«- asked if that !»• Iiistvidtiici', and Nvlittlu i he has aii\ adthtioiis or ((Mrcctioiis t<> iiiakc I'oi' thi^ thi- court and each witness have to he le-sworn. H.i*. «H. livery nuinher of a court must ^^Wr his opinion on cvt.'ry <|uestioM which the court has to di;ci(U', and hi; is re«|uirL>d to form an o|)inion fiom the e\idence aihhiced of tile prisoner's ^(uilt or imiocence on all the charj^ts and ;tl \y.\ th< [h |.r I.') 1)11 tic mi ot) to wi to wi th SI" sli ail III! nil he pr tfi til pi- afl •I ll ? I CO th « I'l'l The l*rnM'cittoi. S<) line's : in difHciilt ra«<»s i\\v ronvoninu «»tHrcr selcctiinn »* h vim. otlUrr specially i|iialiti('e tailed as a witness is to he appointeil prosecutor, and he must not hi' a materia! witness for the defence thoii;.,di he may he calli-d on hy the prisoner to speak as to chaiactir. lint when tlu; pro- secutor is unavoidahly a witness for the prosecution he should lu' sworn after his opiininj; address, if any, and ^'ive his evidtMice as the tirst witness for the prosecution, and this is the (»nly exception to the rule that the evidence Miiist he y(\\i\\ by ipiestioii ami answer. The prosecutor should he can-ful not to hold any com- niunicatioii with the ( ourl except in the presence and hcarinj,' of the prisoner. The prosecutor's name appears in the record of the proceedin;.(s. If diirin;.,' the trial illness prevent his at- tendance, another otlici-r may he appointed t() pi-rffuni the duty, his name hiin;; recorfled. The absence of the prosecutor at any sta^^je of the proce(;din^'s would not affect their le^'ality. ' 'V\\v pi"(»s«»c'Ut<>r wears the >Minow Onh-r;" D. <'. M. •• Maivhiim- Order:' l{. C. M.Q"^"'". ' Drill Order. ' In hut ernnales this js niodilietl hv local order. Th e prosecutor is not sworn as s mh. d I iiKl ne leaves tiM th court whenever it is cleired. His s his own wittiesses l»y ipiesti\i\uiiiy. 91 spct't of tin; trial : tluMi follow particiilais as to his aj^r. (latu of attestation, service allowt'ti to reckon towards /F I'lllSltyKIL .\i allC. M. a prisoner may have a person to assist him during the trial as his "friend" whether he be a legal adviser or any other person. A "friend" may advise him on all points and suggest the (juestions to be put to witnesses, but he is not per- mitted to address the court or to examine witnesses oralK', unless he is an olKcer subject to military law in which case he has the same rights ami duties as "Coun- sel," and the light of the prisoner is limited in the same manner. Hence, unless the prisoner has C^ounsel or is assisted by an otticer he must himself read the addresses prepared for him by his adviser and cross-examine wit- nesses, cS:c., except with special permission of the court. At (i. C. M. Counsel is allowed to appear on behalf of the prosecutor and prisoner when held in the U. K.. and .J liiftial. in the ;)urt is [h thf irons, be un- ' kind, yf prc- violtnt i-.. tablisii -' facts it de- sonic ain t)f \\g his :e any e him, ( oui t st him lepil i«>,^est t per- il esses aw ill ^oun- same or is resses 3 wit- >urt. alf of . and 1]. ^■■■! '! '■ ( ( ' .<]' ■ ■.A !fr Counsel tiiiii l''riiHil of Vrisoiur. 93 i< i» n: (■Isewhere if tlio C. in (". or rnnveiiin^' otHctT (Iccliiii's it to 1)0 expedient. Tlie following' rules as to * Coiiiiser do not refer to a 'friend' of the prisoner unless he is an office*' subject to military law. Should a prisoner intend to have Counsel to assist him at the trial he should give nf)tice either when informed of the charj^e or, as a rule, not less than seven days hi-fore the trial. In every case the prosecutor should be allowed time to obtain counsel too, or the authority appointing a J. A. should have time to appoint a Counsel to act as J. A. at the trial. When the prisoner is S(» assisted, the prosecutor is generally allowed the aid of a lawyer also (unless a J. .A. is appointed), but application has to be made for permis- sion to incur the expense. So also if the convening officer directs a C'ounsel to appear on behidf of the prosecutor a similar notice must be given to the prisoner in time. A C'ounsel at a C. M. has the like obligations, and also HP. mh, «». the like rights as the prosecutor or prisoner for whom he appears, namely, tt) call and orally examine, cross-ex- amine, and re-examine witnesses, to make an objection or statement, to address the court, to put in a plea, to inspect the proceedings, I'tc. ; but then neither the prose- cutor nor prisoner can do any of the above unless witii the special permission of the court. Also, if the court ask the C'ounsel for the prisoner any (piestion, he may decline to answer, but he njust not give to the court any information which is misleading. U.I'. «;. C'ounsel at a C. M. must be guidecl by the rules and practice of C. M. and will adhere to the rides of civil courts, and any conduct of C'ounsel which would be bable to censure or a contempt of court, if it took place before a High Court of Justice is the same in the case of a C*. M. A CM. may by order of ti.e President cause a Counsel to be removed, in which case the President must certifv the offence committed to a court of law. A.A.lvnJ 4 p r^ ■<.. 4. ip t: am 1 - ; ■ , . ^ 1; ) |i 1 1 r ; -i ■ ■ !' '1 4 !^ *'^ I,' ^ I It ' «i4 Duties, Rcspinisilnlitics, t'n ., nf persons ofj'uiiitiiii^ al Cmirfs Martial. 'I'lic IWl low illy; ;ir«' llir |ii'iii(-i|tiil niU'.s as loCoimHi'l : — ll«> should always malxo an i)iiuiiiii;r aililru^s. aiMJ can t'.\- aiuiiu' iIm' |uost'('iili»r a.H any ordinary wilnoss. in which rasy th(! nilo as to thf ih'omitiiIoi* hrin^ «'\ainiiu>d tirst docs not apply. Ho is not allowed lo stall) tads h«* (hu's not intend to prove, nor may ho five his personal opinion as to tacts hetorc the court, nor nialxe a>siitnptioiis as to t'acts not proven. Ill his treatinciil of the court and witiiess(>s, ('oiinsel niuinl have r»'ii;ard to the usa;;es of military discipline. When ( 'oiiiist'l puts a (|Uestion which is not relevant o.xceiit so far as it may lend lo injure tin* »'h;»rai'ter of a witness who objects to the <|iieslion, the coiirl has to decide whether the ini|iiilatioii. if (nw. would ,iir>iiii,s/i/ atVect theif opinion us lo the credihility of the witness or not ; it so. they would allow the question, hut not otherwise. \ piisonei'Ml the close of the I'asc for llii' prosec'ition, and hefore his own < 'oiinsel speaks, can make any statement lie likes orally, iml he is not on oath nor liahle to examination. Neither the prosecutor nor prisoner has any rii;ht to object to a Counsel if jiropi'ily ,'n can f the procci-din^^'s as to their lef,Mnty, whether the sentences are within Statute L;i\\s, \c. The cNpidiencv of carrying ont tlie si-ntence. or as to remission, \c.. is not his province, thi' (". in (". advises the ( roun on th(!se points. A J. A. is always appointed to ever\ (i. I . M. In the U. K. the J. A. (i. ^'I'lierally appoints one of iiis depnties to act for hinj. and he is nsponsihlc tor them. Ont of the V . K. (iciieral OtViccis iin- empowered l)y warrant to app<»int |. A.'s. If the conveninjj: olHcer is aiithorisi'd to appoint a j. A. he nuist in the casi- of a (1. ('. M.. and may in the case of a I). C. yi., appoint a til person to act as j. A. Sometimes when the casi' hefon- a D. (". M. is inte(|) it tmns. The appointment o| a J. A. may at any time he revoked Iiei |. A. ap- h\ th 95 K. r. 'ii. IM'. llKt. le anthontx who nuulf it. and aii< >[ i.w ii I » t ■H- i 1' ni Jil^lii yO Duties, N(spnnsihililii's,i^i., of persons offuiatin^ at Courts Martial. pointed without \hv procffdlnjjs lu-lnj,' ilolaycd, but a J. A. must al\v:iys he present if once appointed. Tlif |M)U'(>rM and iJiilicH ot a .1. A. ai'f laitiduwn in It, I*. I0| («r ) Itutli iIm* pi-oMftiitiM* and pi'lMiitici' ai't'ii/ ff// ^//ir,>« i'lititlfil to liiN opinion on any «pU'Htion of law it^lalivi* lo tin' frial wlirtlier in or oiil tit coni't, NnlijiMi, '" in conil, to itM piT H.IV 101 niiHHion. (/>.) Jle repn'Montn lli»' .1. A. (J. (/'.) He is ilic l(';;al advisor of llic lotn'l and lias (o inforin tlir <'omt of any inlornialily or irregularity in llie proccrdinu-, ele. Wliutlier roiisnltcd or not Im> intii irnis lli(> foiivenui;; otiicer of any inlornndity or deterl in llu* cjiar^e or in the roi Hlilulioii ot the court, and \(\VK*f< \\'\n advice on any nuitter lieforc the court. (tl.) Any infoi-niation or atjviee lie may ^ive lu'tore llioeouri will, it he or the court desire it, U' entcrtnl in the |troc{>(H|in^^. ()'. ) At the conclusion of the case he will, unless ImmIi hean his oiiinion upon the le^al hearing; of the cUse hetore the court deliherate on their finding. {i\ ) rpon any point of law or procedure the court should Im' guided hy his opinion and not overrule it exc(>pt for vt>iy wei;{hly reasons. The court in lbllowin|r hi» opinion may record the fact that they have done so in consetpience of that opinion. fOtticers (»f a ('. M. must however In'ur in mind that they an responsihie for the legality of their decisions, and hy a<'liii^' upon the opinion of tlie .1. A. on t|UeslioiiM ot law thoy they an- not tli(»rehy exonerated from their res|M»nsihility, 1 is not responsihie to any court of law for the opinion he may ^ive. ) If a ditticulty arises on a (piestioii of I aw. w hid I IS IHtl K IV '»\. settlef the court hy the J. A., the coiiit may adj<»urn and throu^ch the President report tla* circiiin stance to the convening otticer for the opini«>n of the .1. A. (i. if ill the U. K., elsewhere for the o|>inion of the <'rowii Ic^iil advisi'is. (ij.) The .1. A.. e(pinll_\- with the President, has to see that the pi'isoiK>r sutlers no disad\anta;;e from his ]iositioii or i;;iioi- ance. etc.. and for that purpose, with tlu; permi.»sion of tlir cuiirt, he may cull and put i|Uestions to witnesses to elicit tlir truth. (A.) He must always maintain, while taking ixivv that all lei^ail details are strictly ohserved, an impartial position. Tin j. A, a(linii)ister>; the oaths fust to the President 'J! II MiirttiiL , hut :i P. 101 • ■lititlnl lie ll'illl ilM |tci' ) iiif'onii 'f ln'f(H'i' liui-omt tMMlin/;^?.. Ii lu> ami MCC iumI (iire the llOllltl III- [or vt'iv OM u\\\\ of tllllt llicy HIT thoyaic V tor tin* li is not lit COtll't cilTUIII .1. A.<;, si'o tllllt »r i;;iior I of thr licit till' that all I. esidcnt IMAGE EVALUATION TEST TARGET (MT-3) 1.0 lU Itt u u , us 12.0 IL25 i 1.4 I 1.6 — A" Hiotographic ^Sciences Corporation ^/ ^ A 'V *>^ S"^ .^ •^ ^^ f^'^ <^ 23 WIST MAIN STRIET WIBSTIR,N.Y. 145t0 (716)«72-4503 A%^ A K<^ ^A ^ ^ an ad A Pr coi de of cal the i ! or rea ma 1 pro as 1 tior ed i A he i brir as i V onl^ him F }>rof \vhi( nes? Hi Interpreter, Shorthand Writer, and Examination of Witnesses, qj and then to the members of the court, and he may also administer oaths to other persons present at the C M. A vote of secrecy is also administered to the J. A. by the President, so that he may be able to attend when the court is closed for deliberation when his advice is confi- dential: A J. A. cannot be objected to by the prisoner. The J. A. is responsible for a proper record bein^ made r.p. 03. of the proceedinj,'s and for their accuracy ; if the J. A. is called as a witness the President is then responsible for the record of his evidence. INTEIiPRETKR AND SHORT-HAND WRITER. At any time of the trial an impartial person may be n.p. :i, sworn to act as interpreter if the court think it necessary, or if either the prosecutor or prisoner requests it on any reasonable ground. Also if the court think it desirable an impartial person may be sworn to act as a short-hand writer. The prisoner must be informed of the person who is proposed to be sworn, and he may object to such person as not being impartial, and if the court consider the objec- tion reasonable such person is not sworn. Neither the prosecutor nor J. A. nor any other interest- ed party can act as interpreter or short-hand writer. A member of the court is not disqualified, but it would be attended with great inconvenience and might possibly bring him into collision with the parties if he were to act as interpreter throughout any extended proceedings. EXAMINATION OF WITNESSES. Witnesses are examined by question and answer ; the only exception to this rule being when the prosecutor is himself a witness. Formerly a witness was frequently directed by the prosecutor to " state what you know relative to the charge which you have heard read." This plan of allowing a wit- ness to tell his own story often led to his stating a good 4 ?'■•■■'- \'i:.: III 98 Duties, Rcsponsihililics, t-r., of persons ojjiciiitin^ at Courts Martial 'fi ; R.p.r9. A.A.69 (8) R.P. 80. R.P.:jO,n4. A.\MH\('i) A. A. '«.». deal of hearsay or illegal evidence, and althouj^di such portion;; of his evidence nn;,dit he rejecter! hy the court, still they were apt to leave impressions on individual nieinhers which the admissible parts of his evidence would not have conveyed. Witnesses should be examined separately, hence the other witnesses leave the court when not under examina- tion ; but no witness is incompetent by reason of his having been present durinjj; the evidence of another wit- ness, r.lthouf^h either side may request another witness to withdraw. l'\)r this reason it is laid down that if the prosecutor is also a witness he should jjive his evidence first as he has to remain in court, and similarly, if the prosecutor desire a "complainant " to assist him in the examination of other witnesses such complainant has to f,'ive his own evidence first. Witnesses may however be confronted one with another in court to clear up discrepancies, identity, etc. On a discussion as to the allowance of a question, or the sutticiency of his answers, or otherwise, a witness may be directed to withdraw . A witness, before he gives his evidence, is sworn by the J. A., President, or by a member, as follows : "The evidence which you shall give before this court shall be the truth, the whole truth, and nothing but the truth. So help you God." Whilst beiiiu; sworn he removes jiis ciqi and gloves, and then, if u soldier, puts thoni on again. Unless sick, u witness re- mains standing. A witness who ohjeets to tuki' an oatli t)r is inconq)oU!nt t<> take an oath is allowo ■|i'i U: fi Viti lixiiiiiiinilioii nf' ]\'ilncsscs. <><> \\'itn(!SSL's in;iy Ix; «|ii('sti<)ii(M| orally liy tiio prosecutor, "•'*•'*'• prisoner, or J. A. witliotit the intervention of the conrt, and the witness nuist forthwitli reply iniless the (jnestion is oi)jecte(l to and the objection allowed hy the conrt. A witness always addresses his rej^ly to the court, and his evidence is recorded in the first person, and as nearly as possible i!i the witness' own words. Before he leaves the court the evidence of a witness, as taken down, is read to him. If he makes any explanation or correction the prosecutor and prisoner may respectively examine him on it. As a rule a witness can only be examined as to facts within his own personal knowledge or observation, a mere opinion or expression of belief is not generally ac- cepted. This does not mean that he must, in every case, have such certainty as to preclude all possibility of doubt; for absolute certainty is not necessary nor is it always ob- tainable, especially in cases ot identity or of handwriting. A witness who falsely swears what he thinks or believes may be convicted of perjury equally as if he swore posi- tively to that which he knows to be false. If a question be objected to and not withdrawn, it is entered on the proceedings ; and the court, after hearing the objection, deci';'c in closed court whether it shall be put or not. In any case it must be entered on the pro- ceedings and not expunged. Great caution must be observed by the court as to reject- ing questions put by the prisoner, as proceedings are liable to be quashed if it is considered the prisoner has not had a fair trial in consequence. Mr. Mowbray, when ,T. A. CI., said: "It is ji matter of great iinportance that the prisoner on trial by ('. M. should lie re- stricted as little as possible in the examination of his own wit- nesses, or in the cross-examination of those calletl hy the pro- secution, as an error in this respect may invalidate the whole proceedings." A witness is first examined by the person calling him ; i{.r.8>. this examination is called the "examination-in-chief." He may then be "cross-examined" by the adverse party, loo nittics, Ncspinisihililics, C'^i., of persons ojjuiaiin^ atCmirls MurtiaL ',■ y m^ inv R.P. 88. W.P. 84. :1:m after which lie may be "rc-exatnined " by the person who produced him on new matter raised in the cross-examina- tion and to re-establish the credibihty of the witness ; but the court may allow the cross-examination of a wit- ness to be postponed. The cross-examination, which is usually directed against the accuracy and credibility of the witness, is however not limited to tlu matter brought forward in the '* examination-in-chief" but extends over the whole case, it must however be relevant. A witness in cross-examination may be questioned as to facts stated by other witnesses, or as to the motives which actuated him, in fact much greater latitude is allowed than in the examination-in-chief. Any statements made in the examination-in-chief may be contradicted by evidence, but statements made in cross-examination may only be contradicted by evidence if relevant t not if irrevelant. A witness once sworn may be cross-examined though he may not have been examined-in-chief. At any time before the second address of the prisoner, the J. A., also any member of the court may, with its permission, address to a witness any question he wishes through the president ; but it is preferable for members of the court to reserve putting any questions till after the re-examination is concluded. Upon any such question being answered the President then asks the witness any question relative to that answer at the request of the prosecutor or prisoner, if deemed reasonable by the court. Before the concluding address of the prisoner a witness may, by leave of the court, be recalled at the request of either side and questions put to him through the presi- dent. In special cases a witness may be called or recall- ed by the prosecutor for the purpose of rebutting any material statement made by a witness for the defence upon his examination by the prisoner on any new matter which the prosecutor could not have foreseen. .'IH nliis, l\\\/)nll\lhtiitiis, C't .,nf ftcrsottS njfU iatlH/^ til ( Ktills Millliill. witness ilrii\iii^' or irriisin^' to aiiswrr wliitlu i lie li:is been roiivictcd of felony or iiiisdenieiiiior when the op- posite si(h! may hiiiiK ('viderx j to show that he has. These kind of (|uestions natinally only occur on cross- ( \aniination and the court may check any inmect'ssary latitude. A witness may he examined as to wh.it ho state*! on a former trial or out of court, or as to his own previous history. A witiH'ss cannot l>e compelled to answer matter con- tained in privile^'ed communications, such a:; p>ay have passed between a client and hisle^'al advisor, husband and wife, or confidential communications between j^ovcrn- nu'iit officers atxl their subordinates, cS:c. *' Lciidin^ i/iicstinns." that is (juestions which suj^'^'ost the answer, are not in ;,,'enoral admissible in tlic examination- in-chief, or in the re-examination (except on what was said at cross-examination), but are admitted to the fullest extent *' short of putting,' words into a witness' mouth" in the cross-examination ; the principle beinjjf that the law presumes a witness to be biased in favour of the side which calls him, and hostile to the opposite side. There are some exceptions to this rule. Leading? cpiestions are admitted in introductory (juestions, with a view to save time and to come more speedily to the points at issue, as: "Were you in such and sucii a street at such a time ?" If a witness has described a person, the person may be pointed out and he may be asked: — *' Is that so and so ?" Where a witness has sworn to a certain fact, and an- other is called to contradict that fact, he mav be asked directly :— " Did such and such a fact take place ?" When a witness is obviously hostile to one party, and is contumacious and will not answer direct questions, the Counsel usually asks the permission of the court to put leading questions to him, which the court may allow. Leading questions are sometimes allowed to be put to •••'■ i ■, vol ter coi tio asl an :in< spt 1] lU i I ; ' ^1 llxamination of Witnesses. youtliful witnesses or to uiiintolli^^'ent sava;;es whose at- tention cannot otiierwise he called. In all eases the court has to judj^e of the fairness of the (juestion. A witness once cross-examined tnay have leading' ([ues- tions put to iiiin on re-examination, when he may he asked all questions which may he proper to draw forth an explanation of what was said in the cross-examination and on the motive whicii induced the witness thus to speak. itM ?!■ ^M' 'H HP (^W^ '^^ 'J, ? f f Si \ ,'► ' I ' ^ s< I CHAPTER VIII. PROCEDURE AT TRIAL, H 1 > • R P. 55 R. 1M32. CONFIRMATION AND REVISION, PROMULGATION, EXECU- TION OF SENTENCE, PROCEDURE IN CIVIL OFFENCES. All essential features relating to the conduct of the proceedings of a C. M. are laid down in the Act, and these are supplemented by "Rules of" Procedure" which afford a guide for almost every contingency that may occur. The non-observance of the first invalidates the trial ; the same in the case of the latter would not neces- sarily do so unless the ordinary principles of justice are departed from. By R. P. 55, the proceedings of a C. M. are not neces- sarily invalid by reason solely of any devia'tion from^the R. P., or on account of any technical defects, unless in- justice has been done to the prisoner thereby; although an officer is not relieved from responsibility for disregard- ing any of these rules. Also any deviation from the forms given in the ap- pendices to the R. P. as to the forms of charges, warrants, proceedings, etc., will not render them invalid; nor will an omission of any such form render any act or thing invalid. The provisions contained in the Act and R. P. are further supplemented as to details in the Queen's Regula- tions and General Orders. The n()n-observance of these do tiot invalidate the trial although of course officers are >J? !«/ h€ an IIK co: '*; to Ap of del pn coi sai G. Fie ref I a fe Pre she left as Th( brie the be ; the 1 whc }.A (loci the The Pyucccdings. 105 held individually responsible to obey all existing orders and regulations. Irregularities and departure from regulations are often animadverted on by the conHrming authority, not in the proceedings themselves but in a separate minute to the members. TlfK PliiiCEEDINas. The whole of the proceedings are to be accurjitely re- corded in a clear legible hand, without erasures. Printed '"Army Forms" are supplied for the purpose which have to be tilled up. To ensure the legality of all proceedings the second Appendix in the K. P. contains the " Form of Proceedings of a G. C. M., including some of the more unusual inci- dents which may occur to vary the ordinary course of procedure, with instructions for the guidance of the court," and these have to be accurately followed. The same form is used for U. C. M. and Field G. C. M. as for G. C. M., with the substitution of the words District or Field General for General, and with the omission of all reference to the J. A. where there is none. A similar form is used for R. C. M. Erasures and interlineations are forbidden, but when a few are unavoidably made they are to be verified by the President's initials. The pages are numbered and the sheets fastened together ; a convenient margin is always left and in it references are inserted to the subject matter, as ''first witness for the prosecution," "defence," etc. The finding is noted in the margin, and the sentence briefly. Also the questions and answers are numbered in the margin. Sufficient space, at least half a page, must be left immediately below the President's signature for the remarks and signature of the confirming officer. The proceedings are always signed by the President who also adds the station and date. When there is ti J. A. he counter-signs them, and he also signs all separate documents belonging to the proceedings in addition to the signature of the President. ■!H;i '■:. ■ u' \f> ■ u u n ^f" i! .1" ■*■■ ■ :;< . ; In 1 V hi ] inf) R.I». 03. R.P. 94. Procedure at Trial. It is usuiil for the J. ;\. to obtain the sipfnature of the President to the lindinj.,' and sentence of tlie proceedings as prepared in court and before the rising' of the court, and he then afterwards prepares a fair copy. The two copies are tlien compared and the fresli copy sij;ned by both; the fair copy is then sent for conHrmation. At foreij,'n stations it is usual for the (ieneral to require the J. A. to furnish liiin with a copy of the proceedinj,'s for record in iiis office; usually the rou^h copy prepared in court tioes for this. The J. A., or if there is none, the President, is re- sponsible for a proper and accurate record of the proceed- ings. The evidence is taken down in a narrative form in as nearly as possible the words used, but where the prosecu- tor, prisoner, J. A., or the court, consider it material, a (juestion and answer is taken down verbatim. Any question or tender of evidence which has been objected to shall, if the prosecntor or prisoner so recpiests or the court think Ht, be entered with the grounds of the objection and the decision of the court. In case of addresses or the summing up ol the J. A., if not in writing, only so nnich as the court and those making the addresses think proper need be recorded. But care must be taken that sufficient record of the prisoner's defence is made as will enable the confirming officer to form an opinion on the defence. The court must not enter in tiie proceedings any com- ment or anything before the court which does not form part of the trial, though the court may forward any such matter in a separate document signed by the President. The J. A., or if there is none, the President, is cb;.rged with the custody of the proceedings; but they ■. witl' proper precautions for their safety, be inspect .: i=y the members of the court, the prosecutor, and pr.isc.i at all reasonable times before the court is closed to consider the finding. vvitli ^v the at all 'ft dm t m ii I.sii'/;//>/)' 1)/ (Ottrt, and ('onslitiiliiiit of Coiirl. 107 ASSH.UK/.y nf lUUIItT. On tlif court :isseiiil)liiij^' arconliiij,' to order tlu: I'ri'si- (li'iit, who must in all rases l»e tho svwutx loinhataut ofticer, takes his scat at the head of tlie tahle, and tlie Presiilent (or J. A.) calls over the rank, names and corps of the members, who take their seats accordinj; to rank alter- nately to the rij^'ht and left, and may not leave them with- (jiit permission of the President. The members take their seats accordinj^' to their army rank, except at K. C. M. consisting; entirely of officers of the same corps when they take their seats according to their regimental rank. The blames of the President and members, and J. A. if any, are entered in the proceedings. The hour at which the court opens is always recorded, and the hour of every adjournment and the hour at which it stands adjourned (unless until further orders) must be precisely noted in the minutes, also the time at which the court re-assembles, and alterations (if any) in its composi- tion. The charge sheet and summary of evidence are laid be- fore the court. (No summary is prepared for a R. C. M.) All documents relating to the court or to the matters before it which are intended to form part of the proceed- ings (such as an order respecting the time of sitting, or directing an adjournment, etc.) at whatever period of the trial they are received should be read in open court, marked so as to identify them, signed by the President, and attached to the proceedings. CONSTITUI'ION OF COURT. When the President and members are duly seated their first duty is to satisfy themselves that the court is legally constituted, viz : — I. That it has been properly convened and the Presi- dent and J. A. appointed, by the reading of the orders (see below). I< v. 'i'i. R F.5T. HP. 32. M loS ri'iHCiltii'i' tit Ttiiil. 'tn htd H.V. ift-ii ^ That tlu; ofiircrs art- all eli^jilih? to sit, (sft! Cliapttr \ • P'^K^' 5.{) iind that tiic iiiiiiilicr di'tailed ;iic picsriit. A. A. 48. (siivc as ill K. P. iS p. 5()) and an- not loss tliaii tlu' U.-^'al tiiiiiiiiuin. A A. 17(4) J. Tliat the I'lcsidciit is duly appointiMl, and is of tlx- iiM(i)iHi(i)ie,|uircd rank. 4. In thr case of a G. C. M. that tlir ulf'utis art' of the re(|uircd rank (K. I'. 21, p. 54). 5. That the J. A. (if any) is duly appointt'd and not distpialiHed (U. P. <)(), Chap. V'll, p. «)5). A a'47;.v ''• '^ ^i-'t the charj;e is aj^'ainst a person anienaMe to iw(i)i84[iV"'^'t'"y ''^^^' '^"'^ t" *''^' jurisdiction of the court. 7. That each char/^'e discloses an offence under the Act, is properly framed, and is so explicit as to en- able the prisoner readily to understand what he has to answer (K. P. 10, 11. Chap. VI. p. 69-72). The court, if not satisfied on any of tiie above matters, adjourn and report tiieir opinion to the convenin;,' officer. The prosecutor now takes his place, and the court cause the prisoner to be brouf^ht before it. The presence of the prisoner is entered, as all proceeding's in open court must take place before him. The name of any Counsel for the prosecutor or prisoner, or "friend" to assist the latter, is also entered. As there is only one legal manner in which any C. M. can assemble the order convening the court and the date of the order and also the order appointing the President and J. A. are read over in the prisoner's hearing, signed by the President and attached to the proceedings. R.P. M. Hi* :. tJ- lUP.SS. A.A. 61. ClIALLENliE AND SWEARINil. The court must then ascertain that the prisoner has no reasonable objection to any olftcers of the court ; for this purpose the rank and names of the president and mem- bers are read over in his hearing, they severallv answer to their names so that the prisoner may identify them, Iiapti I irSiMlt. of til.' <»i the 1(1 not 1)|(' to LT the ;o en- lias to utters, )tficer. court jsence court )unsel St the ;/• :. M. ate of ?ident ignecl as no r this inern- isvver :hem, I U' : 4 i .III) |)rii «)VC t till* (Oil oi>ii ("on (Oil I vvlu he 1 ol)j( 1 ally \()t» II the oftic Stan Ai proc jecti W iL'tii ofth then K. 1 Tl any i ing, is pu affor rs» Clhilliii^i' iiiiJ .VuV(»n//^'. i'ti» ami till' following' ipn'stlMn in put l»y thr l*ir«4ii|i'iit tn iln» prisoiur : ^ " Do ynll olijiM't to Ir; tlii*(| liy nil* UM till! Picsitlcllt , ol l»V ;iiiy uf thu otru.ci'H NvliUMc iiaiiifs son have Inaiil na*! over ?" A prisoiici cannot "clialltii^H!" (ol>jr( t to) the coiiit j;»'niiallv, nor tin* wliok' «»f tlu' ••liners colUctr «'|y, nor till' J. A. or prosiciitor: !)ut In- has tin- privilt'Ki' '>! •»l*j«'*'t' in^' t«» all or t») any oni- of the otticcrs composing tin- ^'^ **'•'* ( onrt individually for any rcasonaldi* cause and tin h objtiction is entertained separately l>y the (»tlu i otti( crs forming; tlu! couit, ami it is entirely the province ol the A.A,rn(«) court to decide us to the valiility of any objection. The prisotier nnist state the names of all tin- olVicers to whom he objects before any objection is disposed of, and he may call any person to ^ive evidence in support of his objection. The officer whose challenge is bein>^ entertained >,'i'iicr- ally leaves the room and his challenge is decided by the votes of all the rt!St. If more than one officer is objected to. the objection to the lowest in rank is disposed of Hrst and all the other officers vote on the disposal of such objection notwith- standing they are themselves challenged. Any objection made by the prisoner is recorded in the proceedings, as also any evidence in sujjport of the ob- jection. When an objection is allowed, that officer at once retires from the court and, if he is not the president, one nf the officers in waiting at once takes his place, or if there are none the court should ordinarily adjourn (see R. P. 18. Chap. \'. p. 56). The prisoner is given the opportunity of challenging any fresh officer who may supply the place of one retir- ing, his name is read to the prisoner and a like (piestion is put to him. The fact that this opportunity has been afforded him must appear on the proceedings. ' ',: ' ill 5 ■ i ■ f Mil'' 1 lo PriKCil:irc ul Triul. In the case; of challcn^^'t'S, tlie court has to decide on the iissci'tid)! of tile prisoner chaUenj^'inj,', of the officer clialieiif^'eil, and of the witnesses adduced, since it cannot receive evidence on oatli before bein^ itself sworn in ; the court is as usual cleared for deliberation. Peremptory challenf,'es, that is challenges without reasonable cause assigned, are not allowed by C. M., but for every challenge a cause must be shown. This (litfors fV»nn tin' civil in'aclico whcro, in trial for felony Itofbrt* crimiiiiil courts, llio prisoiicr has a rijflit ol' pcivniptory chalk'ni>c of Iwciity Jiu'ors without showing cause, and then ho may cliallongc others with showing cause. The following are some valid causes of challenge against officers in addition to those who are disqualified by K. P. I.J. (p. p. 5.