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NOTES ON MILITARY LAW 
 
 rjB 
 
 THE USE OF THE CADETS 
 
 or TBB 
 
 WoYki Military College of Canada, 
 
 OOMPILID Br 
 
 MAJOR DOUGLAS JONES, 
 
 BoTAL Artillery, 
 
 Profaasor of Military History, Military Administration and Law. 
 
 OTTAWA : 
 PKINTBD BY MACLEAN, ROGER & CO.,, WELLINGTON STRBHX. 
 
 1880. 
 
Entered According to Act of Pailiament of Canada, in tbe year 18>j0, by 
 Major Douglas Jonss, in the Office of the Minister of Agriculiuret 
 
 
,by 
 
 e. 
 
 > 
 
 \ 
 X 
 
 ^J 
 
ABBREVIATIONS. 
 
 Ad 
 
 A. W. 
 
 (J in C. - 
 
 <J.O. 
 
 O. B. . 
 
 €. M. 
 
 «. C. M. 
 
 D.C. M. - 
 
 R C. M. 
 
 Field G. C. M 
 
 P.O. - 
 
 H. M. 
 
 Impt. 
 
 J. A. G. - 
 
 J. A. - 
 
 -M. A. 
 
 N. 0. O. 
 
 P. S. 
 
 S. of S. - 
 
 U.K. 
 
 The figures in the margin refer 
 
 Army Discipline and fiogulation Act. 
 ArliclcB of War. 
 Commander-in-Chief. 
 Commanding Officer. 
 Confinement to Barracks. 
 Court or Courts Martial. 
 General JCourt or Courts Martial. 
 District « «« 
 
 Eegimental " « 
 
 Field General " «« 
 
 Field Officer. 
 Hor MajostjV. 
 Imprisonment. 
 Judge Advocate General. 
 Judge Advocate. 
 Mutiny Act. 
 
 Non-Oommisaioned Officer. 
 Penal Servitude. 
 Seoretaiy ol btato. 
 Uuiiud iCiii^dom. 
 to the sections of the Discipline Act. 
 

T 
 
 from t 
 I. 
 2. 
 
 docisic 
 as Sta 
 
 Si 
 
 raeans 
 tion A 
 term ' 
 ia Dov 
 
 mattei 
 
 conaisi 
 
 and al 
 
 cannoi 
 
 a^ailei 
 
 T 
 
 every 
 
 struck 
 
 i great 
 
 I freque 
 
 I there 
 
 B 
 
 J offence 
 justice 
 [which 
 I Boldioi 
 M 
 I tered I 
 
 I by Pai 
 
 I so or ] 
 
 milita: 
 
NOTES ON MILITARY LAW. 
 
 CHAPTER I. 
 
 INTRODDOTORT. 
 
 Tho Laws of Great Britain and Irolaii ""s applicable to every subject, are derived 
 from two separate sources : — 
 
 1. Statute Law — Passed by Parliament and sanctioned by the Crown. 
 
 2. Common Law — A Judge-made Law, derived from precedents formed by the 
 decisions of celebrated Judges, which are sure to be followed, and become as binding 
 as Statute Laws. 
 
 Statute Law is gradually replacing Common Law, but it is a slow process. 
 Military Law has no permanent Statute, and reference to precedent is by no 
 means frequent. Still there exists the Written Law, the Army Discipline and Regula- 
 tion Act, and the Unwritten Law recognised in the former Articles of War under the 
 term " Custom of War," which was analogous to the Common Law. The Act which 
 is now in force states (under the Rules of Procedure for CM.) that "where any 
 matter or thing is not provided for, the existing practice is to be followed so far as 
 consistent with its provisions," Yet the nature of Military Courts being temporary, 
 and all records of proceedings being destroyed aftev i certain time, former precedents 
 cannot always be followed, although members o<' Courts would often have gladly 
 availed themselves of precedents for their guidance if they could only have done so. 
 Tho advantage of Military over Civil Lavv- is that the Act having to be re-enacted 
 every year can be periodically corrected, and all regulations becoming obsolete are 
 I struck out. Each new Act is thus, as it were, a clean sheet, which is distinctly of 
 great advantage, as in Civil Law only alterations in parts of certain Acts are 
 frequently made, and so one Act gets, as it were, piled up on the top of another until 
 I there is groat confusion . 
 
 Both Military Law and Martial Law consist of exceptional powers for dealing with 
 
 I offences which it might be dangerous or undesirable to leave to the ordinary course of 
 
 justice. The action of Civil Law is too slow for military purposes; moreover, that 
 
 which might be perfectly harmless in the case of a civilian, might, in the case of a 
 
 soldier, constitute a serious offence against Military Discipline. 
 
 AHlitary Law has a distinct code, is regular in its application, and is adminis- 
 I tered by persons having power to do so. 
 
 Martial Law has no code, is irregular in its application, and unless proclaimed 
 i hy Parliament, is administered by persons who have either assumed the power to do 
 jaoor received it without legal ranction. It affects all persons, whether civil or 
 military. 
 
CHAPTER 11. 
 
 PARTIAL LAW. 
 
 It 18 difficult to cloai'ly define Martial Law, or to state what offences may be 
 tried by it, when it may bo proclaimed, and how offenders are to bo tried and con- 
 victed under it. On all these ] its guidance 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 England by commissions from the reigning sovereign, but even 
 then it was considered by Parliament an extreme use of prerogative. 
 
 Ill the early M.A. there was no mention of the Crown's prerogative to proclaim 
 Martial Law, but later M.A.'s and in the present Act, it distinctly states that no 
 man can be ** subjected in time of peace to any kind of punishment within this realm 
 by Martial Law." Hence there is a distinctly defined permission to proclaim Marliat 
 Law. 
 
 But the difficulty remains to define when this authority may be exercised. 
 
 There have been many definitions of Martial Law, but all are defective. Sir 
 David Dundas, as J. A.G. in 1850, said : " It is necessary to distinguish between 
 Military Law and Martial Law. Military Law is to be found in the M.A. and A.W. 
 — those and those alone it is which are properly called the Military Code, and by 
 which the land forces of Her Majestj' are regulated. Martial Law is not a written 
 law; it arises on a necessity to be judged of by the executive, and ceases the instant 
 it can be allowed to cease. Military Law has to do only with the land forces men- 
 tioned in the Second Section of the M.A. Marti Law comprises all persons, whether 
 civil or military." 
 
 Lord Hale describes Martial Law as " no law, but something indulged rather than 
 allowed as law." It is, in effect, a rule for superseding 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 may be considered under three heads : — 
 
 1st. As applicable to officers and soldiers under the Discipline Act, and under 
 ■what circumstances it is to supersede the latter ; 
 
 2nd. Applicable t(» provinces occupied during the continuance of war ; 
 
 3ixl. Applicable to a whole community in time of rebellion ; 
 
 Ist. It is admitted beyond a question that the law of necessity may arise and may be 
 used against persons under the M.A. 
 
 There is excellent authority for this, namely, the opinions of eminent lawyers. 
 
 In the case of Governor Wall, who was a Lieut.-Colonel in the army, and Gover- 
 nor and Commandant ot an island on the coast of Africa in 1782, the garrison 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 liad a right. T'.ie Governor interposed, 
 ordered a parade, and had a sergeant, who was among those wh ) went to the nouse, 
 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 ringleaders; and further, that officers on parade had 
 
J' 
 
 I 
 
formed a " drum-head " CM. before the flogging, and that he, the Governor^ 
 merely carried ont their Rentonco. The statement as to the CM. he failed to establish, 
 but the Judges ruled that had he done so, the defence would have been valid. 
 
 The Attorney-General prosecuting, said: "There may be circumstances for a 
 military officer justifying him in the infliction of puni8hmeiitwithoataGenoralorR.C 
 M,, if there be that degree ot imminent necessity that supersedes recourse to ordinary 
 tribunals. It concerns the public safety that moans of repressing a mutiny should 
 bo powerful, sudden, and capable of application, in order to cope with such an evil. 
 If the mutiny in the garrison did exist and wad serious, as was stated in the dofonco, 
 the prisoner would not only have been an innocent man, but a meritorious man for 
 using the powers within his roach," 
 
 The Judge, chhrging the jury with those views, coincided in them, and said : " If 
 there wore a mutiny, and if there were a CM. such as could be had, even not a legal 
 one, if the man was warned that ho was on his trial and called upon to say how he 
 became one of the mutineers, and if you do not discover a malicious intent to destroy 
 this man, or a wilful disregard of human life in the use of the instrument and tho 
 manner of tho punishment, you will acquit the prisoner." 
 
 Again, Sir David Dundaa, in giving evidence in 1830 before the Parliamentary 
 Committeo of Enquiry into tho Ceylon disturbances of 1848, said: "If five or six 
 regiments mutiny in the field, would any one toll me you must apply to Parliament 
 before you could reduce these persons to subjection ? — there must be someiohere, for public 
 safety, a right to exercise such power in time of need." 
 
 These opinions are often quoted and expressed without dissent, and never con- 
 troverted. 
 
 Under this heading used to come the summary punishments, for ci'imes com- 
 mitted by troops in the field, inflicted by the Provost Marshal under the authority 
 oftheCinC This authority rested on the same basis, namely, on Martial Lsiw, 
 and was an arbitrary Act deriving its force from necessity and custom. It was 
 formerly considered that the power of life and death must always be vested in a C. 
 in 0. of an army in the field, his justification for using this power and mode of exer- 
 cising it being his own conscience. 
 
 By section 72 of the Army Discipline Act the 0. in C , or Provost Marshal under 72 
 him, has this power no longer ; but the commander of a force in tho field must 
 aeeemble a Field G. C M. for the trial of an offender. 
 
 2nd. The application of Martial Law to an occupied or conquered province. 
 
 From time immemorial a conqueror has boon entitled to impose on tho conquered 
 any law ho may think proper. This condition commences from the vory moment 
 ho conquers the country, all previous laws become extinct, and the C in C. is bound 
 to establish a code of laws until his sovereign lays down a regular code. As a rule 
 tho C in C reinstates i-ho civil administration, only i,akin^ care thoy do not inter- 
 fere with his military operations. 
 
 li. the instructions issued by the Northern States Government in April, 1863, 
 for the guidance of their armies during tho civil war, military oppression is denounced 
 and Martial Law is defined as being "simply military authority exercised in accord- 
 ance with the laws and usages of war," or the "common law of war," it being 
 incumbent upon those who administer it to bo strictly guiJo'l by tho principles of 
 juMtico, honour and humanity. It should bo less stringent in places fully occupied and 
 fairl}' conquered than in places still the scene of actual conflict. Its most complete 
 sway is allowed in the commander's own country, when face to face with the enemy, 
 because his paramount duty is the defence of tho country. 
 
 3rd. When may Martial Law be resorted to as aifocting tho whole community, 
 civil and mi itary, and how ? 
 
 This presents greater diffloultios, and is not a problem to be • "ved in anticipa- 
 tion of the event. 
 
 All acts committed under the authority of Martial Law are always scrutinized, 
 and must be justified subsequently by an Act of Indemnity, passed to cover only such 
 acts as have been properly done under the " law of necessity," but Parliament does 
 not inuv Jtnify acts not of necessity but of oppression . 
 
8 
 
 r 
 
 When Parliament sanctions the introduction of Martial Law in a country, CM. 
 oun legally try any person. 
 
 No authority but Parliament has really the power to proclaim Martial Law. 
 The military authorities are justified, however, under Cv rtain circumstances, in taking 
 the law into their own hands iu self-defence, — the case is analogous to that of killing 
 a roan in self-defence. 
 
 The proclamation of Martial Law by any other authority than Parliament being 
 itself illegal, cannot legalize anything done under it, even though forms of Military 
 Law may bo adhered to. 
 
 Although forms and procedure will not legalize acts done, they will materially 
 diminish responsibility and, therefore, as close an adherence as possible to the estab- 
 lished laws of the country, the established usages r.f war, and the forms and practice 
 of C M. is always advisable. 
 
 The question of the co-existence of Military Courts with C'vil Courts has never 
 been fairly settled When Martial Law was instituted in Ireland, in 17!)8-99, lt03 
 and 1833, the Civil Courts sat for all ordinary cases. 
 
 In the Petition of Bights it was acknowledged that Martial Law was a necessity 
 where Common Law could not be enforced. The arguments in the House were:— 
 
 If an enemy come into any parts where Common Law cannot work there 
 Martial Law can be executed ; but if a subject bo 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 shall prevail whether 
 the Civil Courts are open or not. The Courts in Dublin were open, and a collision 
 between the Civil and Military Courts took pla'jo, and the King's Bench granted a 
 vwrit to tak( ^ rebel sentenced to death by a Court Martial out of military custody. 
 