}»55):— 1. Having been heard to declare an opinion unfa\ cur- able to the prisoner maliciously, or having expressed an opinion respecting the prisoner in connection with the charge in question. 2. Age or infirmity. it has been seen that interested parlies are disqualified. But a difficulty arises In answering the (luostion as to what consti- tutes an interest ? The [)roceedings of a court tor the trial of a private for stealing a case of wine Irom the officer's mess was ([uashed l>y the .1. A. (J. in London, although the prisoner himself i'alse;|i when held under the Statute they were. In 1S(>8 the praeliee of swearing nienibers and witnesses of li. (', .M. was iulrodueed. but the Duke of I^V"' l^Bl'v' m (', •■. i: ••1 11 i' t; m' Prosccutinit, Defence^ aid Summuif^ up. U'olliui^lon Hlroii^ly Mbjoclt'tl to tlio iiitrodiictioii of this prao- ti('(> on iho ground timt it chaiij^tMl the character of tlio courts from " courts of honour and (lis(i|)liiic " to " courts of law " and introduced a ^^roat doal of pcrjui-y as lyinijwitncsssos could not then he (lishdicvcd hy the court, and hecause their i|uir(M| to restrain. Sir Charles Napier strongly supported this opinion and stated that it was highly ohjectioiuihle that otticers should he uiado attornevH at law. and iirijed that V. M. should bo courts of hiMiour. Loyislation of late yeai's has tended more and nioi-e to turn (\ M. into courts of law, and they have hwt their character ot coin-ts of c(|uity. With the admission of civilian lawyers at ('. M. orticers are liable to be placed in a very unenviable posi- tion. The prosecutor is the only otHcor of the court whose duties are founded on the supposition of a CM. bein^ a court of e(|uity, for ho is by rei^ulation prohibited from establishin<^ the charge and obtainin<>; a conviction l)y all le^al means in his power as he has to behave in»pa! tially and not supj)ress any »'videnee whi chai^'e does not disclose an ott'enre under the Act. and that it is not in accordance with the K. 1*. At any time during' the trial a mistake as to the des- cription of the prisoner can be an»ended by the court. Also the charf,'e, if necessary, can be amended by the conveninj,' officer, but the court must adjourn for the pur- pose bt'/urc the examination of witnesses has com- menced. If no special plea to the },'eneral jurisdiction of the court is offered, or if such plea, bein^ offered, is over- ruled, the prisoner's plea — "Guilty" or "Not Guilty" is recorded on eacli char^'e. If he refuses to plead, or does not plead intelli/:;ibly, or stands mute, a plea of "Not Guilty" is recorded. A plea of "Guilty" is in law a conclusive admission by the prisoner of his guilt, and further evidence is not re- quired for the purpose of proving the charge, and in a C. M. the plea of guilty is efpially conclusive ; but before recording a plea of 'guilty' the court has to ascertain that the prisoner understands the nature of the charge, and has to inform him of the general effect of that plea, and in particular of the difference in the procedure which will be made by that plea. If there are any other charges in the same charge-sheet to which the prisoner pleads "not guilty", these charges are taken first by the court and the trial proceeded with on them until after the 'Finding,' and then those to which he pleads 'guilty' are taken. I>ut if the other charges are alternative charges, the court may procecMl as if he had pleaded '* not guilty" to (ill the charges. «I5 » H na. u.i: la. R.P. 30. , :!! !■ ,j|r li I'i Si"' h H Il6 K.P. 87. R.P. 88. PriKtuinrc til Ttiiil. Wlifii tilt; otlu:r char^c'H nrv. ho far (liHposrti of, tlic rhaij^'p to which tht* prisoiu-r phachMl "^'iiilty" Is thi'ii read to iiiiii a^'ain and he is askt','c to which you liavo pIcaihMl guilty ?'* The Mul)Stai)cc of the prisoiici's statiMiictit is taken (h)wn in the tirst person and as nearly as possilde in his own words. If tlie court are satisfied from the statement that he did not iniderstand tlie effect of tht! plea of "ffuilty," tliey enter a plea of "not guilty" and proceeil with the char^'e. If the plea of "j,'uilty" is not altered, the court proceed to record the "finding,'" at once. The summary of evi- dence is then read, si^'iied, and attached to the proceed in^^'s. After the summary of evidence is read the prisoner may call witnesses as to his character and may then make a statement in mitigation of punishment, but no other ad- , dress is allowed. If there is no summary of evidence, as in the case of a K. C. M., sutHcient evidence is taken, in the satne manner as for a plea of not j^Miilty, to enable the court to deter- mine the sentence and the confirming otHcer to know all the circumstances connected with the offence. The prisoner may then call witnesses as to liis character and then make a statement in mitigation of punishment, but no other address is allowed. Whenever the court con- sider that anything the prisoner states in mitigation of punishment requires to be provetl, they will permit the prisoner to call witnesses. At any time during the trial the prisoner may, if he thinks fit, withdraw his plea of "not guilty" and plead "guilty," when the court will record the plea and pro- ceed as above. After the plea of " not guilty " to any charge is recorded the prosecution is commenced. PROSECUTION. The prosecutor may always, if he desires, make an 'f (I an ' % I'yosLXulioii. 1 r opeiiiii}; address. Tlu; ividtuci" for t\\v prosecution is then taken. , If the prosecntoi has to i^ive eviilence for thi; proseeu- tion he shouhl j^ive it after his adchess, beinj; first sworn. He may he cross-examined by the prisoner, after which lie may make any statement whicli mij^ht he uukU- b\ a wilni'ss on re-examination. The prosecutor thenj)roceeds to call witnesses. Kvery witness called is liable to be examined as follows: (I.) JCxamineil by the party who calls him. (2.) Cross-examined by the opposite party. (J.) Re-examined by the party who called him. (4.) ICxamined by the court. In every case where the prisoner does not cross-examin(' a witness for the prosecution the statement that he de- clines to do so is recorded in order that it may appear on the face of the proceedinj^'s that lie had the opportunity j^iven him.of cross-examination. In joint trials it nnist he recorded that each prisoner so declines, or otherwise. The evidence is then read to the witness (R. V. iSi, ("hap. VTI., p. 99.) The court if they think lit may, at the recpiest of the prisoner, allow the cross-examination of a witness to be l)ostponed. Durinj^ the taking of evidence any mend)er may desiri' a (piestion to be put to a witness or to the J. A., but such (luestions have to be put to the President as the court has to decide whether there is any objection to put any particular (piestion and if objected to it is not put : if alloweil it is put as "a (juestion by the court," but such (jnestions by the court to a witness should, as a rule, come after the re-examination. If any (juestion should arise incidentally durin*; the trial the person, whether prosecutor or prisoner, retjuestiu}; the opinion of the court is to speak tirst, the other person is then to answer, and the first person is allowed a reply. A .er the evidence of each witness is completed, the IM'. HI. R 1'. ti(» tin. ■M il ii8 Vyoccdurc ul Trial. n Wu m. i^y u.F. nt) R.P. 39. words " tlie witness withdraws" arc entered on the pro- ceedinf,'s and a line is ruled right across the page. Where two or more prisoners arc tried together the evi- dence and address on the part of all the prisoners an- taken before the prosecutor replies, who is limited to only one address as regards all the prisoners. In ordinary cases addresses by the prosecutor are un- usual, but in all important or ditKcult cases he would gen- erally open his case by a statement of the facts he pro- poses to prove and the nature of the evidence by which he intends to establish the different points of the case. He must be careful not to introduce into his address any matter foreign to the charges, nor may he insinuate im- putations not implied by them. Where he is permitted to make a second address, he may do so for the purpose of summing up the evidence for the prosecution and in order to explain to the court the bearing and effect it has produced and any points he desires to make clear, but he may not state anything in the way of new facts relating to the case or which par- take of the nature of giving evidence. The tindinjj;' of a (J. C, M. wtis once sot aside because the prosecutor, in his reply, st.ated new facts relating to the case, thus giving fresli evidence adduced at the wrong time after the prosecution had closed and given h^'a person not on oath and not open to cross-examination. DEFENCE. At the close of the evidence for the prosecution the prisoner is placed on his defence. He is asked if he intends to call any witnesses other than witnesses as to character. The object of this ques- tion is simply to determine whether the prosecutor's second address is to be given before or after the defence. The prisoner may make his defence on various grounds, and the defence may therefore take different forms. For instance, he may endeavour to: (rt) Disprove i\\t fads of the charge, or tlie pro- • r the evi- lers ail' 1 to onlv are uii- uld geii- he pro- y which le case, ress any late im- i-Vu ress, he ividence le court Dints he :hing in ich par- ause tlie the case, after the )tith and ion the 3S other lis ques- ecutor's defence. rounds, IS. P^or HJ ' M nti •?'P' Defence. {!)) Disprove the particulars alloj^'iMl. thereby showing; absence of criminal intent, or (t) Sliow the evidence for the prosecution to l)e un- worthy of l)ehef, or {d) Prove insanity at the time of tlie connnission of the act, or that it was done unrler compulsion, or {c) He may brin^jf up pleas to the jj^eneral jurisdiction of the court, or (/) The defence may be only in miti^'ation, or (jt,*^) He may ur^e misfortune or chan(;e. Ignorance of the law is no defence, nor is it a miti^'ation of the offence if committed under the influence of drink, drunkenness on the contrary is as a ride an a^'pjravation of the offence. Misfortune or chance, where there has been no culpable negligence, is a defence, but if the act was unlawful then chance only serves as a plea in mitigation. Wiiere the prisoner calls no witnesses other than as to character : — (a) The prosecutor may address the court a second time, to sum up the evidence for the prosecution. {b) The prisoner will then be asked if he has anything to say in his defence, and may address the court in his defence. (c) The prisoner may call witnesses as to his character. {d) The prosecutor may produce, in reply to the wit- nesses as to character, proof of former convictions and entries in the defaulter book, but he may not again ad- dress the court for as there is no evidence for the defence there need be no reply. If the prisoner states that he inicnds to call witnesses other than as to character : — {a) The prisoner is lirst asked and ma\ opin his de- fence with an address as above in (/>). {b) He may then call witnesses, including witnesses as to character. 119 H.P.KI. I2(i Pyoccdnrc at Trial. F • (c) After the evidence of the witnesses for the defcnci* the prisoner may address the court a second time. ((/) The prosecutor is now entitled to address the court in reply. The witnesses for the defence are examined in turn on oath in the same manner as the witnesses for the prosecu- tion. A prisoner may defer cross-examining the prosecu- tor's witnesses until he is put on his defence, but the prosecutor caimot postpone the cross-examination of the prisoner's witnesses. The addresses of the prisoner should be confined to the matter before the court ; his openinjj; address to the points on which his defence is fj^rounded, the second to a brief summary of the importance of the evidence adduced. It is clear that making violent attacks on the prosecu- tor, or assigning to him, or any other person, improper motives would be no defence. The value of any opening ; '.,. ess depends on its being corroborated by evidence «)1j (/ath, otherwise, treated as a mere statement, it is of no value and the prisoner, if he has no legal adviser, shf'ddl i iformed'of this. Great latitude must l>e given to the defence ; but the prisoner is not to be allowed to make statements disre- spectful to the court, or to use coarse or insulting lan- guage, or to animadvert at all upon persons who have not been before the court. It must be remembered that the defence being an un- sworn statement, unproved documents must be received for what they are worth, and any document tendered to disprove part of the prosecution must be duly proved before it can be considered as evidence. The court may caution the prisoner that the line of de- fence he is pursuing is not likely to operate in his favour, but the court cannot refuse to hear him state arguments, etc., which, notwithstanding such caution, he may persist in putting forward. Thus it is seen that where there is no evidence for the de- fence except as to character, there is no reply re(iuired,and |f;-'-< = •t. m\ m* »5( UiY i (I St P< .-iL th of llli pe .l.'is die crt SIM COl 1 par le.'K .\ and \' muc son' muc niak Ti prep parti whic issue ovide from prov( ance; but d iior a Wl *< Ikfcncc. the prosecutor's final address is j^'iveii at the end of the pro- secution. If there are witnesses for tlie defence, the prosecutor replies after tlie defence is ch)sed. In some cases lie may be allowed to call witnesses then, but only about new matter which may have been introduced by the prisoner in his defence or to re-establish the credit of his witnesses, but no additional proof of the ori/^inal matter may be brou{,dit forward. He may however im- peach the credibility of the prisoner's witnesses, and in this last case only can the prisoner call witnesses to contra- dict those called for the reply, as he may re-establish the credit of the witnesses so impeached by evidence. The J. A., if any, will, unless he and the court think a siunming up unnecessary, sum up the whole case in open court. The addresses and the summin;^ up are usually pre- pared in writin},', when they are handed in to the court, read, and attached to the proceed injj;s. After the J. A. has spoken no other address is allowed, and the court is then cleared to deliberate on the findinj,'. Where any address is not in writing the court record so nuicli as they deem material as far as possible in the per- son's own words, but they must always record at least so much as the person, whether prosecutor or prisoner, iiiakinj,' the address requires to be recorded. The court fjenerally adjourns to give the J. A. time to prepare his summing up. The summing up must be im- partial and should lay down the law on any legal questions which may have arisen. He states clearly the several issues on which the court have to find and points out the evidence for and against each, but he must carefully abstain from giving any opinion as to whether such issue be proved or not by such evidence. He points out any vari- ances and discrepancies in the evidence on either side, but draws no conclusions as to the effect of such evidence, nor as to which party he considers most worthy of belief. Where a ])risoner is defended by Counsel or by an oificer X2X u.i'.n. »''l!^V ,1 i: ! HI f in 3; Hi i ill! JJ. R.r.42. I'niiiihiyc lit Trial. luivlnj,' the ri^'litsof Couiist'l, tlu; atldrt'sscs would ho rnadi' by thc'iii. At th«! ronrliision of the seconrl addn-ss the prisoner is asked wlietlier he wishes to make a statement himself in :idditioii. lfh(-mak(>sa stat<'ment the prosecutor may tall witnesses in reply. It often happens that the court has to adjr)urn at the close of the prosecution to t.-nahle the prisoner to pr'^pare his defence, and also at other times to enable hini or the prosecutor to prepare an address, and a^'ain at tlie closi' of the defence to enable the J. A. to prepare his summing' up. 1 INDINC. The Hndin^' is the opinion of the court relative to the prisoner's jjuilt or innocence with respect to each, or all. of the char^^'es preferred aj^'ainst him. The court delib- erate on their Hndinj^' in closed court. The opinion of each mend)er is taken separately 011 each charjje, and every member is recpiired to state his opinion. When there is more than one prisoner the votes are taken separately for each. The finding; need not be unanimous las in a Jury) but is solely the opinion of the majority. The rinding', if it hi' "guilty, i^* taken and iviMtrdt'd f<«'ci*o(ely. This is opposed 1<> tlici rule of eivil law which iiivniiahly w- (piires tlio vei'dict to In- i;iv<'ii in opni conrl. The reason \\)V this inijtoi'tant dirt'eronce in the |»i-oc<'t'dini;s of'( '. M. is that mi tintlin^ of a ('. M. is valise<|ui'nt *• revision " or it may he '• not eoii- tirmed." The J. A. remains in court, but can take no part in the proceedings unless consulted on le;^'al points. It is still in the powt.r of the crv cliaiK'^' iMit'coidcd Hiiiiply UH ••miilty"or ••not ;,'iiiliy." nr"noi j^iiilty an. I lioiwrniiiMy a('(|nit him of the s:iiii«." Hut uhcii tin* iuits wlii* li liavr lu'tii |)n»\t> havt* [Wr- jntlircd tlic piisoiici in his iIiIcim c, the * oin t tuny iccot'tl a "s|H'cial Itinhnj;"; that is tin- court liiid ihi- [uisoiifr jijuilt) of tlh' charK*' suhjiit to th<' «'\«f|»tioiis or vaiiations an- ni'Mrcl to tlu' tin(hnj». Thi! tcTin "siK'iial tiiidinj^ " is appht'd to anv limlin^ t.xix'pt •'j^'uilty" oi "not K'liltv," or "not >,'uilty and honoural)ly a((|uit liiin of thu saini'." If tho t'sscnce of llif rharjj;i! h»' piovtd hut oidy part of tin" charge, tlitii th«' court should lind " ^'uijtsof the chaij^'i: with the ox* ccption of " It may In* stated specially which of the facts charf^'ed the court finds to he proved, or it may aineinl sli)j;ht errors in the chaij,'e not material to the nn-ritsof the case. I'or instance, a prisoner char;^'ed with havin;; committed an offence on a certain date and phuc, may he convicted of havinjjr connnitted the offiuice, I'Ut on som<' other date, oi at some other place. Thus: "(iuilty, with the exception that the oftence wascommitteil at -instead of at , and on the i8 instead of the as stated in the char}j[e." A prisoner charf^ed with stealin;; a certain sum of money may he convicted f)f stealiu>j^ another sum. I''urther. a prisoner if char^^'d with a f^neater offence or one involving,' a hij^dier di'i^nee (»f punishment, may be convicted of a minor oftence if included in the {^^reater offence of the sanie kind; hut a court can never convict of a {graver oftence than is stated in the char^^e, nor of an oftence of a difterent character. Thus, a soldier chari^ed with ilesertion mav be convicted of an attempt to desert (and vice vcrsdjnr of absence with- out leave ; a man char/j;eil with committin;^' an oftence "on active service" mav be found LMiiltv, but not on ac- HP.«lk ■■^. 124 Procedure at Trial. > t A, A. 66. R. P. 44. R.P. 50. tive service. So violence to a superior " in the execution of his office," may be found simply violence to superior officer. Hut it cannot convict of desertion if the char^jfe was absence without leave nor if a soldier is charfjed with desertion can he be convicted of insubordination. But if the part of the charfje which is not proved con- stitute the essence of the offence the court must acquit altojfether ; for instance if a soldier be char^jed with hav- ing ivilfuUy maimed himself, but the evidence only prove that he maimed himself but not wilfullv, the court must acquit altogether as the word wilfully constitutes the essence of the offence. It is specially enacted that a prisoner charged with stealing may be found guilty of embe;{zlement or of frau- dulently misapplying money or property, and vice versa. Where the court are of opinion that the facts proved do not form an offence under the Act, the court acquit the prisoner. If the court are in any doubt on this point they may adjourn and refer to the confirming authority for an opinion. A prisoner arraigned on "alternative charges," such as, — having stolen, or being found in possession of articles knowing them to have been stolen, — can be found guilty of only one charge. But, as above, if the facts proved do not appear to the court to constitute the offence men- tioned in any of the alternative charges but think that the facts proved constitute one of the offences stated in two or more of the alternative charges, they may record a special finding or adjourn for the opinion of the confirming authority. If the finding on each of the chr.rges is " Not Guilty " the President will date and sign the proceedings, which will also be signed by the J. A., the finding will be pronounced in open court and the prisoner released, as no confirmation is necessary in case of acquittal. The proceedings are then transmitted in like manner as if they required confirmation. ii/f-l HP out. l*roci'i'ih'tii^s on Cnnvictiou. Insanity. -U the prisom-r is imfit t(» take his trial 1)V reason of insanity, or if ho was insant; when he coniniittod the offence, the conrt take medical or other evidence on oath (a mere medical certificate is not snfHcient) and, if proved, Hnd specially the fact of the prisoner's insanity. If the Hndinj,' is conhrmed, the prisoner is kept in custody waitinj^j disposal ; if not confirmed, he may be tried af^'ain. »-5 A.A.imi. FKOCKEDINC.S ON CONVICTION. If the lindinj,' on any charf^^e is "^Miilty," then for the guidance of the court in determininj,' their sentence, the i<. p. i;,. court re-open to take evidence with reference to the prisoner's (i) character from the number of entries in the defaulter book, and (2) from the number of previous con- victions by C. M. or Civil Court. Evidence is then taken on the followinj^ particulars : — (3) Len<,'tli of time he has been in arrest or in confine- ment on any previous sentence, and (4) awaiting trial on the present char{,'es, (5) his a^^e, (6) date of attestation, (7) service allowed to reckon towards discharf^e or trans- fer to reserve, and (8) any deferred pay, (9) service to- wards pension. (10) And if the court is a G. C. M. or D. C. M. any military decoration or military reward of which he may a.a.m.(1''') he in possession or to which he is entitled and which tiie court can sentence him to forfeit. (11) If the prisoner is a warrant officer not holdinj,' an honorary commission, the regimental rank he held before his transfer is then stated. (12) In the case of an officer, his army and regimental rank and date of last commission. (On the trial of a commissioned officer only evidence of former convictions (if any) is produced at this stage of the proceedings, questions as to character, etc.. not being authorized.) If anv of the Jibove imfonuatlon cannot be (stated from the ivtjimeutal hooks the parai^raphs in the printed form are sti'uek oiil. Evidence on the above matters is given by a witness 1^' * 5'' m fill! m ll: m 12C> Vroccdnrc at Triiil. verify iiifjf a stateineiit. previously prepared, vvliich con- tains a summary composed of true extracts of the entries in the rcj^'imental l)ooks respectin;^' the prisoner. After recording' the ahove evidence the court asks this witness whether he can identify the prisoner as the person referred to in the summary. Then he is asked whether he has himself compared the contents of the statement with the regimental books and also whether they are true extracts from tliose books and a fair and true summary of the entries in the defaulter book. As seen in Chap. V'll (p. 90), the prisoner's character is ascertained by the production of a summary of all his en- tries in the regimental defaulter book exclusive of con- victions by C. M., and of those by Civil Court which are entered in the C(jurt Martial book, (see Procedure in Civil Offences). These entries are arranged in two columns, one containing all entries within the last 12 months and the other all entries since enlistment. The other particulars as to the time he has been in confinement, etc., which are also recorded in the above statement, are obtained from the regimental books. If the charge is for drunkenness the entries for drunken- ness are stated separately. To this statement is appended a " Schedule " contain- ing a certified copy of all convictions by C. M. and those by Civil Court which are entered in the Court M^^-tial book. The statements in this Summary and Schedule are read to the court, signed by the President, and attached to the proceedings. Before such evidence is given the witness, who should be a commissioned officer if possible but not a member of the court, is sworn like any other witness. As a rule the prosecutor gives the above evidence. Former convictions by C. M. are proved by a certified ch con- entric's sks this as the red thi- nks and 3ks and efaulter •acter is his en- of con- ; whicli dure in in two last 12 been in 3 above s. unken- ontain- d those M'^'-tial lie are tached should lember a rule ertified H}. n Si-nlauc. I -J 7 copy of their entry in the Kej,Mineiital C". M. hook^or De- faulter l)o()k, and convictions l)v Civil (*<>nit by a certitieil copy of the certificate obtained from such court, or by a certified copy o( the entry of such a conviction in the above re^jiniental i)ooks. The prisoner may h^^ane in these certificates imder different names, havin;,' assumed ali^iscs or false names. This is no matter so lon;^' as the court be satisfied of the identity of the prisoner with the j)erson di^scribed tlu;rein. Only convictions since hisyir.s/ enlistment, includinj^' any time passed in a state of desertion, may be brouj,dit up a^'ainst him. In case of a man enlisted twice convictions during,' his first period of service can be brouj^dit a)^'ainst him. The prisoner may cross-examine any such witness and call witnesses to rebut the evidenct;, and if the prisoner imm."«. requests the regimental books nuist be pioducedand com- pared with the above Summary. SKNTKNCK. The court is now apjain closed to consider their sen- tence, which is done secretely, and the votes of all the members are taken in the same manner as for the finding,'. Although some of the members may have voted U)i an acquittal every member is required to give an opinion as to the punishment to be awarded. The court awards only one sentence for all the offences charged. The court is restricted from sentencing to any other punishment than may be legally awardeil for the particu- lar offence of which the prisoner may have been found guilty. A C. M. in passing sent'.'uce has regard primarilv lo the nature and degree of the offen(<' and tlu; previous character of the prisoner as proved in t\ idence. The court further considers if an\- eircnijnstancis have been u V fls. R.P 47. Q,K.VI '.B* . .'.M ml ■'A I2.S Vvticcdurc at Trial. V'i ti- • 1 * » 1 ^ 1 1 1 I' V I t A. A. 10. disclosed by the cvideiiCL' in extenuation or a^,'f,'ravati()M of the offence. It Ih (lir«'clci| tliiit in onhiiiiry ciiciniiHttiiKi'M timl dM- a tiiNt olt'ciM'it a sciitcnctt nIiuiiIiI Ik' li^ht,uitil that fNcopt tor har(U'iic(| oHoimU'I's ?*hnrl Hoiitt'tu'tw ai'i' likrly to ho an olVrctivf jih lotiy; iMK'H. Srritriict's niiiHt vary aciMn-iJin^ to tht! rrqiiinMiu'iils of diNcipliiic, hut titr thi) U'SNor i'laNs of otl'iMMCN usually triiui Ly l>. C M., in tho easu ot th'st ionviclion it is laid down that a Ncnt<*iic(> of iinpriHotnnent should rarely cxieud thr(>e nionlliii. .lust discrimination is therefore to hi! used hy the ciMH't in applying' the quantum of punishment to the nature and ile<;r(>e of the ottenee so that the award nniy hn tinal and carried into ctl'eet, as it is indisputable that crimes are more elVectually prc- vejited by the certainty than l»y the severity of piniishment. o.K.Vi.ro. '" 'he instance of oHcncos against snpericu's thi- principle should hit aeted upon that an otfence having relation to the otiico held hy the superi(M' is of greater f^ravily than an ottenee against the individual apart from the duties of his ottice; also the lower the rank of the snjierior officer, and conse(|uently the U^ss the distanee hy which ho is separated troni the position or ranU of the otl'ender, the less will he the gravity of the otVenee. The only case in which a particular punishment is per- emptory under the Act is the case of an officer convicted of scandalous conduct, "unbecoming the character of an officer and a gentleman," in which case he '"shall be cashiered," so that no deliberation is in this case neces- sary. In all other cases the punishment specified in the Act is the liif^hcst punishment that may be given in aggravated cases ; and subject to regulations and according to the nature and degree of the offence an offender may always be sentenced to any less punishment than that stated. In all cases there must be an absolute majority of the 5»(«) "''whole court except on a sentence of death which recpiires the concurrence of at least two-thirds. It is not sufficient that a greater number of votes should be given for any one kind of punishment than for any other punishment, unless the greater number forms a majority of the whole. It is illegal to determine the amount of punishment by a to the >ft'cii('e Iso the ho U'.sH V rank s pcr- /ictt'd of an ....be leccs- ; Act /a ted ) tht; \\a>\s 1. " the uires ■■Ml* 1 oil 1(1 any IS a the ;ars, kin^' I be :i! TT^ Senlciuc. IH) Dvcrrulcd tlu'rel)y, and a sontonci! may l)c awarded which has not hveu voted for by arjy one incin!)er of the court. It is often convenient if the court differ as to tlie pun- ishnu'tit to l)e awarded first to decide as to its nature and then as to its extent, and in j^cneral the court should hist «U;cide as to the nature of the punishment to be awanU'd and tlien the amount. Tims if on a (i. C. M. of nine members there is a differ- ence of opinion as to the nature of the punislimcnt to be awarded, this is decided tirst. If f«)ur vote for F. S. and five ff)r imprisonment, the imprisonment is carried, and tlie votes will have to be taken ajj^ain to decide the amount of imprisonment. If now, three vote for two years, four for one year, and two for if).S (hiys, there is a majority of six to tTiree tliat it shall not be more tiian one year, and of seven to two that it shall not be less than one year. The question should then be put — '* Shall it be for ^65 days." Sentences of impris<#nment are always to be specified in days, and if the prisoner is under;,'oin;,' imprisonment imder a former sentence the new sentence must not exceed such a term as will make up a period of two years from the date of the former sentence. Any sentence of P. S. or imprisonment whether ori^'inal or revised, and a.a.w. whether the prisoner is already under/;;oing a sentence or not, commences from the date inclusive of the sij,mature of the proceedings by the President who always adds the date to his signature. When several prisoners, tried together for the samq offence, have been convicted the sentence (in the same manner as the plea, defence, and finding) for each must be recorded separately. In the case of an officer a sentence of cashiering should precede a sentence to P. S. or imprisonment, and in the case of a N. C. O. such a sentence should be preceded by a sentence of reduction to the ranks even though such a sentence necessarily involves reduction to the ranks. When a J. A. is present he is responsible that the sen- ^ Uo Prncctiitrc at Trial. } 1 ]-■- j! ,'*■ trricc is |>r<>|utly nvokUmI, and that it is witliin tin* powers of till' court to awaid. A.A.M(i)> If tli(! court ili'sirc to iiiakca rrcoiiiniciKlatioii to nitrrcx Sll K I'. W. A A '.It, forft'itcd on account of desertion oi ri.didnlcnt cnlistnu'iit. such rcconmicndation is entered in the proceeding's, an also if the court recointneiid any rest<»ration of servire In all cases the reasons for any recoininendation are to he >j;iven. and the iMimlur of \<>tes h.\ which it is adopted or rejected may also he j^dven. Should the court desiti' to remark on the conduct of any parties hefore them, or on the in.imier in which a particular witnixs has ileliveicd his testnnony. or make any comment, they should emhody their viiws in a sepa- rate letter to he sij^Mied hy the President and attaclu-d to the procei:din);s. « Upon the court awatdin;,' the sentence the President dates and si^'us the sentence, and the proceiidinj^s. when ci>u:iier-si;^'ned l»y the J. A., are to he at once transmitted fi or conhrniation. <'o.\FUfMAT/nX ,|.V/> h'/n /s/u.\. rKAN'SMISSION 0| I'HOCIlllDINdS. The proceedinj^'s of a (1. ('. M., if held in the U. K.. K.iMtr. are transmitted without delay hy the J. A. to the j. A.Ci. for the decision of the Soverei;j;n : and in the case of tin Koyal Marines to the Secretary of the Admiralty for tlu decision of the Admiralty. If luld iil)n)ad, they .'Ue sent Q.H.Vi.im.to the (leiieral in Connnand or other officer hayin;,' the power of contirmation. The proceedinj^'s of a 1). ('. M. are forwarded hy the President (or J. A. ifanyt to the person directed hy the A.A. 64(1). conveninj^' authority, otherwise to the coiitirmin;^' officer, i.e., an officer authorized to conyeiie a (i. (". M., or some officer autiiori/ed hy him, usually to the (ieiieral Com- mandin;; the district. The procecdinj^js of a R. ('. M. :iv( To- ^vjmli^d l)\ the .dly the ((). of President U> the conyenin^' oflicir the regiment. )o\vcts Ks, as irrvirr trni'iit. arc to io|)t(<(| iirt of liicli a inaki' I scpa- U'll t(t 'sidciit when inittcd U. K.. , A.(i. ot the for t lu- re sent nj,' tilt" )y tilt' by the )lti<:er, r some Coin- >y the (). .)f Ill !?• t t c f u t U is a in of fii cc Ol] it\ an va: aw ma exf J reg tha anc Coiiflyuuitiint. IJi CONFIKMAriDN. Courts Martial wort' instituted to aid supt-rior autlior- ity ; they are ^Miided by tlic directions of the Soverei;,Mi or her representatives, and confirniatioti by the superior is necessary as tlie Crown lias not delej^Mted the wliole of its judicial power in the case of military tribunals. Con- se(juently the Hndin^^' and sentence of a C. M. are nt)t valid unless confirmed by the proper authority, except iuA.A, w(«). the case of the finding of accpiittal, whether on all or some of the chartjes, whicjj lindinLr does not rc'(|uire con- . . . . A. A. .i4 (3), firmation nor is it subject to revision, and if it relates to the whole of the offences it is pronounced at once and in open court and the prisoner is discharj^ed. The object of interposing the confirming authority be- fore the execution of any sentence awarded by C. M. is, undoubtedly, with a view to a thorough ivestigation of the whole circumstances and that justice may be merci- fully administered. The officer entrusted with this duty is not restricted from making any incpiiries necessary on questions raised on the trial, and he may act on them in confirming or remitting the sentence. The duty of the confirming authority is one of the first importance as on him devolves the whole responsibility of giving effect to the proceedings. He may confirm the finding and sentence wholly or in part, or withhold his confirmation, or send the proceedings back for revision once, or he may refer the confirmation to superior author- ity. He is required to be totally independent of the court and may therefore not be a member of the court. a.a. 54(0 The confirming officer has authority in all cases to vary the sentence or to mitigate or remit the punishment ^ !^ ''■•'I?; awarded, or commute it for any less punishment. He may also suspend for such time as seems expedient the execution of the sentence. It is his province to so exercise his authority and to^jj yj„, regulate the amount of punishment awarded by C. M., that no sentence is greater than the interests of discipline and the merits of the case require, and that the findings I!| a.a.5I(:i) JJ^ Procedure at Trial. R.P. 66. and sentences arc legal. If the sentence is informally expressed he may vary the form, and if the punishment awarded is in excess of that authorized by law the con- firming authority may vary the sentence so as to make it legal and confirm the sentence as so varied. A sentence of death may be commuted to P. S. or to imprisonment with or without H. L.; or a sentence of P. S. to imprisonment with or without H. L. (wi'hin the prescribed limits); cashiering may be commuted to loss of rank, etc., etc. If a sentence of death on an officer or N. C. O. be com- muted to P. S. or imprisonment, the commuted sentence must first provide that the ofKcer be cashiered, and the N. C. O. reduced to the ranks. Imprisonment with H. L. may be mitigated to simple imprisonment; cashiering to dismissal; severe reprimand to reprimand. In case of a sentence of P. S. or imprisonment for a certain period, a portion ot the period may be remitted. Her Majesty alone can pardon any prisoner convicted by C. M. when the proceedings have been confirmed. The contirming officer records any i-emniks ho uiny set* tit Q.R.vi.9«. to make on any matter connected with the trial, and may direct his observations to bo promulgated with the proceedings oi" otherwise. When however he finds it necessary to comment on the in- Q.R VI.97. adequacy of a sentence, his remaiks are not to form part of the minute ot confirmation or be attached to the pioceedings but will be communicated in a separate miimte to the members of the court; or, in exceptional cases, where in the interests ol' discipline a more public instruction is required, they will he made known by publication in oitlers. Should he think the trial should have resulted in a convic R.P. 60. tion, when the prisoner has been acquitted, and he desii-es to remai'k on the proceedings he must embody them in a sepa- rate litter for the information of superior authority. If he thinks the proceedings illegal, ho will withhold his eon- Q.R.VI.98. tirmation; but if ho has already confirmed the finding and sen- tence he will direct the record of the conviction to be removed and the soldier to be relieved from all consequences of his trial. In case of any doubt he may refer the matter to superior authority. (' onjirmation and Kcvision. i.;.i It'tlio pi*o«'oi)|{ulai'- it y has occiirrud, tin' coitvictioii may stand. Init ho will vnu- sidor what I'uductiun of the sciitonci* (if any) is duo to the prisoner. If the confirming authority withholds his confirmation the sentence is annulled, the prisoner returns to his duty, and he cannot be tried again for the same offence, though conviction remains if the finding was guilty and there is no remission of any penalty consequent on conviction such as forfeiture of service, good conduct pay, etc., un- less the confirmation is withheld on account of illegality. When the proceedings are "quashed," or set aside after confirmation on account of their illegality or for any other cause, which is an action taken after confirmation by superior authority, in the case of a G. C. M. or D. C. M. by the J. A. G., or in that of a K. C. M. by authority of the General, the prisoner is also relieved from all con sequences of his trial, and all record of it is erased as the proceedings are then null and void. No member of a C. M. can confirm its finding and sen- tence. Where a member becomes confirming officer, he a.a.mc-i) must refer the proceedings for confirmation to a superior officer competent to confirm the like description of C. M. In a colony, where there is no such superior authority, the Governor may be the confirming authority. Unless upprovi'il by Jler Majest}' no Muntencu of death can ho carried into ett'ect in the U. K. A sentence of death passed in a colony, unless for an offence a.a m (7,8) committed on active service, musi, in addition to the ordinary contirmation l»e approved hy the (Jovernor of the colony, and in India l»y the l}overnor-(ieneral or (lovernor of a Presidency. When u person subject to military law is convicted of man- a.A64(9) slaughter, rape, or any other civil otfence b}' C. M., and in sentenced to 1\ S.,such sentence, in addition to the usual con- tirmation, must beappioved by the (Jovcrnors above mentioned. REVISION. If the confirming authority disapproves of either the finding or sentence, or both, he may order the court to re-assemble for the purpose of revision, the part to be revised and the necessity of revision being stated to the R.P.50. ■^1 ^ J.)4 Vroccdurc at 'I' rial. Vk A A r,\ (J) f^oiirt in ii separate luinutc. Kevision can only be ordered ».p. r.i. once. Tilt; court ic-asscnible in dosed court and may not receive any additional evidence, nor may any portion of the orif^Miial proceeding's be altered. No sentence can be increased on revision nor is the confirming authority allowed to recommend such increase. The same mend)ers who formed the court originally must re-assemble, unless any member is absent owing to illness, prisoner of war, etc. The letter directing the re-assembly of the court and the reasons therefore are read, signed and attached to the proceedings. The carder for re-assembling would be read in open court, but the remarks of the confirming authority in closed court. The court may either revoke their former finding or sentence, or both, as required, or " respectfully adhere " to their finding or sentence, or both, as the case may be. Where the finding is sent back for revision, and the court do not adhere to their former finding, they revoke hoth the finding and sentence, and record a new finding and pass sentence afresh, even though the new finding may have been altered only on some trifling ground and the new sentence may be word for word with the former one. If the court alter the finding they cannot then state lliat they "respectfully adhere to their former sentence." If thev did so, the whole sentence would become invalid; ihey could not be assembled again to correct their error, as a court can only be re-assembled for revision once; and the man could not be tried again, inasmuch as he has been convicted. He would thus escape all punishment, except that if the finding were confirmed, it would count as a legal conviction and be recorded against him, and would carry with it such forfeitures as the conviction may neces- sarily entail. When the sentence alone is sent back for revision, the court cannot revise the finding. After revision the President signs and dates the decis- »rdered id may portion ce can thority ginally 'ing to 1^' ,nd the to tho )e read thority ing or Ihere " ay be. id the revoke inding inding d and "ormer state ance." valid ; error, e; and 3 been ixcept as a would leces- n, the iecis- rl' lUi W', K)^ \H Vromul^atiou of the Vrocccdiu^s. IJ5 ion of the court, and the proct-i'din^s, ln-iii;^' si^^'tu-d l>y the J. A., arc at once transmitted for conlinMation. Whun u HoiitriuT pUMSi'd liy >i ('. M. Iia" Ihth finitirinril. err- tain aiithoi'itios have powtT io niiii-jaif. H'lnii. or tnmimii*' lln' ' ^ "" '•' piniiNliinunt uvvurdtMl, ntinit'ly: Her .Maji'>ty. •>!■ tlic < '. in ( '., of uiiy Otticci* ( 'otiitiitiiMlin;; a di^tiid mi- Ntalidii w linr tlic prisoner may tnr tlic tiiiic lie: or in India tli<- ( '. in < '. of ihc iorcoM, «n' of a I'l'osidt'ntv; or In a( 'ojony the ( Mliicr Coimnand- iii^ tho t'orct^H ill that colony, or it' clscwlirrc tlu-n within ilic liniitN of liiH coinniand. If nftor C'ontirination, oiu' nt" M'vnal chart's is Mihsc . (piuntly found to ho invalid, the ahovc aiithoritio shuiiM take into consideration sik-Ii invalidity and initiu-at«>. remit or coin- miitc aJiiMt proportion of the scnteiici'. PHOMUUlATHty. When the proceedinjjs of a (*. M. have hccn continued, an extfact therefrom in the case of a (i. (". M., and the original proceo(linf,'s in case of a I). ('. M.. an- sent to the C O. of the prisoner's regiment who is recpiired to have the . r p -.o charge, Hnding, sentence, and coidirniation with any re- marks of the coidirming authority on tlic |)t(K:ei(iings. also any rcconnnendation to mercy, promulgated and com- ' ^' inunicated to the prisoner in such manner as the conHrm- ing authority may direct. Failing any special directions it is usual, in the case of a N. C'. (). or soldier, to promulgatt' the ('. M. to the regiment assembled on parade. The prisoner who remains in continciiieni if luiinil uniity, is marched under escort in front of the parad*-. On lii> name b*-- '\\\if read out his cap is reiiiovi'd ainl he takes a pa«.'r Io his front, remaining hare-headed until ti.c cuiirhi^ion of ihe promnlifa- tion. lie is then eitlM-r reU'as<'f tin' pi-oceedings as are al'ovc iiir'ntiuiicd arc read out hy an ofticer. j>r»'ee ati'l I'oported to head *piarters. All proCi'tM lings of ( '. M. Iraiismitleil. wlu'lher liefoic <»i aflcr |)romulgation. are to hi* aeeomp.'inied h\ a fuvciimi- |i.ti,.|'W ''-^ ' i'" "•peeilying the nature of lh«: eontrnt». ^l {1 i!i* I 136 Procedure at Trial. Tli(> roNiill <>(' the ('. M. in iiotititHi in ro^inicnlal oi*iIi>i'm, iiiiii (>ii((M'tHl in tliu Court Muitial Koiuin iumI Ki>^ini«>ntiil <', M llOok lK>Ki«U*N |||(« (ll'tailllCM* IhniI. C M. to the Assistant Adjutant-Cienera) of the district or Staff OtHccr of the station, who informs th«' President and J. A. to that effect. The (ieneral OtHccr comtnandinf^ then transmits tiiem without delay, untU'r cover, to the J. A. Ci. The proceedings of (i. C. M. confirmed abroad arehke- wisc transmitted to the J. A. (1. as soon as possible after promulgation. The proceedings of a K. C. M. are sent to the regimen* tal depot there to be preserved for the time (three years) required by hiw. EXECUTION itF SENTENCE. DKATH. The court is not responsible for the manner of carrying out any punishment it may award nor for the place where it is carried out. The authority confirming a sentence of death fixes the time and place. The court specifies whether the sentence is to be carried out by shooting or hanging. A soldier would be shot for a military crime, and hanged for murder or other civil capital offences. FKNAL SKRVITl'DE. On a sentence of P. S. being confirmed the military convict may be kept in civil or military custody until he can be removed to a convict prison. Certain officers are specified in the Act as "committing" authorities, and the order of a committing authority is sufficient warrant for the convict's transfer to a P. S. prison. Also before his arrival at siuli a prison certain officers are authori/eht li. ilir r. K, to iimiIci'^o IiIm |illllln|||||«*llt. ThuMo iMlvn iwv Kivvii in A. A. 'lit (ii, iiimI (^ |{. V|. UO IH. IMI'NISONMI.NT. A perioii Hciitt'iicnl tiit may liavf to iiii- (Icr^'o )>iH iiiiprisoniiu-iit titliii in niilitatv < iistody or in u |uil>li(' prison. Tiit> ordrrof a coniniittin^' authority issiiriiciciit warrant lor the transfer of a military prisoner to a piiMic prison. CtTtain oflli(«rs art- sprciliiil in tin- Art as "committinj^'"A a, wi,«7. iiiitlioritics, also .is "rcmovini;" and "lve tiHUitliH' iinpi'isoiiin(>tit in India oi* the Colonies is to he sent to under^tt his punisJiMient in the H. K. A soldier nndir a sentence of imprisonment may he re- A. A.«r. moved to any place beyond tlu* seas where his corps or ■|)art thereof may be .servinj,', as it is considered that st)ldiers in prison for milit.iry crimes may be i;iven a fresh opportunity of recover injjf their character by bein;; at once removed to a forei>,'n station. In the U. K. and in some colonial stations there are cer-(^,R.vi.i8a. tain military prisons for the cnntinement of military pris- oners only, sentenced to more than 42 days imprisonment. Soldiers under shorter sentences are as a rule confined in provost prisons. In the W K. the Seeretiry <»f State tor War, and in India the a a inc. tiovernor-(ieneral are empowered to set apart |M>r(ions uf the orilinary puhlie prisons ns ndlitarv prisons in order to prevent iiiilitary prisoners, imprisoned tor hreaehes of nnlitary diseijt- liue. from heini^ eontandnated hy the proscnei^ ot prisoners eon vicled of ollene<'s of an immoral, dishonest, shameful, or erim iii:il eharaeter. t!' «;■ i.iS Pruccdiirc at Trial. > I if i': P I ji I -If !^i^ T{. IV l2t)tiUni|(>ttiilsc('ftaiii aiitliori/i'il pi'isMiis in tlu>cn|oiii U'> tor iIm' (ttiiiinilljil ot mililaiy |iii>niu'i>. (Scr A. A. l.'fO- 1. '{.'». ) lint owiiiu' to the nt'coiiiMHMlnlioii in h)iiial prisniis lH'iii<>; soiiiutiiiu's limited thus prnliiliitiiiu; |it ajiai't Dtr inilitai-y |triHiiH'rs. in Issii a riic ulai" Icllcr was sont iVntu tin- i.'olonial ( )ttic(< to the (iovcrncH's o| colonics i-c<|ncstin^ that ihc I'ollowin^i; in>«triiclions he iiiscrteil in the I'l'isoii Uci^iilations of the sevci'al colonics. •' Soldicfs cMiivicte*! of lM'ea<'hcs of
  • ci|iliiic only shall, so far as may he |iiaclicalth'. havini-' re;;air a hrea«"h o| dis- cipline oidy he is dealt with in the same maniior as if lie were i^oiiiu; Ut rejoin the service. 'I'hc term are nnder tlu' control and siipervisi(»n of tieneral Ottici'i's commandini;'. ami art; in im- nu'diato char«i;e of Provost SerLfeants, } I The proceed iii;.,'s of a ("i. (". M. or 1). ('. .\l., whether jM». !«i. confirmed in the V. K. or abroad, are, after proniiil}.,Mtioii. sent to the L A. (i. tor At'nls ami the pi'ociTiliiitfs liii\f imt yet Itci-ii coii- tirmofl the |ii'is(nuT may Ik' tricil a«;aiii. Till' iirocccdiiins n|' a ( '. M. wcit uiicc lo-i at'lcr liriiii'- »(»n" lii'iiic'd Itiil lirloiT lliry wcrr jH'oimiliiJiU'il. It was (U-ciflnl that ill the alisoiUH" «it" tlio lu'st cvidt'iiei' llii^ iicxi \>r>\ was siitlicifiit. which was tiii-iiishet ICtlie iM'uci'ediiios of a < '. M. are lost, a eopy. ifaiiy. eerlitiecl hy the I'resideni or .1. A. may ho accepted in lieu uf the original. If tluJi'e is no sui-h <'<»|>y. ami •.iitlicieiit evidence ot' the cliarii'e, findini;" and >enlenco, and transactions of the court cat! he ju'ociii "(1. that exideiicc ma\ . with the assent of tin* 1 PliitVEUUItt: IN CIVIL OFFEXCI'JS. On a soldier beinj; chai^^ed with a civil offence he is handed over to the civil jiower. When considered necessar\ , authority to commence or defend legal proce ;dinj.js may be obtained from the Secre- tary of State in the U. K. In Colonies a Law Officer of the Crown may be obtained where jjossible with the as- sent of the Governor, or where no such I^aw Officer is available the (icneral commanding may select a legal adviser to act for the War I)e|)artment. In any case, an officer is to l)e detailed to watch the case and report what has taken place. If the soldier is con- victed application is made to the clerk of the court for a a. a. mi. M (I lUuKiiiurc at Trial. m I r i ■ nj, t U' ■ certified copy of the conviction, for wliirli h«' is entitled to a r(>rtjiin fee (3s.) recoverable in the pay list. W'iien the ' 4i»! sentence exceeds seven days' imprisonment it counts as a conviction by ('. M. and a certified copy of the convic- tion is entered in the C M. book. When the imprison- ment is seven days and under, the conviction is treated as an ordinary entry in the repmental defaulter book. Hut »' when the sentence is a fine, and the offender lias not un- derjjone imprisonment in default of payment, the C. (). may apply to the General commanding,' wiio may order that a rejjimental entry shall not be made. fn eiisos of conviction of felony or «lisi^raccfiil con!• (Ill i1 of tJU' uss. To 3tS llllil ill his •tainiii^ »! Hi. mm I I n: CHAPTKR IX. l-Ii:iJ) lilCNKKAL. AND SL'MMAKV I OL'KTS MARTIAL. r/{(H'/sn>ys uei.atish to field heseiial cnrirrs MAKTIAL. A I'ield (i. ('. M. can only be convened " in any coun- ^ '^ ■'''^" try beyontl the seas ;" but it may be convened by any otKcer (of any rank and without warrant) in command of any detachment or portion of troops, to trs' a person subject to miHtary law under his command accused of an oftence committed against tlie property or person of any inhabitant of the country. No other offences can be tried by this description of court. A Field Ci. ('. M. is however only to be assembled by such ofticer, although not authorised to convene a (i. C*. M., if in his opinion it is not practicable to try the offender by an ordinary C v\ M. A Field (i. C. M. must consl:>t of not less than three • officers who may be of any rank Oi service. The convening officer may preside; but whenever prac- ticable he should appoint another officer as president who may be of any rank, but if practicable not below the rank of captain. A. A. 48 (p. 51-54, 60), dealing with general rules for ^ a4U(9) (i. C M. and D. C. M., does not apply to a b'ield G.C. M. which has the same powers as a G. C. M., but if the court pass a sentence of death all the members must concur. m ' I- i'^iihl (nnci-iil, iiihl Siiiiiiihii'v Cniirls Martial, A ,\.t« :ii H. li i % ¥ Il- ls i I'll Si > ' II- ill 111 spite of tile n'sfti(ti«)iis in tin- Act it> n'S|M'ft «»f trial of (ivil offtiuts !)) ( . M., ii lifld d. ( . M. may try any civil offtiicc aj^'aiiist the propcrts or person of an inhabi- tant of tli« ( oiMitry, and siicli oftcncc nnist be cliar^^'ed Jindcr Sec. b of tlu' Act. notwithstanding' tliat it is a civil offence Nvitiiin the nieaninj; of Sec. 41. whether niurdei, robbery with violence. cVc.. (see Chap. \.i This court is specially desi;^'ne(i for the investi^^jation of an allej^'crd offence on the spot in such cases as tiic march of det.'ichiiients to and honi depots, hospitals, etc., on tin lines of connnunication of an army, and when soldiers mij^dit connnit an outrap> on an inhabitant and it would be inconvenient to convey the witness to iieadcpuuters. A I'ii'ld (i, (". M. may be confirmed by any officer havinj^' authorits to confirm the hndiiif^s and sentences of A.A.w.(i) (i. (^\ M. for the trial of offences in the force of which the i (p. 54) and as to their rank, 102 (p. 71S) and power for suspension of rules do not apply. (() Rules 95 (p. I jo) as to forwarding the proceedings for conhrmation, and cjb (p. ij8) as to their preservation apply as if the court were a D. C". M. (d\ Rule 19 (p. 5j) as to disqualitication of officers on account of length of service, of convening officer, of C. (). or officer who investigated the charges, or member of a court of inquiry, do not apply : but no officer who is the A.A lai It.P.lOtJ. H 1M03. A. A Btl.(3) nf trial try iiny inliabi- :liai;,'t'(| > a civil luinlii, itioii nf ' inarch , on tilt soldiers would iters. otticer 'PCL'S of lich till' ; officer to the s to be the fol- slied a-^ lenever )f siini- :orps ot (p. 7«) sedin^'s rvatioii :ers on if CO. er of a y is the 11 1 lit |)( Cil hi .h as to vi< viiion'» nLiliu^ li> /•/•/»/ liciuiiil (outts Mtirtitil. 14.^ piost'cntor, or a witness foi the piosiciitinii, oi wlmliiis a pcisoiiai inti'it'st in llic casi- may sirvt- on (lit ( itiiit. U') No J. A. is nM|iiinM|. [/) On a ph*a of ■ ( iiiiltN ' the court prorrrd as in tin- i( iition or ) as to time for ti iai. shall ttnly ap|)l\ so f;it as it appears to the convening' oHictr or to the couit to in prat ticahlt having; dne re^^anl tt» the exiKencies of the seisice. |)ro- vided that the prisoner has lull oppt)rtMnit\ ot ni.ikin^ his defence and is afforded every prac ticahle fai ilily tor pre- paring' it. The usual oaths are adniinisten d to int niluis and witnesses, etc. |{. P. Soetiiul .\ppi'iiili\ No. 1 'fi\yi'> llif till III I'l'milcr tiir i||i> usm'IhIiIn t»t u Kiihl the phuc ol a ciiar^'e sheet) as unknown with mm h iiddilitin as will identify him, as " Person accompanyin;.^ the ftut i- matne unknown), white jacket ami trousers, scaron i'[<^\\{ < In ik." Tlie form of proceeftence. Such officer is litnve\tr diiIv to asseinbjt a s. ( . M. if he ctmsideis it impracticable to it)n\i'iic iin ordiii:ir\ (". M.. t»r if", bein;; below the rank of 1. ( ). and not :i (". ().. he t|t)es not think it practit ibli to c|.la\ the tiial toi releriiK I' t»i a supei ioi <.iftii ei . IMAGE EVALUATION TEST TARGET (MT-3) .^% 4^ ^ 4^0 LO U 1.25 IttlM 121 itt Ui g2.2 Sf Ufi 12.0 U 11.6 NU4I Fhotografdiic Sciences CarporaHon • V 23miTMMNS1IIIIT Wn$ISR,N.V. 14510 (7U)t72.4S03 ^^ a\. '^r\V 4^ 144 Field General, and Summary Courts Martial. R.P.IOB. The court must consist of not less than three officers, A.A.55(S) unltiss the convening; officer is of opinion that three are not available in which case it may consist of two officers; but where it consists of less than three the sentence may not exceed the summary punishment allowed, or impris- onment. If three other officers are not available the convening officer may appoint himself President. The President may be of any rank, but if possible not below the rank of captain. The members should have held commissions for at least one year, and as many as possible should have three years service. A provost marshal, or an assistant provost marshal, the pros'^cutor or a witness for the prosecution, may not serve on It, court. R.P.]Ofl, R.p.ior K.P.1W. R.P.KW. A form for the Assembly and Proceedings of a S. C. M. is /lyj i R P. Second Appendix (and the rules as to S. C. . . ',re also published separately in the form of a hand-bock), but where circumstances prevent the use of such form, the C. M. may be convened and the proceedmgs carried out without any writing, except that such written record as is practicable is to be kept by a provost marshal oi assistant provost marshal if present, or if not, by the President and the officer charged with the prgmulgation, and stating at least the name (or if name is unknown, the description) of the offender, the offence charged, the find- ing, sentence, and confirmation. The statement of an offence may be made briefly in any language sufficient to disclose an offence under the Act. The court may be sworn at the same time' to try any number of prisoners then present before it, but, unless the offence was committed collectively, the trial of each prisoner is to be separate. The names of the President and members are read over in the hearing of the prisoners, who are asked if any of them object to be trieil by any of those officers. i li ^ 'r.n t\ b h m ti( as is an de ha tei ter or I ce( the ] vol of Provisions Rclatinfj to Summary Courts Martial. 145 R.p.no. R.IM11. R.P.118. R.P.113. If .iny prisoner objects, and any one member thinks the objection reasonable, the officer objected to must be re- placed. The regular oath is administered to the President and niembe's. The President then informs the prisoner of the charge explaining it fully to him, and he will then ask him whether he is guilty or not guilty. If a special plea to the general jurisdiction is offered by the prisoner, and is considered by the court to be proved, the court report to the con- vening officer. The usual oath is administered to every witness, and the witnesses for the prosecution may be cross-examined by the prisoner who may call any available witnesses for his defence. In the administration of an oath the usual alterations may be made, as in R. P. 30 (p. 112) or a solemn declara- tion may be made in lieu of an oath (R. P. 28.) The prisoner is allowed to make his defence and is asked what he has to say in his defence. In the case of an equality of votes on the finding he is acquitted. Such a finding requires no confirmation, and if it is on all the offences charged it will be at once declared and the prisoner released. When the court consists of three or more officers it has the same powers as a G. C. M., but in case of a sen- tence of death the whole court must concur. When the court consists of only two officers the sen-A.A.55(a) tence may not exceed the summary punishment allowed, or two years' imprisonment. Any recommendation to mercy is attached to the pro- ceedings and communicated to the prisoner together with the finding and sentence. lixcept in the case of challenge (R. P. 109) equality of votes on the finding (R. P. 116) and in case of a sentence of death (R. P. 117) every question is determined by a R.P.IM. A.A.53.(4) R.P.115. R.p. ne. R.p. m. R.p. ns. U 146 I'icld General, ami Suinniai'v Courts Martial, majority of votes, the president having a casting vote in case of ecjuahty. If after the coniniencemcnt of the trial the court con- sider any prisoner should Ix; tried by an ordinary C M. they may strike his name out of the Schedule. This Schedule (see K. P. Second Appendix) consists of five columns. The Hrst two are tilled up hy the conven- ing officer or provost marshal. These columns contain : — 1. Name or description of the offender. 2. Offence charged, j. Plea. 4. Finding and, if convicted, sentence and any recom- mendation to mercy. 5. How dealt with by contirming officer, i.e., confirmed or not confirmed, or confirmed and any remission of sentence, etc. ; the decision being si'^ned by him. At the bottom, the first two columns are signed by the Convening Officer the 3d and 4th by the President. R..^ 118. The proceedings are held in open court in presence of the prisoner, except for deliberation when the court is closed. The court may adjourn from time to time and if neces- sary view any place. H.p. 110. The finding and sentence must be confirmed by proper authority before they are valid, except in the case of acquittal. Neither the provost marshal nor an assistant provost marshal, nor the prosecutor, can confirm the finding and sentence. A member of the court cannot confirm the finding and sentence unless he is an officer authorised by the K. 1^. to do so, and is of opinion that it is not ])racticabk; to delay the case for the purpose of referring it to anoth(;r officer. « A.A.55('j). A sentence of death or P. S. ujust be confirmed by the f vote in :i )iirt con- ry C. M. )nsists of con von - !, reconi- mfirmed §sion of I * J by thu [It. sence of court is if neces- f proper case of t%-'l: provost Hndini: iii,i( and V. R. V. :.al)lt; to anotht.T I hv tht' fi t< a c a c il a se m ce ar ta sei , /V".'/s/('//s I\\'Liliiii^ In Siiiiniuuy (oiirh Marlial. 