 The rebel was too ill to be removed and died subsequently, and hence the case 
 was unfortunately never decided. 
 
 However, this shows that the supreme authority of the Civil Law was admitted. 
 
 Again, in the case of the proclamation of Martial Lawin Canada, in 1837, a letter 
 <of instructions from England to the Lieut-General Commanding stated : — " In all cases 
 where the unlimited authority you are now vested with can be exercised in co- 
 operation with, or in subordination to the Civil Courts, you are required to so 
 execute it." 
 
 With reference to the power of the Executive in the Colonies to proclaim Martial 
 Law. Sir David Dundas, in evidence before the Ceylon Committee, stated: — " What- 
 ever power the Crown can wield the representative of the Crown in a colony can 
 also take upon himself to wield, andhe ^can therefore proclaim Martial Law in the 
 Colonies." 
 
 The question arises, is iho proclaination of Martial Law, before being put in force, 
 a legal necessity ? 
 
 Opinions say not. The Law Officers of the Crown, in 1838, said : — " The procla- 
 mation confers no power on the Governor which he had not without it ; the only 
 purpose is to give notice to the inhabitants. A Governor can proceed to put down 
 rebellion with or without proclamation, but the latter is advisable for the sake of 
 warning well-disposed inhabitants." 
 
 It is lawful for the military power to put to doath all persons engaged in the 
 actual work of resistance. This prerogative does not extend beyond the case of per- 
 Bons taken in open rebellion. 
 
 When the regular Civil Courts are open so that criminals Jmight be handed over 
 to them, there is not any right in the Crown to dispose of them otherwise. 
 
 In 1867 a circular despatch was sent to the Governors of Colonies with rofe 'ence 
 to Martial Law : " Her Majesty's Government does not prohibit resort to Martial Law 
 under urgent circumstances and in anticipation of an Act of Indemnity, but the justi- 
 fication of such a step must rest in the pressure of the moment, and the local Gover- 
 nor cannot be relieved from the responsibility of deciding on the nature of th« 
 oircumstances which would authorize him to withhold or proclaim Martial Law." 
 
 Controversies invariably follow the proclamation of Martial Law, not that the 
 prerogative of the Crown to do so is questioned, but the disputed points generally are 
 
r,GM. 
 
 Law. 
 taking 
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9 
 
 — ila continuance after the necessity for it has ceased, and t. . exercise of excessive 
 severity —hence strict caution is necessary to neotiiat the general principles of justice 
 are carried out. 
 
 The difficulties of the Jamaica case in 186i apjear to have added confusion and 
 danger rather than enlightenment. 
 
 Governor Eyre proclaimed Jiartial Law in the disturhed district. Mr. Gordon, 
 a ringleader and agitator, was arrested in a place out of the proclaimed district by 
 order of the Governor and handed over to the 0.0. of troops at a pla'Je where Martial 
 Law prevailed, with instructions to try him by CM. He was tried, convicted of 
 high treason, and sentenced to death. The proceedings were confirmed by the 
 officer comraandinff the troops in the district, and subsequently by the officer com- 
 manding the troops in the island, after which Gordon was executed. Subsequently 
 an indictment for murder against Governor Eyre was presented to a grand Jury in 
 London, which indictment rested on four counts • — 
 
 1. Locality of arrest not under Martial Law ; 
 
 2. Crime committed prior to date of proclamation ; 
 
 3. Only evidence was documentary, and insufficient before an ordinary court ; 
 
 4. State of Martial Law prolonged beyond necessary time. 
 
 With regard to the first count. Judges differed. One stated that as by the general 
 law all crime is local and must be tried where committed, the Governor was justified 
 in bringing Gordon into the proclaimed district for trial. Others, however, con- 
 sidered that, crime being local, an offender should only be arrested and tried within 
 the area in which Martial Law is in force. Also, as concerns the second count, the 
 balance of opinion was that no praclamation of Martial Law can have a retrospec- 
 tive effect. 
 
 With regard to the tiiiid, the C. M. consisted of a Lieutenant Royal Navy as 
 President, with another Lieutenant Eoj'al Navy and one Ensign West India Kegi- 
 mont as members, and no allegation as to the legality of the court was made. The 
 objection of insufficiency of evidence was not much argued, as it was considered that 
 the court's opinion must be decisive. 
 
 Mr. Disrajli, in 1866, as Chancellor of the Exch; -juer, stated in reply to a ques- 
 tion in Parliament, " In the state of Martial Law there can be no irregularity in the 
 composition of the court, as the best court that can bo got must be assembled." 
 
 As concerns the last count, it was considered that the Governor was under no 
 obligation to rescind the proclamation. 
 
 Governor Eyre was therefore considered to have acted wrongfully in arresting 
 Gordon out of the proclaimed district and transferring him to the proclaimed district 
 for trial ; also, that as he committed the crime before the proclamation of Martial Law, 
 Gordon should only have been tried by Civil Law. It was, however, acknowledged 
 that Governor Eyre had acted in good faith and had brought the colony safely 
 through a great danger, so that, notwithstanding these errors, protection was afforded 
 him. 
 
 In the Unitp' States a very proper distinction is drawn between Military Courts 
 assembled under .le Statute, which are called "Courts Martial," and those assembled 
 when Martial Law is in force, which are called "Military Commissions." In Eng- 
 land both descriptions of Courts are called Courts Martial, and the general public are 
 consequently not able to discriminate between the two. 
 
y 
 
 10 
 
 CHAPTER III. 
 
 UISTOBICAL SJMMAaT OF MILITARY L> W. 
 
 Hi' 
 
 Tho study of Military Law involves considerations of its origin and progress, as 
 well ns of tho exact details of 'i e law as i:, at present exists; and though this latter 
 point is undoubtedly of tho greatest importance, still it is clearly necessary that 
 8ometl)ing should '^o said concerning the introduction of a law, which, till tho close 
 of the 17th century, was unknown in Englar.d. 
 
 Before tho days of standing armies, troops in peace time wore fow, they wore 
 paid and kept by the Sovereign as his personal guards, and were Mable to punish- 
 ment like !iny other of his servant j. When'military forces wore collected for expedi- 
 tions, or for suppressing rebellions, "Special OnJinances of War" wore issued under 
 the Koyal Prerogative and aj)plied by tho C. in 0. in the field, and those ceased when 
 the army was disbanded. 
 
 The idea of a separate code wiih distinct courts was taken from a Statute of 
 Kichard II. (1877-1)9), which established a court of tho Constable and Marshal, whj b 
 dealt with military maiteis not cognizable by Common Law. 
 
 Tho first trace of the issue of laws applicable to soldiers (not in war time) was 
 in lfii!5, for the government of troops guilty of offences Givil and Military, returned 
 from Spain, whom Claries I. ordered not to be disbanded. 
 
 The Common Law of England, having sprung up in an ago when all men bore 
 arms occasionally, and none constantly, recognized no distinction in time of peace 
 between a soldier and any other subject, consequently Parliament objected to soldiers 
 being withdrawn from the protection of Civil Laws, and this led to the "Petition of 
 Eights " (1628), by which soldiers were not to be withdrawn fr m the protoctioc of 
 Civil Law, nor from its punishments. 
 
 The civil wars in Enghind brought numbers into tho 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 (1660) permitted Charles II to retain, 
 at his own cost, and govern by his own regulations, a body of soldiers, 8,000 strong, 
 d38ignated "His Majesty's Guards and Garrisons," and ultimately forming ' the 
 " Standing Array," but no sanction was given to Military Law. Parliament feared 
 that if it legistated for these troops the country would have to pay for their mainten- 
 ance, and consequently tho King was loft to govern them under his perogativo. The 
 first A.W. sanctioned by Parliament wore in 1642, when the King issued; 
 orders for the mustering, regulation and payment of these troops. Laws and " Ordi- 
 nances of War " wore to bo thereafter issued, meanwhile, authority was given to the 
 General to constitute 'C. M. in peace, and a Judge Advocate was appointed 
 to take evidence on oath. When capital punishment was to be inflicted, the prisoner 
 was to bo tried according to tho known laws of tho land, — if tho offence was not so 
 punishable, then the trial was to take place by special Royal Commission indor the 
 Great Seal. 
 
 Tho Articles of \'(>^^ and 1672 established a General CM. foroffoncej p.inishable 
 with life or limb, and Regimental or Dotachment Courts for lessor offences. The code 
 of 1672, known as Prince Rupert's Code, did not differ, materially, fron» that of 
 1666, though tho punishments were not so severe. Those articles, more than any 
 other, have formed tho model on which the present military code and system of 
 military judicature have boon formed. All this took place under the authority of 
 the Crown, though Lord Essex' Code (1642) for a Parliamonlary Army had the 
 sanction of Parliament. 
 
 Throughout tho reigns of tho Stuarts, tho army was entirely under the Sovereign. 
 In 16S8 came the revolution which deposed James II, and placed William, Prince of 
 Orange, on the English Throne. This change was not universally acquiesced in by 
 the soldiers serving in the army ; and on tho abdication of James II, the Scotch regi- 
 
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 monts rofuHod to recognize the r.-^w Sovereign William III. Some soldiers even rofiisetl 
 to Hght I. broad ugnin.st foreign onomieH, and no conslitutionnl liiw existed hy which 
 the mutinous troops could bo punished, as hitherto soldiers had been regarded only 
 as citizens, and amenable only to the civil tribunals. The necessity of having iv 
 code of militar)' law was now apparent, and in 1(]8I> Parliament passed the 1st Mutiny 
 Act. While giving the King the not essary power to punish oHencoa against discip- 
 line commit'ed by soldiors, it was resolved to guard against his employing the 
 soldiers to overturn the Government. 
 
 Mutiny, sedition and desertion wore tho'onlj oflfoncos provided for therein ; and 
 were to bo punishable by death. The duration of this Act was limited to 6 mot.ths; 
 but it was at the end of that time i-enewod, and with few intermissions it has been 
 pasHcd annually ever since, up to 1S79. This Act authorized tho convening of CM. by 
 warrant from the ('rown or General in Command. 
 
 Tho preamble (or introduction) slated that though the raising or koopin/:; a stand- 
 ing army within the realm in time of peace, unless with tho consent of Pariiainont, 
 was against law, and that though no man might be subjected to any kind of punish- 
 ment except after a fair trial by his poors, — still, tho necessity being urgent, "any 
 man who sliali stir up mutiny or desert the service shall bo brought to a moio exemp- 
 lary and speedy punishment than the usual forms of law will allow." 
 
 The ellect of this Act, which operated oidy on tho standing army within the 
 U.K., was to give Parliamentary sanction to the infliction of capital punishment 
 for certain spocitied offences, which, whether regarded as military or political, it 
 was expedient, should bo summarily punished- by CM., while all ordinary military 
 otiences were left to be dealt with, as formerly, by tho Crown alone. This Act then 
 created the 1st Statutory Tribunal tor the punishment of military sedition and deser- 
 tion, and it legalized capital punishment within the U.K. for the above crimes. 
 
 Other CM., not under the statute, but under tho prerogative of tho Crown, wore 
 still hold for the trial of all minor offences. TheseJJIesser courts were called tho Court 
 of the General and the Court of the Colonel. 
 
 Abroad, tho army continued to bo governed wholly and solely by the A.W. and 
 by these lesser courts. 
 
 After the passing of this first M.A., additional sections were from time to time 
 inserted as it appeared desirable to embody in the statute what had hitherto only 
 a])peared in tho A.W. There was thus a sort of a dual code : — 
 
 1st. Statutory Courts, to try offences enumerated in the Act. 
 
 2nd. Prerogative Courts, to try all other offences. 
 
 When a Statutory Court was assembled, the warrant distinctly mentioned the 
 statute. Gradually, however, tho two merged into one code owing to the King's 
 going to Holland, when, instead of issuing a specific warrant for each CM., he issued 
 before going abroad, general warrants to try military offences according to the M.A., 
 and also according to the A.W. (or under the prerogative) — thus a fusion of the two 
 codes took place. 
 
 In 1714 a clause was introduced giving express authority to tho Crown to make 
 A.W. for the better government of the forces at home. 
 
 In 1717 it was enacted that the King might establish A.W., and constitute CM. 
 for the U.K. as well as beyond scasi, with power to try any crime or oflcnco, and to 
 inflict any penalties. 
 
 In 1749 this unlimited authority, whicli had formed tho subject of great parlia- 
 mentary controversy, was restricted by a proviso, that within Great Britain and 
 Ireland no person should be liable to any punishment extending to life or limb, except 
 for crimes oxpresslj' so punishable by the M.A. This restriction was in later times 
 extended to the punishment of P.S. ; it did not include troops on foreign service or 
 in the Colonics. * ' 
 
 Until 175() the Marines were governed when on board ship under tho Navy 
 Discipline Act, and when on land under tho Army M.A. ; but separate Marine 
 M A. and A.W. substantially tho same as those for the army, were from that time 
 annually passed by Parliament 
 
 In 1766 death for desertion was no longer made absolute, and corporal punish- 
 ment could be substituted for it. In 184S provisions relating to limited service were 
 
u 
 
 w 
 
 introluced, but havo since boon altered as oceasion arose. Corporal punishraent was 
 subsequently not allowed to be inflicted, except fur certain otfences, uuch as diHgrace> 
 ful conduct, but it bos now been altogether abolished in time of peace. The practice 
 of branding deserters and naen of bod character has also been abolished. 
 68 In 1879 a Bill was introduced into Parliament for the purpose of passing "The 
 
 Army Discipline and Regulation Act, 1879," which is a consolidation of the Mutiny 
 and Marine M.A., the A.W. issued in pursuance of those Acts and the Army 
 Enlistment / , 1870. This Act ma'-ies it lawful for Her Majesty to make A.W., 
 which shall bo judicially taken notice of by all Judges and in ail Courts whatsoever. 
 " Provided that no person shall, by such A.W., be subject to suflt'er any punishment 
 extending to life or limb, or to be kept in P.3., except tor crimes which ure, by this 
 Act, especially made liable to such punishment," ana further, that " no person is to 
 be punished in any manner which does not accord with the provisions of this Act." 
 
 The incorporation in the Act itself of the old A.W. will probably lender tho 
 exorcise of this power unnecessary or very ruro. 
 
 ARMY DISCIPLINE AND REOULATION ACT. 
 
 This Act is divided into five parts, and also classifies " persons subject to Mili- 
 tary Law" into two classes — officers and soldiers. In the first four parts it declares 
 the law with respect to officers and soldiers of the regular forces. In the fifth part 
 (ss. 168-176) it points out tho circumstances under which the reserve and auxiliary 
 forces and other persons become subject to Military Law, and it modifies tho law 
 declared in tho first four parts as regards certain members of the regular forr^e.'^, such 
 as warrant officers and N.C.O's., and also as respects persons who are not altogether 
 subject to Military Law. 
 
 Tho five divisions of the Act uj-e : 
 Part I. Discipline. 
 
 " II. Enlistment. 
 
 " III. Billeting and impressment of carriages. 
 
 " IV. General provisions. 
 
 " V. Application of Military Law, saving provisions and definitions. 
 Part II. of the Act altei-s to some extent the conditions of enlistment, service 
 and discharge, and therefore it applies as respects reckoning service, tho forfeiture of 
 service, and liability to be detained in the service, only to soldiers enlisted or reen- 
 gagod after the passing of the Act, and not to soldiers previously enlisted or reen- 
 gaged, except with their own consent. These soldiers (in the absence of consent) 
 remain, as regai-ds the above matter, in their present position, bat if they aie 
 reongagod they must be re-engaged under this Act, The subject of enlistment is, 
 however, dealt with principally in Military Administration. It must bo recollected 
 that a month in the Act means a calendar month (28, ."JO, 31 days), but sentences of 
 Impt. are calculated by days. 
 
 The Army Discipline and Rogulation (ccmmencomont) Act, 1379, brought tho 
 now Act into force. It commences with quoting the preambles of the M.A. and Marioe 
 M.A. Those preambles 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 tho Bill of Righta 
 on the acceptance of the Crown by William III. in 1688: " Whereas the raising or 
 keeping a standing army within the U.K. of Great Britain 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 tho Kingdom, Pro- 
 testant religion, reduction of Ireland." Now it is " for the safety of the U.K. and 
 the defence of the possesions of Her »Majesty'8 Crown." It then states the numbers 
 the army is to consist of, including forces in the Colonies and tho depots of corps in 
 India, but not those troops themselves. The preamble to the Marine M.A. then fol- 
 lows. The next paragraph of the preamble states that in time of peace, within this 
 realm it is illegal to punish except according to law, but to bring soldiers to a more 
 speedy trial than the slow process of Civil Courts will allow they are to be tried by 
 Military Courts. 
 
t was 
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13 
 
 Note that the limitations '' within this realm" and " in time of peace " have an 
 impoplant bearing on the prerogative of the Crown for putting in force Slartiai Law, 
 
 The object of the Bill brought into Parliament, termed " the Army Discipline and 
 Bcgulation Act, 1879," is then asserted, viz. : — To provide for the discipline and regu- 
 lation of H.M. forces, including the Royal Marines. It then states that " the Act 
 shall not come into force, except in pursuance of an annual Act of Farliament to be 
 thereafter passed bringing the same into force, and shall continue in force only for 
 such time and subject, to such provisions as may bo specified in such last mentioned 
 Act." 
 
 Such being the constitutional principles of the Act, the question arises: What 
 would bo the effect on the army if Parliament refused to pass the Act, as its assent is 
 essential to the maintenance of an army ? Practically the consent of Parliament is 
 given before the Bill is brought up by passing the vote in supplies, and the numbers 
 estimated for in this vote are always copied in the preamble. 
 
 Clode * says that, should such an accident occur,the army would be paid, but discip- 
 line would have to be maintained 1*8 best it could under the royal prerogative (by issuing 
 A.W.), as before the existence of a M.A., and that the army would not bo disbanded. 
 This is in accordance with facts, as in William III reign, the M.A. lapsed and discip- 
 line was carried on by royal prerogative. Should Parliament refuse the vote of 
 supply no army could be maintained. 
 
 DEFINITIONS OP CERTAIN EXPRESSIONS USED IN THE ACT. 
 
 " C. in C." means the field marshal or other officer commanding in chief H.M 180 
 forces. 
 
 " Officer " means an officer commissioned or in pay as an officer in the regular, 
 reserve or auxiliary forces ; it also includes a person who, by virtue of his commission, 
 is apiM)inted to any department or corps in any o*' the above forces, retired officers 
 and warrant officers holding honorary commissions. 
 
 "N.C.O." includes an acting N.C.O., a warrant officer not holding an honorary 
 commission, and an army schoolmaster. 
 
 "Soldier " does not include an officer, but with cortuin modifications it does 
 include a warrant officer not having an honorary commission and an N.C.O., and every 
 person subject to Military Law during the time he is so subject (men of the auxiliary 
 forces, &c.). 
 
 "Superior Officer," when used in relation to a soldier, includes a N.C.O. 
 
 "Regular Forces" includes, besides the Regular Army, the Royal Marines, 
 Indian forces subject to certain modifications, and the reserve forces when subject to 
 Military Law. 
 
 "Reserve Forces " mean the army ro&orve and the militia reserve. 
 
 "Auxiliary P'orces" mean the militia, yeomanry and volunteers. 
 
 A General Order of 18*79 defines somewhat the position of a warrant officer not 
 holding an honorary commission. It says conductors of supplies and conductors of 
 stores are senior to all N.C.O's. ; they will supply the place ot'suballcrn officers when 
 required, but they will not sit as members of Courts of inquiry or on Regimental 
 Boards. N.C.O's. and men wiU address them in the same way as ihoy do officers, but 
 will not salute them. They may become honorary members of sergeants' mosses. 
 
 PERSONS SUBJECT TO THE ACT. 
 
 Those may be classed generally as follows : — 
 
 (a) All persons commissioned and paid as officers, belonging to the regular 168 
 forces. Royal Marines when on shore and not subject to the Naval Discipline Act, 
 and officers of the Militia at all times ; also, all persons not generally subject to 
 Military Law, but who, acting in an official capacity, are treated on the same footing 
 as officers, such m Yeomanry or Volunteer officers and persons accompanying troops 
 
 Lute legal Secretary to the War Office. 
 
14 
 
 1Y3 
 
 on active service and placed on the footing of an oJHcor. (Officers on half pay aro 
 not under the Act). 
 
 (6) All men attested for n. M. service, or paid as soldiers, including Royal 
 Marines when on shore, and non-combatant as well as combatant branches ; also, 
 persons ntft otherwise «ul»ject to Militiiry Law yet who aro employed by or accompany 
 troops on active service. 
 
 (c) Men of the Army Reserve or Militia Reserve Force when called out for per- 
 manent service, in aid of the Civil Power, for training, or when voluntarily kept on 
 duty. 
 
 (d.) Militia — during preliminary training, annual training or embodiment. 
 
 (e ) Yeomanry and Volunteers when out lor training and when on actual military 
 service, and the Yeomanry in "/Idition when called out in aid of the Civil Power. 
 
 The permanent staffs of the auxiliary forces are always subject to the Act. 
 
 (/) Colonial forces when serving under the command ot an officer of the regular 
 forces 
 
 TABLE or PERSONS SUBJECT TO MILITARY LAW UNDER THE ARMY DISCIPLINE AND 
 
 REGULATION ACT. 
 
 Note. — All persons suhjs'^t to Military Law are so subject either as officers or as soldiers. 
 
 I. Regular Forces... 
 
 , British 
 Forces, 
 
 (1) Land 
 Forces. 
 
 (2) Marine 
 Forces. 
 
 (a) Officers and soldiers of the army. 
 {b) Army Reserve — 
 
 Class 1. — Geiieral service. 
 
 Class 2. — Service in the 
 
 United Kingdom — 
 
 (c)^Militia Reserve ; genoral 
 
 service 
 
 when 
 
 called 
 
 out. 
 
 Officers and soldiers of Royal Marines, 
 when not subject toNavy Discipline 
 Act. 
 
 B. Indian 
 Forces, 
 
 C. Colonial 
 Forces. 
 
 (1) Officers and soldiers, not being natives of India* 
 
 within the meaning of India Military Law, 
 subject to English Military Law. 
 
 (2) Officers and soldiers being natives of India, sub- 
 ject to India Military Law. 
 
 Officers and soldiers belonging to a body of troops 
 rained byoi-derof Her Majesty beyond the limita 
 of the U K and of India, and nerving under tho 
 command of an officer of the regular foi'ces. 
 
 II. Auxiliary Forces, 
 
 A. Militia. 
 
 B. Yeomanry. 
 
 C. Volunteers 
 
 'Officers of the Mil-tia are always subject to 
 Military Law. The officers and soldiers of tho 
 permanent statfn of the Militia, Yeomanry and 
 Volunteers at-e al^o always subject to Military 
 Law, either as being part of the regular forces 
 or as being subjected to Military Law at all 
 times by express enactmen|. The N.C.O'e 
 and men of the Militia, Yeomanry and Volun- 
 teers are subjected to Military Law only on the 
 
 (^ occasions specified in the Act. 
 
ay aro 
 
 Eoyal 
 ; aim, 
 mpany 
 
 jr per- 
 ept on 
 
 ilitary 
 ir. 
 
 egular 
 
 AND 
 
 Idiers. 
 
 ny. 
 
 when 
 
 called 
 
 out. 
 
 irines, 
 ipline 
 
 ndia* 
 Law, 
 
 ), sub- 
 
 troops 
 limits 
 or tho 
 
 set to 
 of the 
 y and 
 litary 
 forces 
 at all 
 C.Oe 
 Tolan- 
 on the 
 
 Mm 
 
in.] 
 
 to 
 no 
 th( 
 ilii 
 
 thoee 
 Chris 
 pereoi 
 to He 
 ]able, 
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 certa 
 tribu 
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 ordin 
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 r 
 
 powe 
 Sove 
 mane 
 
 sibili 
 This 
 as ofl 
 offen 
 
 of th 
 confi 
 the( 
 
 and 1 
 inter 
 supei 
 
15 
 
 III. Poreons subject^ 
 to Military Law 
 not belonging to 
 the regular or aux- 
 iliary ibrces 
 
 A. As Officers - 
 
 it.. 
 
 !*; 
 
 ' (a) Persons under general or special orders of a 
 Secretary of State or of the Governor General 
 of India accompanying, in an official capacity, 
 any of H . M . troops on active service beyond 
 the seas. 
 Note.- Such officers, if natives of India*, aro 
 
 subject to India M.ilitary liaw. 
 (6) Persons not otherwise subject to Military Law 
 accompanying a force on active service, and 
 holding a pass from the C O. entitling them 
 to be treated on the footing of officers. 
 
 ' (1) Persons not otherwise subject to Military 
 Law and employed by or in the service of' 
 H.M. tror.ps on active service beyond the 
 
 B. As Soldiers -{ ^g) Persons not otherwise subject to Military 
 Law and being followers of or accompanying 
 H.M. troops on active service beyond the 
 seas. 
 
 Note as to (I) and (2). — Natives of India* are subject to India 
 Military Law except in the (improbable) event of their 
 following British forces only. 
 