147 (ionoial or l*. (). coinnmndiiif,' the font' with whicli tli<> InisontT is |)it'st'nt at tlio date of tlir sriit»'ii('t'. Hut in case of death if such otlircr is not tiiu ('. in (". of thr forces ill the tii'ld, \\v should ri'scrvc the Sfiitt'iicf for confirmation for a superior otlircr unhss. owin^' to the nature of tht; country, the f,'reat tjistance, or tiu- opera- tions of the enemy, it is not practicai)le to delay thorf;;ise. Subject to tile above exceptions the lindin;,' and sen- tence of a S. ('. M. as re^'ards any ])risoner (otHcer or soldier) may be conhrmed by any (lener; I or I*". ()., or by the C. O. of a corps or portion of a corps, or by any otKcer in immediate command of a detachment or portion of the body of the forces with whicii the prisoner is pre- sent. Provided that : — (i) Any such otticer in immediate command, if not otherwise (jualihed to confnin, should reserve the con- firmation for superior autliority unless it is not practicable to delay the case. (2) An officer who has not power to confirm the findinj^^ and sentence of a (). C. M.or 1). C. M. should reserve for conhi'mation by an officer having that power a sentence awarding pnnishment in excess of that which a R. C. M. can award; yet he may nevertheless confirm the sentence, if he mitij^ates, remits or commutes the punishment so as to make it a punishment and sentence for which he has power to confirm. Any* officer may reserve any finding and sentence for confirmation by superior authority. An officer not having power to confirm the finding and sentence of a D. C. M. has not power to commute sum- mary punishment into imprisonment for any period ex- ceeding forty-two days. A confirming authority can only send back a finding and sentence for revision once, when the coint cannot take any further evidence nor increase the sentence. Theordinaryrules, — R.P. 53(pp. 131, 135) mitigation of ^^ j, ^^ sentence on partial confirmation; R.P. 55 (p. 132) confirma- » . ,'■1 4 4\ m I.»H l-'ii'ld (ii'Hiial, (iiui Suninitifv Courts Miirtinl. tionnotwithstiindin^'inforiiuility inoroxcossofpunislitnent ; K. P. (>5 (p. i.io), as to transinissii)n of procccdinj^'s aftrr Hndiiif^^ R. P. g6 (p. 13H), as to tlu'ir |)resL'rvatioii; K. P. (J7 (p. I j(j), rati! of payment for copies of procee A A. 4. CriiiiiS ,;//(/ runisliiih-nts. this Art iiuMitioiUMl," i xcfpt iindfi Si-ction iS in tlu* cast- tif aiMitViri'i ('(»nvi('tt'(l of scandalous coiuiiut when it is laid tlown that hr *' shall he oashii'ird." A niaxinnnii punishnunt is only intiMuU'd to be iinposod wlu'ii thr )trfn(i' coinniittt'd is tlu' worst of its class, and is connnittrd hy an habitual ottriidiM', or is ( oinniittoil inidor cinMniistanrcs which rc(|uiro an example to be made l)\ reason ol the nniisnal prevalence of that offence in the force to which the offen-|i Ireai'luM-y oi- cowarilice. ■\. Assists or liarltoni'sonoiuy. r>. Wlion a prisoner of war vohmtarily aids enemy. (I. On aelivo service knowlni'lv does an act ealeuhiled t«» iin peril the sueecss of the Ibreos. 7. iMisheliavos or indnees others to nusholiave bclbro the ei\eniy from (M)wardi('e. Piini's/iniciii Dkm'U. A. A. ft. OKKKNCKS IN KKI^ATION TO TIIK KNMMV NOT Pl'NISll- AHLK WITH DKATII. 1. Leavos raidvs witlionl orders to secure prisontM's, or on pretence of taking wounded t») the rem-. 2. Wiltully dam}iii;es propei'ty without orders. .'J. Is taken prisoner by carelessness, oi* disobedience, or does not I'ejoin when able. 4. HoKIs corresj)ondoneo with. ij;ives iiitelli,u:onec to, or sends (Ini; of truce to tlie enemy without authority. 5. Spreads reports calculated to create unnecessary alarm. t>. In action, or previously, uses words calculated to crotite Offciins III n's/^i'it of Militiiiy Sirrlic. 131 ithinn or (U'sponiUMicy. PiiiiisUiiu'iit PiNAi Sr.KViTi'Di;. Nol«» (UlU'iviuT lH»l\vt'«>n St'*'. I (.'{», •• liTiifhi'i'tiiis convMiMHi (U'nco." uml Si«t'. ,'» ( t), " im;mlliitri/.i- 1 conTsjiontli'iuT." '1 t I (Uk: \ii:s I'l'MsiiAiii.i: mori: si:\ kkii.n <»\ ,\( ri\i, si:k\I( r. iiian \i (»iiii:k iimi:s. I. (jii) Lcavos coiuiiiuiKliiii; otticrt' (0 |)|iiii(|«>i'. (Jt) liouvos ijimrd, pU'tpH'l, jKitrol or post without «»r»U>rs. ((•) Forcos iisiif'rij:iiiii'r plate for plunder. (/i) Intf'ntioiitillj/ causrs lalst> alaiMus otdiscliarijini;; tin-arins, Itoaliiii; drums. maUiiii; sii;;nals, tMc. (/) 'ri'oachorousjy inakrs known parole, watchword, or countiM'Kii^n. (./) lrroi:;ularly appn»priatt's supplies. (A*) MeiMLj a sentinel : — (1 ) Sleeps or is drunk on liis p(tM. (2) Leaves liis post ln'tore lie is retjularly /elieveil. ( On .Ictivc SiTi'icc Di aiii. I*i(nislimcii( »t , ■ j v iOfjiccr (\\sitii kiN(.. I iSoUlwr lMi'UiS()NMi;Nf. li. (\ dischiiri^ini; lire arms, otc. (/») Makes known parole, wateliwonl. or rimniersiijn to a pi'rson not. entitled to i-eceive ii. v.\t\ •(>///(•(•/' (ASIIII KIN(,. l*itiiisliiiicnt Soldii'i- Imi'KIsonmi \ i The term "post" in A. A. tl (I. h) is u>ed in a dillerent sist. Thii Holdior who has posted hiinsoH' is not deunied pusted. MUTIXY AND INSUIiOlilUXATlON. MUTINY AND SKDITION. 1. (.'auscs or ('on8j)iros to cause mutiny oi* sedition in If. M. forces oi" navy. 2. Kndeavours to seduce, or persuade, others in ahove forces to join a mutiny oj* sedition. 3. .loins in, or does not do his best to supjiress, a mutiny or sedition. 4. CVmios to knowledi^e of an intended mutiny or sedition. s'n«l docs iiot at once rei)ort it. Ptmishment — Dkath. A. A. «. STRIKING OR TMRKATKNINd SUI'KRIOR OFFICER. 1. Strikes, uses, or offers violence to his su])erior officer />emf/ in the execution of his office. Pmiishment — Dkath. 2. Strikes, uses, or otiers violence to his superior officer, or uses threatening or insubordinate hmgua^e to him. ( On Active Service PenalServitude. Punishment yj 1 a r ^ • {Officer — Cashiering. i i\ ot ofi/i cin'eaervice '\ r-, ;»• », . .... [ [Soldier — IMPRISONMENT. A. A. 9. A.A.;0. DISOREDIENC'K TO SUPERIOR OFFICER. 1. Disobeys in such manner as to show wilful defiance of authority any lawfvl command given personally by his superior officer in the execution of his office, whether given orally, in writing, or by signal. Punishment — Death. 2. J)isobcys any lawful ttommand given by liia superioi- officer. ( On A ctivc Service Penal Servitu de. Punishment ■ ^r , , J- • ^Officer — Cashiering. Not on A ctiveService r/-', . • , I .S ohher — I m pri son m e n r . INSUBORDINATION. I. li«Mng concerned in a fray, oi* disordt-r. refuses to obey any officer (though of inferior rank) who orders him into arrest, or strikes or otl'ers violence to such officer. Desertion, Fraudulent Enlistment and A bsence Without Leave. 15J 2. Strikes or ott'ers violtMjcc to uny pcrnon, "whether HUbjoct to military law or not, in whono custody ho in pluced, whether he is or is not his superior ottieor. 3. Jtosists an escort whose duty it is to apprehend him, or have him in charge. 4. Jloing a soldier, breaks out of barracks, camp or quar- ters. Punishment \^^''' ~^''^'''''''''''''- {Soldier — I m prison mknt. NKdLECT TO OHKV CARKISON OR OTIIKR ORDF.KS. Neglects to obey any general or garrison or other orders. i^«;n.s/»m.»r;?^5^''-CASHn:RiNG. {Soldier — IMPRISONMKNT. *' General Orders " does not itjclude the Queen's Regulations or any similar orders published for the general information and guidance of the ai-my. DESERTION, FRAUDULENT ENLISTMENT, AND ABSENCE WITHOUT LEAVE. DKSEKTION. 1. (a) Deserts or attempts to desert. (t) Porsujides, endeavours to persuade, others to desert. ,0n Active Service,] iOr under orders Death. D • ; ^ for Active Service.) Punishment -. ■' \ j Underothercircum- J ist Offence-lMVRis'MENT. ' stances. \2ndOffence-PENALSERVT. 2. An otiender may be charged with any number of offences under this section at the same time. The severer punishment can only be awarded on conviction of a second offence. ii. A previous offence of fraudulent enlistment counts as a previous offence for awaniing the higher punishment. A.A.ll. A. A. 13. r FRAUDULENT ENLISTMENT. 1. {(I.) When belonging to the regular forces, or the militia when embcKlied, without having been first regularly discharged, A.A.ia, enlists in the regular forces. {It.) Wlien belonging to the legular forces improperly en- V: 154 Crimes and Pnnishmoiis, ,1 lintH or oni'ols hiiiiHolf in the militin, roMorvo forces, or Roynl /, ., /i.s7 Offence — Imi'KIson'MKNt. / umshun'nt^,^^^^ ^ence-VESA' Skkvitude. 2. Any niiinbcr otlrMudiiU'iit cnli>iiiK'iits inav l»o triodat tlu' sanu! ti?no. II. A |»rcvi(Mis olU'iice of (U'stTlioii or attoniptin^ to dosi-rt I'oiiiitK as a previous otl'oiici; tor awarding tlio higher puiusli- tueiil. A man bclontrin^ to oiio rci^iineiit otdisfini^ in anotht»r in now tried for ' tVandnlont ordistmont.' not doscrtion as was fornioriv tlir case. Tin- term •• Framlident Knlistnionl " is continod e.\('lusiv(dy to imin'o|K'r enli-stnient nnder Sl'c. KJ. Any other trandulont entry or re-entiy into the service conies undei" Sec. 152 or 'Mi. If a reserve manor militiaman at the tinu* of Ids impro[)er eidistment is not sid>iect to military 'law ho would he tried under Sec. iil> tor making a wilfully false statement on attesta- tion. A.A.14 PKKSLI.\SI(»\ ()|- OK lONMNANCI-: AT DK.SERTlUN. 1. Assists another to desert. 2. Coniuves at desertion hy not reporting an intending deserter or not a))prehending him. Punishment — Imprisonment. Nr A.A.15. AHSKNCK IKOM DUTY WITHOUT LEAVE. 1. Absents himself without leave. 2. Fails to appear at paratle. oi* leaving it without permission. ;>. Goes beyond fixed limits of camp oi* garrison without a pass. (Soldiers only. ) 4. Absents himself from s •; .^Officer — Cashiering. y umshmeni^ .W.^/.t-Imprisonment. /)JS<; II A f!i:FUL COM) UVT. SC.\M)AE()L'S CONJJUCT OI" AN OKKICEK. A.iMf.. Uehaves in a scandalous mannei'. unbeconung the charactei of an otticei" and a gentlennin. Punishment - " Smale r.i; C\-\smieui;i).*" , f. hisf^ruci/til Comitui Dniiikiiiiu'ss. Tlie instM'tioh orilic word "Nciindiilnus" rnitU'iN cjiNhicrinu; ol»li«^)it<)i'v. and (lioj-cloir tin- Icnn slmidd only Ik' used fur liuiiioiis ort'»MU'»'M so MS not to ti'ttei' llii' t'oiirl. I'\>r non- s|KH'ifi(.'d otVt'nL't's in ui'diiincy cases a cliai'ur should In- wordt'd imdor Ser. 40. TRAUI) nV I'KUSONS IN CMAKCi: OF MONIOVS OK COOPS. Ik'in^ ('liarr Nvilftiily danuiers, \m\- ser^cants and jtersons in special positions oftrust. not for minor ottenees snch as a soldier destrovini'' aniininiition. etc. •55 A. A. 17. •fiji DISIIKACKIUL CONDUCT OK A SOLDIKU. 1. Malin Properly False Doiidiicnts. 157 Itroii^ht into niiy i^iirrisim. camii, lian*in'U. »'t<-.. in wliidi lu> Ims any coinruaiMl or aiitlioi-ity, of thr hiIo ny |iiii*('lmsr ui' any \\vo- viHloiiH or stores fi>r II. M. forces. /*u)iisliiiicnt imi'uis<)NMi;n r. niiriCIKNCY IN AND INJIKY TO IlijUI I'MKNT. 1. Makes away with, or is conci'i'ncil ill making away with A.A.S4 (wliether l>y |)awiiiii<;, selling. deMtriietioii or otherwise)his arms, eciuipnieiits, clothing, iieeessaries. or any heloiiu;iii^ to a eonirade, or an ottieer, or regimental iii- Htitiitioii, or any piihlie property. 5. Ill-treats any horse used in the puhli** service. /*«;//,s7n;/tv// -Imprison mi:nt Atti >trei f( di be d und( •aiinot this sectioii, l)Ut may he tried under Sec. 40. A soldier cannot he charged with losing a medal hut only t!)r making away with one. A soldier cannot he tried for making away with a niedid if he has been diseharijjed since he obtained the medal and has apiin enlisted; for on dischar;;;e the medal Itecame his j)rivate property. OFFENCES /N /{ELATION To FALSE DOCUMENTS AND ST A TEMENTS. FALSIFYING OFFICIAL DOCUMENTS AND FALSE DECLARA- TIONS. 1. In any report, return, muster roll, pay list, or other docu A.A.iW. nient signed hy him, or of which it is his «luty to ascertain the accuracy : — (a.) Knowiiii^ly makes or is privy to making any talse or frau- dulent statement. (6.) Knowingly makes or is privy to making any omission with intent to defraud. 2. Knowingly and Avith intent to defraud or injure any ])er- son suppresses, defaces, alters, oi* makes away with any docu- ment which it is duty to preserve or j^roduce. ■I l^H Ciinu'^ (iiul I'uiiishiihiils. •i. WlifiT it is his uttiriiil duty lo inakc uilut-lunitioii ivspcct- iii^ any iiiiitli'i*, kiiowiii^lv iiial<(>«« n talso il(>cluralioii, Pnuishiiwnt Imi'KISonmknt. Ha II rr ir i II' A. A. SMI. A.A.«r. A.A. NE(.l.l'.i T TO KKl'ORT, AND SIC.NINC IN MLANK. 1. Wiii'ii si;j;iiiii^ an^ (locuiiionl ivlating to pay, aiins, «'l(>lliiii^. lu'ccssaiii's. |>i'(»viHi»)iis, t'liriiiluiv or any storof*, leaves in Itiank any nnitt'iial pait tor whicli liiHhi;j;natui'(> is a voii(h(i'. 2. Iti't'iisos or liy <'iil|»al)l(' n(>;j;l<'*'( oniits to niako or send a report or return wliieh it is liis diit\' to do. ,, ., , |0///a>'-— Cashikuinc. ^ "''''^^''"'''^ l^W,V,'--lMl.KIS(,NMENT. With ie«;ard to false returns it must hv proved that (he rei- turn was false, that the ])risuner knew it to he false, and that the pei'son eaiiin^' lor the return was authorised to demand it. FALSK ACCUSATION, OK FALSE STATEMENT HY SOLDIEI^ 1. liein^ an otiicer or soldier. Unowinjjfly makes a false uecu- sation against any other ottieer or soldier. 2. Uein<>' an ollieer or soldier, in making- a eomplaint where lie thiidvs himself wi-onged, knowinicly makes any false state ment att'ectinjj the eharaetor of an ottieer or soldier, or su]>- presses material faets. t ii. Beiny; a soldier, falsely states to his C. (). that ho Ims heon guilty of desei'tion, or of frjiudulont enlistment, or has served in and heen diseharged from any legular or othoi" forees, or the navy. 4. Bein.i;" a soltlier, makes a wilfully false statement in re- speet of prolongation of furlough. Punishment — Impkisonment. Furlough may he considered to inelude a '* j>as8." OFFENCES l\ liELATION TO COURTS MAliTIAL. 1. Being duly summoned or ordered to attend a C. M. as a witness, makes default. 2. Refuses to take an oath or make a solemn declaration legally requii-ed. 3. Refuses to prwluce any document legally required. 4. Refuses when a witness to answer any question legally required. m Ojjfcncis in Udatitm to lUllclini^. 5. Is guilty of coiiiiMnitt of cmirt l»y u>ihi; iiiNulliii^ or lliivtitening luiigua^i', or l»y tiiiisint; itiirrrui>tioii or tlistiirb- unt'i'. [SoUlu'f -Imi'uis()NMi;n i. I^it siu'h piiiiisliiiH'iit «aii only Ik' tiwiinlcil on coiivii-lioi) hy {/. M. oMuM' tliiiii llu' t'oiirl lu'lort' which tht> oIU'Imh' was rotii- iuit((.'(l ; hill iiiHttMit of tho oH'uiidor lK'iiii<; so irii>i| liy another C.'M., the i'ourt may itsclt awarr to punish toi* tontcnipt, Soe A. A. I2(i. «5«> lAi.si: kvii)i:N( i:. When uvainincMl on oath or soh'rnn iliu-hiration hclitiva C. M. or an V eourtor otiii'cr authorised hv the Art to adininisifr an ^•^■'•' oath, wilfully i^ivivs lalsn cvidoncf. Punishment — Imi'KIsonmi.nt. uFFKyCES /y RKLATUty To /i/LLHT/yu. 1. Is guilty of any ill-troatnienl l»y vioU-nit", extortion, etc, of the oeeupior of a house in wldeh any person or hoi*se is billeted. 2. An otHcor who refuses to ea'«Mo eonipensation to he made tor the same. !{. F'ails to meet the just demands of the person on whom any jjerson or horse is liilleted. 4. Wilfully dcnumds ItilletH not actually recpiired foi' those entitled to he billeted. 5. TaUos, or knowingly suffers to he taken, from any person any money or reward to relieve him of his liability as to billeting. 0. Uses or otfors any ntenact^ to or compulsion on a constable to make iiim give l»illets contrary to the A;'l, or to discourage him from doing his (htty. 7. Uses or otters any memice or compulsion on an}' person tending to oblige him to I'ecoive. without his consi-nt, any per- st)n or liorse not dulv billeted. ,, . , , (Officer C'Asiiii;Kr\c;. Punishment .i/'^,,- t v.... \ Soldi er — Imi'Uisonmk.n r. A.A.ai. oFFKyVES /y IlKl.ATIijy Tit IMPRFSSMI'LST (tr i'Milil M^FS. I. Wilfully demands any carriages, animals, or vessels. nt»( \ \\x actually recpiii-ed lor purposes authorised in the .\ct. n iGu A.A.M. Crimes and lUtnishmcnts, 2. KiiIIk to rtMiiply with tlif A«'l iih rc^^unU payiiKMit of HiintN ilui', ami wci^liin^ ol'tlio loa«l. .'{. ('oiiNti'uiiiM any cai'i'ia^i*, animal, or vcsM'l, to travel H|;aiii»t till' will ot ilu> |ii)i'Hoii ill ciiai'gK lH>yoiiil tlii< piopcr (ItHluiico, or curry u ^reain* wi'i^lil. I. hoos iiol iliNcliur^i' nn .'•pct'dily ai^ pniclicaMi'. any car- ria^i', I'lc, inipruHsod. '). ('otnpcU any perNoii In cjiar^o. or pt'iinits liitn to h> coinpi'llcd, to taUu any ha^ji^a^t! or htoros not cntitU'ii to li<> curriud, or any noldiur or MtM'Vunt (vxri'pl siu-li jim ar« hicU), or any woman or purNoii. (S. lll-tivatH or pi>rniiiH Niitdi p(M'rN or ott'ot'N any nicnaiHt to or compiilHioii on u con- Htublo to make him provi<.>' any carriajL^r, ctt*., contrary to the Act, or to (liscoiira^o him from ., 'Officer — Cashikkinc;. ^""'•^'''"^''^|M//r.-lMI.KISONM|.:NT. OFFENCES /y H ELATION TO ENLISTMENT, ENLISTMENT 0\< SOLDIER OK SAILOK DISCHARGED WITH IGNOMINY OR DISGRACE. 1. A soldier or Huilor diMchar/^ed with ignominy or diwgruee, who I'o-enliHts without declaring tlic circumstuncow of hiw di«- char^e. Pimishmcnt — Penal Servitude. 2. TliPi ulK>ve includoH dischar^o with i;.;nominy, dihchar^c m incorrigible and worthUws, or discharged on account of a con- viction t«)r felony or of a Hontence of penal .servitude. FALSE ANSWERS OR DECLAK.\TIONS ON ENLISTMENT. A.A.-'w Wilfully makes tiilse Htatemont on attestation. /*«;»".s7»«f«/— Imprisonment. A.A.34. (.ENERAL OiEliNCES IN KEL.ViKJN TO ENLISTMENT. 1. Js concerned in enlisting a man when he knows, or has j'eaHonahle cauise to believe, such man to Ik; so circiimstanced that by enlisting he commits an ott'ence airainst the Act. '1. Wilfully contravenes laws relating lo enlistment or attes- tation. Puniahmcnl - 1 mi'RISon me nt. s M Misii'lhlHi'oU^ StilltillV Olliltll'S, l6l MISCKI.I.A SKnIS M 11.11 A II ) 'tt't'KS't 'A.W. I UAI lt>U(>i s \V(»l<|)S. I*unislunctit ^Offucr Casiukkinc. [SoliliiT - Imi'Uisonmi.n r. A.A.:ta INJl UlDl'S l)|S( I.OSl UI.S. WlK'tlii'i' f^L'i'viii^ with jiiiy of II. M. lidTt's ur nut, tlisclosoK the mitnhcr or piisitioii uiimy ll»if»'s oi- siuic^ ui imv |ni'|»arii- tioiis «n' onli'iN ivhitiiitf to M|)cnitiniiH ui- inuvciiMMitH of niiy I'oi'tM.'M as to iinMliici" i'lVt'ctH iiM not apply ^o^/•(^7o/v»^s(lis(•|oHm•^'H which «'(»iih' imth'r ScctioiiH 4 or (i, hilt to iin'ct Miu-h casos an wi'lliiii; improperly to now.spaporis or I'Vt'ii privalf li'ttt'i-s to trioiMh as tlu-y could not he cortain that the letter would not tall into the hands of the enemy. To ohtain a conviction under this section h()we\\'r it muHt ho pr(>ved that the particuhir letter in question pro- duced injurious ett'ects. a thini; diltleult to prove. ILL-TKEATINC. SOLDIliK. 1. Strikes oi* otherwise ill-treats any soldier. 2. Having received the pay of any otticer or soldier, unlaw- fully detains or refuses to pay the same when due. ,, ., .iOtjlCCr — CASHIliUINCi. ^"'''•^'''"^•"^(.W^/Vr--IM..K1S0NMKN-.'. mTKI.LINr. AND ATTICNf I'TINC TO COMMIT Sl'ICIDi:. 1. Flights, or promotes, is cimcerned in oi' connives jit fi^ht iii^ a duel. 2. Attempts to commit sui<;ide. Punishment Soldicr-lMviusosm-sr. A, A.M. A.A.37 A.\ :W. REFUSAL TO DELIVER TO CIVIL I'OWEK OFFICERS AND SOLDIERS ACCISKI) OF CIVIL OFFENCES. On due application made to him neglects or refuses to deliver A.A.ai). over to the civil magistrate, or to assist in the lawful appre- •* hvtw'utu of any ulttri>i' nr Hi»|ili« i i'. ^., it ilic iiiii>;i»li'atf li.in no iiiriMliciioii in itx liirii lor (ill oUciui' «'\t't'iil oh tli«> ti'<|iu>»t tif i|ii> niilitai v aiitliori t'wH, lli(> (!.(>. In iioI liahlc to Ik> pro^fnitt'ti uimUm' tliiK Soi'licn, or Si'tlion 1(12. lor rrlUNin^ toi|t>li\«>r up tlir tiiaii lliiiMilli>^all\ (ItMiianiit'ii. u V \l f A. AM). CONDUCT TO IM>{l(Mi. to ilui |»r<>« jur aixl niili'ary ili>* cliar^od untlcr iIiin Si'clion for any ott'iMM'it Ittr wliicli H|H>('ial provisinn \h nuDJ)' in tlio Art, an ; nuvcrthclcsM the conviction of a perNon ho char^ctl is not invalid unlcMH any injustice han been (lonu l>y till* contravention of thin provino, Ifanydonht should arihc whether an otlence in or in not a Hpecilic crinu> uixicr another part of the Act, the olVencc may bu charged as Niich specilic crime, and aUo an an otlence unil«>r thir« suction, bnl then of coiir.su thu court mu.sl ac(|uil the prisoner of one of the char^(«s. OFFENCES rUNlSllAHLE UY OlilUNAIiY LA W. P r .1 t I A.A.41. Subject to the restriction titat tJje jurisdiction of Civil Courts is not to be interfered witli. the Act j^'ives abso- lute jurisdiction to a C. M. to try any civil offence, as a C. M. may try any offence of a felonious or fraudulent nature, or ofany offence *' to the prejudice of j,(ood ordei and military discipline" which term embraces nearly all civil crimes — with the important exception however, that a C. M. caimot try treason, tnurder, maiislau|,'hter, treason- felony, or rape committed in the U. K., or any where in H. M. dominions (other than the U. K. and Gibraltar) ex- cept on active service, or at places more than one hundred miles as measured in a straijfht line from a city or town where the offender can be tried by a competent civil court. Oj/cHns /'mn^luihU' by iJrttuiiit} l.tiw »<»a W'ht'ti tlu'Sf i>ff»iu:»'s ail' tiii'd l»y ('. M. tlu» fullciwiiij; ptiiiisliiiu'iits laii lie ^ivfi) oil (itiivirtiiui : — 1 . /Viti.vo;/ 1 2. M Italic fi I)i ATI!. < MausliiHuhtcr. I \Trcas(m-J\Umy, Pi.n.m. Si,uviiiH)i. .\. /\\i/>« 5. In ICii^lainl or rlst'wlu'ir any othri uffcnci' not sporihcd in tlit> Act aH u military rriiiit> and wliirli is l>unislial)lc l>y tiu' law of iCiij^'iand may lu> tried l>y CM., and citluT sncli piinislimcnt ^'ivm as could be ^'ivcn for an art to the pniudicf «»l ;^'ood order and military discipline (under Section 40), or sncli punishment as tlin law of ICnt^'land awards for the offence. For IhiH miMiie I'oliahlr Work oil Civil Criininiil Law iiminI Ii«> I'oli'rrtHJ In. A person subject to military law when in II. M. do- minions may lu' tried by any competent civil court for any offence for which lu: wonlil be triable if lie were not subject to military law. Civil offences can be tried bv rt«v (". M. competent to try tlu! offender, but the court cannot ^'ve ,1 j,'reatcr punishment than lies witiiin its oi.\' ftF srohES rinn't'/rrv. A.A.niA) When* a peiHoii has hoeii eonvietod hy I'. M. of having nIoU'H, emiu'z/.letl. or ollierwisi' iinlawl'iilly obtained any pro- perly, any pail of wliicli i> ttHiiid In llie )MK'ses^ioii of tho oU'eiiilor, llie (NMiMrmiiiy Oltieei', or iho C. in ('.. may order mucIi property to ho li'slori'd lo the riiflilliil owner. ItEFINITIitS i)F (JKKTAIN CHIMKS A Mi LKOAh TKHMS. A,A.7!>. A crime has been defined .is '* an action wliich the l.iw has forbidden and to which it assif,'ns a punishment." This definition is iiowever imperfect as the commission of such an action does not ni;cessarily constitute a crime, for will .'ind intention are the essential elements of every crime; no action is criminal in itself unless the intent involves a state of mind forbidden by law. Hence to render an action punishable it must be done purposely and ii 164 Crimes and I'tiuishmcnts. II > W, i with intent to brin^j about the results wliich ensued. If a person kills another, he is not jjfuilty of felony un- less there was a specific intent to do harm or commit murder. Killing' is not murder unless there be malice. The appropriation of another's property is no theft unless the action is felonious. The word "malice" is fretpiently used in le;j;al phrase- oloj^'y and means evil intent, and malice is deemed a necessary inj^redient in one form or another of all crimes. Malice is deHned as always accompauyin;,' "a wronj^'ful act done intentionally without just cause or excuse." Hut the law presumes every man to contemplate the natural and necessary consequence of his own acts until he shows justification or excuse : thus when an action forbidden by law has been conmiitted the law assumes "malice" and throws on the accused the onus of clearing;- himself, and it is for the latter to disprove malice by showinj^' justification or excuse. ** When the act is in itself unlawful, the proof of justifi- cation or excuse lies with the accused, in failure whereof the law implies criminal intent." This is carried still further, for when the action is felonious a person is answerable for the consequences even thou^'h not intended. Thus if a man is intentionally about to commit a felony and undesignedly kills another man this is murder in the eyes of the law. Also on one occasion some men placed a barrel of some explosive compound against a prison wall in the street, lit the fuze, and ran away. Several people walking in the street were killed or hurt ; the criminals, although not intending to hurt these individuals, were tried and convicted for the results of their unlawful proceedings. This principle applies also to crimes of wilful and in- tentional omission, which in the eye; of the law is equal to wilful and intentional commission ; thus a woman suffer- ing lier helpless child to perish through Tieglert is guiltv of murder. A certain amount (.>f culpable negligence, is also held 1() Definition of certain Crimes and Le^al Terms. constitute "evil intent" and make the act criminal thoufjfh in a lower dejjfree, as nef,'iect on the part of a sij;- nalman on a railway. Whenever the "evil intent" is not expressed by the word describin/:^ the crime such word must be (pialilied ; e. J,'., "stealinjj;" does express unlawful intent, but receiv- ing stolen goods does not as it might have been done un- wittingly, therefore the charge should be " receiving nnowin^s; them to have been stolen." Misfortune or Chance. — If an accidental mischief happen fron*. the performance of a lawful act; the party stands excused from all guilt : but if the act be unlawful he is then answerable for the consccpiences; e. g., if a soldier at target practice miss the target and accidentally kill a bystander, he is not guilty of any crime , but if a man fire out of a window in a town at a dog in the street, and ac- cidentally kill a person, he would be guilty of man- slaughter. Compulsion, in such cases as a num being compelled to join mutineers on pain of immediate death if he at- tempted to leave them, would be a defence. Insanity. — If insanity be pleaded as an excuse the court must be satisfied of " an absolute dispossession of the free and natural agency of the human mind ;" if the ?x- cused has lucid intervals and reason sufficient to know right from wrong, he is answerable for what he does in those intervals. Judges have laid down that " if the accused was con- scious that the act was one which he ought not to do, and if the act was contrary to the law of ti»e land, he is pun- ishable." If he has delusions, he must be judged as if those delusions were true ; e. g., if in delusion he believed another man to be trying to take his life and in imagin- ary self-defence he killed that man, he could not be con- victed for murder ; but if he thought that the other man had wrongfully got his estate and under this impression killed him he would be liable to punishment. 16=; I 1 ,f !■ u-d s--' >l k' 1 66 Crimes and Punishments. m^ ■' i- CIVIL OFFENCKS. .-1 principal in the first dcjj^rce is the absolute perpetrator of a crime. A principal in the second dep'cc is one who is present aiding and abettinj;; tlie presence need not be an actual standing by but may be a constructive presence. Constructive I*rcscnce. — If several persons ;,^o out together to perpetrate in common some unlawful act and each takes the part assif:fned him, some to do the deed, others to watch or to favour the escape of those actually com- mitting the deed, all are, in the eye of the law, present at the deed if it be done. An accessory before the fact is one who procures, advises, or commands another to conmiit a felony and is absent at the time of the felony being committed. An accessory after the fact is one who receives, relieves, comforts or^assists a felon, knowing him to be such. Accessories may be indicted and convicted as acces- sories "before" or "after the fact" together with the principal felon, or after the conviction of the principal felon, or may be indicted and convicted of a substantive felony whether the principal felon shall or shall not have been previously convicted or shall or shall not be amen- able to justice. Treason is defined to be an offence against the security of the Queen and Her Dominions. Treason-Felony. — The Statute has deck-Ted such crimes as : — Intention to depose the Sovereign, or place duress upon him in order to compel him to change his counsels, or to intimidate Parliament, as felonies, and such a crime is therefore called a ''treason -felony.'''' Misprision of Treason consists in the bare knowledge and concealment of treason without any degree of consent thereto. The pimishment for this crime is loss of the profits of lands during life, forfeiture; of goods, and im- prisoimjent during life. Felony and Misde]neanor.— There is no (\\act defini- Definition of cci'taiii Civil Offences. 167 tion of felony, iiiul it hiis been considcniM injudicious to make a distinction between felony and misdemeanor, yet tlie Statute distinctly calls certain crimes felonious, and lays down certain rules respectinj; felony. Felony is detined by Sir \V. lilackstone to be, *' an offence whicb occasions a total forfeiture of either lands or goods or both, at Common Law, and to which capital or other punishment ma\' be superadded according to the degree of guilt." The principle felonies pronounced so by Statute are: — Murder, manslaughter, attempt to murder, wounding with intent to do bodily harm, theft, burglary, house- breaking, rape, arson, forgery and embez;{lement. The term Misdemeanor, in its legal acceptation, is con- fined to such indictable offences as do not amount to treason or felony ; such as perjury, libel, conspiracy, pub- lic nuisances, etc. Felony necessarily involves forfeiture of goods, misde- meanor does not. Any person may arrest another on reasonable suspicion of felony and the arrested man has no redress, but a person accused of misdemeanor cannot even be arrested by a constable without a warrant. A second conviction of felony empowers a Judge to award 10 years P. S., whereas repeated acts of misdemeanor are onlv punishable by 5 years P. S. although the latter may be a worse crime than a minor act of felony ; in such a case the Judge sometimes overrules the case on his own authority. Also a person accused of felony has a right to challenge a jury without showing cause up to twenty jurors, and after that to any number with showing cause, whereas in cases of misdemeanor he must show cause to every objection. Further, any necessary force, even to taking life, may be used to detain a convicted felon in custody, but not so for misdemeanor. Thus if a sentry shoot a man, convicted of the latter, attempting to es- cape he may be tried for manslaughter, but not if he be a felon. Misprision of felony is the concealment of a felony which a man knows of without assenting to it. ",'•;? 168 ('rimes and Punishments. I m: A.A.18. Homicide may be cither felonious, justifiable, or excus- able ; in either of the two latter cases no penalty is incur- red. Homicide is excusable when by accident while enfjaged in a lawful act. It is justifiable when imposed by law, or when a person havinj,' committed or bein|( charged with a felony will not suffer himself to be arrested, in cases of riot, or to prevent any forcible or atrocious crime, etc. There must, in all these cases, be an appar- ent necessity for the homicide to render it justifiable. Felonious homicide is divided into murder and man- slaughter. Murder is the unlawful killing of a human being with malice aforethought, the malice being any felonious in- tent. Manslaughter is the unlawful killing of another without any malice, and may be either voluntary upon a sudden provocation, or involuntary when engaged in some un- lawful act. Theft is known to the ordinary criminal code as "lar- ceny," and it has been defined as "the wrongful or fraudulent taking and carrying away by one person of the mere personal goods of another with the felonious intent to convey to the taker's own use and make them his own property, without the consent of the owner." The taking must not only be wrongful but wilfully wrongful, for if the accused believed in his mind that he had a right to take the goods, and took them in good faith, it is not theft. To prove theft the intent must therefore he shown, and it must also be shown that the goods taken are the property of the owner specified. For this purpose property is said to belong to the person who is lawfully charged with it, as an officer in charge of any government property, postmaster, washerwoman, etc. Thus to constitute larcenv there must be : — 1st a felonious taking, 2d a felonious carrying away, and Dcfiuitinn of certain Civil Offences. 