 • The Indian Articles of War (Act No. 5 of 1869) provide that the Military Law enacted by 
 those Articles shall not apply *<to any Brilish-born subject of Her Majepty, or any legitimats 
 Christian lineal descendant of such subject, whether in the paternal or maternal line, but all such 
 persons belonging to Her Majesty's India arniy shall be triaole and punishable as if they belonged 
 to Her Majesty's Britisli forces." The expression " Natives of India," (or the purposes of tnia 
 iable, means all persons belonging to H.M. India army wiio are triable by India and not by Eng* 
 tieh Military Law. 
 
 m 
 
 1 
 
 Jki 
 
 MAINTENANCE OF DISCIPLINR. 1 
 
 For the maintenance of discipline in the army, C.O's of regiments are given 
 certain powers lor the punishment of minor offences, but for graver offences military 
 tribunals, termed CM., are authorized by the Act. These military tribunals are 
 analogous in their jurisdiction to petty sessions, quarter sessions and the higher courts 
 of Civil Law. The scope of Military Law is, however, generally restricted to the 
 correction of offences against discipline committed by officers and soldiers, though 
 ordinary offences against Civil Law, except murder, manslaughter, treason, Ac, aro 
 generally dealt with by CM. 
 
 The Sovereign is primarily entrusted with the command of the army, and with 
 power to enforce discipline. This power is delegated, in the first instance, by the 
 Sovereign to the C in C, and through him to General and other officers having com- 
 mand under him. 
 
 General officers commanding districts or stations have ordinarily entire respon- 
 sibility and authority over all troops serving for the time under their command. 
 This authority is not required to interfere with the "mmediate command of regiments, 
 as officers commanding regiments have not only summary power to punish ordinary 
 offences, but also power to summon B.CM. when necessary. 
 
 Thus, minor offences are to be punishedintheregiraont, graver ones by authority 
 of the General commanding the district (to whom is given authority to assemble and 
 confirm the decision of D.CM.), and the most serious crimes by supremo authority of 
 the C in C 
 
 Maintenance of good order — Every CO. is required to keep order in his commaDd, 
 and to the utmost of his power prevent disorder. All officers are required at once to 
 interfere for the prevention of quarrels or frays, though the persons concerned be of 
 superior rank, an immediate report to be made to the C O. 
 
16 
 
 For the purpose of koepiri)? a proper record of offences commitiod by soldiers, 
 three separate books are kept, one or more sheets being devoted to each soldier : — 
 
 1. The Kegimental Court Martial Book contains a recoi*d of the trial of soldiers 
 by CM., showing the charges, finding and sentence; 
 
 2. The Eegimcntul Defaulters Book contains all entries in the CM. book, and 
 all punishments inflicted for offences for which more than seven days CB. are given, 
 and all reductions of N.CO's to a lower grade or to the ranks ; 
 
 3. The Troop, Battery or Company Defaulters Book containing all entries in the 
 above two books, as well as all minor offences. 
 
 COOHBB OF PROCEDURE ON COMMISSION OP OFFENCES. 
 
 46. Every person subject to Military Law charged ^with an offence puni hable 
 under the Act is to be taken into military custody. 
 
 Military custody means the putting the offender under arrest or in confinement. 
 
 Commissioned officers are placed in arrest, which may be either open arrest or 
 close arrest. Open arrest when they have to remain within the precincts of the 
 barracks, and close arrest when they may not leave their quarters. Officers when 
 placed in arrest are deprived of their swordn. 
 
 N.CO's are placed in arrest in their barrack rooms, except in extreme cases. 
 
 The arrest of private soldiers for very minor offences is confinement to the 
 barrack room ; ior all other offences in the prisoner's room attached to the guax-d 
 room. 
 
 A prisoner at large in the cavalry or artillery has to attend to his horses, &c., 
 which is a great advantage. 
 
 Military arrest or confinement is regarded as legal custody, and escape is punish- 
 able by Military Law. 
 
 No one is entitled to demand to bo arrested, "or after arrest to demand trial 
 by CM. 
 45 A superior officer may order an inferior into military custody, and an officer 
 
 may order into custody any officer of whatever corps, though he be of higher j-ank, 
 engaged in a quarrel, fray or disorder; — for all officers of whatever condition have 
 the power to quell disorders. In addition to these recognised cases, there have been 
 othera which cannot be legislated for beforehand but which can only be justified after 
 the event, as it is an illegal act which may be necessitated by circumstances. A 
 captain once placed his C O. in arrest for being drunk on parade, and his conduct 
 was approved by the C. in C 
 45, The commander of a guard cannot refuse to receive any prisoner handed 
 21 over to him for custody. He is required to send in the prisoner's name and crime, 
 and the name of the person who coramitteJ him, to the C O. within 24 hours after 
 the commitment of any prisoner, or as soon as relieved. The person who commits 
 a prisoner has to furnish the commander of the guard with the offence in writing, 
 but neglect to do so does not absolve the commander of the guard from the necessity 
 of receiving the prisoner into ca^tody. Pi'isoncrs arc not to be released without 
 authority. 
 
 The standing custom in all garrisons is that prisoners confined in garrison guards 
 can only bo made over to their regiments by order of the staff officer wlio manages 
 thof e duties, because the confinement may have been imposed by garrison authority 
 such as military police, &c. 
 
 A ))erson illegally or unnecessarily detained in confinement has a legal remedy 
 at law, but law courts will not give damages for any honest exorcise 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. 
 
 The next step is the investigation of the cause of arrest which is to take place 
 without unnecessary delay by the C O. If the offence is a trivial one, it is dealt with 
 by the officer commanding the offender's troop, battery or company ; if of a more 
 severe character, he is brought before the C O. of the regiment. Prisoners are not 
 
i 
 t 
 
 I 
 
 f 
 
 .9 
 
to bo 
 charg 
 their 
 detail 
 rctiv* 
 the n 
 mand 
 
 I 
 necosi 
 rospoi 
 not t] 
 
 1 
 porfoi 
 this si 
 lognll 
 
 A 
 officer 
 
 1 
 hiinsG 
 offonc 
 tried i 
 which 
 
 II 
 to reci 
 whate 
 
 II 
 him, a 
 com pi 
 Majesi 
 
 li 
 he ma 
 his C.< 
 other 
 Boldiei 
 or not 
 
 Tribur 
 limital 
 CM. c 
 practi( 
 or low 
 of the 
 A 
 havinp 
 follow] 
 Bummj 
 abscnc 
 offence 
 supori( 
 refer t 
 siimmf 
 a D.C.J 
 either 
 not bo 
 officer 
 case wl 
 
 Ct 
 
IT 
 
 can cither dispose of the matter 
 authority. If the nature of the 
 
 to bo kept in confinement for more tlian 43 hours without an in/ostigation of the 
 charges Drought against them, by their C. O. in the presence of the officer commanding 
 their troop, battery or company', the adjutant and the prisoner; nor are they to be 
 detained in military custody for a longer period than 8 days, except on 
 jictive service, withotit a CM. being ordered to assemble, or a special report showing 45 
 the necessity for the delay being forwarded by the CO. to the general officer com- 
 manding. 
 
 Prisoners arc not to be put on duty, but they are liable to carry their arms if 
 necessaiy and to hand over any supplies of cash, stores,' etc., for which they may be 
 responsible. If by crr*.r a prisoner has been ])ei milted to perform any duty he is 
 not thereby absolved from liability to punishment for his ofl'ouce. 
 
 The Duke of Wellington's opinion was that if an offender was called upon to 
 perform any honorable duty, such as to take ])art in an action against the enemy, 
 this should bo held to condone the offence. This is now tho goreral opinion, though 
 legally the prisoner is n:)t absolved by being put on such duty. 
 
 Arms are only restored to a prisoner by order of his captain or other superior 
 officer. 
 
 In the case of a commissioned officer, the CO. 
 himself or forward it for tho opinion of superior 
 
 offence does not admit of disposal by admonition or reprimand, the officer must be 
 tried by a G.CM. or Field G.CM. which are the only two descriptions of courts 
 which can try commissioned officers. 
 
 It is usual to have a full inq'iry by a board of officers bofoi'o resorting to trial, 
 to record facts and evidence ; but it is not necessary that the officer should be tried 
 whatever the opinion of the court may be. 
 
 If an officer thinks himself wronged by his CO. and cannot receive from 42 
 him, after due application, the redress to which he considers himself entitled, he may 
 complain to the C in C, who, after inquiring into the complaint, will report to Hor 
 Majesty through a S. of S. and receive her directions. 
 
 If a soldier thinks himself wronged in anv matter by any officer or soldier, 43 
 he may complain to his captain ; if he thinks himself wronged by the latter then to 
 his CO., and ultimately, if he considers himself still wronged, to the general or 
 other officer commanding the district, who will have to inquire into tho matter. A 
 soldier is in no way punishable for making a complaint whether it bo frivolous 
 or not. 
 
 Every description of military offence can technically be tried by any Military 
 Tribunal, that is, oy the CO. or by any description f CM. ; at the same time, a 
 limitation is imposed on the punishm'' .^s which a CO. or *he lower descriptions of 
 CM. can inflict, and it is not the object of tho Act that seriou." fences should in 
 practice be summarily dealt with by the CO. or bo tried by E.CM.; \ ut that a higher 
 or lower description of CM. should be convened, according to the nature and degree 
 of the offence. 
 
 A General Order lays down that in the disposal of a charge against a soldier of 
 having committed an offence, commanding and other officers will be guided by tho 
 following rules: — 1. A C O. ma}', without reference to superior authority, dispone 
 summarily of, or try by E.CM., a charge of an offence under sections 11,* 15 (except 
 absence without leave exceeding 21 days), 19, 24 and 40. A charge for any other 
 offence will, excepting as provided for in para. 3, be referred to a superior officer. 2. A 
 superior officer to whom a case is referred maj* deal with it as follows: — (a) Ho may 
 refer tho case to a 8U])erior officer, or (i) ho may direct tho disposal of tho case 
 summarily, or by RCM.; or (c) if he has power to convene a D.CM., he may convene 
 a D.CM. to try it ; or ((/) if ho has power to convene a G.CM., ho may convene 
 either a G. or D.CM. to try it. But an offence punish'ible with death or P.S. should 
 not bo disposed of summarily, or by a R. or D.CM., excepting under the orders of an 
 officer who has power to convene a G.CM., or as provided for in para. 3. 3. In any 
 case where a CO. or a superior officer is of opinion that delay is inexpedient, he may 
 
 » Chapter VI. 
 2 
 
IS 
 
 dispocto of tlio case without any referenco to a Buperior officer; but it) Huch caso ho 
 must immo liatoly report his action, and his reasons for it, to the officer to whom 
 othorwiso l»o would have referred the case. 4. The proper iiuthority to convene a 
 B.C.M. 16 the CO. ol the person charged, and although an officer who is authorised 
 to convene a G.C M.. or to convene a D.C.M., has j)ower to convepo a ll.C.M., bo 
 Hhould, when ho o.ders a case to bo disposed of by K.C.M., direct the ('.O. to convene 
 the court, instead of convening it himself, unless the CO. is unable to form an 
 adequate court from the officers under his command. 
 
 POWER op COMMANDING OFFICKR. 
 
 46 AGO. upo>i an investigation of a charge may dismiss it, if he so thinks fit, o- he 
 
 may take steps to bring the ofl'ender to a CM., or in the case of a N.CO., ho may be 
 admonished. A Colour-Sergeant or Troop or Battery Sergoant-Major may be reverted 
 to the rank of Sergeant, these being only appointments. Provisional Acting N C O's 
 who are unpaid, and only appointed on probation, are not liable to summary reduc- 
 tion by the CO., but at the expiration of the period of their probationary appoiat- 
 «nent they are liaK'tj to revert to their former rank. 
 
 In the case of a aoldier, the following summary punishments may be awarded : — 
 
 1. Impt. with or without haid labour for any period not exceeding 7 days (or 168 
 thours), but in the case of absence without leave, the award of impt. with or without 
 iiaid labour may be extended to 21 days, provided the term of impt., if exceeding 7 
 days, does not exceed the number of days of absence; 
 
 2. For the offence of drunkenness, to pay a fine not exceeding 10 shillings, 
 ^according to a ceitain scale laid down in regulations, in addition to or without 
 jmpt. ; but the latter is only to bo awarded when drunkenness is in connection with 
 other offences ; 
 
 3. CB. not exceeding 28 days, which larries with it punishment drill for 14 
 ■days; 
 
 Or CB. for the same period, without punishment drill, for concealing disease, 
 ■with or without an entry in thu Regimental Defaulter's Book; 
 
 4. Deduction of his ordinary pay for special offences; 
 
 5. Extra guaids or piquets. 
 
 REMARKS ON THE AHOVE PUNISHMENTS. • 
 
 I I'i 
 
 1 . Impt. to bo carried out in the provost cells, maj' be awarded for any offonce, 
 though reserved as much as possible for cases, of riot, violence or insolence to super- 
 iors, and absence without leave; in aggravated cases it may precede further punish- 
 ment of CB. ; 
 
 When the impt. awarded exceeds 7 days, the soldier may demand that the 
 evidence against him be taken on oath, and the same oath as that given to 
 witnesses on a iJ.M. is to be administered. Up to 7 days impt. the award is in hours, 
 beyond 7 days, in days. 
 