169 3d. It must be proved that tlie Roods stolen are actual- ly or constructively the property of tiie person named in the indictment or char^je. With reference to provinjj^ "carryinf,' away" it has been ruled that to handle a bale of ^'oods is not theft, but to turn them over and lift them up is sufficient provided the intent is thereby proved. I'ormerly the criminal code recof(ni;?ed two kinds of larcenies : — 1st., simple larceny; 2nd., compound larceny. The latter had to be accompanied by circumstances of aggravation, such as stealing from a house or from a person with violence (garotting) ; but now all larcenies are deemed of the same nature. By C. M. only two years imprisonment can be awarded with stoppages and discharge with ignominy; but by civil law larceny can be punished more severely. But a C. M. can put a soldier ur^^er stoppages to make good stolen property which a civil court cannot. It is for this reason that at C. M. the value of articles stolen must be speci- fied in the charge. Embczdemcnt is different from ordinary theft, it being a a.a.it. breach of trust as well as di fraud and \s a. felony; it is conse- quently a more serious crime than ordinary theft and can be punished with P. S. Embeszlement is defined as "The fraudulently converting to one's own use property received, taken possession of, or held for another." If theft be charged and embezzlement proved a prisoner a.a.sg. can be found guilty of embezzlement. This is an excep- tion to the ordinary rule that a person tried for a minor offence cannot he convicted of a severer one. Fraudulently misapplying^ is misappropriating money or property entrusted to a person for custody or use for some particular purpose, and which that person diverts from that purpose to his or her own purposes. A pay-sergeant making away with company money comes under this head of fraudulently misapplying. He ■t'K 'm 170 Crimes luul Piniishmcnts. 1;- is liable for otnbe//leincnt like any other person if he make away with any other sum such as, say, money re- ceived for a cluMiue j^'iven to him to cash. So a canteen serj^'eant may he tried for fraudulently misapplying' can- teen money. If it cannot be proved it was done fraudu- lently he may be tried under Section 40 for having ** negligently discharged his duty as to cause a loss to the canteen funil of oi' thereabouts." If theft be committed by a soldier from a military per- son he would generally be tried by C. M. unless there are Q.R. VI.7I. peculiarly complicated circumstances in connection with the case ; if from a civilian he would be tried by a civil court. Robbery is the felonious and forcible taking of any property from the person of another, or in his presence against his will. A person charged with robbery may be convicted only of an assault with intent to rob. Burglary is a breaking and entering by night the dwell- ing house of another with intent to commit felony within the same, whether the felonious intent be executed or not. The night, in England or Canada, is considered to be from 9 P. M. to 6 a. m., so far as burglary is concerned. Arson is the wilful and malicious burning of a house, whether the house be the offender's or another's. Forgery is the false making, altering, or adding to any writing or document with intent to defraud. Forgery must be "with intention to defraud." Writing another man's name is not forgery unless with such in- tention. There is no particular section for forgery in the Act but it could be tried under Section 18 as an offence of a fraudulent nature. It is not necessary to allege or prove an intention to defraud any particular person. Perjury is defined to be " a wilful false oath by one who, being lawfully retjuir'ed to depose the truth in any judicial proceeding, swears absolutely in a matter material to the point in issue whether he be believed or not." A solemn declaration, when authorized, is equivalent to ;in oath. A.A.18. A.A.-vXJ. Pvjiniliott oj ccrliiin Mililiiry Offcin cs. '7' One witness is siiftiricnt to prove the tiikitij; of the oath, but two witnesses are necessary to prove tlie oath to he false. Perjury is not a felony, hut a misdemeanor. To l)rin^' this crime under tlic Act the oath must hr autliori/ed and recjuired to be taken by the Act. Tlie court there- fore must have jurisdiction in the cause in which the per- jury is committed, otherwise the oflender cannot be law- fully recpiired to swear to the truth. The swearing nnist be ahsohilc. If a witness speaks to the best of his belief and it is accepted, and it can be shown that he had knowledge to the contrary, he could still be indicted for perjury. The statement must be xcilful and not due to any mis- take, surprise or inadvertency. The matter must be material to the issue. This means that the statement must have a tendency directly or indirectly to influence the trial ; immaterial statements are not triable for perjury. In a Criminal Court perjury is punishable with P. S., but under the Act only with imprisonment. MILITARY OFFENCES. Forcing a safeguard. — A safeguard is a kind of protec- tion to persons or property granted by the C. O. of troops to inhabitants and guaranteed by the presence of one or more soldiers, or otWcer, specially allotted for that purpose. A safeguard is not in any way synonymous with senti- nel, but the crime of forcing a safeguard is a contemptuous violation of the orders of the General bringing his honour into disrepute. The idea is that the General having granted a safeguard for the protection of the lives and property of inhabitants, his honour is touched if it is forced by one of his own soldiers. fdtUiny and Sedition. — Mutiny is a joint act com- mitted more or less in conjunction with others, as one man cannot mutiny; it implies extreme and collective insubor- ;M A.A.U. ,:|>5 A. A. ^7-5 rV/mtv< (1)1(1 I'ltfiishnu'iils. I 1 K^ .'1' 1 \* I ii: m dinatioii or rising' u^'aiiist or rcsistini^' military authority in combination or simultaneously, with or without actual violence, such acts ^'enerally proceeding,' from alleged or petended grievances of a military nature. A' single individual can only be guilty of insubordina- tion; but a single individual may create, cause, or excite a mutiny or conceal the knowledge of an intended mutiny, and these are offences as grave as actual mutiny. Mutiny and Sedition inust be i)roved by dcts not words alone. An intention on the part of the oftenders to rise against constituted authority must be proved. The term '* mutinous conduct, " which implies conduct tending to mutiny, is not a crime recognized in the Act but would be charged as insubordination. Sedition. — The difference between sedition and mutiny is not very clear, yet sedition is generally considered as treasonable or riotous acts connnitted by soldiers against the Government or civil authorities rather than against military superiors, though necessarily involving or result- ing in insubordination to the latter. Insnbordination. — All offences, in Sections 8, 9, 10 and II come under this heading and some under Section 7. To constitute the offence of "offering violence" there must be au overt act, /. c, a real attempt to use violence which would have taken effect but for some preventative cause. A mere threat or gesture, such as shaking the fist, is not an offer of violence unless within striking distance of the person threatened. A man raising his fist to strike in the orderly room would be an offer of violence, but shaking his fist out of a window in an upper story is not. A man aiming out of a window with a loaded rifle is an offer of violence. The term "superior officer" includes all N. C. officers. The insubordination, whether of act or word, must be precisely set forth in the charge. It is to be observed that the insubordinate language must be used to not of the superior officer ; insubordinate language of him, in his absence, could only be tried under Section 40. Dcfiniliou (>/ urtiiiit .\IiliUn-\' (Hliiin's. The tcnn ^'cxcciilioii of his oj/uc" applies iiuM'e paiticd- larly to otHcers aiul N. C. O.'s bein;,' on duty at tlu- time tlie offence was comtiiitted. N. (". O.'s, however, luinj,' coiitiniiotisly in uniform, it is laid down that they are, while with the rej^'iment or any portion of it, always to be considered on «luty. Tlu're has always been a doubt as to whether officers dressed in plain clotlu'S could be con- sidered as on duty. This is provided for in the Act by making' tile same crimes to a superior (not in the execu- tion of his offict!) military offences, thou;4h not of so seri- ous a nature. Coidd it be proved, however, that the otticer in plain clothes was known to the offender he would in giving an order be deemed to be in the execution of his office. Provocation is not by law recognized as justifying an act ; but, if proved, it would of course influence the court in their sentence. Disobt'yin}^ the lawful command of a superior officer. — No offences differ so much in degree as those falling under the general description of insubordination. An oft'ence of that class may be of the most trivial character, or may amount to an offence of the most serious description amounting, if two or more persons join in it, to absolute mutiny. Almost any offence, from one minute late for tattoo, might be called disobedience of orders, but great care must be used in discriminating between, ''neglect of duty" or ^' neglect of orders'' Section ii, and "disobedience of orders " Section 9. Under this heading there are two distinct offences speci- fied. The essential ingredients of the graver offence are that it should show a wilful defiance of authority, and should be disobedience of a lauful connnand given per- sonally by a superior officer in the execution of his office. Each of these particulars must be proved before the prisoner can be convicted of the graver offence of disobedience. The lesser offence consists of disobedience to any lawful command given by a superior officer, divested of the special conditions which mark out the greater offence. >/.{ A.A.I*. A.A.tf. Hi; •71 T' ir •(■ i : A.A.ia. Criiiu's ami lUinishincnls, I'nr instaiic*'. a It'ssrr offence woiiM inrliidi* disohcd- iciicc to tilt" lawful (-oiiiiiiaiKl of a siipt'iior ofrtci-r (!(.>n ;^'iiilty of (icsiTtioii : in any cast' of tlunltt tin- jniiit should hiul him K»ilty of ahsciur without l>.i\t . Ill chaii^iii^' a tiiaii with iUs« rtioii foiaiiv short ahsrtu-c witlioiit K'avf it is ^/inwi/n- llial tlicrc shoiiM he ( Ir.ir pKiof of his iiitciitioii to stay away aii«l ah.iinloii his ii'^'i- iiU'iit or corps. ( )ii the other hand, ahscncf withont have for any considrrahU- tiiiic, if not satisfactorily accounttuj for, is in itself strong' presumptive cvidcnci' of an inli-n- tioii to desert. The distinction hetweeii tlu' oneiiccs of ilescrtioii and absence without leavi; lies in the presumed or pioM-d in- tention of the offender to return to his diitv. As the crime of desertion depends on the al)sence of any intention to return, the time during' which the offiiider may he away from duty does not necessarily make any dilfennci'. A man^naybe al)sent for sevi-ral years ;ind yet not be a deserter, or he may have only just ii'ft the barrack ^ate and yet be one. However clear a man's intention be to desert he cannot be convicted •)f tlu* crime of di'sertion unless absence witlioiit leave be proveil, but he may be convicted of an attempt to desert. lM»r instance, if hi; offers to enlist in another corps, or embarks on board a ship bound for a distant i)art of tlu- world, sucdi cir- cumstances may be conclusive evidenct; of an intention to desert and would be tried as an attempt to desert. Neither can desertion be judf^ed always by distance. A soldier may absent himself without leave and depart to a considerable distance and yet the evidence of an inten- tion to return may be clear, whereas he may scarcely (piit the camp or barracks and the evideiict; of desertion may be complete. it has Ik'imi I'lili'd that u soldiei- fuiniul desci't while un t'lir- Ioii4j:Ii exeopt l)y enlistiiii;- in aiidlliei- it'^rimeiii. H" illeynily ah.seiit at'tttr (lie expii'ulion <»t his riii'loii^^^li tlicii liecaii ut'<-<>iii-M; he tried tor desorlioii, hut it' tbiiiid eiuharUin^' l<>i- :i distniit eoimli'y diiriiiif the |»oi'iod of his l"iirl()ii,i;;li he woiiM lu-liitMl lor an alleiDpt to des(>i*t. Section If deals with iiiiiior oHc!iie«-s coiiiu-cU'd with desri- tioii, jis assisting" any one to dcseri or coiict^aiiii:;" kiKUvled^'e of desert i«»ii. »75 r A. A. 11. hi' r if Cnniis iimi Punishments, h.K.-A A.A.ra. Q.R.VI.a«. 191. A.A.ir. Tin' ^}. n. ih'cxi'I'IIm' flitil tip to 21 •Iiiy** rt^Hrriro w niiiM ••llMlllil Mot l)<* |-«>tlll'n«<<| llH il i|i>« tllt'l'f '\n ;;t'nl|||«| liti' Hii|i|M)Miii;{ Im> Iihs (IrHtM'tt'ii. Alti'i- '!{ iltiVM nil ul)Mi>nt(>«>s with- iMit li, |K(> n»titii|«<| hh iU>- WI'll'I'M. 1^. I{. VI. |I7-|:(«; ^ivi> tlio nil(*N rolutiii^ to *lt>Hi>t'tioii uimI otl'(>iit'i>N a^tiiiiNt (•iiliNiinoiit. Whni a sohlici Iiuh Ih'cii uhst-nt witlKnit \v\\\v for -M «liivs a cjnirt of imiiiirv of X\\\vv otVictTs is to assnuhlc. and liavii)).; I'crcivcii proof on oath tlu* roiiit has to (ie> rlarr tin* ahsrncf ancl th«' prriod thereof and the de- I'lciency, If any, in his kit, and i\\v. ('. (). wilU-nter areconi of the (ieelaration of the court in the re^Minttital books. (See (Miap. \\\ .) Confession of Desertion. — Whore a soldier si^'ns a confes- sion that he has been K'>'lty of desertion, or of fraudulent eidistnii.'nt,the(".inC.,or A.Ci.inthe I,'. K.,or OlVicer Com- tnandin;; the forces in any colony, etc.. may dispense with his trial and order him to suffer the same forfeitures and deductions of pay as if he had been convicted by (". M. for the offence. If upon such confession, evidence of the truth or falsehood of it cannot then be cotiveniently ob- tained, the record f)f stich confession countersigned by the; C. O. is entered in the rej^'itnental books and tiie sf)ldicr contimies to do duty in the corps in which he is servin/.,', or in any other corps to which he m.iy be transferred, until his disclmrjjfe or transfor to the reserve or until Icj^'al proof can be obtained of the truth or falsehood of such confession. With the crime of desertion, attempt to desert, or of ab- sence without leave, is fre<|uently associated that of mak- ing' away with clothinj,', equipment or necessaries. Fruuihilent linlistmcnt, — This crime is restricted to a person when subject to military law enlistinjj; in the rejjular forces when belonj^Mu;,' to the ref,'ular. reserve, or militia forces, without havinj,' lirst a rej^ular dischar}j;c or having; otherwise fullilled the conditions enablinj.j a man to enlist. A soldier who absents himself without leave from his corps and enli.sts in another is charjred with fraudulent enlistment not with desertion. IhJimUoH oj wrtain MUitary O^ohtU 77 A mail of tlu' militia or rrsrrvo forces who oritiKts wIh'Ii a.aiw. !i()t siil)jt»tt to iiiililaiy law would lu« triinl umlri Scrtitui a^* .{.) for iiiakiiif; a wilfully false statciiieiit or answer on at- testation. Men who enlist liaviii); heeii disehar^'ed while siihjeet a a..w to military law as bad ehaiaeters, or with dis^'rare from the navy, art! dealt with under Section ^\2 which is specially framed to meet such cases. Pisf^rai'c/nl i' III, fact i^ the heading' under which are in- a. a. !«.(») eluded in the Act offences by commissioned officers of a scandalous nature unbecoming' the character of an otVicer and a (gentleman, and all offences by soldiers of a fraudu- lent nature not particularly specified in the Act, or of any other disj^'raceful conduct of a cruel, imlecent or un- natural kind. The words "Disjjraceful Coiuluct " in a charjjfe arc strictly limited to one of the kind specified in Section iS, sub-section 5. ..I I (' I %.■■ m-^r CIIArTlCK XI FOKFEITUKES, STOPRUiKS, AND FINES. rOKFHITl'KHS. , Forfeiture!^ relate to : — 1. Forfeiture of service towards r/i'itii>'cs iiiiil Sloppiii^is. I7<) The term "tiiu!" is also applied to tines iinposod l)y^-^'"**' '""• civil court. FnlfFHfTUltKS. I. rOKI-KlTl'KK Ol- SKKVICI'. TOWAKOS niSCHAK(;F.. A soldier convicted of, or wlio lias confi'ssed and his trial been p[ia;^i'sfroiii Oydiuiivy l\iy. iSi Hut the totJil amomit of deductions, after paying,' for messiuf,' and washinj,', must leave the soldier at least one penny a day clear. Stoppa},'es can only be inflicted to the amount which is sufficient, and no more, to make ^'ood any expenses, loss, or damaj^e occasioned. Such amount at a C. M. is stated in the charj,'e and proved in evidence except for articles of kit where the rej^ulation price is recovered. A C. M. or a C. O. (when case not tried by C. M.), sub- a. a.ihk. ject to any orders of the S. of S., may remit the whole or any part of the above deductions. Any sum authorized (o l>o (loductodasahovo may ho dodiu'lod a a.i*). from ordiiiuiy pay. or from any .sum duo to the ottici'r or soldier, iu such manner as may ho ordered by the S. of S. In case of stolen property, any money found on the a. a. 75. prisoner m^^y be appropriated to restore the sum stolen. Q.R.Vi.icj. For deducting pay for absence or imprisonment a part of a day is not reckoned unless it amounts to six hours orA.A. 140 (2.) more whether wholly in one day or not, or unless such absence prevented the absentee from fulfilling any military duty which was in consetjuence thrown upon some other person. A soldier receives no pay on the day of his release from R w.ror. prison. A soldier acquitted or illegally convicted of a charge, R.w.Te8. receives all back pay from date on which he was first placed in confinement, except that he is charged for his subsistance during that time and for any hospital stop- pages. A soldier released without trial also receives his back pay except on a confession of desertion or fraudulent en- listment when trial is dispensed with. .3, 4, 5. FOHFEITURE OF SERVICE TOWARDS PENSION, DE- FERRED PAY, OF GOOD CONDUCT PAY AND OR AT iff. TIES, AND OF MILITARY DECORATIONS AND REWARDS. These have been left in the Act to be dealt with by- Royal Warrant as they are in the nature of rewards and not of the essence of a soldier's service. A.A:44.(n) P li liSj Juir/cilitirs, St(ifipiifj;is, and Fines. 'fr>\ \ '. ii ■ y- •iR'- v. ¥? n't ».\V.5H.'l. K.W.«irK>. K.W.tt9». R.W 9ia. R.W.67 R.W, 580. R.W.f)49, m2. Any G. (". M. or I). C. M. injiy, in addition to or with- out any other punishment, sentence any offender to forfeit: (a.) The whole or any portion of his past service to- wards pension. (b.) The wliole or any portion of deferred pay already earned. (c.) All or any j^ood conduct badges earned by past service. {({) Any incdal, decoration, annuity or gratuity. I^ut no forfeiture is to be awarded by C. M. if the con- viction does of itself entail the forfeiture absolutely. Service forfeited towards pension and good conduct pay, and any medals, decorations, annuity or gratuity forfeited may be restored for subsequent good service by the S. of S. on the recommendation of the C. in C. Service does not reckon towards pension unless it counts towards the term of enlistment. A soldier forfeits all prior service towards pension when sentenced by C. M. to be discharged with igno- miny, or in consequence of his incorrigible and worthless character, or expressly on account of misconduct, or on conviction by civil power, or on being sentenced to P. S., or for giving a false answer on attestation. Deferred pay is deducted at the rate of two pence (2d) a day for each day on which a soldier forfeits service to- wards pension. Should such service be subsequently re- stored the deferred pay is also restored. For further rules as to forfeitures of pay and as to forfeitures and restoration of medals, good conduct badges, etc., see Royal Warrant. CHAPTER XII. VARIOUS REGULATIONS, PENALTIES, is.c. A A.l.V CIVILIAN FALSELY CONFESSING DKSKKTION. If any person falsely confesses himself to be a deserter ** he shall on summary conviction," be sentenced to: — Imprisonment, with or without H. L., for not more than three months. CIVILIAN ABETTING DESEKTION. Induces a soldier to desert, or aids him to desert, or a.a.im. conceals or rescues a deserter, etc., is liable on summary conviction, to : — Imprisonment, with or without H. L., for six months. APPREHENSION OF DESERTERS. If a person be suspected on reasonable grounds of being a deserter, he may be apprehended by a constable '^ " or, if no constable can bejirn mediately met with, by any person (officer or soldier) and forthwith brought before a court of summary jurisdiction. If the court is satisfied that he is a deserter, it may either hand him over to military custody or commit him to prison till he can be handed over. In either case it sends a descriptive return : — In the U. K. to the S. of S. Elsewhere to the Officer Commanding. When a person confesses himself to be a deserter to a civil court of summary jurisdiction, the court remands (3.) (•«) 1 84 V'ariaits Kcfiuliitioits, I'dtiiltics, I'n. (.V) If • 4 A.A.ir,'.(i.) (a.) (8.) A.A.I'M. A.A.145. him aiul tr.insmits a descriptive return (as above) for in- formation as to the trutli or falseliood of such confession, and the court tnay remand him for ci^lit ditys at a time for any reasonable time till such information arrives. I'UNlSllMliNT OF FALSI-: OATH AND IMCRSONATION. Where regulations provide for proving; the identity of a recipient of any pension, military reward, etc., whether on oath or solemn declaration, persons wilfully making false statements are liable to be convicted of Perjury. Any person who falsely represents himself to be a par- ticular man in any of the forces is guilty o{ Personation. Persons guilty of such offences are liable, on summary conviction, to : — Imprisonment, with or without H. L., ior three months, or to, F/ ol' 'twenty -five Pounds (3^25). KXKMPTIONS OF SOLDIIiRS IN RESPECT OF CIVIL PROCESS. A sol 'ier c > ^ot be taken out of the service or com- pelled to appear bt iore a court of law except for felony, misdemeanor, or other crime punishable with fine, im- prisonment, or some greater punishment, or for a debt of over thirty pounds {£30). He cannot therefore be made to appear before a Civil Court for breaking a contract, absenting himself from his service, etc. He can however be sued after due notice given him in writing and, after judgment, execution may be had against any private property of his, but not against his person, pay, arms, necessaries, clothing, etc., which can- not be touched. LIABILITY OF SOLDIER TO MAINTAIN WIFE AND CHILDREN. A soldier cannot be punished for deserting his wife or family ; but a civil court may order a sum for their main- tenance, or for that of a bastard child but, as in Section 144, his person, pay, etc., cannot be touched. The S. of S. mav, if he think fit, order a sum not ex- Vttt'iuus lu'i^nliilidiis. '•\5 iim in had st his can- DKEN. ife or main- iction bt ex- A.A.IW ceedinj,' sixpence a day to be; dciUictod from tlio pay of a N. C. Officer not under the rank of Ser^'eaiit, an. A.A.147. \.m-i (.'!.) i.S(» Viirioiis Ni'^uliitioHs, i\iuill\s, Ck. 5 / 11' lil (».) jicciisoJ of ;i criiiu', having' ic^'anl to A. A, 144 (sl'c abovo), or who wilfully obstructs or refuses to assist con- stable's ill tlirir apprehension is, on conviction, t^nilly of Misdi'iiicnnor. When an otHcer is convicted for any offence aj^'ainst the Act by a civil court, a certiticatc of such conviction is to be sent to the Secretary of State. A. A, DM. A. A in. A. A Its. PKyAi/r/Jis. IViialty for u)ilau'/ul rccniitiii^, liable on siuninary con- viction to : — Pine not exceeding; Twenty Pounds (;f2o). Officer who iininoperly demands billets is K^ilty of a Misdeinennor. Officer or soldier who commits an offence in relation to billeting punishable nnder Part I of the Act, but for which no remedy is j,Mven by Part II : — lunc of ['"ifty Pounds {£50). Officer or soldier who commits a similar offence about impressment 0/ airriuf^es : — • Pi)ic not exceedinjLf Fifty Pounds {£$0), but not under Two Pounds {£2.) A.A.iio (1.) ('*) Officer or soldier who does not pay for billets or carriaj^es, etc., (h) or who ill-treats a keeper of victualling house, or owner of carriaj^e, etc., who has first (if possible) com- plained to the C. O. : — Such person may apply to a court of summary jurisdic- tion for compensation ; and such court may certify the same to a S. of S. who will order the same to be paid, or, if he think the claim excessive, may order the com- plaint to go before a county court of summary jurisdic- tion. Any person makinj^ a fraudulent claim to be provided with carriaf^es, animals, billets, etc., is liable on summary conviction to : — Imprisonment, with or without H. L., for three months : or to, i«.) A. A 121. I) I'ciUlllh'S. IS; Fine not Ifss tlian One Vouml (£'i), and not over I'ivc Pounds (/;5). A |H!rson who trallicks in coininissions, promotions, or exclianf,'es, is liable on conviction, v.w indictnu'nt or in- forniation to : — Fine o( One hiimind Pounds (/'loo), or Imf^risonment for six months; and, if an oHicer, on conviction by ('. M. to be dismissed the service. A person wIk) buys, takes in pawn, or receives, etc., or solicits or assists a soldier in selbnj;, pawnin;^' or niakiuf,' away with any arms, necessaries, cloth in^,^ stores, horse, etc., is liable on smiimary conviction to : — 1st offence-' Fine not over T-iCenty J*ounds (£'-io), and treble the value of the property. 2d offence — Fine n.(1.) r /-' i. r f assembly and procedure of Courts of In(|uiry. Coniinittccs and Hoards differ only from Courts of In- Q.RVi.iiB.M"''"}' '" s" ^'^'" tl''it the objects for which they are assem- bled should not involve any point of discipline. They follow, as far as may be convenient, the rules forC'ourtsof Inquiry. There arc thri?e kinds of Courts of Incpiiry : — 1. Royal Coftiniissions, held under the prerof,Mtive of the Crown, instituted by special warrant issued for the oc- casion, such as to in(iuire into the failure of expeditions, etc. The proceedings of these courts are privilej^ed beinj,' secret proceeding's; and oaths are ,'idniinistered under the prerogative of the Crown. The duties of these Commis- sions arc quite undefined but they proceed by the custom of the service and in accordance with their particular in- structions. 2. Courts of hiqniry held under the Statute for the pur- pose of detennininj,' the illej^Ml absence of soldiers. This court is assembled for the purpose of recording a fact, and is the only one (except Royal Commissions) which can take evidence on oath and which can require the attendanci of all necessary witnesses. A.A.V'2.(1.) Court of hhiuiiy mi ///<•;,>.// . I /»n(;/4 i*. I Si, It is nsscinblcd ;is soon as ptarticaltK' after a soldier'/ nvi.iii. lias l)0(Mi absent without leave for -'i days, iiidess the soldier, thouj^h still ille;.\' '^ " ^' '"" ptilicnt to l»f tlioroii^'hly infoiiiud. He may dine t tlir conrt nuTcly to collect cvidciu c, or to ^wv an opinion uk well on any point intt involving' the conilnct of any oHicri or .soldiur. The (jnei'n's Ke;,'iilations direct the asseiiddy of District «tr K»'j,'in»ental Courts of Irnpiiry «)r Hoards U) investigate and repoi ton important inattcrsronncctcd with the service. uitviu.t ^" c'very case of a soldier hecomin}^' maim«'il, iniiti''»ted. or injured, except by wounds received in action, a .t of Ifupiiry assend)les to investipiti' the circinnstanresand to ascertain wlu^tlu-r the injury was caused l>\ accident or desi;;n. The court will not ^'ive any opinion, hut the C. (). will form and record his opinion on the evidence. The proceedinj^'s are then sent to the (ieneral Otticer coni- mandin;^' for confirmation. KornuM'Jy. wlHMU'ver 11 Nohjici' liccuiru' iiijinvd i'v»'ii l»y the iiuM'i'st aeiidi'iii liu iiM(>d to Ixt iritMJ l»y < '. M-- hat nnw iiC. M. Ik only cuiivened if llic rvideiicc adduced al the ((MUt of llU|iiii'V shows il to have heon wi'ony;fiil. Q.R.J J «, A Court of ItKiuiry is always held on every reti— ncd prisoner of war to investij^'ate the circumstances 'er which he was taken prisoner. In the case of an o.. jr, the president and members have to make a declaration on their honour that they will impartially in/mlin^; dmrts of tfUjiiiry, "i« HounI, is iiHiially :i (*(Hnl»;it;uil nfTU'iT. SlioiiM llir pius* i.'iicf of ;i (|i'|).irtiiittit.il oHirn In- r««|iiii'f mi|M>iioi K'Utivc r.utk to tli«- pirsiili nt, Ik- -.hoiild not t»v *li-tail«>il as :i iiu!IiiImi Ixit xmmiUI I*c ilii('< ti .| t<> uIUmkI to lurnisii any inioiination or fvidfiicc tin a witness. Prnrccdin^'s of ('niiits ol in>|iiiiA, ( onintittfi^'i andi^ tt vi.iiii Hoards, an' wiittcii titlicr on s|HH-ial ptintcd lotuiH or on a rrj^'nlar Army r'oini. (A. 2.) Tlicy art- n-cordt'd in ,i rurls of Requests are only licM in Iiulia at military sta- tions beyond the jurisdiction of conrts of small canses.A.A.i4H.jftt. Tlicy may be assembled for adjndicatinj^' on actions for debt not exceedinj^' ^'40, and all personal actif)ns taken a/jfainst officers (not soldiers) by civilians. These courts 'arc composed entirely of commissioned officers, usually five, never less than three. Sections 14N-151 of the Army Act lay down the composition, jurisdiction, powers, etc., of these courts. chaptI':r XIV. MARTIAL LAW It is (iifftciilt to clearly (lefiiic Martial Law, or to state what offences may be tried by it, when it may be pro- claimed, and how offenders are to be tried and convicted under it. On all these points j^niidance has to be sought by what has been done in the past. Up to the close of the seventeenth century Martial Law had been from time to time exercised in Great Britain* and Ireland by Commissions from the reigning Sovereign, but even then it was considered by Parliament an extreme use of prerogative. In the early M. A. there was no mention of the Crown's prerogative to proclaim Martial Law, but in later. M. A.'s and in the present Army Act, it distinctly states that no man can be " subjectetl in time of peace to any kind of punishment within this realm by Martial Law." Hence there is a distinctly defined permission to proclaim Martial Law. But the ditiiculty remains to detine when this authority may be exercised. There have been many di.'linitions of Martial I^aw, but all are defective. Sir David Dundas, as J. A. C. in iN5o, said: "It is necessary to distinguisli between Military Law and Martial Law. Military Law is to be found in the M. A. and A. \\ . those and hosr alouc it is which Dcjinilioiis of Maytial l.au:. •'A5 are properly called the Military Code and by which the land forces of Her Majesty are ref^^dated. Martial I.aw is not a written law ; it arises on a necessity to he jud;;ed of by the Executive and ceases the instant it can be al- lowed to cease. Military law has to do only with the land forces mentioned in the Second Section of the M.A., Martial Law comprises all persons, whether civil or military." Lord Hale describes Martial Law, as "no law, but something' indul^unl rather than allowed as law." And Lord l^roufT^ham "the law of the soldier applied to the civilian." It is, in effect, a rule for supersediu},' the ordinary law, which necessity, more or less urgent, must be shown to justify. As Sir Charles Napier expressed it, "the union of legislative, judicial and executive power in one person is the essence of Martial Law," or as the Duke of Wellington explained, " It is neither more nor less than the will of the General of the Army." Martial Law has also been defined as " sw.ay exercised by a military commander over all persons, whether civil or military, within the precincts of his command, in places where there is either no civil judicature, or where such judicature has ceased to exist." As a rule offences under Martial Law are tried by G. C. M. When necessary Field G. C, M. or S. C. M. might also have to be assembled when a G. C. M. cannot be convened. Martial Law may be considered under three heads : — ist. .l.s' applicable to officers and soldiers under the Army Act, and under what circumstances it is to supersede the latter. 