 2. All cases of drunkenness must bo disposed of by the CO., even when the 
 offender is to be tried by CM. for a more serious offence, unless he was drunk on 
 ■duty, or when warned for duty, or unless he is to be tried as an " habitual drunkard," 
 i.e. drunk 4 times within the past 12 months, not including the case under disposal. 
 
 Discretionary power is given to CO's of counting offences of short absence with- 
 out leave as equivalent to an act of drunkenness when imposing a fine, but such 
 entries cannot be reckoned as instances of drunkenness for purposes of trial as an 
 -'* habitual drunkard." 
 
 Periods of absence from duty by reason of impt., or absence without leave are 
 not to count in any calculation ior exemption from fine. 
 
 3. C.B. is considered sufficient punishraeot for slight offences; it may be com- 
 Hbined with impt. (bat the total punishment is not to exceed 28daye), deprivation of 
 ^y or fine. 
 
ca^o he 
 ) whom 
 avone a 
 horized 
 :;.M., ho 
 jonveno 
 orm an 
 
 It, o- he 
 may be 
 •everted 
 NCO'8 
 ' reduc- 
 ippoint- 
 
 rded : — 
 I (or 168 
 without 
 eding 7 
 
 hillings, 
 without 
 on with 
 
 1 for 14 
 
 disease, 
 
 > 
 I 
 » 
 
 ' offonce, 
 to supor- 
 ■ punish- 
 that the 
 ^iven to 
 in hours, 
 
 vhen the 
 Irunk on 
 unkard," 
 Hposal. 
 ICO with- 
 but such 
 al OS an 
 
 eave are 
 
 f 
 
 be com- 
 vation of 
 
19 
 
 4. Donrivation of pay is awurdod for 6^ye of absence without leave, for days when 
 in hospital for illness causoJ by an otl'onoo committed by him (mulilalin;^ himself), 
 to make good loss or damage done to arms, ammunition, equipment, clothing or to 
 any property. 
 
 Total amount of deductions not to exceed such sum as will leave to the soldier, 
 after paying for his messing and washing, less than one pi. my a day. For the pur- 
 pose of deducting pay a part of a day is not reckoned as a day, unless it consists of 181 
 six hours or upwards. 
 
 On board any ship in commission or not, he may be deprived of his liquor ration 
 for 28 days, or, if he does not receive such ration, of one penny a day pay in lieu. 
 
 5. Extra guards or pi(iuots can only be awarded as punishment for ofifences 
 connected with guard or piquet duty. 
 
 A soldier ordered by his CO. to suffer impt, or pay a fine, or nny deduction from 
 his pay, may appeal to a D.C.M. instead of submitting to such impt., fine or deduction. 
 
 An offender is not liable to be tried by CM. lor any offence which has been dealt 
 with euramarily by his CO., and vice versa. 
 
 Awards by Troop, Battery or Company CO. — By direction of the CO., officers 
 •commanding companies may award punishment not exceeding 7 days CB. to men 
 under their immediate conn.mand, such awards to be invariably brought to the notice 
 of the CO. 
 
 PROVOST MARSHAL. 
 
 For the prompt repression of all offences which may be committed abroad, 72 
 provost marshals, with assistants, may bo appointed by the general officer command- 
 ing a body of forces. 
 
 Ttiese officcre may at any time arrest and detain for trial persons subject to 
 Military Law committing o'^'onces, and may also carry into execut-on any punish- 
 ments to be inflicted in purbuance of a CM., but cannot inflict any punishment on 
 their own authority. 
 
 When attached to any forces on active service they may make a complaint to any 
 officer in immediate command of any detachment or portion of such body of forces 
 against any pei'son subject to Military Law who has committed any offence, and such 
 officer, if he considers it not practicable to assemble an ordinary CM., may convene 
 a Field G.C.M. to try such person summarily. 
 
 A bentonce of death or corporal punishment may bo carried into effect when 
 confirmed by the General or F.O. commanding the force of which such detachment 
 forms part, and if the sentence is not capital, when confirmed by any General or F.O. 
 in such force. 
 
 A provost marshal may not refuse to receive oi keep any person who is 45 
 committed to his custody by an officer or N.CO., and the latter should give the pro- 
 vost marshal at the time, or within 48 hours uftor, an account in writing signed by 
 iiimself, of the offonco. 
 
 I 
 
 2* 
 

 20 
 
 • ' 
 
 CHAPTER IV. 
 
 CnunTS MARTIAL. 
 
 Thoro are 4 descriptions of Courts Martial : 
 
 1 . Field General Court Martial . 
 
 2. General Court Martial. 
 
 3. District Court Manial. 
 
 4. Eegimental Court Martial. 
 
 CONVENING COURTS MAHIIAL. 
 
 119 Her Majosly is empowered to issue warrants authorising certain oflScors, 
 
 viz.; the C. in C. and v^" -officer not below the rank of F.O. commanding 
 for the time being any body of regular troops within or without H. M. dominions, to- 
 convene a G. C. M. for the trial ot any person subject to Military Law, and to confirm 
 the findings and sentences of such C. M., or to delegate to any officer under his com- 
 mand not below the rank of F. O. the power to convene G. CM., and to reserve their 
 findings and sentences for his own confirmation or to delegate that authority also. 
 In any place without the U. K. where a F. O. cannot be had, a Captain may 
 
 119 have the same authority delegated to him as a F. O. Warrants may be addressed to 
 officers by name or by designation of their offices. 
 
 48 Any officer authorised by warrant to convene G.C.M. may convene a D.C.M. 
 and confirm the finding and sentence, and he may authorise any officer not below the 
 rank of Captain to convene and confirm the finding and sentence of any B.C. M. 
 
 Warrants are issued annually ; but the old warrant remains valid even should a 
 new one rot arrive. 
 
 The effect of a warrant is not influenced by its locality. An act may be com- 
 mitted outside the jurisdiction of the warrant, yet the prisoner may be tried under it. 
 
 49 A Field G.C.M. can be assembled by any officer commanding any detachment 
 of troops beyond the seas, when in his opinion it is not practicable to assemble a 
 G. C. M., although such officer may not have been authorised to convene a C. M., for 
 the trial of a person subjoct to Military Law for an offence committed against the- 
 property or person of any inhabitant in the country! 
 
 Under Martial Law offences are tried by G. C. M. or Field G.C. M. 
 47 Any officer authorised to convene a General or a D. C. M., also any officer 
 
 not below the rank of Captain, and on board a ship not in commission, a C. O. of any 
 rank, may, without warrant, convene a E. C. M. for the trial of offences committed by 
 soldiers under his command. 
 
 Genera' Officers will, however, not themselves convene suchC.M., but direct the 
 C. O. of the soldiers' regiment to do so. 
 
 COMPOSITION OK COURTS M.VRTIAI,. 
 
 43 A G.C.M. must consi.st of not loss than nine officers who have hold a com- 
 
 mission for at least 3 years, provided that in tho opinion of the convening officer, 
 (such opinion to be expressed in the order convening the court) nine officers aro not 
 available, when it may consist of not less than five officers. 
 
 A D. C. M. must consist of not less than seven officers, if convened in tho U. K., 
 Inida, Malta or Gibraltar; elsewhere, if in the opinion of the officer convening the 
 court (such opinion to be expressed in the order convening tho court) seven officers 
 are not available then five officers aro sufficient, and, similarly, if five officers nr^ 
 not available then ihroe are sufficient. 
 
th& 
 
 J 
 
 \ 
 
 I 
 » 
 
 f 
 
 I 
 
 diii 
 
21 
 
 A E. C. M. must consist of not loss than five officers, but similarly, as in the 47 
 oaso of other courts, if five officers are not available tlien three are sufficient. 
 
 A Field (jr. C. M. must consist of not less than three officers. 49 
 
 The President of a C. M. is appointed by the convening officer, who cannot 
 himself sit on the C. M. except in the case of a Field (r. C. M. when he may 
 preside. 
 
 The President of a General or D.C.M. must not be under the rank of P.O., 48 
 unless the officer convening the court is under that rank, or unless, in the opinion of 
 the convening officer (such opinion being expressed in the order convening the 
 <5oui"t), a P.O. is not available, in which jase aCaptainmay be President, and if a Cap- 
 tain be not available an officer under the rank of Captain may sit as President of a 
 D. C. M. Whenever General Officers or Colonels are available as Presidents of G. 0. 
 M., no officer of inferior rank is to be placed on that duty. 
 
 The President of a E C. M. must not be under the rank of Captain, except 47 
 when held on the line of march, or on board 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 President of a Field G. C. M, mjiy be the convening officer himself, but 49 
 when practicable he should appoint another officer as President, who may be of any 
 rank, but ho must not be below the rank of Captain unless a Captain is not available. 
 
 Whenever possible the members of a C. M. for the trial of an officer are to be 
 of equal, if not superior rank co the pi'isoner, and in no case except one of necessity, 
 is a Colonel to sit upon the trial of a General Officer, or a Captain on that of a P. O., 
 or a Subaltern on that of a Captain. On the trial of a subaltern, two officers of that 
 rank are considered a sufficient proportion to sit as members. The members of a 
 court may, however, be of any rank superior to that of the prisoner. No officer 
 under the rank of Captain can sit on a C. M. for the trial of a F. O. 
 
 When the C. O. of a corps is brought to trial as many members of the court as 
 possible are to be officers who have themselves held, or are holding, commands equiv- 
 alent to that of the prisoner. 
 
 No officer can eit on a C. M. unless he is subject to Military Law. 
 
 The officers sitting on a C. M. may belong to the same or ditferent corps. 60 
 For instance, an offender may be tried by a R. C. M., notwithstanding there is no 
 officer on the court belonging to his corps. 
 
 A prosecutor or witness for the prosecution must not sit on a CM., nor can he 
 act as J.A. 
 
 Neither the CO. of the corps to which the prisoner belongs, nor the officer who 
 investigated the charges, can, save in the case of a Field G.CM., sit on the court, nor 
 can he act as J.A. 
 
 The senior combatant officer must bo President. If there is a non-combatant 
 officer senior, he must still only sit as a member. 
 
 If a member is promoted during the trial and becomes senior to the President 
 no change is made in the constitution of the court. 
 
 The number of members ordered to sit on a CM., within ^he statutoi-y limits, is 
 at the discretion of the convening officer; in important trialslie frequently appoints 
 a larger number than the regulations prescribe. 
 
 Notwithstanding such an extra number, if a member is challenged, and th« 
 challenge allowed, ho must bo replaced. 
 
 The court must not sit until the appointed number is made up, for a court must 
 bo in accordance with the orders of the convening officer, who always appoints the 
 President by name and the number of members — unless the court can show good 
 reasons for commencing without its proper number. 
 
 In 1847 a court sat with one member short, its reasons being that reference would 
 have had to bo mado to the headquarters in India, and a long delay would have been 
 necessary. The court was allowed as the reasons were considered valid and good. 
 
 The President of a CM. for the trial of a warrant officer not holding an honorary 
 commission must not bo under the rank of a F.O., unless, as usual, a F.O. is not 
 available, or unless the officer convening the court is under the rank of a F.O., but 
 in no case can he be under the rank of Captain. 
 
 f] 
 
 |.i 
 1-1 
 
 1 1 
 
 k 
 
22 
 
 SCALE OF PUNISHMENTS. 
 
 44 OflScors, if convicted by CM., aro liablo to punlahmcnt ucooiding to tiio fol- 
 
 lowing Bcalo : — 
 Death. 
 
 P.S. for a term not less than five years. 
 
 Impt , with or without hard hibour, for a terra not exceeding two yearn. 
 Uashiering. 
 
 Dismissal from II. M. service. (Cashiering is a scronger term than dismispal ) 
 Forfeiture of seniority of rank, cither in the army or in the corps to which 
 
 the offender belongs, or in both. 
 Reprimand or severe reprimand. 
 An officer cannot be sentenced to bo suspended from duty or pay. 
 Soldiers according to the following scale : — 
 Death or corporal punishment. 
 P.S. fur a term not less than five years. 
 
 Impt., with or without hard labour, for a term not cxccoJing two j'ears. 
 Discharge with ignominy from II. M. service. 
 Dismissal, if a Volunteer, from H.M. service. 
 Ileduction, in the case of a N.C.O., to a lower grade, or to the rank of a 
 
 private soldier. 
 Forfeitures, fines and stoppages. 
 Provided that, where a particular punishment is specified for any offence, any 
 one punishment lower in the above scales may bo awarded. 
 