2nd. As applicable to Provinces occupied during:; the continu- ance of war. 3rd. As applicable to a ivhole community in time of Rebel- lion. I. It is admitted beyond a question that the Una of necessity may arise and may be used against persons under -1- i()(y Mai'liiil Lira'. the Army Xct. There is excellent authority for this namely, the opinions of eminent lawyers. In the case of Governor Wail, who was a Lieut. - Colonel in the. army and Governor and Commandant o( an island on the West Coast of Africa in 1782, the j^'arrisoii of which consisted of about 150 men : — One day several men of the detachment went to the paymaster's house to demand an allowance to which they considered they had a right on account of the short issue of rations. The Governor interposed, ordered a parade, and had a serj^eant, who was amonjj those who went to the house, severely flogged with a one inch rope inflicting on him 800 lashes from the effects of which the man died five days after. The Governor left the island the day after this flogging and arrived in England, but went abroad again on the advice of his friends to be out of the way. Twenty years later he was brought to trial for murder and executed. The line of defence set up was that a mutiny existed in the garrison and that this sergeant was one of the ring- leaders ; and further, that officers on parade had formed a " drum-head " C. M. before the flogging and that he, the Governor, merely carried out their sentence. The statement as to the C. M. he failed to establish, but the judges ruled that had he done so the defence would have been vaUd. The Attorney-General prosecuting, said : " There may * be circumstances for a military officer justifying him in the infliction of punishment without a General or K.C.M., if there be that degree of imminent necessity that super- sedes recourse to ordinary tribunals. It concerns the public safety that means of repressing a mutiny should be powerful, sudden, and capable of application in order to cope with such an evil. If the mutiny in the garrison did exist and was serious, as was stated in the defence, the prisoner would not only have been an innocent man, but a meritorious man for using the powers within his reach." r • .Ipplimliiiii nf Mtiiiiiil Law In Off'uiis aiul Soldiers. n>7 Tlic Jndj^'c. rli;ir;^MnjL,' the jury with tliisc viinvs, coin- cided ill thcin and said : *' If tluMc wltc a nuitiny, and if there were a C. M. such as coidd l)e had, even not a lej^al one, and if tlie man was warned that he was on his trial and called upon to say iiow he became ( country. III. When may Martial Law be resorted to as affecting: tiic whole community, iivil and military, and how ? This case presents /j^reater ditliculties, and is not a problem to be solved in anticipation of the e\'ent. All acts committed under tlu" authoritx' o{ Martial Law arc always scrutinized, and must be justitiecl siil)se(|iiently by an Act of Indemnitv passed to cover oidy such acts as liave been properly done under the "law of necessity." but Parliament does not inilemnify acts not of necessit}' but of oppression. Martial Law under this head may be considered under two cases: — ist., when a country or district is formalK- put under martial law by an Act of Parliament, and _Mid., when under circumstances of innninent daii;,'er the Execu- tive proclaims Martial Law. Ui.) When Parliament sanctions the introduction of Martial Law in a coimtry (\ M. can lej^ally try any person, as in this case the same j)()wer which madi; the ci\il law suspends it and replaces it temporarily bv the military (ode. But civilians tried by military courts wouM not be awarded punishments jxculiar to the ujilitarv code when tried for offeiicis oiMtU civil. ,- 'C 200 Martial Lua'. ^|v ^ k ■ if;"'! if* life: '^t No authority Imt Parliaiiu'tit lias rt-ally thi* power to proclaim N[artial Law. The ICxeciitivc is justitu'd, how- ever, imder certain cireiimstanees, in takiiij,' the law into its own hands in self-defence —the case is aiialo;^'oiis to that of killin;^^ a man in self-defence. The proclamation of Martial Law by any other author- ity than Parliament, heiu}; itself illej^'al, cannot le;^'ali/e acts done under it: hut in the administration of Martial Law, althou/^'h forms and procedure will not lej,'ali/e acts done they will materially tliminish responsibility and, therefore, as close an adherence as possible to the estab- lished laws of the country, the established usa;,'es of war, and the forms and practice of C. NL is always advisable. The (juestion of the co-existence of Military Courts with Civil Courts has never been fairly settled. When Martial Law was instituted in Ireland, in i7<)^-()0, i''^o} and rS.jj, the Civil Courts sat for all ordinary cases. In tlu; Petition of Ri^dit it was ackuowled^^'ed that Martial Law was a necessity where Connnon Law could not be enforced. The ar^'uments in the House were : — If an enemy come into any parts where ComnKiii Law cannot work there Martial Law can be executed; but if a subject be taken in rebellion, and be not slain at the time of his rebellion, he is to be tried afterwards by the Common Law. In 1799 the Irish Parliament declared that Martial Law should prevail whether the Civil Courts were open or not. The Courts in Dublin were open and a collision between the Civil and Military Courts took place, and the Kin^^'s Bench ^'ranted a writ to take a rebel sentenced to death by a Court Martial out of military custody. The rebel was too ill to be removed and died subse(iuentlv, and hence the case was unfortunately never decided. How- ever this shows that the supreme authority of the Civil Law was admitted. A^ain, in the case of the proclamation of Martial Law in C/anada in i«S 57, a letter ()f mstructions from lui^dand to the Lieut. -deneral connuandin}^ state,'leader and r^'itator, was arrested at Kinjjst(m on 20th October, /. i., in a piact; out of the pro- claimed district by order of the (loviirnor and handed over to the C O. of troops (Colonel Nelson) at Morant Hay, a place where Martial Law prevailed, with instructions to try him by C. M. on such charj^'es as mi^'ht seem advis- able. He was tried next day for hij^h treason and for complicity in acts committed on the nth October, i.e., before the date of proclamation, convicted and sentenced to death. The proceedinj,'s were confirmed by the OtHccr Commanding; the troops in the district, and subsecpiently by the Officer Commanding the troops in the island (General Codrington) who approved and said that the state of affairs in the colony called for prompt and imme- diate action. Ciordon was executed on the 2.^d October. Subsefpiently an Act of Indeujnity was passed by the Local Legislature for all officers who had rightly adminis- tered Martial Law in good faith. Nevertheless an in- dictment for murder against (Governor Lyre was after- wards presented to a (irand Jury in London, which in- dictment rested on four counts: — 1. Locality of arrest not under Martial Law; 2. C'rimc committed prior to date of proclamation : J. Only evidence was documentary, and insufficient be- fore an ordinary court ; 4. State of Martial I^aw prolonged beyond necessary time. With regard to the first count. Judges differed. One stated that as bv tlu' general law all crime is local and -'«>.i 1,' ft 3(»4 Miirtitil f.nw, must Im' tried where roinniitted, tin- (ioveriior waM jiiHti> WvA ill hriii^Mitf^' (ioKion into the itnichiinieil district for trial. Others hctwever eoiisideiid tliat, criiin' ImIhk local, an offender should only he arrestecl and tried within the area in which Martial Law is in force. Also, as con- cerns the second count, the IcilaiuH i»f opinion was that no proclamation of Martial Law c:im have a retrospective effect. Hence if part only of a rountiy is iimler Martial Law an offender, to he siihject to it, sliouhl he ari«'sted and tried, and his offence should haveheeii committed, within the district where Martial Law prevails. I*"urtlier, for an offence to he piinishahle under Martial Law it must have i)een committed after the Proclamation was issued, ainl must he tried Iw/orc the same is rescinded. With regard to thr third count, the C. NL consiste(| of a Lieuti'iiant Koyal Navy as PresidtJiit, with another Lieutenant Koyal Navy ami one iCnsi;4:ii West India Kej^d- meiit as niemheis, and no allej^'ation as to the le^^'ality of the court was macU'. The ohjection of insufticiency of evidence was not much arj^'ued as it was considered that the court's opinion must he decisive. Mr. Disrali, in iSfif), as Chancellor of the lCxche(pier, stated in reply to a (piestion in Parliament, "In the state of Martial Law there can he no irre^Milarity in the compositif)!! of the court, as the hest court that can he ;,^»t must he as- sembled." As concerns the last count, it was considered that the (iovernor was under lU) ohli^'ation to rescind the procla- mation. The Jamaica Statute limited the duration of Martial Law to ,}o days ; this was considered ohjection- ahle, and j^'ave rise to the circular letter already referred to. (iovernor I'yn; was therefore considerec' vt acted wrongfully in arrestinj^' (iordon out of the , laimed dis- trict and transferrin;,' him to the proclaiuHd ilistri. t for trial; also that as he cnmmitted the crime heforc t.ir pro- •clamation «»f Martial Law (i<»rd«>n should onl\ have been .\f>f>liititinii of \liir\u\l Law in linw «»/ AV/»«7//»'». tric\\|r«lf,'«t| tliat (iovriiior ICyro had artrd in ^'immI faith ainl had hioii^'ht thf iMilony safi'ly thnnij^h a ^Miat ilaiij;«r so that. in»t- withstaiuhiiK these erirtis, protection was affoi(h7 an indictment for innre time, and in that point of view it would be material. In the same manner as collateral testimony can be brought against the prisoner to show intention, so can he bring similar evidence in his defence to disprove such intention ; e.g., on a charge of murder he may prove acts of kindness and expressions of good will towards the de- ceased to show that his intention was not likely to be what the charge imputed. Having regard to the individual rights and privi- leges of British subjects and also to their liabilities, it is TT /v'///i's (»/ lividcncc lo he adlicrcd to. (•f tlu' utmost importance for persons wlio have to ad- minister justice to know : — 1st. What facts may and what may not he proved in (hfferent cases under trial. 2(1. What sort of cvithiicc must he jjiven to estal)lish a fact it is desired to prove. ul. Hv whom and in wliat maimer evidence must be proihiced h\ which any fact is to he proved. If inadmissible evicUnce be not rejected, not only may injustice be done but the proceedin;,'s may be very much protracted. Kniinent writers on Mibtary Law aj^aee that a ('. M. should adhere to these ''rules of evidence" strictly and, as far as possible, avoid minute points and subtle vari.a- tions not essential. Ordinary cases tried by C. M. are so simple that the rules of evidence scarcely come into use, yet in more important cases which attract public attention, any departure from these rules would cast dis- credit upon Military Courts. Often the (piestion of admissibility of evidence forms an important part of the trial, especially in cases of jmbc/zlement. An eminent lawyer, stating that the laws of evidence should be re^'arded at C. M., said: — -"I cannot under- stand how justice caii be done by persons who do not understand what tends to prove j^uilt or establish inno- cence." It is the duty of the J. A. to advise the court as to the admission en rejection of evidence, and as in the colonies he would f^enerallybe a staff officer, and as all officers of a court are individually n sponsible for the lej^ality of the proceed injj^s, it is important for all officers to know the principles on which evidence should be admitted or re- jected, especially as more C M. are quashed on grounds of want of knowledge on the (juestion of evidence than on any other. There ari^ Hve general rules of evidence which are the result of the accumidated experience of the ablest lawyers as to tin; best and most direct way <>f arriving at the 200 Jio Rvidcucc. tnitli. There ;ire also some Statiiti's wliicli lay any evidence showinj,' the existenci,' of a motive likely to instif,Mtc him to connnit the nunder in (piestion. Althou;^di evidence of bad character cannot be bronj^dit forward befon; tlu.' tindinj^s Net evidence of f^ood character may be brou^dit forward in the defence. If the char/^'e be prgved evidence of j^^ood character cannot avail to disprove it, but where doubt exists as to j,'uilt it may tend to strenj^then a presumption of innocence. Thus, where there is point blank contradiction of evi- dence as to facts and the prosecution is weak, evidence it 214 lividoicc. I'm as to character heroines very iinportant, especially wiu'ri! there is only one evidence on each side such as a h^dil between two persons without eye-witnesses. All evidence as to character ou^'ht manifestly to have some connection with the chartfc otherwise it must not he allowed to w(M/^di as evidence. I'or instance, it is no use to f^'ive a person char/^'ed with murder a character for hon(!sty, or evidence of ^'allant conduct in the held on .1 charjj^t! of theft. AC. M. should receive such evidence, but it would not he wt.'if^died. In addition to the evidence produced after the findin;^', a prisoner may produce evidence as to cliaracter durin;^' the trial, and such is received as part of his defence. The prosecutor may cross-examine such witnesses, but he may not briiif,' other witnesses to rebut their statements till after the findinj^ as the prosecutor can brinjj no evidence a^'ainst the prisoner's character till after the finding ; but then both parties may produce witnesses as to character and cross-examine them. Sometimes prisoners lay before the court testimonials, letters as to character, etc. Such documents are not legal evidence, as such evidence must be vivo voce and made by witi: ^sses who can speak from their own know- ledge regarding the prisoner ; such documents should not therefore influence the court in their finding. In C. M. it is however usual not to accept such docu- ments as evidence but as an indulgence to the prisoner, and to append them, not to the proceedings, but to a separ- ate letter forwarded to the confirming officer for him to take them into consideration and if he thinks tit to miti- gate the punishment. HULE II. THE P(UST AT ISSUE MUST HE moVED liY THE PARTY WHO ASSERTS THE AFFIRM A THE. Thus if the charge be for drunkenness, it is for the prosecutor to prove that the prisoner was drunk, not for the prisoner to prove that he vv'as sober. If the prisoner plead "guilty" the prosecutor is reliev- Ifisiic to he /trovi'il hy llic party ulio iIss»//n ///( tilliniiiitiiC, ^15 erv litvuli," is in many eases, however, shifted to the prisoner in conseciuence of tlie " presumptions of th«' hiw," and the "presumptions arisinj; from the evidence." l^'or instance, proof of the possession of stolen ;,'oods throws the onus of accoinitin^' for tlu" possession of thetn on the prisoner. In case of desertion it is sufficient for the prosecutor to prove absence without leave for a con- siderable time, it is then for the prisoner to prove his in- tention to return ; and so in like cases the burden of proof rests with him who has to support his case by the proof of a fact in every instance where it must be supposed to be within his knowledj^'e. I'KKSL'Ml'TIONS. Stephens defines a "Presumption" as that "courts and judj^es shall draw a particular inference from a par- ticular fact, or from particular evidenci', unless and until the truth of such inference is disproved." There are two classes of Presumptions: — I. J*rcsumptitms of the laxv. II. Prcsnuiptions ilnucn from the ciili'inc. I'lSKSI'MI'TloNS OK Tin: LAW. The Presumptions of the law willi lefeiince to criminal matters are simple and easily defined, and tlit^y hold /^'ood until the contrary is proved; as for instance it presumes: 1. That every man is innocent until the contrary is proved; except as in (j), if an illej^'al act be proved the law presumes illegal intention. 2. That every man is acii(l:iiit. and in fiiiliiiL' tlu'icof the law ini- plii's a ( riiiiinal intent." This prinriph- holds j^'ood if tin* art hv doiu' liy a man when voluntarily ditink and therefore withont prenuMlita- tion. A letter wlun used a^'ainst tin- writer, and j^'cneially any doennunt, is presiiMu!d to have ht-en written on the •lay of its /. The law presumes that all neciissary thing's have bei-n done unless disproved; as on the trial of a soldier, his en- listment need not be proved, or when a soldier is tried for striking; an otHeer tin; hitter's commission lU'ed not be proved. It is the duty of officers to make themselves acquainted with all orders published in the order book. A court therefore presumes that all such orders an; known to the officer unless he can brinj; proof that he has not hccn ahlc to sec it. Persons absent for seven years are presumed to be dead, hence bij^amy cannot be found after seven years, etc. IiiSiiitity. ICvery man is assumed to be sane until the contrary is proved. To establish the defence on the j^Tound of insanity it must be proved that the accused at the time of commit- tin.t; the act was labourinj; under such a defect of reason that he did not know the nature and the rpiality of the act or, if he did this, that he did not know it was wronj,'. The evidence of insanity must be confined to the act in question, not to the j,'eneral state of the accused. A temporary delusion may have the effect of accpiittal, as it has been riih-d that "if a man kills another whom he fancies to be taking' his life, he must be acquitted. If he killed him in revenj^'e for destroyinj; his character or fortuiU" li»' is punishable." 217 111 aiA I'lviititut'. Drlinitioii l>y ( lii«f Jiislic «• .\l>l»ntt : •'I'Ih- pnsiiinp. tiuii of any fiit t is an in/innn' of tliit fact froin otlx r factH thiit arc known ; it is an act of n asunin^'." Ait1iI)(»1,Min assent," Tlic ni'ccssity foi a,'ainin)^' tlinc t and positivi* cvidmci'. In civil law a iiTfipt for snl>si«|iu'nt niit is |ir('snin|)- tivo proof that itnt for tlu' sanu- priiiiists for a prt'vioiis pi'riod has hLiii paid; so also proof of the settlement of a soldier's accounts for a particidar month would, in tlie absence of proof to the contrary, he presmnptive proof tliat he had l)cen settled with for any former month. Such presumptions, standin;^' in the place of actual proof, have si'Vtial dej,'rees of wci^^dit. Archhold divides presumptions into three classes: — Violent, prohahle and lij^dit. I. Violent presumpti»)n. — W'lui) the presumption of one fact necessarily follows from another fact proved. As a man found near a house with ^'oods stolen out of it. J. I'rol)al)le presumption. When tlie facts proved are ;tsiiitlly attended by the facts presunud. As a man found with stolen ;,'oods in his possession hut not in the vicinity of the plact! where stolen, as at his lodj^'in^'s. it would he a probable presumption that he is a thief, but a violent piesumption that he is either tlw thief or the receiver with j^'uilty knowled/^e, and a prisoner with such ;i pre- sumption aj,Miiist him has to prove it false. \. Lij^d't presimiptioM. When the facts provi'd arc not necessarily attentled by the f.icts presumed. Russell, however, says that "this division seems alto- ^'ether useless, and tlie distinction U) amount to notiiint,' iriore than that in one case the presumptivt; evidence may bi; very stroiii,'. in another less so, and in another vi-ry weak."* I'l'i'siini/ttiniis ,hti,.ii from tlu iiiiJt'iUi', Jl.> III (-:iHt>s ol tlirft it iiiiisi \h> iiiMt provitl that tlu- artitli'S have Ix'i'ii Htolrii :iiii| tlicii ii|i titilittl. lull thin Im not al* ways posHJIilc ; as wIhii artit'lis mm li as sacks of com have hri'ii stohri out of a ham or >hi|>, ihi ii. il the ai- tich's ill possession ut tht* itii^omr arc foiiiiil tn he nl tlic same kiinl as those niiiaiiiiii;^'. th<- iih iitilication is pic- siiiiutl to he ( oiiiphte. all*! this is a NioKiit piesiiiiiptioii. Also, prrsiiiiiptioii of ^Miih thpemls coiisiih'iahly on the h'ti^th of time stolni ;^'(mm|s ha\<- hern in poss«ssion, for /'('((')// ,iosscssi(iii may he taken to imply a presimiption ot K'lilt. Hilt the IcnK'tli <»f time must of conrse van with the nature of the article and whether it is easily (ii(iilate*| Irotn hand to hand or not, so that no rule can he laid down. A person was onci- char;4C(| with liaviii).,' certain household propertN in his possession sixteen months alter they were stolen; he w.is ahsolvi-d alto;;ether. In the case of a horse which had heen stolen six months, the then owner was free from presumption as the horse in that time mi|{ht have chan^'ed hands. It has heen ruled that if the prisoner ^'ives a reasoiiahle account of how he ohtained the property, as hy ;;ivin^' the name of the person (a real person) from whom he j^'ot it, tile hurden of proof that that statement is false lies on the prosecutor, hut if the statement is manifestly improl)- abie then the " onus pr«)l)andi" rests on the prisoner. The Statute makes some departure from the usual rule to afford facilities for ohtainiii)^' convictions a;,Miiist receivers of stolen ^(oods. It is not necessary in casis of receiviiij,' stolen j,'oods that the principal felon should he in custoily (jr even amenahie to justi«:e. If the primary offence of obtaining' the j^oods is a felony the reception of them is also a felony, so if the first is a misdemeanor the second is also a misdemeanor. ICvidence may he jj;iven that then- was found in the l^ossession of the person accused ol leceivinj,' stolen j,'of th d be stated in the ch (U ihe words used need De stated in tne cnarj^'c. So also in the case; of officers chaij^'ed with "scandal- ous conduct" or soldiers with "disj,aaceful conduct," the imputation may be thrown out, still, if the crinu* chaij^'ed constitutes an oflence, conviction is lej^al and punishment ma\' be awardeil according to the deijree ol the offence. 322 r.vidciuc. p When it is foiiiid tli;it the narnes of persons or thing's, or ownership of property as stated in tlie inihctnient do not .i^jree witli the evidence, a Jnd^e in a Civil Court may amend the iniHctment provided siicli amemhnents are not material to the defence, and will nf)t injme the prisoner, hut a C. M. cannot alter a charj;e which has been appr.>vi'tl h\ the conveiiin;^' officer, hut in the lindin;^^ a "spt.'cial tindinj^'" is j^'iven which specitii'S the amend- ment. The rt'sidt is the same in the two cases, hut the mode of proceedinj^' is difiVirent, the ohject hein;^ that niere technical errors shall not allow of tiie prisoner's escape. A prisoner caimot he found f,'uilty of a crime of f,'reater dejjree than that char/^'ed (except emhe/zlement for theft, A. A, 5O), or of an offence of a different nature; but if arraij^ned for a lcss<*r offence and found f^uilty of a {greater de^'ree of the same kind of offence, he may be convicted of the lesser offence. As a man tried for absence without leave may be found guilty of desertion, and convicted and punished for absence without leave. In an indictment for larceny the evidence must agree with the charge in the species of articles stolen, but not necessarily in the number or value of the articles. Money or bank notes are simply charged as mt)ney, it not being necessary to describe the coins, whether gold, silver, etc. A form of words spoken in order to meet unimportant variance is laid down in regulations, and is found in be very efficcnt. When certain words spoken constitute a crime t'ley are followed by "or words to that effect." ft ^ ' I RULE IV. -//J'JAUSA y /S N- ject to cross-examination, is admissiblt: in evidence hut only where the (h„'ath is the sul)ject of tlie char^'e and the circutnstance? of the death tlie subject of the dyiiij,' dechiration. Such evidence is not available to prove anything' else, such as robbery ; — if a dyinj,' man be rob- bed, his ^cstiv : that is facts courcriiiii;^ which iiMjiiiry may he iiistitntud as to whether they liave taken place or not. I''or instance in case of a cons|)iracy, an informer is allowed to state what passt'd at the meetinj^'s of the C(»n- spirators to sh»)W that tlu-y wi-re tn-asonahle : hnt if lu* were to ^o on and repeat a narrative tln-re told hy a third party, it woidd not he allowed to he taken as evidence ajijainst the prisoner. Af^'ain a soldier ischarj^ed with comin;^' to tin- knowled;;e of an intended nuitiny and not K'^'''K information. To prove this the existence! of a conspiracy to nnitiny mnst first he proved whether tlie prisoner was there or not. To do this evidence mnst he taken of what others have doiU! or said. Hnt the particniars of snch sayinj^'s and (loin;,'s must only he j^'iven a'licii said or done in the hciirin/^ of the prisoner, otherwise oidy the ;^eneral purport of sucli sayinj^'s sutlicient to show that a conspiracy existetl. It is often necessary to prove that a certain order was j;:jiven, or that a person was ac(piaiiited with ct-rtain tacts at a certain time. What has heen said or written would, under such circumstances, he important evidence and not classed under secon(i-hand evidi'uce. 5. The evidence of a deceased witness examini'd on oath on a former trial hetween the same parties is also admis- sihle and may he proved hy .) l^vivatc. {a.) Public documents are all public records, rej^'isttMs, retinns, paylists, (\ M. proceedinj^s, and similar docu- ments. ^,/^) Private documents are all letters whether otlicial or private, private accounts, receipts, etc. The most important application of the fifth Rule of Evidence is to the contents of written documents. The bnjad rule is "contents of «locuments must be proved by the productif)n of the documents themselves." No portion of any document is sufficient, the whole must be produced e.Kcept in certain cases. HH Hvidemc ':>, .".s ff»I *"[• : ; gtn 1^' 1 -Ij 1- ■ 31^ !''■ mm I'^^^IISl :!';:hl r"" '?;.;"■ />l| VJ A cupy is not :iIIo\v(mI iiiiIl'SS the oii^^inal is not foitii- coming', and tlu.'n it nuist be provtMl to lu;a tniccopy, and must be tluly sworn to by the person wlio made it or wlio compared it with the orif^dnal, or if the ori^'iiial is not forthcoming the eviy C. M. without the conseiitof thesuperiormili- tary authority l>y whom the court of iiii|uiry was assem- bled. So also confidential reports or confidential letters can he produced only by permission of superior military authority. Should it be refused, the refusal oUf^'ht to be properly proved and recorded in the pH)ceedinf;s. li.xiiptintts hy Slatiitc to the rule that the he\t vvitli'iuc must be firodueed : - l'id)Iic docinnents may be proved by secotnlury evidence, /. ('., copies anr a Mowed. Public documents an* held to be the acts of puhlii fuuetiuuanes in the execution of their business. All public books and documents, such as rej,'isters, kept under the authority of particular Statutes are admitted as evidence, but of such facts only as are reipiired to be en- tered therein and as are innnediately within tiie personal knowledj^e of the Oflicial makin;^' the entry. l''or instance, the Prison Kej^'ister is admissible to prove the dates of connnitnunt and dischar^'e of prisoners, but not to prove the cause of commitment because the crime was not within the knowled^'e of the prison officer. Whenever any ofticial book or other document is of such a public natjue as to be admissible in evidence, any copy or extract is a«lmissible provided it be authenticated by the sij^Miature of the ofllcer to whose custody the orij^ii^id is entrusted. iiut all other documents which do not come within the nodniii'itttin iiihf Suniitfiirv fi.iiiiiut- n'luii ,ii{mi\\il>li -' II nl»ovo catrj^'oix . aiiil all Irttns of wliattvii tlisiriptioii, wlicthrr otlu iai or not, must iu- piovi i| liy j>riiiiary i'vi> iltiirr, /. I'., jiy llic proiliictioii of tlic tliuiiiiK iits thnii- SJ'IVfS. I'or iiistaiK (', a ropy of a 117^'istcr is proof of a iiiariiav,'r, iiaptisiii, or fiiiii lal. hut a Icttci fioin the < li r^'yiiiati stat- ing' that lie pciioniM'tl Mil h a < * rcinoiiy is 110 proof. Sit< li a Itttcr is iiicrcly 4li«' written statrincnt of a person ;/"/ jiefore tin* court, not on oath, an*l not suhject to eross* ixaininatiou. Private writiiiKH, including what are known as otMeial letters, arc in no case cvitlence of the facts stated tlieiein, iiut tlu'y arc tin- hcst exitjence of tin* fact of tluir haxinj,' hccn written mot the truth of their contents) and arc tiuTcfore adniittcii;;er proof than au}' paroU> fvideuce. .\n insuliordinate Icttci is proof of insiihordinatioii, and a thrcatcniu;,' letter is pro(>f of the threat. Till' folltiwiii!^ tiir till' f>iiinif>iil msi's ',i7h;/ dmumcutaiy iiihl \ \.ui:\ si'coiitLiiy i-vi\lciui- tire nihiiissihU' tit ('. M. iiinl iirc li'iiliiin of llw facts stiitcil ill thiiii : — ((/.) The attestation paper purportin;^ to lu' si;;ncd l»y a recruit, or a declaration on re-cii;^';i,i,'enu'iit, to prove the scA'cral particulars n-presented thetiin. (h) I.etter or oilur document respecting,' a person hav- ing,' served, or not having' served in, or havin;,' heeii dis- charj^'cd from, H. M. forces or ships, if sij^'iied hy or for a S. ofS., or Commissioner of the Admiralty, or hy the C. (> of the force or ship to which such person appears to, or claims to ha\e l)elon;,'i'(l. Thus the descriptive return of a deserter sent hy a Justice of the Peact! to the S. of S. for War is lc;^'al evi- ilelice o f facts stated, and S. of S.'s letti-r t(» C. O. in re| • IN ^ ^f^"^... o^ V^ IMAGE EVALUATION TEST TARGET (MT-3) // ^/ A* w ly^ Ui|28 |25 ■tt Ui2 122 U 11.6 M HiotograiJiic Scmces Corporalion 23 WIST MAIN STREiT WIBSTER,N.Y. 14SS0 (716) t72-4S03 ^ ^ 232 Evidence, A.A.ri. A.A.72. A.A.l«i4. A letter from any C. O., or Commander of a ship from which any person shall appear to have been discharged, is evidence of the facts stated therein. (r) Copies, purporting to be printed by a government printer, of Queen's Regulations, Royal Warrants, Army Circulars, and any rules made by H. M. or S. of. S. in pursuance of the Army Act. (d) An official Army List, or Gazette, are evidence of the status and rank of officers, also of their appointments and corps. (e) Any official warrants or orders made by any mili- tary authority. {/.) Delivery at the registered place of abode of a man in the army reserve of a notice issued by proper authority is evidence that such notice was brought to the man's knowledge. ig) Record made in regimental books in pursuance of the A. A. or Q. R., and signed by the C. O. This would embrace : — 1. Record of Court of Inquiry on illegal absence to prove facts therein stated. 2. Evidence before any C. M. or Court of Inquiry on illegal absence to prove that such and such statements were made before them, but no proof of the facts. 3. Record of a man's confession of desertion by his C. O. to prove the making of such confession. 4. Letter from his former C. O. in reply to inquiry on the subject to prove facts therein stated. 5. Court Martial book or defaulter book to prove previous convictions, either civil or military, and defaulter book to prove instances of drunkenness. 6. The last quarterly pay list is evidence of being borne on the strength and in pay of a corps. Certificate from the clerk of any civil court of the con- viction and sentence, or acquittal by it of any person subject to military law is evidence of facts stated therein. Documentary aud Secondary Evidence when admissible. 233 A copy of any of the above records, certified to be a true copy by the officer havin<^ the custody of such record, is evidence. The original pioceedinj^s of a C. M. purporting; to be sij^ned by the President, and being in the custody of the J. A. G. or officer having the lawful custody thereof, are deemed to be of such a public nature as to be admissible in evidence on their mere production from custody. Of course such proceedings will only prove that certain evidence was given or a certain statement made, and will not prove the facts of the evidence given. But the evidence given by a witness at a former trial may be read over to him in the presence of the court, and, if acknow- ledged by him on oath, may be entered in the proceed- ings. But in order to prove a charge of perjury commit- ted before a C. M. it is not sufficient to merely produce the proceedings of the C. M. Evidence must be given, either by a member of the court or by some person who was present from personal knowledge, that the statement forming the subject of the charge of perjury was correctly recorded in the proceedings, or that the accused actually swore as stated in the charge. The evidence of more than one witness is also necessary to prove the falsehood of the statement which forms the charge. As already mentioned, on one occasion when the pro- ceedings of a C. M. were lost, the sentence was proved by the evidence of the president, corroborated by a memorandum made by the confirming officer. The proceedings of a Court of Inquiry cannot, of course, be brought to prove the facts detailed in the statements recorded by it, but the proceedings may be adduced in evidence for such a purpose as to prove a discrepancy between a statement then made and the evidence given before the C. M., or where a man is tried for makmg a wilful false statement before such a court. The meaning of the expression "purporting to be signed" (Act 89 Vic.) is that it makes it unnecessary to prove the seals or the writing or official cha,racter of the person who signs a document, and takes it for granted A.A.UB. 234 lividcncc, it is properly sij^'ned unless the contrary can be shown. Hy the same Act a safef,'nar(l a^^'ainst for^'ery is made, as any document may be impounded in court on the applica- tion of either party with a view to provin/^' it a forgery. Parole evidence cannot be substituted for any evidence which the law rccpiires in writing, unless it is first shown : 1st. That the document had no existence, or, 2nd. Account ivhy and hoio it cannot be j)roduced. The producer of secondary documentary evidence must know it to be a true copy. Thus a prosecutor nmst have compared it with the original. If, say, the adjutant signs copy of the defaulter book, goes away and leaves another officer to prosecute, the latter's evidence is not admissible if he has not compared the extract with the original himself. When secondary evidence is admissible, a copy of an original document is no evidence in itself, and only be- comes so when verified by the oath of a witness. The proscc. i< r, when he produces a copy of former convic- tions, is put upon his oath which subjects him to cross- examination. PROOF OF HANDWRITING. Where an original letter is produced, the handwriting must be proved unless it be admitted by the opposite party. If the handwriting be admitted and the original is pro- duced, it must be so stated in the proceedings or deposed to in evidence. The best evidence of the authenticity of a document is that of the writer. The next, that of the persons who saw the writing done. And then any who know the handwriting, having actu- ally seen the person write, can depose to it. It is not sufficient to have merely had correspondence with him. The comparison of a disputed writing with a writing proved to be ge'nuine may be made to prove the genuine- ness or otherwise of the writing in dispute. Cun/cssioiis and Admissions by Prisoners. Experts in handwriting Jire admissible, but as a rule their evidence is only corroborative and is not considered in itself sufficient. Copies must be attested in court by the person who made them, or subsequently examined them comparing,' them with the orij^inal, unless admitted to be true copies, which admission must be recorded in the proceedings. This does not apply to such certified copies which the law declares shall be admissible without further proof. Although the original must, if possible, be produced before the court, a copy may be attached to the proceed- ings. It frequently happens that handwriting is voluntarily admitted by the prisoner, the document may then be accepted as evidence, the admission being noted in the proceedings. If in the course of examining any witness it is desirable to question him about any letter or writing of his own, the witness on being shown the writing should first of all acknowledge it to be his in presence of the court. •iJ5 II. CONFESSIONS AND ADMISSIONS HV PRISONERS. Voluntary Confessions of prisoners, whether made before apprehension or after, with reference to the charge to be made are admissible in evidence if satisfaciorily proved, and are the highest and most satisfactory proof, though not generally considered conclusive ; and a confession is deemed voluntary unless proved to the contrary. As we have seen, statements made by the prisoner to his legal adviser are privileged, but in England confes- sions made to a priest are not so. A plea of " guilty " is confession in the fullest degree. If any part of a confession is taken, the whole must be taken with equal weight ; thus if a person own he owed a debt but also declares that he paid it, the confession cannot be taken to prove the debt without also proving that it was paid. 2.j6 liviiiouc. A confession made by a person when drunk is admis- sible, but the court would, of course, vvei^di it accord- injsdv. Hut any inducement of any kind, whether a threat, promise, or hope, of pardon held out or sanctioned hy any person ill antliority will prevent the admission of such con- fession. The circumstances detailed by a man who had turned yucen's evidence under hope or promTse of panlon are not admissible as evidence aj^'ainst him inasmuch as they were not voluntary ; but the confession of a person ad- mitted as (Queen's Evidence may be received ajj^ainst him if he refuse to j(ive evidence on the trial of his confeder- ates in crime. The following are considered "persons in authority" over a prisoper: — The prosecutor; the constable in charge of a prisoner ; any authority over him, judicial or not, as the master or mistress in case of theft by i servant. Any person apprehendmg another who is guilty of felony is a person in authority. From this it is deduced that the commander of a guard or a sentry over a prisoner are persons in authority. There is no objection whatever to such receiving a purely voluntary confession, but it is necessary for them first to warn the prisoner that what he says will be used in evidence against him ; if they failed to do so it would not always invalidate the confession, though in some cases it has done so. It is considered highly objectionable for a constable or any person in authority to interrogate a prisoner on a charge. The inducement of a third person persuading a prisoner to confess in the presence of a person in authority renders it inadmissible; but if one prisoner urges another to con- fess in the hearing of a keeper such confession is admis- sible. Coii/cwiniis iiiiil .lilniissioits hy I'n'soiurs. A confession obtained ]>>' iiitilico or ileception is not in tlie srune cjite^'ory and i[ation ecpial to that which is imposed by a positive oath administered in a Court of Justice. It often happens in cases of murder that the constable obtains a statement from the dyinj,' person as to the cause of his wounds, etc., and this is received in evidence if done in the proper way, as follows : — My name is a;^'e place of abode and believing myself dyin^^ I make the followinf,' statement : — The expression of belief is ♦:he essence of the statement, and it only makes the statement evidence. • V. F.VIDKNCK OK r.XI'KKTS. Where (piestions arise bearin},' on any point of science or art, the opinions upon that point of persons specially skilled in any such matter, or *" experts," are relcvint and so admissible. Witnesses who depose to the best of their belief or know- ledge, — as to handwriting or recognizing a certain person ; or medical men as to the causes of death, or as to in- sanity ; engineers, etc., on questions of their profession ; ship-builders, as to the seaworthiness or otherwise of ships, etc., — may be convicted for perjury for false evi- dence. An expert who has no knowledge in the case in point only gives evidence in a general way, such as that in his Wit fusses, belief such and such u pdisoii or iiijiiiy wmild pKxhuH: 8iirh and such rft'ntts on thi* iiiinian h<)d\ , he cannot apply it to the cast: under consideration, this icsts with the court. J41 ll77'A7;v.s7;.N'. The law of ICn^dand admits as sufficient the testimony of f»u* credible witness, except in cases of treason, per- jury, misprision of treason, and speaking' traitorous or dis- respectful words a;,'ainst the Sovereign, when two are rejjuired. Two are retpiired to prove perjury because, with only one witness, there wouKI be one oath aj^'ainst another which would neutralize each other. Hut in cases of perjury it is sufficient if one witness prove the perjury directly, while stronj^' circumstantial evidence would be sutlicient for the second. If the defendant has sworn in one case contrary to what he lias sworn in another, otic evidence is sufficient to throw the balance over against the defendant. In trials for treason two witnesses arc recpiircd, except in cases of high treason in compassing or imagining the Sovereign's death, when the prisoner can be convicted on like evidence as in murder. It is usual however on all trials by C. M. to have the testimony of two witnesses for the prosecution, though not always legally necessary. The evidence of the prosecutor alone is sutticient to obtain a conviction and the evidence of an accomplice even may suffice and con- viction thereon be strictly legal; still it is only prudent that the charge should be confirmed by unimpeachable testimony in some material point. The credibility of a single witness is of course liable to be impeached and would be judged from attendant cir- cumstances. It is therefore only when, from the privacy of the offence, the possibility of further proof is excluded that the court would be satisfied with the evidence of a single witness. The question is not by how many witnesses a fact may have been deposed to, but whether it has been proved 343 Hvidcucc. natiitfar.toiily. A luiiulH'r of vvitiioHscs do l>y no imciuh iiucuHHsirily prove* u fact, but thi; ritar, full and impartial, evidence of ono witnt'Hs frtu; from all snspi(-ir)n or l>iaH is worth moff than that of a crowd all making; the same an* scrtionH, yet none of tlu'in worthy of lu'lirf. I'ormcrly ail intcruHtcd witni'sscs wvxv refused, hut now, since Lord Denmar/s Act, ?<4.{, the law wouM seem in favour of accepting the testittioiiy of all wit< nesses, leaving it for th.. court to estimate the value of the testimony. Objections may however be raised to the "competency " or to tlie •' credibility " of witnesses. COMI'KTIiNCY AND CKKDI HII.ITV OF Wl TNKSSKS. Witnesses are competent notwithstanding they havt; an interest in the case, or have been convicted of a criminal offence not bearing on the subject under trial. A prosecutor, though he rniy have himself originated the charges or may, in any oiher way, be personally in- terested in the result, is a competent witness. Deaf and dumb mjiy now give evidence in writing or through a sworn interpreter. Questions as to incompetency refer to witnesses bein^; unable to give evidence at all, consequently, the objec- tionc should be stated before the witness is sworn, but an objection may be raised at any stage. On the other hand, objections to the credibility of witnesses should be reserved for the defence or the reply of the prosecutor, and they cannot be raised till after the witness is exam- ined. The credibility of witnesses is usually tested indirectly by cross-examination, or directly by evidence of general bad character ; such as that he is not to be believed on oath having been convicted of perjury. With regard to this latter point the laM' is that no per- son is incapacitated from giving evidence by reason of crime, though in some cases the testimony given cannot but be received with caution where the crime itself would especially affect the credibility of the witness. Cimiftctcmy ami CrtiUbUily of Witnesses. ^43 III aility of a witiicsH may also Ix; impeached] in cross-ox- amiiiatioii by making him contradict himself as to his own evidence, and by proving' statements made by the witness out of court provided they were material to tile point in issue. The party whose witnesses are impeached may brinj; evidence to re-establish tlitiir credit, ov to attack the credit of the impeaching; witnesses. The following; are some cases of incompetency laid down by law : — 1. Want of reason or understanding'; this includes lunacy, disease, loss of memory, immaturity of intellect. In lucid intervals persons of disordered intellect are competent witnesses provided there has been no serious fit of insanity between the limo of the occurrence and the date of trial. Theadmissibility of ar'illd to give c'dence is rej^iilated, not by his years, but by ihc devrl'jpment of his mental faculties, by his relij^ious know iodge, and by the sense he may entertain of an oath, subject to which a child of any age may be examined us a witness and is sworn like any other witness. The law assumes that every child of fourteen is capable of giving evidence but, at the discretion of the judge or qourt, much younger children are admitted. "A child must be able to understand the obligation to speak the truth." Children of five years of age have given evidence. If a child is rejected no hearsay on the part of the child can be given by another person. The court may ask the ch'M questions to ascertain the development of its mental faculties, its religious knowledge, etc. 2. Husband and wife for or against one another in any criminal proceeding where one of them may be party, except in cases of personal injury of either by the other; but the evidence of either for or against another person is received, even though such evidence is liable to incrimin- ate the husband or wife. Of course the court must judge 244 Evidence. of the trustwortliiiiess of such evidence. All other rela- tionships arc exempted from tliis rule. The Act liowcver makes a special exception to this A.A.ittnu) rule in the case of civilians purchasing,' from soldiers — arms, clothinj:;, stores, etc., and provides that a husband or wife mav be an ordinary witness. J. No prisoner on his trial is competent to give evi- dence for or ajj^ainst himself. 4. Prisoners jointly arraifjned are incompetent wit- nesses for or aj^'ainst one another, unle: s any one of them pleads ;y;uilty o^- unless there is a separate finding. As seen previously, if a prisoner desires the testimony of another involved in the same charge, he should apply for a sepa- rate trial. In the case of several prisoners being tried separately for the same offence, any one not on his trial is a com- petent witness for, but not against the othecs; but when his own trial is over he may be called by the prosecution as anything he said while under trial would not injure him. Evidence ot accomplices, and of principal against acces- sory, as a thief against receiver, is admissible, but must be received with great caution and is generally consid- ered to need confirmation. When persons are jointly arraigned and there is no prospect of obtaining other evidence one man implicated may receive a separate verdict of acciufttal, and then lie can become a witness against the rest. This turning "/C/«/j''s" or ^'Queen's Evidence"' is often brought about by promises of reward, etc. Or if during the trial the court find no evidence against one of the prir/.yners, they may acquit him and then call him as a wilmess. In C. M. the usual course would be not for the court to give a verdict of acquittal but for the convening otticer to dispense with the trial of any one of the accomplices, who can then become a witness. When a man awaiting trial on the same charge is called by the prisoner in his defence, he would not be cross- examined so as not to prejudice his own trial, and he Cowpctciicy tJitJ Credibility of Wittusscs. '■A5 rela- rning need not reply to any (lucstion which would criminate himself. Want of relifjfious belief does not, in Mnj^'hpid since 1869, render a witness incompetent, as it is ruled that a witness must be sworn in that form which he feels bindinj; on his conscience. Such a witness makes a declaratioji, and if he depose falsely he can be prosecuted for perjury. A recoj^Mii/ed form is, "I do solemnly promise and declare that the evidence which I shall give before this court shall be the truth, the whole truth, and nothing but the truth," — and if he gives false evidence he may be in- dicted for perjury as if he had taken an oath. A witness may be asked, after being sworn, whether he considers the oath binding; if he answers in the affirmative it is sufficient. Protestants are sworn on the Hible, Roman Catholics on the ('rucifix, or on a cross marked on the cover of the Hible ; Mahomedans on the Koran, either kissing it or putting it on their heads; Jews on the Pentateuch. Jews regard no oath as binding unless they have a hat on whilst being sworn. An oath may be administered to the witness by a min- ister of his own religion if the prejudices of the witness render it desirable. A Chinaman was once asked what form of oath would be binding on him ? He asked for a china saucer, this he broke in pieces, exclaiming that his soul would be cracked like the saucer if he did not speak the truth. This oath was of course accepted. IM'.«). CHAPTER XVI. MILITARY LAW AS IT CONCERNS THE MILITIA OF CANADA. The supreme command of the Naval and Military M.D.A.i. Forces of Canada is vested in the Queen, and "shall be exercised and administered by Her Majesty personally or by the Governor as Her Representative." The Militia of Canada are governed by the ''Dominion Militia and Defence Act"* and by Militia Regulations and General Orders issued in pursuance of that Act. The following are the principal provisions of the M. D. A. in so far as it relates to the special laws and penalties to which the Militia are subject : — The Active Militia of Canada are subject to the Queen's M.D.A. 64. Regulations and Orders for the Army at all times ; — and every officer and man is also subject to the Army Act, and to all other laws applicable to Her Majesty's troops in Canada and not inconsistent with the " Dominion Militia and Defence Act," — when on actual service, during annual drill or training, also during any drill or parade of his corps at which he may be present in the ranks or as a spectator, and also when in uniform ; except that no man is liable to suffer any other corporal punishment than death or imprisonment for any contravention of such *The letters M. D. A. in this Chapter stand for the "Dominion Militia and Defence Act. " Military Law as it concerns the Militia of Canada, 247 laws; — and Her Majesty may direct that any provisions of these laws or regulations shall not apply to the Militia F"orce. Every officer, N. C. officer or man of the Active Militia is liable to be tried by Court Martial for any offence com- mitted while servinji? in the militia within six months after his discharge therefrom, or after his corps is relieved from actual service, — but for the crime of desertion he may be tried at any time without reference to the length of time wliich may have elapsed since his desertion. (See also Section 86.) Any militiaman who, when called out for actual service, m.d.a.ot. absents himself without leave from hi-: corps for a longer period than 7 days may be tried by a Militia Court Martial as a deserter. Her Majesty may convene Courts of Inquiry and ap- m.da.ts. point officers of the Militia to constitute such Courts for the purpose of investigating and reporting on any matter connected with the government or discipline of the Militia, and with the conduct of any officer, N. C. officer or private of the force; and Her Majesty has power at any time to convene Militia Courts Martial and to delegate power to convene such Courts, and to appoint officers to constitute the same, for the purpose of trying any officer, N. C. officer or private of the Militia for any offence under the Militia Act, and also to delegate power to approve, con- firm, mitigate or remit any sentence of any such Court ; but no officer of Her Majesty's Regular Army on full pay can sit on any Militia Court Martial. The regulations fsr the composition of Militia Courts of Inquiry and Courts Martial, and the modes of procedure and powers thereof, are to be the same as those at the time in force in the Regular Army, provided they are net inconsistent with the Militia anJ Defence Act. No Militia officer or Militiaman can be sentenced t' death by any Court Martial, except for mutiny, desertion to the enemy, or traitorously delivering up to the enemy any garrison, fortress, post or guard, or traitorous corres- M.D.A.73. M.D.A.74. 24S Military Law as it concerns the Militia 0/ Canada. M.D.A. »W-71. M.D.A.75 M.D.A.7B. M.D.A.77. pondence with the enemy ; and no sentence of any Gen- eral Court Martial can be carried into effect until approved by Her Majesty. The Militia Act empr »vers the Governor in Council to make regulations for the billeting and cantonment of troops and militia when on active service, for the furnish- ing of carriages, 'Jiorses, and other conveyance, such as railway cars, engines, boats, etc., for their transport and use, and to punish any neglect or refusal to furnish the same. Any officer commanding a corps of Militia who shall knowingly claim pay, on account of any drills performed with his corps, for any man belonging to any other Corps of Militia, or who shall include in any parade state or other return any man not duly enrolled and attested as a militiaman, shall be guilty of a misdemeanor, and shall likewise be liable to be tried and punished by Court Martial; and any N. C. officer or private of the Militia who may claim or receive pay on account of any drill per- formed in the ranks of any other than his own proper corps, shall be guilty of a misdemeanor, and be liable to be tried and punished by Court Martial. Any officer or N. C. officer of the Militia who obtains under false pretences, or who retains or keeps in his own possession with intent to apply to his own use or benefit, any of the pay or moneys belonging to any officer, N. C. officer or private of any Corps, shall be guilty of a mis- demeanor, and shall be dismissed the service; and any officer or N. C. officer who may sign a false parade state, roll, or pay-list, or any false return whatever, shall be guilty of a misdemeanor, and be liable to be tried by Court Martial; and any person making an affidavit or declaration required by the M. D. A., or by any regulation made under the authority thereof, and swearing or declar- ing falsjly therein, shall be guilty of perjury. Any person refusing to give information required by any Officer or N. C. Officer making a Militia Roll in order to enable him to comply with the provisions of the M. D. A., or who gives false information, " shall forfeit Military Law as it concerns the Militia of Canada. 249 and pay a penalty not cxceedin},' !5-2o" foroach item of in- formation rccpiired of hitn or falsely ^iven. And anj Officer or N. C. OlKcer of the Militia rchisinf; or rie^dectin^ to make any enrolment or ballot, or any roll or return rccjuircd, shall incur a penalty, if an otKcer not exccedinj^ $50, if a N. C. O. not exceedinj,' $25. Any militiaman, drafted or liable to be drafted for m.d.a.tn, service, who shall refuse or nej^dcct to take the necessary oath of allegiance (xiz.: "I, .1. li., do sincerely promise and swear that I will be faithful and bear true allegiance to Her Majesty. ") when tendered to him by a Justice of the Peace or by any commissioned officer in command of the Corps to which such militiaman belongs or in whose district he resides, shall be subject to imprisonment not exceeding 6 months* and for every subsequent neglect or refusal to take such oath shall be subject to a further im- prisonment not exceeding 12 months; and he may, on due proof in either case, be summarily committed upon the warrant of any two Justices of the Peace. Any officer, N. C. officer, private, or any person what- soever, who falsely personates another at any parade of the Militia or on any other occasion, is liable to a fine not exceeding $100 and shall be guilty of a misdemeanor; and any officer or N. C. officer of the Militia refusing or neglecting to assist his CO. in making any roll or re- turn, or refusing or neglecting to obtain any required information in order to make a correct return, shall incur a penalty, if an officer not exceeding $50, if a N. C. O. $25 ; and any person refusing to give information for them shall incur a penalty of $10 for each offence. Any officer, N. C. O., or private who, without lawful excuse, neglects or refuses to attend any parade, drill or training at the appointed place and hour, or who re- fuses or neglects to obey any lawful order at such time, shall incur a penalty, if an officer of $10, if a N. C. O. or private of $5 for each offence ; and absence for each day is held to be a separate offence ; and any person who interrupts or hinders any Militia at drill, or trespasses on M.D A.r». M.D.A.at 25<» ^f Hilary Laic as it anucnis the Militia <>/ Canada. M.D.A.8I. the bounds set by the proper officer, shall incur a penalty of $5 for each offence, and may be taken into custody and detained by order of the C. O. until such drill is over for the day ; and any ofHcer, N. ('. ()., or private, for insolent or disorderly behaviour to, or for disobeying' the lawful command of, his superior officer, shall incur a penalty, if an officer of $20, if a N. C. O. or private of $10 for each offence. Any N. C. O. or private who fails to keep in proper order any arms or accoutrements delivered or entrusted to him, or who appears on any occasion with his arms or accoutrements out of proper order, or unserviceable, or deficient in any respect, shall incur a penalty of $4 for each offence ; and any person who unlawfully disposes of or removes any arms or other articles belonjjing to the Crown, or who refuses to deliver up the same when law- fully required, etc., shall incur a pen.ilty of $20 for each offence ; but the offender may instead be indicted and punished for a greater offence, and may be arrested by order of a Magistrate. M.D.A.83. Any officer, N. C. O. or private who, when his corps is lawfully called upon to act in aid )f the civil power, refuses or neglects to go out with such corps or 10 obey any lawful command of his superior officer, shall incur a penalty, if an officer not exceeding $40, if a N. C. O. or private not exceeding $20 for each offence. Any person who resists any draft of men enrolled under the M. D. A., or counsels or aids any person to do so, — or counsels any drafted man not to appear at the place of rendezvous, or wilfully dissuades him from the perform- ance of any duty, shall, upon conviction thereof, be sub- ject to a fine not exceeding $100, or to imprisonment not exceeding 6 months, or to both. Any person who wilfully contravene- ' r ' ..nactment of the M. D. A. for which no special i>. ' y is imposed, shall incur a penalty not exceeding $2C, t each offence ; but this does not prevent his being indicted and punished for any greater offence. M.D.A85. ^11 penalties incurred under the M. D. A. are recover- M.D.A.83. MDA.84. MUiUtry Iauv as it comcrns the Militia of Canada. 251 able with costs by summary conviction on tljc evidence of one credible witness, on coniplaint or information before one Justice of the Peace ; and in case of inune- tliate non-payment, the Judj^e may convict him to prison for a period of not more than 40 days when the penaUy does not exceed $20, and for not more tlian 60 days when it exceeds the hist mentioned sum. No prosecution af^ainst an officer for any penalty under m.d.a.m, the M. 1). A. or under any rejjulation made under the authority thereof, shall be brought except on the com- plaint of the OtHcer Connnandinf; the Militia, or officer of the Militia authorized by him; and no such prosecu- tion ajjainst any N. C. O. or private shall be brouj^ht except on the complaint of the C. O. or Adjutant of his battalion or corps, or Captain of his company or corps, or other officer duly authorised ; and no such prosecution shall be commenced after the expiration of s/.v months from the commission of the offence charged unless it be for unlawfully buying, selling, or having in possession, arms, accoutrements, or other articles delivered to the Militia, or for desertion. INDI'.X. Paijk. Ahsoiifu, illfjjal Court of lnt|uiiy on .... .... A))8t!Uc'u of Juduo Advocate front n C. M .... '• •* Pru8ulont and frimtncr " .... .... Absenco witliout leave .... .... .... .... " " " Deprivation of jiay for .. .... ** *' I'unishinent by 0. (). for. . .... •• '• FromSebool " " " Above 21 davH constitutoa desertion " AccessorieH before ' and " AccuMsoriea after tbe fact". ... Aceoniplioe, evidence of . . .... " confesHion of, not evidence against other priHoncrs . Accoutrements, making away with .... .... II Civilians purchasing or in possession of ... . Accusations, false, to C. U. .... .... .... Acquittal, bars from second trial .... .... .... Action against member of C M .... .... Active Service, definition of .... Additional charges, till what time preferable Addresses ' .... .... Adjournment of C. M., rules concerning .... '»(», 80, 83, Adjutant, duti*"? of liefore trial .... .... ... " II during trial . . . .». . *• iieually the Prosecutor .... .... Admissions .... .... .... .... .... Advisers, legal .... .... .... .... .... AfKrmation or declaration in lieu of oath ^ " Aggravated ottence of Drunkenness," definition of .... Alternative charges . . .... .... .... .... Annual Army Act, brings A. A. into force.... .... " " contents explained. . .... .... Anonymous letter, sending complaints by .... .... Appeal, no aggravation of ottence .... .... .... •* against awanl of (J. (> . . .... " " decision of (^ M .... •* at law against the J. A. (J Application for trial . . .... .... Appointment, N. C O. with an, how arraigned. . " " " " " removal from .. .... Apprehension of Deserter.s .... .... .... .... Army Act, 1881 Army Act and A. W. compared .... .... .... Army Act 1881, consoli4, 174 17«; ... .... ■'{(» 'ft ... .... .i«j 34 .37 1(»« 1.'44 237,244 157, 22(» 187, 2iy, 243 158 01 82 no • • • t • • • M«*tf 74, 82 KM), 117-122 8t» 87, 107, 121, 124 or), 7.'> 80, 81 81), 01 2.3r>, 237 . 75, 92-04, 122, 1.30 »>4 • • • • • • • *■"> 14 70, 124 10 ao ..'. ..38, 00, 113 «4 05 «G 00 40 183 14-2fi 17 1 -» Index. 253 7«, 188 8«; 8«( .87 174 17« 3U W 84 87 166 244 537. 244 -'>7, 220 ly, 243 158 01 82 22 74 .82 117 122 M, 124 (>r. , 75 JS(» , 81 8l» , »l 3-.. 237 1311 24 14 70, 124 H) 20 2<.) 