 Before an officer is sentenced to P.S. or impt., he must bo cashiered. 
 Before a N.C.O. is eenteuced to any other punishment ho must first be reduced 
 to tbo ranks. 
 
 An officer when sentenced to forfeiture of rank may also be sentenced to repri- 
 mand or severe reprimand. 
 
 A soldier sentenced to P.S. or im^jt., or to corporal punishment may in addition 
 be sentenced to be discharged with ignominy. 
 
 Two punishments of distinctly opposite natures cannot, however, be awarded for 
 the same offence, unless authorised by the Act. Thus, combined sentences of corporal 
 punishment and P.S , or P.S. and impt. would be illegal. On the other hand, punish- 
 ment by fine, stoppages, forfeiture of good conduct pay, or service towards good 
 conduct pay, or pension on discharge; discharge with ignominy ; and in the case of 
 N.O.O.'s any reduction, may be joined with any other legal award. 
 
 A sentence of P.S., or discharge with ignominy, necessarily entails forfeiture of 
 all claim as to good conduct pay, o'* pension, derived from former service, as well as 
 forfeiture of any medals, annuity or gratuity ; it would therefore be superfluous to 
 add these forfeitures as part of the sentence. 
 
 A sentence of corporal punishment must nc xceed twenty-five lashes, and is 
 not to be inflicted on a 1^ CO., nor on a reduced N.CO., for any offence committed 
 . while holding the rank of N.CO. 
 
 Corporal punishment can only be inflicted on active service and for offences 
 panishable with death. On active service, therefore, a sentence of death or P.S. may 
 be commuted to corporal punishment, and a sentence of corporal punishment may 
 be commuted into impt., with or without hard labour, for a period not exceeding 42 
 days. 
 
 In addition to or without any other punishment, a G.C.M. or D.CM. may sen- 
 tence an offender to forfeit, for any period not less than 18 months, any good conduct 
 badge or pay earned by past service, and all past service towards pension; also to 
 forfeit any annuity, gratuity, medal or decoration ; and all right to good conduct pay 
 and pension on discharge, whether in respect of past or future service. 
 67 The term of P.S. or impt. to which a person -is sentenced by CM. commences 
 
 on the day on which the President signs the original sentence and proceedings. 
 
 The term of impt. is limited strictly to two years, 'whether under one or more 
 Benlence!), and a sentence of P.S. or impt. cannot be awarded to commence at the 
 
) fbl- 
 
 
 ^pal ) 
 
 
 rhich 
 
 
 of » 
 
 • 
 
 ■any 
 
 
 luced 
 
 • 
 
 'epri- 
 
 
 lit.iott 
 
 
 jdfor 
 
 
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 good 
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 fences 
 
 
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 y sen- 
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 r more 
 
 
 at the 
 
 
 
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 mor 
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 CM. 
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23 
 
 expiration of a previous Hontence, except when a sentence of coriwral puriishmen*. 
 is commuted to impt., when tlio commuting autlionty may direct the commuted/ 
 sentence to commence at the expiration of the impt. under a previous sentence. 
 
 Supposing, therefore, a couit desires to impose a fresh sentence of impt. (say 3 
 months) on a prisoner already under a sentence of 3 months' impt., the court must 
 impose a wentenco of 6 months, and similarly with respect to a sentence of P.S. 
 
 In ordinary cases it is considered that the term of impt. should not exceed 6 
 months, with or without hard labour, or with such hard labour as, in the opinion of the 
 medical officer of the prison, the prisoner is equal to. 
 
 A soldier under a sentence of impt. may bo removed to any place beyond the 6& 
 seas where his corps, or part thereof, may be serving, as it is considered thatsoldicrgs 
 in prison for military crimes may be given a fresh opportunity of recovering their 
 character by being at once removed to a foreign station. 
 
 No restriction is made on the possible duration of a sentence of P.S. 
 
 A soldier guilty of desertion or fraudulent enlistment upon his conviction by IS 
 CM., or having confessed his offence, upon his trial being dispensed with, forfeits tha i- \ 
 
 whole of his previous service, and begins again as if he had been enlisted at the date* 
 of his conviction, or at the date of the order dispensing with the trial, and he is also 
 then liable to general service. 
 
 A S. of S. may, however, restore all or any part of the service forfeited 
 to any soldier after good and faithful service, or for any other merited cause, or a 
 CM. may recommend a soldier to such restoration of service. 
 
 Application of the Act to N.CO's. 11& 
 
 A CO. cannot deal summarily with a N.CO. charged with drunkenness. 
 
 The C. in C. may reduce any N.CO. to any lower grade, or to the vankB. 
 When reduced to a lower grade he takes precedence in that grade. 
 
 A N.CO. may be reduced by the sentence of a CM. to any lower grade, or to tho 
 ranks, either in addition to or without any other punishment. 
 
 An Army Schoolmaster cannot be reduced to the ranks, but the C. in C. may 
 dismiss him or sentence him to forfeit service towards pension. 
 
 Application of the Act to a Warrant Officer not holding an honorary com- lt4 
 mission. 
 
 He cannot be punished by his C 0., nor tried by E. C M . 
 
 Ho is not liable to corporal punishment, but he may be sentenced to be disnrissed 
 the service, suspended from rank pay and allowances, or to be reduced to tho 
 bottom or any other place on the list of the rank which he holds, or to be reduced to 
 an inferior class of Warrant Officer, or if he originally enlisted as a soldier to b©. 
 reduced to the ranks or to be transferred to a coi'ps in the same arm of the service,, 
 and in the same rank as that in which he served immediately before his transfer to bo- 
 Warrant Officer, but a Warrant Officer so reduced to the ranks cannot be required to 
 serve in the ranks as a soldier. 
 
 Application of the Act to persons who do not belong to H.M. forces. 1*76 
 
 Any person subject to Military Law who does not belong to H.M. forces, such as 
 camp followers, may be tried by any description of CM. other than regimental, 
 convened by an officer authorised to assemble such description of CM. 
 
 Any such person, when attached to a corps, is under tho command of the C O. 
 of that corps, and if not attached to any corps he is under the command of any officer 
 named by the general or other officer commanding tho force. 
 
 I 
 I 
 
 \ 
 
 PORFEITURBS, STOPPAGES AND FINES. 
 
 Foijeiivres relate to : 
 
 1. Forfeiture of service towards limited engagement. 
 
 2. Forfeiture of service tov/arde pension. 
 
 3. Forfeiture of ordinary pay. 
 
 4. Forfeiture of good conduct pay and gratuities. • 
 6. Forfeiture of military decorations and rowaixls. 
 
 134 
 
2t 
 
 Porfcituro of sorvice towards limited engagement has already iealt with. 
 
 Forfeiture of service towards pension, of good conduct pay r .luities. also 
 
 of military decorations and rewarua, have been left in the Aoi oalt with by 
 
 Koyal Warrants or Queen's Regulations, as these nro in the r j( rewards, and 
 not of the essence of a soldier's service. 
 
 Fines are only inflicted in case of drunkenness, for y, .1 any C. M. may 
 inflict a fine not exceeding one pound. 
 
 159, The Act legalizes the recovery of fines or forfeitures before a court of 
 
 160, summary jurisdiction (i.e , before petty sessions or a magistrate), and in case of 
 161 non-payment, impt. not exceeding 3 months may bo imposed. 
 
 Stoppages of pay are inflicted for the purpose of making good any articles 
 obtained by fraudulent enlistment, any loss, damage or destruction to any property 
 or goods, or to arms, ammunition, clothing, &c., through misconduct or neglect ; also, 
 for any medal or decoration made away with or lost by neglect. 
 
 PENAL STOPPAQES FROM ORDINARY PAY. 
 
 133 Officers' pay. — When absent without leave, unless a satisfactory ^explanation has 
 
 beeii given through the officer's C, O. — when awarded by C. M. to make good any 
 loss, damage, &c., — to make up any pay which he may have wilfully retained or 
 unlawfully refused to pay. 
 lU Soldiers' pay. — For every day of absence on desertion or without leave, as pri- 
 
 soner of war, every day of impt. awarded by Civil Court, C. M., or C. O., or under 
 detention for any olfence of which he is afterwards convicted by Civil Court or CM. 
 
 For days in hospital on account of sickness caused by an otfence committed by 
 him; suchasdi'unkenness, wilfully maiming, &c.,—?.e., a soldier may be ordered to forfeit 
 his pay whenever he does not perform the service for which ho is paid, owing to his 
 having committeJ a crime or incurred illness by an ofl'ence [as mutilating himself, 
 &c.j 
 
 Sum required to make good any loss damage^or_destruclion awarded by C. M. or 
 by the authority which di^pen^es with his trial. 
 
 Sum required to make good any loss, damage or destruction to arms, ammuni- 
 tion, equipment, clothing, instruments, regimental necessaries and military decor- 
 ations, or to any building or property, awarded by his C. O., or in case he requires to 
 be tried by C. M., by that court. 
 
 Sum equivalent to soldiers' liquor ration, or pay in lieu of that ration, stopped 
 by his 0. O. on board any ship commissioneJ or not, not exceeding one penny a day 
 for 28 days. 
 
 Sum required to pay a fine awarded by a Civil Court, C. M. or C. O. 
 
 Sum ordered to be paid by a S. of S. for maintenance of his wife or child, or of 
 any bastard child, or towards the cost of any relief given by way of loan to his wife 
 or child. 
 
 The amount of all deductions must not exceed such sum as, after paying for his 
 messing and washing, will leave the soldier less than one penny a day. 
 135 Subject to instructions from a S. of S., a C M., or, where a soldier is not tried, 
 
 his C. O., may remit the whole or any portion of any deduction of pay when it 
 appears just to do so, or for the good of the service, — that is, subject to instructions, a 
 C. O. may remit forfeitures of pay for absence without leave. 
 
 PORPEITDRE OP SERVICE TOWARDS PENSION, OP GOOD CONDUCT PAY AND ORATCITIBS, 
 ALSO OP MILITARY DECORATIONS AND REWARDS. 
 
 44 Oil convictior of a soldier of desertion, fraudulent enlistment, wilfully maiming 
 
 himself or any other soldier, tampering with his eyes, or of felony, or when sentenced 
 to P. S., or to bo discharged with ignominy, or in con^^eqiience of his incorrigible or 
 worthless character, or on conviction by Civil Power, he forfeits all past service 
 towards good conduct pay and pension, and all military decorations and rewards. 
 
 On conviction of desertion, a soldier forfeits all monies in the Regimental Savings 
 Bank. 
 
V 
 
 I 
 
 V 
 
 I 
 
ion 
 
 con 
 due 
 haa 
 Civ 
 
 or i 
 
 8ub 
 tior 
 
 reel 
 
 pun 
 
 mar 
 
 to I 
 
 com 
 torn 
 
 com 
 Mill 
 
 oxcc 
 Gibi 
 olfei 
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 In a 
 pioi. 
 
 bo ci 
 civil 
 violc 
 
 Civi: 
 not 1 
 
 Civil 
 agaii 
 oflFen 
 servi 
 must 
 
 tried 
 Milit 
 to Mi 
 may 
 M. s 
 
A Holdicr confoshitig doboriion, whose trial i.s 'dispensed with, incurs the name 
 forfoiluros as a convicted dosertor. 
 
 For any period of absence without leave exceeding 5 days, and for any period of 
 confinement awaiting trial, if convicted, a soldier forfeits service towards good con- 
 duct pay and pension; and also, for any days of absence for which deprivation of pay 
 has boon awarded by the C. O. During irapt. under sentenco of a C. M., or of a 
 Civil Court, or by order of the C. O., a soldier forfeits service towards good conduct 
 pay and pension. A soldier convicted of any offence forfeits a good conduct badge, 
 or if not in possession of one, he is rendered ineligible for it for two years. | I 
 
 Service forfeited towards good conduct pay and pension may be restored for 
 subsequent good service by the S. of S., and such restoration carries with it restora- 
 tion of deferred pay . 
 
 Deferred pay is not credited to a soldier for days on which ho is not allowed to 
 reckon service towards good conduct pay and pension. 
 
 « 
 
 JUBISDICTION OF COURTS MARTIAL. 
 
 A G. C. M. may try any person subject to Military Law, and award any 48 
 punishment permitted by the Act. 
 
 A D. C. M. cannot try an officer nor award death or P. S. 
 
 A Field G. C. M. may try any person subject to Military (Law under tho com- 49, 12 
 mand of the convening officer, and award any punishment. 
 
 A R. C. M. cannot try officers or warrant officers, nor any person not belonging 47,174, 
 to H. M. forces. 176 
 
 It cannot award death, P. S., discharge with ignominy, nor forfeiture of any good 
 conduct pay, or service towards pension, nor of any military decoration or reward. The 
 term of irapt. it can inflict is limited to 42 days. 
 
 Any person subject to Military Law in II. M. dominions may be tried by a 
 competent Civil Court for any offence for which he would be triable if not subject to 
 Military Law. 
 
 A C. M. can try a person subject to Military Law for any civil offence 41, 49 
 except murder, manslaughter, treason — felony, or rape, committed in the U. K. or > 
 
 Gibraltar. If elsewhere in H. M. dominions he can be tried by C. M. for these * 
 
 offences, when on active service, or if the place is more than 100 miles, measured in 
 a straight line from any town in which he can be tried by a competent Civil Court. 
 In anyplace beyond tho seas he may be tried for any offence committed against tho 
 property or person of any inhabitant or resident in such country. 
 
 Any offence against the property or person of inhabitants of the country must 
 be charged under Section 6*, for trial by Field G. C. M., notwithstanding that it is a 
 civil offbiice within tho moaning of Section 41, whether murder, rape, robbery with 
 violence, &c. 
 
 A person who has boon ac(juittod or convicted of an offence by a "competent 46,150, 
 Civil Court, or by a C. M., or if he has boon dealt with summarily by his C. O., i? 155 
 not liable to be tried again by C. M. for tho same offence. 
 
 A person subject to Military Law is not, however, exempted from the 41,155 
 Civil Law by reason of his military status, and he is liable to be proceeded 
 against by the ordinary course of law after conviction for any offence, except for an 
 offence declared in tho Act not to be a crime relating to taking a soldier out of H.M. 
 service. The Act, however, specifies that in awarding punishment, a Civil Court 
 must have regaid to any previous sentenco passed by a Military Court. 
 
 If a person subject to Military Law commits a military offence, he may be 111 
 tried and punished for that offence although he may have ceased to bo subject to 
 Military Law, provided he be tried within three months after he has ceased to '"^e subject 
 to Military Law, except for mutiny, desertion or fraudulent enlistment, for which he 
 may be tried at any time ; also, if the offender be discharged or dismissed from H. 
 M. service, and is also sentenced to P.S. or impt., he remains subject to the Act 
 
 r 
 
 • Chapter VI. 
 
^ 26 
 
 during tlic term of his sentonco. This rule is very noocssnr)', ns a soi-Jior ropeatcdijr 
 changes his status from solciior to civilian and from civilian to Holdier. In the regular 
 forces this change takes place when a soklior is transferred to the reserve, and when^ 
 he cornea back to the army from the reserve. A militiaman is, as a rule, only for a 
 shirt time in every year under Military Law, and returns again to civil lilc. Tho 
 volunteers are constantly changing their status, a.i they aro suhjoct to Military Law 
 when acting with tho regular foices, and aro not suhjoct to that law under ordinary 
 circumstances, except when on actual service. Military Law is not local, like Civil 
 Law, and an offender may bo tried by CM. for an offence at any place which is 
 within tho jurisdiction of an officer authorised toconvenoG.C.M., just as if the offence 
 had been committed whore tho trial by CM. takes plnco, but tho punishment in- 
 flicted by such court must not bo greater than if the offender had boon tried where 
 tho crime was committed. 
 151 No person can bo tried by C M. for any offence committed more than 
 
 three years before tho date at which tho trial begins, except in tho case of mutiny, 
 doserti' > or fraudulent enlistment, which may bo tried at any time. With respect to- 
 dcserliuii, however, if a soldier has served continuously in an exemplary manner for 
 three years in the regular forces, ho cannot bo triod for any previous offence of 
 desertion unless he deserted on active service, i.e., unless he has been guilty of one 
 of tho greatest crimes of which a soldier can bo guilty. 
 
 In the same way, after three years' exemplary service he cannot be tried for any 
 previous offence of fraudulent enlistment, though, of course, his service is only 
 reckoned from the date of bis fraudulent enlistment. 
 
 Thus, the only two offences for which a soldier is triable after the expiration of 
 any period of time are mutiny and desertion on active service. A civilian who is a 
 deserter may, however, be taken into custody and tried at any time. 
 
 CM. are not bound by the Indian Evidence Act, nor by any other Acts 
 except those of the English Parliament. 
 
 There is no appeal against the decision of a CM., but a soldier can make a 
 complaint at the trial, and at the next General's inspection, when an appeal against 
 the court may be made. The matter would then bo gone into by a staff officer, and 
 it would then generally be referred to the confirming officer, and then to higher 
 authority. 
 
oatcdiy 
 regular 
 fi whetv 
 \y for a 
 ). Tho 
 y Law 
 rdinary 
 io Civil 
 ?hich is 
 otfonco 
 lont in- 
 1 where 
 
 ro than 
 mutiny, 
 iHpect to- 
 mor for 
 bnoe of 
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 for any 
 18 only 
 
 ation of 
 vho is a 
 
 3r 
 
 Acts 
 
 make a 
 
 against 
 
 aer, and 
 
 higher 
 
 {;]> 
 
 4* 
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 4 
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 1 
 
 Mi 
 
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 cletacl 
 
 tho OS 
 
 M.wl 
 
 must 
 
 charg 
 
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 C 
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 which 
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 charg 
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 C 
 
 the J. 
 
 Court 
 
 a Tnar 
 unavo 
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 prtva 
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 great 
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 direct 
 
 V 
 instan 
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 ■•,». ., 
 
 .■■. ;•(■'..•.< ii. ',,.'. / ..; f, ], , i.i'Aii; - ;., V'", ', 
 
 . , / CHAPTER V. 
 
 PREMMINARIES TO TRIAL. 
 
 When the complaint preferred ngainst an officer or soldier does not admit of ex- 
 planation, and is not tiummarily disposed of, the officer commanding the regiment or 
 detachment applicB to the general officer commanding for a General or D. 0. M., aa 
 the cape may be, or in the cai^e of a soldier under his own authority, assembles a R. C. 
 M. when the offence does not appear lo require more serious notice. A specific charge 
 must bo preferred against the prisoner and C O'sare prohibited from giving in vaguo 
 charges against any one with a view to screen him from the legitimate cont-equonces 
 of his offence. 
 
 Charges are as a rule framed by the person who ! ivcstigates the case, that is 
 usually the C. O. or his Adjutant for him. 
 
 If the prisoner is to be tried by R. C. M. no one interferes as the case only comes 
 forward for supervision in the monthly C. M. Return, and also at inspections when 
 the books are gone through. 
 
 All charges preferred against any officer or soldier, and the circumstances on 
 which they are founded, are examined by superior authority for higher courts, and 
 the evidence should be sufficiently conclusive to justify the arraignment of the accus- 
 ed before a C. M. The officer who has power to convene the court investigates the 
 charges in their bioad bearings, and ho is responsible that the charges are valid aid 
 within the cognisance of the Court. 
 
 The officer so investigating the charges is enjoined to be careful to avoid any ex- 
 pression of opinion as to the guilt or innocence of the prisoner. 
 
 Charges, for G. C. M. ia tho U. K., together -with the evidence, are submitted to 
 the J. A. G., who has to decide whether they are properly framed, cognisable by the 
 Court, &c. 
 
 The evidence must always bo sufficiently conclusive to justify the arraignment ;. 
 a man should not be tried on the chance of getting a conviction except under perfectly 
 unavoidable circumstances, or when it is advisable to set an example or to clear a 
 man's character. 
 
 FRAMINO CHARGES. . . ; 
 
 Charges brought before a C. M. are not bound to the technical formalities which 
 prevail in other Courts of Law, but they should be sufficiently specific to enable tho 
 prisoner to know what he has to answer, and to enable tho Court to know what thoy 
 are called upon to inquire into. Charges should also express the nature of tho crime 
 BO clearly as to show that tho offence is directly contrary to the provisions of the Act j 
 great care is therefore required in identifying the offence, that is, in deciding under 
 which section of the Act to frame the charge. 
 
 It is desirable in framing a charge, to follow the wording of the particular section 
 of the Act under which the offence falls ; in any case, the crime as framed, should bo 
 clearly cognisable under some section of the Act, and it is indispensably necessary 
 that the charge should set forth not merely the acts done or omitted to be done, but 
 also every fact and circumstance which it is necessary to prove, in order to convict 
 of the offence. Any circumstances, however, which tend to aggravate or mitigate the 
 offence are to bo omitted. Archibald's Rule : — " All the ingredients of the offence, the 
 facts and circumstances and the intent must be set forth with certainty and precision 
 and without any repugnancy or inconsistency, and tho defendant must bo charged 
 directly and positively with having committed it." 
 
 Words essential to the constitution of the offence must not be omitted. For It 
 instance, misapplying money or stores must be framed — fraudulently misapplying; 
 the omission of the word fraudulent makes it no offence chargeable by Military Law. 
 
23 
 
 ii: 
 
 18 Maiming or injuring must be — wilfully mainiiii,'. Absonco must be — absence without 
 15 leave. The oraioHion of such words deprives the charge of its very essence and does 
 not, without iliem, constitute a breach of a section of the Act. 
 
 Charges' for crimes montionod by name in the Act are as simple as words can 
 make thorn. For offences not specially provided for in the Act, the charge must 
 come under Sec. 40*, and must be prefaced with the words " conduct to the projudico 
 of good order and military discipline." 
 
 In framing charges care must also be taken to render them clear in names, dates 
 and places, but all non-essential minutia) are to be avoided. 
 
 The prisoner's name is to be stated at full length, with his rank, preceded in the 
 case of a N.C. O. or soldier, by his regimental number. Whenever a soldier holding 
 acting rank is brought to trial, ho is arraigned in his acting rank, but a soldier holding 
 an appointment is arraigned in his army rank with his appointment also designated. 
 
 In cases where a man has had several alias', it has boon ruled that, where the 
 identity of a prisoner fully and indisputably appears, it is quite immaterial whether 
 he is tried by his real name or by a fictitious name or by two or mare names ; but 
 the name in which a soldier is attested should always be entered. 
 
 In Field G. C. M. if the name of the person charged is unknown, he may be 
 described as unknown with such additions as will identify him, as : "Person accom- 
 panying the force (name unknown), white jacket and trousers, scar on right cheek." 
 
 Where a prisoner is charged with any loss or damage, the amount of such loss 
 or damage must appear in the charge and be proved in evidence, except with respect 
 to articles of kit, necessaries, arms, clothing, &c., the prices of which are fixed by 
 regulation when the price need not appear. In the case of loss or damage to great 
 coats, or articles of which the regulation value depends upon the length of time in 
 wear, the time such article has been in wear must be proved in the evidence, the 
 value appearing in the charge. In the case of the loss of a medal, the value of the 
 raedal is to appear in the charge. The prisoner would bo sentenced to make good 
 the value of the medal, and such sum is credited to the public, but the medal is not 
 replaced except under special circumstances to be determined by the C. in 0. with 
 the concurrence of tho S. of S. for War. 
 
 The precise hour or minute of the commission of tho crime should only be 
 inserted in the charge when it constitutes the essence of tho offence, or when it is 
 necessary for the prisoner's defence ; as in the case of a sentry leaving his post 
 before being regularly relieved, allowing a prisoner to escape, sleeping on his 
 post, &c. 
 
 An offender may be tried on alternative charges when they relate to the samo 
 offence, but he cannot bo tried on disjunctive alternative chargo-i, that is, on two or 
 more totally different charges in tho hope of convicting him of one of them. For 
 instance, if a soldier is found in possession of stolon property and it is not certain 
 . that ho committed tho thett, he woulJ bo tried on two charges, the first would be for 
 having stolen the property, the seco'id for having feloniously received tho property 
 knowing it to have been stolon, ana if convicted on one of these charges ho would 
 necessarily bo acquitted of the other. Again, in the case of deficiency of kit thoro 
 should bo two ulternativo charges : 1st., for making away with (which includes 
 selling, pawning, &c.,) and the 2nd for losing by neglect. If convicted of one he 
 should be acquitted of tho other charge. But a canteen sergeant or a pay sergeant 
 deficient of funds, could not be tried on two such charges as : 1st, for causing the loss 
 by carelessness in keeping the accounts, and 2nd, for having embezzled the amount 
 deficient, in the hope of convicting him of one or other of tho charges; for careless- 
 ness in keeping tho accounts and embezzlement are two widely different offences. A 
 prisoner may bo placed on his trial, at tho same time, for several offences of distinct 
 natures, but each offence must form a separate charge, and separate charges must, on 
 no account, be blended in one and the same charge, as offences airainst different soc- 
 tiona of tho Act must never be coupled in one charge. 
 
 • Chapter VI. 
 