32 ;)o, 113 ()4 ys (iU oy 40 183 14 2« 17 1"» (t «< Army Act 1881, dftti'H whoii it oxitiroH. . .... " " ilivitli'il iiiti) Mix partN, iitc Army ( Atiiuiiil) Act . . .... .... .... Army DiMoipliiiu ninl llu^juiatiitii Aut, I87y, piiMKinvcor. Army llvNurvu .... .... .... .... Army >Sch(N>lmnNtt>rH .... .... ArrniKiununt of priaonur .... Arrc'Bt, "clrmo"aml "iipun," rulen rognrdiii^ . . . . " hruAking .... .... .... .... " of oHic'orH ftiiil N. C. O.'h ArHoii, tlolinitioii of . . .... .... .... ArticluM of War niitl Army Act com|)nruil .... Autliori/vy Clinrlos I. . . . .... •' of UMMJ, nml 1«72 "I'rinco Kuport'n Coth AHHomhly of (.'ourtM Mnrtial, procuutlin^H on .... " ** onlcr for *' without (Iciiiv .... Attcmi>t may bo found M'hcn charged with committi:.g an olVcnou Attempting to doHvrt , . .... .... .... '• " to commit suicide " " to sell medal Authority umler which C. M. held .... .... Auxiliary ForcoB .... .... .... •• trial of by CM AwardH by C. (). 's of Companies B Barracks, broakinu out of ... . .... .... Keliof, rcIigiouH, ttoes not render witucMu incompetent . Best evidence must be produced .... .... •' ' *• exceptions "Beyond the Seas," meaning of expression Bill of Kights passed in 1028 Billeting and Impressment of Carriages . . .... ** ott'ences relating to . . .... " penalty for improper . . Boards, Committees and Courts of Infjuiry .... Books and .Stationery, liow furnished at CM Burglary, detinition of .... .... .... Buying arms, kit, etc., from a soldier Canteen, Sergeant mismanaging, charge for Cashiering, for what odence peremptory .... Casting vote of President .... .... .... Certificate, Medical . . .... .... .... " " in case of insanity .... " of previous convictions .... Challenges, how disposed of . . .... .... ' ' valid causes of ... . .... .... Chance or Misfortune .... .... Character, evidence of .... .... .... Charge, definition of . . .... .... .... Cliarges, framing of . . .... .... .... " original, what done with " C. M. can try several at once except in civil oflences " alternative . . .... .... .... •* not framed in disjunctive .... .... " if alteration necessary C. M. to adjourn " amendment of .... .... .... " investigaticm of by t'onvening Olficcr .. " of U. C M. submitted to .1. A. (i 21 17. ly 15 14 23. 2.1 2:», 4S, .Vi 8 -'54 htih'X, ( 'ImrtftiM, may In* iiiMirt«u ihuunIiu*! Ity ... . .... '* uontroatutl with Militury Law .... .... " not to \w intiirlurctl witli liy Military (.aw *• powor of over Moltliun .... .... .... Civil OtruncuM, an otHvur to uttontl triaU of ... . .... " '* Authority to y C M. or ItugimontAl vntriuM *• •* prot'e«luro in . , .... .... .... •• " whon trioa l»y C. M Civil powur, roHiiiting or rufusing to AimiHt .... .... CiviliAn witnuHHUM, punisbmunt of for uontenipt. utu •* perjury of " otmipulHory attondanuu of " " Buninioning of ... CiviliAUH, triAl of ... . .... .... .... .... ColoniAl foruuH .... .... .... .... .... CuloniuH, Hontunuu of deAth in . . .... .... .... ( 'oniniand, tUmilioy ing lawful . . .... .... .... Comnmmlur-in-Ohiof, dotinition of title .... .... ConiniAudor of Ouard uAnnot refuse to reuoive jtriBoncrB. . " " to report priHoner'a name Aiid crime CuniniAnding OtHcer, nicanina of term. . .... .... " ** power of. . .... .... .... '* ** on IxMird ship. . . . .... " required to maintAin diMciplinu .... " " HummAry puniHhmonts by .. .... ConunittceH. RoArds And Courts of Inquiry " Committing" authorities. ... .... .... .... I'ommon Law, the unwritten code .... .... Communications, privileged . . .... .... .... Commutation of sentence .... .... .... .... Competency of witnesses .... .... .... .... Competent evidence . . .... .... .... .... "Complainant" At C. M ComplAints of soldiers .... .... .... .... Compulsion, crimes committed under . . .... .... CondonAtion .... .... .... .... .... ... Conduct, exemplAry, meAuing of .... .... .... Confession of desertion .... .... .... .... ** " by civiliAns (false) .... .... Confessions . . .... .... .... " must be voluntary .... .... .... " mode of producing a written .... .... CoRtidcntiul letters and reports are i)rivileged ConHncment of soldiers .... .... .... .... Contirmation of Proceedings .. .... .... .... 1.31-18.0, " not by a momber . . .... .... .... Conlirniing Utiicer .... .... .... .... " " duties of ... . .... .... .... 114 .... 74, Htf IM H'i fW 7ft m «M> 74, 'I'M m 24.H 184 .... 'AM, '-MM 1 l«2 :i ....'11, «l»{3 l»» ISO I4() 130 .... ((11(12 .... 1«U, IHrt H4 1»8 78-H<» 78 40 .... *-'4, 2(J 133 ....l.VJ, 173 22 31 32 22 .' .' .' .' .S3-4T 42 28 3.'>41 .... 188-11»2 .... 13(5, 1.37 1 102, 220, 230 .... 131, 1.32 .... 242-245 2(t7 .... 01.08 32 1()5 .... 33,115 (j3 ....176, 180 183 ....2.35, 238 .... 235-2.37 238 2:iO 31 142, 145 147 133 .... 51, 55 131, 142-147 Illihx, -^55 li II II •I It ITI X\M\, |l»7. KM I(l«l • II* llll ••!■ >'*V| I'll r.|..%;i ni, AJI, ."^.n, 77 H(», III, I I.I. I M .11 C'oiitlrniin((r of cDiirt iKU'iuninx. . . . roiiN|iiriii!v, «tvii|iinr«i i'i'){HriliiiK .... .... CitiiNtitutiiiii of ('. \|. .... ,.,. .... ('iiiiNtriii'tivtt pt'itNfiicu ,,,. .... .... ( ')iiiti'iiij>t iif ( 'uiirt , , .... .... .... ('oiivfiiiii^ <'. M ,.,, .... .... Cuiivtiiiiiig Otiluur..,. .... .... .... ' H|i|tointL>il l>y wni-miit .... .... .... ' iliitit'N of. ... .... ... .... .... ' limy iliN|Miiiaii with ri'ttaiii riilt'N .... .... * to iiiv«>Hti^ati* t'liKrK«'M .... .... .... ' to proi'iiiK |ii'<<*)liii^M oil, ., . .... .... ... .... " of minor oli'muut of huiiio fliiHH .... .... .... " hiii'N HtH'ond trial for miiiio oHfiii'ti . . .... .... " of fttloiiy or (liN^i'Ht'uful coiDini't, iliMi'liiii-){«* on .... ('onvictioiiH, iiruviouN, liow provi'tl .... .... .... .... ( 'opiuM of ilociiinontM, jiow provt'tl .... .... .... .... " " wintn iuliniHNil)l(% uxcfptioiiH .... .... Corpornl piiniMluii-'nt, cliiof puniHliint'iit nt l)uginnin>{ of century . . i'oniiHi*! lit r. ,M., ri. it'M conourniiig .... .... .... .... " " ai'.ili tmiuH hy .... .... .... .... " nnnit' of oiitt 'vil in proci-iMlin^H .... .... .... Court Miirtiul, iippli.'iition for .... .... " " h«.ok " ■' ortli'r for nHH«'inl»!y of. . . . .... .... .... •• " duty, li«>w t>liuiHiti(!2»4 122 los (Ml .... _ 41 .... 70-7H mm .... II M KirA\, 107, 108 51 .-.;i — 8r» m m .... 01. 102 87 mm 10 27 «{4 04 M l.SO 188-102 2:^0 108 242-24.T Hi.') .SI, 150 140 177 M 170, Datea on which the A. A. expires at different stations. Deaf and Dumh may give evidence .... .... Death, majority of votes for.. .... .... •* sentence of necda approval of higher authoriry. " " how carried out .,,. 21 24:i 88, 128, 141, I4.'i 13;i I'M -t5^» llltffX, • It* • > • • t ff • • • • ■ • iHiath III' rruaiiliMit or iiuuiiiMir of it (', M, •• itf rriNoimr, ... IMitH, Ukiii^ Hitliliiir out of Nwrvit^v for IhtL'lumtioii ill lii'ii of oiitli .... .... ** of Court of liii|uiry oii illti^nl nlmnmui , , , . ** of jHirMoii roi»)n<«l or mvialicil . . , , . , . , Ihu'liirikliiiiiN fuUti..,. .... ..,, .... .... • l^iiiU hm'oiatioii, luilltnry, iiii'aiiiii)( of ..,, ,,,, ,.,. " how ikiiil whi'h forfi'ituil, , ,.., .... l>«>«liu'tioiiii from ollli'tir'H [my . ..•• ...• .... iKifuulti'r liiMtkit .... .... ,.,, .... .... l>uf«iiiu(!, |)rii|Mirutioii of Ity priNoin'r .... .... .... " )lillifrii'iil)l«'U. . l)u|»oMitioii«, wliuii riH-uivuu lu t*viili'iiuu .... .... " how iiittilu .... .... l>«M(!riptivu riiturii .... ItuHurtura, a|)|>rvhuiiaioii of ... . .... .... .... DuMurtion ii'2, (t3, IM, l.'Ci, civilian iihttttiiid; .... .... .... .... conniving nt .... .... .... .... confemion of hy Holiliur .... .... .... " by civilian (fiilmt) tlflulAration of ('ourt of lni|uiry, legal proof of. . " puniiihmunt for Uiiahilitiuii of OfHuDm .... Discharge .... .... .... .... .... " with ignominy " Diioharging " ivuthoritio* .... .... .... .... UiHciplinu .... " muintunancu of, chain of rcMpoiiHilillity .... DiMclosinu injurioUN infiirmation .... .... .... DiHgraoefiil conduct . . .... .... .... .... DiHloyal wonU .... .... .... .... .... DiHobuying lawful conimuntl . . .... .... .... District Court Martial, jurimliction untl powers .... oliicurs having itowtM* to assunihlo powers of, umplu for ordinary otl'eiiees It It Documents, original to lie urodiiced, certified copies attached DucuiuuntH, false, and declarations It 11 <« II II public and pri\ ate decl L-lared admissible as evidence by A. A . . privileged .... ctintents of, prove«l by their |)roduction . . copies of inadmissible, exceptions. . Documentary evidence .... .... .... " " when admissible. . Drunkenness .... .... past attempts to repress crime .... evidence to bo given at trial for ... . puuishinent for by C. O . . . . .... by CM.. Duelling and attempting to commit suicide .... Dumli and duaf may give evidence .... .... Duration of Army Act .... .... .... Dying declarations .... .... .... " " when received .... .... ... 14, :h 44 it I • • • ■ • • • • • • I • • • I • • to ... .*Ml. H7 h7 IHI ... '.'I. Mi • • • IWo W4 157 . . . wi, •.»:«> iMtf m 4! V4 7«J IIH ... l\Hl'2'2 •-••.» '24 (O •iH IH.*! 1 8.'l IH I74l7ll, 170, 2•^ ih:j .... \M, IM 1AM, I7(i, IHO 18« 1H» .... 103. n» IM 140, I7«, 177, 17» .... ft7, IH'J .... l:W, 1.S7 .... 27 ^U .... 27, 28 HU KU I'm, 177, 221 Dtl ....152, IT.\ m ft2 07 m ir.7 227 207, 2.31 220, 2:«) 227 228, 234 207, 227 231 :tfi, 43, 110, 101, IRO 14 00, 12(i .SO, .30, 40, 43 IJiO, 178 1«1 243 224 230 proceedings ImUx, •«57 •I It •* Kriiln'^/li'iiinnt, ilftiiiition of " I'Hhvii tiDii of oil I'linruK of tlit'ft. . .... " piiiiiiiliinitnt for .... .... ..,, Knitiiiy, ili'tlnitioii of .... ..,, .... .... KiiliHtMM'iit, riiltiM i' .... .... .... '* olli'iiri'H nlntititf to ... .... , , , , '* in\nv iiiiNWtrH on .... .... .... " of iiiilitiu ami ri'MiTVii fori'im .... .... KMi'iipo, NiiUcriiiK |iri<«oii)'t to . . .... . . , , , , , , KMi'ort ol' |iiiiioiiiy (', O . , , . " ol' I'liitrHt'tct. 'oriiKtr foiivii'tioiiM, iM of lit r. M. Niinii' iiM lit <'ivil rotirtx .... iiiiuiiiM of olitiiiiiiii^. . .... .... .... liVt* I'llll'Nof . .... ... .... .... " only rci't'ivi'il on oiith iiml in |»riii«!ii of ikciini'iI *' of olio WitlK'HM Nlltlil'it'llt, t>Xl'«'|ttiollM. . . . .... Kxiiiiiiiiiitioii-iii(|iii>f .... .... .... .... Kxiitiiiiiiiiioii of witiioMNi'H .... .... .... .... " Kx«>t!iitioii of luH otiico," tlolinitioii of .... .... Kxoi'iitioii of Hcntfiii-o .... .... .... .... I')x(>iii|iliiry I'Diiiliii^t, nu'dniii); of .... .... .... Kx«ini|itioii fioni .liiry .... .... .... .... Kxuniptioiirt of Molilii*rH .... .... .... .... Kx|ii!rtM, i-viiluiifu of . . .... .... .... .... F Kiiiliii^ t(» app-'iir iit tmriult' ... ... .... KuImu iic'onMatioiiN iinil HtAtt>iii. • • • » • • • I M I.Ml .... .... HI -lA 17, U.1 IN», \'i^ , \'ii\ IW '.Nm'.Mrt 'ii¥\ 'JIO 'JIO 'ilO 'J22 !W7 .... !»1» HW. 117. INW 1H>, !»7-lO.'l. 117. Mil i7;i i.'mi.'iN iV.\ IHA IN4 '.MO Kiulil ImpriMonmont. . KiiKliiig, iiroi't'odiiigH on .... .... " Hpuuiiil .... .... .... Fines .... .... .... .... KollowerM . . .... .... .... Forcing a safeguard . . .... .... ForfoiturflH, Stoppages and FincH .... Forfeituro, desoriptions of .... " of Murvii-e towards tliacliargo whun coiiveiiud and liy w l.'^4 IDN I AT inn 1(17 14(4 i(i({ 14I-I4.'{ m lioin .no, 141 All .... I'-»'2.12A \'i'.\, 'i'l\ 2'2'> . . . ..S.\ .18, :«l, 4'J, AT, 14(1, lAA, ITH. 184 . !!», 4» .lAI. ITI . 178 182 IT8 6.1, IT«, ITll for puuttion, deferred pay, good conduct pay, etc., IT(), 181, 182 '• of onlinary pay . Forgery, 8 181 02, (W,'l.-».1, m, IT«,' ITll 124, IWI 251, 1.V2 y2-!l4 I.W, 186 -'5« Judex. nmcnt, sentence by C. .... .... 1. II CM ti duration of limited to two years .... II from M hat day or hour counted. . .... II oHicer sentenced to ... . .... .... II N. C. ( ). sentenced to . . .... .... II day of release counts, exemption fronj duty on II ])risoner already under sentence of .... Imprisonment, Field .... .... .... .... I meompetency of witnesses. ... .... .... Indecent oflences .... .... .... .... .... Indian Forces, liow tried .... .... .... .... Inducing soldier to desert ... .... .... .... " Informant " at C. M Information, disclosing of in juriims. .. . .... .... Informer, evidence of in case »)f conspiracy . .... Injuries, Court of Incjuiry on . . .... .... .... Injurious aspersions made by prisoner, how dealt with . . Injurious disclosures .... .... .... .... Insanity .... .... .... .... .... .... Insubordination .... .... .... .... Intent, criminal, presumed when action is unlawful .... Intention, when part of ciuvrge, to be so specified .... Interpreter at C. M. . .... .... .... .... Investigating otiieer,. .... .... .... .... Investigation of charges .... .... .... .... M of otlences by C. .... .... Issue, points at .... .... .... .... . •loint trial of prisoners .... .... .... .... Judge Advocate (teneral's Department, final court of a])peal .ludge Advocate (ieneral, submission of charges for , !88 1(5! (K), 241-243 18 15!» 18(> 35, 37 !58 (50, 137 58 — ;i7, 58, I21», 138 5« , 57, 12!) ■ • • • • • • 58, 12J» . . . . 138 . . . 58 5J) 243 155 2(J 153, l8o Ul, 1)8 Kil 225 . . . . 11)0 83 Kil !!!!ii!», 125, l, iil, ii:i, 12'.>, 244 . . . . .... «»4 > . . .... (58 . . • 5:J J II (few Juilyo A»lvl(> Mt'ntonci" pro|H>i'ly wordfd, o«'i'din),'s liy .... .... IiiriHdiotion of ( 'oints Mnitiiil •Iiiry, «\oni])tioii from .... It •I It II M I) -'50 . i»4-j»7. \m 'icttion of fvidonco 'J(M( II'J :ir». !»■> S«J . I'.M sii^niiturt* of pi'o- i:m) (UMll IS'. " Kin^''H ovidiUK'f," tuniiii;,' Kit, iimkin,!,' iiwfiy with M imrchfVMt; of l>y civiliiin, jicn.'ilty on II in poMHUMHion of civiliiin. iicnalty on L I^arceny, delinition of {mw theft) hiiwful command .... .... lioadinj,' (|Ui«Htions lifualaclvisoiH .... .... liutter, oopv of, when admisHilth' " »'vi(lonco of its I'onti-ntH .... .... " anonymous, sending' complaints l)y Liahility of sohlicr for wife and chihlrcn ' I. imitation of actions .... II of time for trial by C. M II of phico II II II .... Locality of crime, immaterial . . .... LoHing by neglect, arms, accoutri'nieatH, etc II medal .... .... .... Loss or damag(>, stoppages for .... " II amount to appear in ciiargt; . . M Mainiiuf,' himself or other soldier Maj«»rity of votes required at C. M ].'.'.* Making away with arms, necessaries, etc Malice, 184 82 :\ .... .... I r»7 I!M) •M\, ;w, r.7, r>s, 17s isi l.M. .SS. 128. 141. 12. II M M II M II II II adn:inistration of oath to corps to which tiiey may belong . II for trial of auxiliary forces duties and responsiliilities of cannot confirm liable to be summoned as witnesses. promotion of during trial rank of 2l(i 1 4'. I -,7 1(14 21(5 1.15 1U8 10 i<», 2.1. 2(; . . 4. 104-2i»r. 4 ur. I!»."» 1!>8 I!>S-11H» lim^Oi". UK) 182 1.57 4.'{, (iC. 80, SI, 125 5:{-55 Ill 54 55 S2-8S l.'W 80 87 54. 141, 144 2to Index, Muinbers uf C M. whouro (lis<|ualilieil fruiii Itfiii^ II II nunibur ruijuireil .... .... II II iminlivr in uxuuhh uf legal miniiniiiti . . II II ill waiting. . .... .... II II VIltc'B of . . . . .... .... II II reapoiiHihlu to ('ivi' I^aw for illugulity or abiitio of {lovver II II II for mil oriiig to Itulua of Kviilcnuu II II prosecution of, only within 1*2 montliH Memoranda, witnoHses allowed to refer tu .... Mercy, revoinineiulution to.... • .... .... Military Custody .... .... .... Military Law contrasted with Civil Law M II itvi written and unwritten co«le. . . . II II its necesHity .... .... .... •I II neuesHity for a distinct codo aiiimrunt in 1(188 II II in the 14th century .... II II in the 17th century .... II II not to override Civil Law .... Militia, when under A. A ... Militia Reserve .... Minor otl'ence, conviction of when cliargc, 144 .... M, M, 141, 144 .... .... 77 88, ri2,'l27-12«.l,' 141, 14r. 82 20!» 82 101 i:io, isr), 14a 21>.'{| :h 2, 4 8 Minimum number of members tor ('. Misdemeanor, definition uf.... .... .... Misdemeanor and felony, compared .... .... Misfortune or chance .... M isprision of treason, definition of ... . .... II II two witnesses rciiuired for Misprision of felony, deiinitiou of ... .... Mitigation of punishment .... Month means calendar month . . .... .... Murder, definition of . . .... .... .... Mutiny .... .... .... .... .. .... ..<> Mutiny Act, first passed in 1089 .... II summary of provisions in Act of 1G89 II alterations made from time to time in N Name of prisoner not essential .... .... .... .... Natives of India in Indian Army not under A. A .... Necessaries, selling, losing, etc. .... ■ ■ . ■ .... II soldier's, buying of or in possession of by civilians .... Neglecting tt» obey Orders .... .... .... .... Negligenco culpable . . .... .... .... .... .... Non-C'ominissiuned-Oiiiccrs, application of the Act to ... . .... II II II not to l)e reproved in hearing of privates II II II power of C. O. as to punishment .... II H II reduction of .... .... .... II II M soldiers whe are ... . .... .... II II II Acting, how arraigned Note:*, witness referring to ... . .... .... ... .... ....27, «1-(W . . 12, 24, 2.-) .... 23, 2") 123, 220, 221, 222 <)8 123 53 1(57 km; ....119, U\-y 1(50 241 107 132 24 1(58 2, (!3, 152, 171, 225 8 9 10 14 09, 127, 143 2(5 .... 157, 220 187, 219, 243 173 104 47 . . . . • 28, 40 .... 40, 47 47 23 09 101 Uath, administered to members, etc., . . II II to persons of different beliefs II illegally administered not binding II cannot be administered till court is sworn OatliH, forms of, declaration in lieu,* etc., .... Offences, record of. . .. .... .... .... II if trivial dealt with by C O. of company II triable elsewhere than where committed II limitation as to time of trial . . .... Ill 245 237 110 .... 98, 112 41 43 .... 02, (53 ....02-04, 82 Index. 261 *•_», 144 11, 144 77 77 w, I4n «'2 '2(M) 82 lUI ;w, 14". 2«»:»i '-',4 8 5 i) '. <5i-(;.s , 24, 25 23, 2.-) 21, 222 (i8 123 fiS 167 106 19, 105 166 241 167 182 24 168 1, 225 8 !) 10-14 27, 143 26 57, 220 19, 243 173 164 47 28, 40 40, 47 47 23 69 101 111 245 237 110 112 41 43 J 62, (53 1-64, 82 ^8, OH'uiiuuM, civil, ti'iuil hy ( '. M. .... .... II |>uniMhal>le Ity C. (>. or triable by H. (J. M. M in rcHpect of iniiitar/ .^erviuu. , .... OtluiitlorM ti'ialilo only within 3 niontliH uftor cuiiitin^ to bu Hubj«!u tary Law, with oxcuptions .... .... 'M)H'cr of violence," lU'Hnition of, etc. . . .... M I' punishment for. .. . .... Otticer, doKnition of . . Ollicers, (.'oininandinj^r, powers of .... .... II convicted by Civil Court .... .... II tlisubilities of .... .... .... M i)ronioteject to Military Law aa 11 Warrant .... .... .... .... Omission, wilful and intentional .... .... "Omis-probandi" .... .... .... Order, otf'ences to the prejudice of ^ood .... II lawful, of superior otficer .... .... II of sitting as members of a C. M. II ft)r Assembly of CM. .... .... Orders, neglecting to obey .... .... .... Orderly Hoom of (;. Orderly Sergeant detailed to attend C. M., duties of Packing of C M .... .... .... Parade, failing to appear at . . .... .... Pardon after conviction, only by Her Majesty . . Parole evidence .... .... .... .... Pawning necessaries, etc .... .... Pay, deiluctions from .... .... .... Penal Servitude .... II II date on which sentence commences . II II otHcer sentenced to ... . .... II II N. C. 0. sentenced to .... II II for civil ott'encea» by whom approved . , II II sentence of, how carried out . II II soldier sentenced to, still subject to Military Law II M discliarge of soldier sentenced to Penalties .... .... .... .... .... Penalty for unlawful recruiting .... .... II improper billeting and impressment of carriages II for tratKcking in commissions, etc ... II for buying, etc., and having in possession, soldier's kit Pension, forfeiture of service towards . . .... Pensioners when under the Act .... .... Perjury .... .... • . . . . .... II dcKnition fif . . .... .... .... II two witnesses required to prove .... II witnesses liable to be convicted of .... Personation . . .... .... .... .... Persons not belonging to Forces, application of Act to . . II subject to Military Law .... "Persons in authority" over prisoners, who are Petition f)f Kight, passed in 1628 .... .... Plea of (Juilty, conclusive admission of guilt .... II II proceedings on . . .... .... It to the jurisdiction of tlie Court, proceedings on . , Pleading »)f prisoner . . .... .... .... Points at issue .... — . .... .... 61, I to M ;19, 162, 163 34 150 l?2, 221 152 22 33-42 186 185 87 5({ 55, 144 6(» 24, 25 23, 48 164 215 61, 162 152,173 107 76-78 173 44 47 81 77 154 1.S2 223, 234 157 3(), 38 58 129 129 129 133 1.36 62 140 183-187 186 186 187 187 182 25 233 170 241 98 184 49 2326 236, 237 6 115 116 114 115 210 181, 114, 262 Imicx. Political inootingM, etc., iir'j'iiil)itoi' .... .... .... i'oMitivu proof .... ... .... .... .... I'oHt, leaving, iih soiitry ... II II not a» Huntry . . .... .... .... II Hoiitry Hluuping or tlrunk on .... .... It i'oinmantlur (ItilivurinjL; up .... .... I'owurH of Huntcnco of ( '. ( ) . . . . .... .... .... M II of Courts .Miirtiiil . . .... .... ProainltlcH of Annual Act .... l'r«!«orvation of I'rouoedingH . . .... .... I'reHitlcnt, aJwenoo of, Court to adjourn .... .... II «lutiu.s of, otu .... .... .... II how appointed .... .... II fhallengu of .... .... .... .... II uiHting v(»tu of ... . .... .... .... II rank of . . . . .... .... .... ... II to ho furniHlied with cliargos and ordur for trial II to procure attundaiico of witnosscH .... .... Press, complaints through, proliiltited. . PreHUinptiona of the law .... .... .... .... II drawn from tlio evidence .... .... Presumptive evidence .... .... .... .... I'revention of quarrels, etc., by officers .... "Principal in tiie lirst" and "in the second degrcf " .... Previous convictions, how proved .... .... Prison, removal of a prisoner from one to another Prisons, military, establisiimont of ... . .... II militory and provost Prisoner, absence of. Court to adjourn . . II no proceeding's in open Court in absence of . . . . II medical examination of .... .... .... II in case of death or illness evidence to ))o taken. . M if illness prolonged, Court dissolved . . .... II liable to another trial if Court dissolved bef<3re the (ind II defence by, forms of . . .... .... .... II preparation of his defence .... .... .... II great latitude to be allowed in his defence .... ti to bo supplied with copy of charge-sheet .... ,1 II II II of any deposition against him „ to be warned if deposition to be made • . . . . II escort of at C. M . . . . .... .... .... II to be afforded every advantage, to be unfettered II need not incriminate himself or answer questions I, already under sentence .... .... Prisoners, joint trial of, exceptions II proceedings when .... .... II incompetent to give evidence .... investigation of charges against ... .... not to perform military duty .... .... permitting escape of .... .... .... II awaiting trial .... .... .... — . Prisoner's character, etc., evidence how produced II proper name not essential .... .... .... II witnesses, summoning of ... . .... .... Prisoners of war. Court of Intjuiry on . . Privileged communications .... .... .... Procedure at trial .... .... .... .... .... „ ill civil offences .... .... .... .... Proceedings of C. M . . .... .... .... .... „ II how recorded .... .... .... „ II copies of, obtainable on payment. ... II II evidence of contents .... .... „ II copy of, admissible as evidence .... ,1(;4, mg . 76, • • • • 28 • • • • 2(>7 • • • • 151 • • • • 151 • * • • 151 • • ■ • liH) • * • ■ W 5-41 .... 00 • • • • 19 • t < • 138 .... 80. H7 JHH, I0<5, 107 '>;<, 141. 144 I(«>, 110 88 — r)4. 144 81 • • •• 79 29 '2Y5-2I8, 237 • ■ • • LMS •220 207 29 \ !!. 100 • • • • IM), 120 * • ■ ' 137 137 137 . • ■ . 8t ', 87 • • • • 92 • • . • 80 • • • • 87 • • a a 87 • • • • 87 • a • • 118 .... 7 4-70 83 • a a • • • ■ a 239 ■ • a . 238 • ■ * a 81 92 92 ■ • • ■ m, 01 111, 113, 129 118, 129 • • ■ a 244 • • • • 4,3.47 ■ ■ • a 33 • ■ • • 150 • ■ a . 244 • • * • 90, 125 09, 127. 143 a a • . 75,7 8-80 ■ • • a 190 102, 229, 2.30 a ■ a • 104-140 • 9 • • 139 » • 9 9 105 107 • • • a 105 1.39 a ■ ■ a 233 • « a • 139 Index. ^63 I'ictcotMlings of CM. invnliilfttod if ucmtrary to A. A., Imt not ho it contnirv to 1{. 1'. or (^ K I'l-occedings hoforo trial " at trial . . .... .... .... .... .... I'roDuutlinyH on conviction .... i> on jtlea of guilty .... .... .... It continuation of , , .... .... .... It pruHcrvatiou of . . .... .... .... ... [ [ ti trauHuuMHiou of . . .... .... .... .... [ ' from nidation «»f Procuoi lings . . .... .... .... I'roof, positive and iirusuniptivo II ounlen «tf, restn UHually on proBccutor .... .... [[[\ I'ropcrty, otJ'onccs relating to , . ,', '/'[ I'roHccutor . . .... .... .... /'[ II duties of, etc .... .... .... .... '/ II to lie suliject to Military J.aw [ [[ M not to lie a material witness . . .... .... II when a witness to give evidence lirst, etc.... .... ..,. I'rosecutiou .... .... .... II of persons for acts done under tiie A. A.... .... Provost Marshal, how appointed, duties of ,[, 11 M not to serve 011 L\ M., etc .... .... I II cannot refuse to receive prisoners .... Provost Prisons .... Puhlicatiouc admissible as evidence. ... .... Puuislimeut, peremptory .... by CO.. :. ;.;; ;;;; <• on board ship .... .... .... II \iy C. M .■." I' Ijy C. M. for civil otl'ences Punishments ami Crimes ..." I' ♦ speciHed, are tanx'namn punislimentH .... .... 11 of opposite natures uot to be condiined " Purporting to be signed," meaning of expression a 104 «Ju8l 104140 !'.>.-)■ P-'7 IIU i;u-i3'» l.'<8 1:^0 i;r).i.%' 207 «0. HH 8«-!>'-' 88 80 OS, 1 17 I hi- 1 18 82 4a ....144, 14(5 31 ....137, 138 207 128, 150, ir.4 ....33, 3G-40 42 oG «0 (!l, 1«2. 1(53 ... 140-177 128 58 233 1 13, Quashing proceedings .... .... "(Queen's Evidence," turning. . Question, objection to .... .... Questions t< iie numbered consecutively .... II leading .... .... .... M tending to degrade witness . . " wliich would criminate witness .... .... II to prisoner not to bo put by the Court B Kank, reduction of, etc .... .... Kecalling and ((uestioning witness .... deceiving stolen goods, knowing them to have been stolen I i ecommendation to Mercy .... .... .... Record of declaration of Court of Incjuiry on illegal absence II offences .... .... ... .... Kecrui ng unlawful, penalty for iJecruits, false answers on attestation. . .... Kedress of wrongs .... .... .... Keduction to ranks, or to lower grade . . .... Ke-examination .... .... .... .... llefusing to go under arrest .... .... .... llegimental Court Martial, jurisdiction and power of 'I 'I offences triable by . , .... " 11 officers having power to assendde proper authority for convening Regular Forces 133 .... 23(;. 244 OS)- 102 10.-) 102 101 101 92 40, 47, 57, 58, 61 100, 101, 122 .... 73, 210 130, 135, 145 180 41 18(5 185 32 47, 48, 57, 58 100 30 (iO 34 • • • • O^ 35 23 264 Index. '< " Ilogiiliition of the PorcoB Act, 1881" lluluiiHo of priHoiiurH .. .... .... .... .... ItoIuuHing priHonerH improperly .... .... .... KuligicmM Ituliuf, not r«iitU.'r witnusH iinuoiiiputuiit .... Itunioviiiu authoritit.1 .... .... .... .... Kvply, Prosocutor'H .... Uuprimnnd . . .... .... .... .... .... KcproviiigN. C. ().'■. . .... .... .... .... Uuipu'HtH, CourtH of , . .... .... .... . . . , UuBurvo Forces, tloHnition of . . .... .... .... KoH'gUHtu* KuHtriutioiiB on croHH-uxaniination .... .... .... Kuturn, monthly, of C. M . . . . .... .... ISuviaion of Hniling and Hontonco, riiloH coneorning .... Kuwiird, military, munning of .... .... .... l{ol)l)cry, iloHnition of .... .... .... " Uoutu " to bo iaHuod bofore marching . . .... Roynl CommissionH nnd CourtH of Intpiiry KuluH of Kvidunco, tivu in number ... .... II II to be strictly adhered to II of Procedure, authorized by A. A s Safeguard, forcing a . . .... .... .... .... Satisfactory evidence . . .... .... .... Scale of punishments by 0. M. .... .... .... Scandalous conduct . . .... ^ . . . .... .... Schoolmasters, army . . .... .... .... .... Seas, beyond, meaning of term . . .... Secondary evidence . . .... .... .... .... II II when admissible .... Second trial of person ac(iuittod or convicted .... Sedition .... .... .... .... Sentence awardable by C. O. . . . . . . • Sentence, powers of by Courts Martial II execution of .... .... .... .... It commutation of ... . .... .... II when to commence . . II proceedings on at C. M .... .... Sentinel, who sleeps or is drunk ... .... Service, tri.al of persons who have left . .... .... 11 prolongation of, when sentenced to P. S II lorfditures of .... .... Ships, H. M., in commission, no military C. M. to be held on M not in commission, jurisdiction of C. M. as on land Short-hand writer.. .. .... .... .... Soldiers, who are included in term .... II persons su>>ject to Military Law as ... . II exemptions of .... .... II punishments to which liable . . .... .... II subject to t!ivil Law .... .... Special finding .... Specified, crimes not specified tried under A. A. Sec. 40. . Statement of pristmer's character, etc., brought into Court Statements, false, to C. O .... M may be received as confirmatory evidence . Stationery, how furnished at C. M Statute Law, the written code .... .... Stealing (see theft) .... .... .... .... .... Stojjpages of pay .... .... .... Striking superior officer II soldier .... .... .... . .... Substance only of charge need be proved .... .... in ir.it .\:M, 137 .117, IIH 40. .-)7 40 . Ul'.\ 23 2*21 ■2M, 231 . hH)-102 . 1.30 i:i:^ -135 24 170 18 188 2I<» 200 • • • • l«i ir>i, 171 207, 227 5(i 128, irA), 154, 221 2 3, 4b (."58 24 208, 22i)! 228, 234 2,31 -2.34 • . . . .S8, 01 • ir»2. 171 . . . • .'{5-4 1 . . . . 60 1. *}()•! 38 131, 1.32 58 127-130 . . . . 151 02-(»4 , 02 (i3. 170, 170 42 U4 . . . . J»7, 112 23 25 184 57 61 i'is,' 221-222 . . . . 162 . . . . IK) 158 — 224 ■22(> 81 — 1 • • • • 178, 170 152, 172 161 li'ii 220 222 117, lA '244 137 118 .... 40. r.7 40 \m 'i'JI-'JI.S, '2'M . ... MNMO'J . ... i:W-135 24 170 IN ISS •JIO L»0!» ....irii, 171 ....'207, 2-27 I')0, IH 221 . . 23, 48. 58 24 220, 228, 234 , ... 231-2.34 . . . 38, (»1 .•..152, 171 . . . 35-41 60 ... 1.3«-138 ... 131,132 58 ... 127-130 151 02-()4 «2 17(», 3, J>7, »3, 17!» 42 64 112 23 25 184 57 61 221-222 162 m 158 224-226 81 1 ..178, 179 . 152, 172 161 :3, 220 222 Fndi'.X. Suicido, rtttt'iniitini? to wnninit Niiniiimry Court Muitiftl. ptovi^ionH relating to' " '.'.',[ ' " " wlu'ii convenoil jind by wlioiii!! «... '' , . ;' "»"'" poworH aH a. C. M. wlion of tin Nimiinaiy "f cvukiico J. " , " ^"I'-V *" ••" givon to iiriHoiitT . . Nmiiinaiy I'uniHliincnt, authoriz..! by A. A., •letiiiition of " " niltw for .... Summary imniHjimonts liyC. (». ... '.,, " rudiiction of N. ('. o.'h .... Summing u|) of , I. A. .Sumiiioniiij{ witiicHHOM .... , , . , ' " " Superior ntWcer, 4«;. 47, 75 16 50 .3.5-41 47, 48, 57, 58 121 75, 78-80 23 78 2(}. 40 .16.3, 208 210, 222 168 62, 170 124 71,72 «i2-(;4 82 37, .38, 12!), 138 181 187 161 241 137 1.30 166 241 166 6(1 87 86 180 61, 1.39, 162 207, 227, 231 162 66 152, 172 161 ...1.52, 172 23, 24, 26- 88 sentence 88, 128, 141. 14.5 122 .... 127 129 243 23 48 48 81 51, 52 .52. 53 266 Index. Wife, maintonnnco of l»y Holdier ... .... M ovidonuo of, for and n^aiiiHt liur huHbaiul. . .... I) eomniunicatioiiH bctwvun liUHtmnil and .... WitnoRH, one Hiitlioiont, «xuopti(»nR .... ... .... !• for proHocutioii to produce evidence an to character, W itneBaea . . .... .... .... .... .... examination of .... .... .... nivniliers lialdo to he Hiimmoned as ... . .... liable to be recalled up to finding ... .... not to read ovidunco, use of memoranda .... oath to be taken by .... . .... declaration to be taken by . . , . . , .... liable to be convicted of Perjury .... (civil) puniHhniunt for contempt of court, etc . . (military) puniHhment for contempt of court, etc. summoning of .... .... awaiting trial .... competency ond credibility of II impeaching credibility of.... "Words used" Wrongs, redress of .... Y Year means 12 calendar months Ye.imanry . , .... .... .... 184 ■ • • • • • » 243 . 221), 243 1 • ( • • • 1 227. 241 etc. . 1(0. 1>I . 241 -24ft IK), 1)7-103 , 117, 111) • • • . 80 .101, 122 101 • • ■ . , 1)8, 112 245 1>8 84 84 "7ft, 78-80 . 70. 244 242.24ft 100, 241-243 71, 222 .32 24 « • • • ■ t * 23-25 03, 101, m, w, IH4 243 229, 243 227. 241 IM), \)l 24 1 -245 117, 111) 80 122 101 112 24A 1)8 84 84 7rt, 78-80 70, 244 242-245 241-243 71, 222 32 24 23-2«