I 
 
 T 
 
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 3 
 
:ri 
 
 insta 
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 V 
 order 
 the CO 
 
29 
 
 A not uncommon practice, leading to confusion, was to frame a charge with 
 instances, as "disgraceful conduct in the following instances." This is not a con- 
 venient mode, and it is preferable to make each instance a separate charge. Com- 
 bining two or more instances in one charge of course assumes they are breaches of 
 the same section of the Act, forming one transaction with two cases of disgraceful 
 conduct in it. 
 
 Minor oifences, such as the C. O. could dispose of, arc not to be included with 
 graver offences, tor if acquitted of the graver and not of the minor the court is ii> 
 difficulty as to the punishment to award. 
 
 When more prisoners than one are tried separately by the same C. M., the couit 
 is in all cases to be re-sworn at the commencement of each trial, and the proceedings 
 of each trial are to be conducted and recorded separately. Any number of prisoners 
 may be tried together on the same charge for an offence committed collectively, but 
 the plea, finding and sentence must he recorded separately for each. Practically, 
 however, this is not fou .d sufficient, as it is usual for the General in Command to 
 require the court to give a complete separate record for each prisoner. The advan- 
 tage of trying them collectively in that case is that many writers can be at work at 
 once. 
 
 ORDER FOR THE ASSEMBLY OF THE COURT. 
 
 General and D. C. M. are assembled by an order of the officer duly authorised in 
 that behalf. This order specifies the description of court, the purpose of its assembly,^ 
 and either fixes the date, time and place of meeting, and appoints the President by 
 name, and the number and rank of the officers to be furnished by different regiments 
 as members, or otherwise, leaves these details to be arranged by the officer in whose 
 command the court may be directed to assemble. 
 
 Eegimental and station or detachment orders are in like manner issued for the 
 assembly of E. C M., and in this case all the officers to form the court are mentioned 
 by name equally with the President. 
 
 A C M. may be assembled in any place where troops may be serving except on 
 board H. M. ships in commission, when ail power of punishment is vested in the 
 senior officer of the ship. 
 
 It is not necessary that the trial should be held in the same place in which the 
 crime was committed, as Military Law operates against offenders, not as inhabitants 
 of this or that district, but as soldiers of H. M. Service. 
 
 On G. C. M. at all times, and on minor C. M. when there is a prospect of pro- 
 tracted proceedings, it is desirable that a number, exceeding that legally necessary, 
 should be detailed as members to guard against the inconvenience which might arise 
 from the sickness or death of a member. The additional members take part in all 
 tlie proceedings. One or more officers are sometimes detailed in waiting to provide 
 for casualitles, or for the case of challenge being allowed. 
 
 It is directed that CM. duty is to be detailed after regimental duties under arms,. 
 und \hat \n a\\ (ini\ef>, the roster is to commence from the senior downwards. This pre- 
 cludes the possibility, without a glaring breach of the express orders of the 
 Sovereign, of selecting or packing aC. M. 
 
 Should the Court be i»acked, ?',e , individual membors nominated not according 
 to roster, the prisoner may complain that the court is not appointed accordin^^ to 
 regulation, and this plea, if well founded, would be valid, — for to pack r. court 
 involves the legality of the trial. 
 
 The general officer, when referred to, may say that he 
 officers for other special duties, etc., and if such be really 
 objection does not hold good.>^ 
 
 When it appears desirable that the court should have 
 order to their better understanding the evidence that may 
 the court may view such place. 
 
 required 
 the case, 
 
 such and such 
 the prisoner's 
 
 a view of any place in 
 be given upon the trial, 
 
 5a 
 
30 
 
 WARNING THE PRISONER FOR TRIAL 
 
 Upon any trial by C. M. boing ordered, the CO. of the corps to which the 
 accused bolongH or is attached, in responHible that the accused is furnished by the 
 Adjutant or by a commissioned officer with a copy of the charges against him at 
 least 2-4 hours before the trial, unless the exigencies of the service render this impos- 
 sible. 
 
 Tu a soldier who cannot road, the charge is to be read, and if necessary 
 explained by the p rson who warns him for trial, and a Jist of all witnesses for the 
 prosecution is at the same time to be given to the prisoner. lie is also a«ked what 
 witnesses he wishes to be warned for the defence ; not that the prosecutor has any 
 right to know the prisoner's witnesses, but they are asked for so that they may boduly 
 warned. The prisoner is not confined to the list he names at the timCf but tne court 
 neerf not adjourn to enable him or the prosecutor to summon writnesses whom they 
 might have called at first. 
 
 Formerly it was usual before the assembly of a G. C. M. for the J. A. to give the 
 prisoner a copy of the charge. He would still do so on the principle that he has to 
 see a fair trial. 
 
 Any omission in the list of the prosecutor's witnesses, or as to the length of 
 notice, would not invalidate the trial unless the prisoner is actually and materially 
 prejudiced in his defence thereby, and would not receive a fair trial from these cir- 
 cumotances. 
 
 It is not only necessary to give the prisoner the names of witnesses bofore the trial, 
 but if ho applies for it, he must also be furnished with the substance of the evidence 
 against him, but he must properly and formally demand it. This is in strict accord- 
 ance with the practice of the criminal courts, for there is a statute on the subject 
 which states that a prisoner can demand the copies of depositions against bi:ii on 
 payment, and also be and his counsel can, at the time of trial, inspect the deposi- 
 tions against him. 
 
 A prisoner has a legal right of access to his witnesses before and during the trial 
 •(«. e., not in court, but between its [sittings) but for this he must demand to do so, 
 otherwise he hat* no excuse. 
 
 A C. M. has no control over the nature of arrest or confinement of a prisoner, 
 the C. O. (>f the regiment being responsible for this. The court has only control 
 over the prisoner when bofore it, and then the prisoner must have perfect freedom. 
 In some cases prisoners have appeared handcuffed; these should be removed. 
 Should he afterwards become violent he may have his liberty restrained. 
 
 WITNESSES. 
 
 1.2 
 
 123 
 
 Persons, civil and military, are summoned by the Deputy J. A. or Officiating J. A. 
 in cases of G. C. M., and by the President in all other courts, except in Field G. C. M. 
 when they are summoned by the Provost Marshal. 
 
 Civil witnesses during attendance, and in goin."- or returning, are privileged 
 from arrest on civil process, not from arrest on a criminal charge, but only from 
 arrest for not paying what they may have been ordered to pay by a court called 
 " contempt of court." 
 
 If civil witnesses refuse to attend after payment of their expenses, refuse 
 to be sworn, or do not answer questions or produce documents, &c., which can bo 
 legally demanded, or if they, or any other civilians present are refractory, cause dis- 
 turbance, do not obey the injunctions of the court, or are guilty of any contempt of 
 court, they are liable to be attached by the President before a Civil Court having 
 powor to commit for contempt. Should such persons give wilful false evidonae they 
 are liable to be convicted of perjury. 
 
 It is not necessary or usual to send a formal summons to military witnesses, it 
 is usual to insert a clause in the Order convening the court for them to attend. When 
 a soldier required as a witness is not serving in the district in which the C. M. is to be 
 held, application is made to the General Officer commanding in the district in which 
 
hich the 
 i by tho 
 t him at 
 is impos- 
 
 locessary 
 s for the 
 ted what 
 has any 
 y bo duly 
 btie court 
 lotn they 
 
 give the 
 ho has to 
 
 ength of 
 laterially 
 heso o.ir- 
 
 the trial, 
 evidence 
 accord- 
 i subject 
 ; bi:a on 
 3 doposi- 
 
 the trial 
 to do so, 
 
 prisoner, 
 ' control 
 freedom, 
 removed. 
 
 V 
 
 *■' 
 
 I 
 ♦ 
 
 
 
 I 
 
 > 
 
 ting J. A. 
 IG.G. M. 
 
 >rivilegod 
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 irt called 
 
 38, refuse 
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 cause dis- 
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 nesses, it 
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31 
 
 sutth soldier is serving, for him to utlend, naming the probableday of assembly of tho 
 court. 
 
 Should any person subject to Military Law, when duly summoned as a witness, 28 
 not attend, refuse to take an oath, or to produce any document, or answer any ques- 
 tions which may be legally required of him, or is guilty of contempt of court by using 
 insulting or threatening language, or by causing any interruption or disturbance, he is 
 liable to be tried by a C. M. other than the court before whom the offence is committed. 
 
 Should a prisoner be guilty of such conduct, tho court would be adjourned and a 
 report made to the convening officer. But where such a person, whether present aa a 
 witness or a bystander, or in any capacity other than as a prisoner, is guilty of con- 
 tempt of court (as above), instead of the offender being tried by another C. M., that 
 court may, by order signed by the President, sentence him to impt. with or without 
 hard labour for 21 days. 
 
 After being duly summoned as a witness there is no exemption from attendance. 
 It has been ruled that not even Governors of Colonies, C's. in C. or convening officers, 
 are exempt from being summoned as witnesses, and all are bound to attend ; but they 
 are not bound to disclose matters connected with their governments or commands. 
 
 In ISH? a circular was ist'Ued on this subje<;t, but owing to the C. in C. in India, 
 being summoned unnecessarily, an extra provision was inserted that any officer or 
 soldier so doing is liable to be tried for vexatiously summoning the 0. O. of troops. 
 
 The form of summons to a civil witness must be served in person and in reason- 
 able time before the assembling of the court. The summons must be delivered to 
 the person himself; it is not sufficient, for instance, to give it to a wife for her husband. 
 
 Any person present in court may be summoned as a witness then and there 
 without notice. Thus, the members are not precluded from being witnesses for or 
 against the prisoner, though it is advisable that, as far os possible, Ihcy 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 witnesses must necessarily rest 
 with the deputy J. A. or the President, as the case may be. They have the authority 
 to dispense with the summoning of many witnesses and withhold their summons if 
 they are not likely to be of use. The court can, however, rectify any omission sub- 
 sequently, by adjourning until tho necessary witnesses have been summoned; but 
 care has to be taken, in refusing to summon witnesses, that the pri,^ wner does not 
 thereby suffer any material harm. 
 
 In military courts the expenses of summoning witnesses are generally paid for 
 by the public, but in a great case where the expenses are many, if the prisoner is 
 convicted, he has to pay all the expenses of his witnesses. In civil courts prisoners 
 have always to summon their witnesses at their own responsibility and expense. 
 
 All witnesses are to be sworn, the oath being admiuislered by the deputy J. A., 
 President, or some member of the court authorised by the President, 
 
 When a witness gives his evidence ho should answer the question as one put to 
 him by the prisoner or prosecutor, but will address his reply to the court. 
 
 THE JCDQE ADVOCATE. 
 
 The J. A. G. and his Deputy are always civilians, while the Deputy Judge Advo- 
 cates who attend at G. C. M,, are always military men. 
 
 The J. A. G's. Department forms a Court of Appeal, and therefore takes no part 
 in tho actual preparation, conduct or management of prosecutions. 
 
 The J. A. G. is a member of*' \, Privy Council, and all proceedings of G. C. M., 
 which must be confirmed by the Sovereign are sent to ihe J. A. G., and the Sovereign 
 confirms on his responsibility as a Minister of the Crown, and acts on his rocom- 
 mendation. The J. A. G. is responsible to Parliament, hence a prisoner if wronged, 
 can appeal at law against him, for tho Sovereign can do no wrong. 
 
 The duties of the J. A. G. are confined to an examination of the proceedings as 
 to their legality, whether the sentences are within Statute Laws, ^c. The expediency 
 of carrying out the sentence, or as to remission, &c., is not his province. The C. in C 
 advises the Crown on the^e points. 
 
83 
 
 The presence of an officiatinpf J. A. duly appointed, who must be a comrntsaionod 
 officer, is essential to the jurisdiction of a G.C. M. held out of the U. K. 
 
 The appointment of a J. A. may at any moment bo revoked by the authority 
 who made it, and a J. A. may be relieved during the course of a trial and another 
 appointed. 
 
 The J. A. does not form a constituent part of the court but is an officer of the 
 court, — he is always appointed by warrant, which is a legal necessity to show his 
 authority, and this warrant is invariably read in court. Out of the U . K., General' 
 Officers are empowered by warrant to appoint officiating J. A's. In the U. K. the J. 
 A. G. appoints one of his three deputies to act for him, and he is responsible for them. 
 
 An Officiating J. A. has the same powers and duties as a Deputy J. A. 
 
 No person acting as prosecutor or being a witness for the prosecution, can act 
 as J. A. at a trial. 
 
 At a C. M. where a J. A. is present ho makes' all preliminary arrangements, 
 summons the witnesses, provides, or, if necessary, hires accommodation for the court, 
 provides stationery, &c., and sees that all preliminaries are attended to. At the conclu- 
 sion of the trial he transmits the proceedings, for the proper record of which he is 
 responsible, if in the U. K., to the J. A. G. for the decision of the Sovereign, if abroad to 
 the General in Command, or other officer vested with authority to confirm tho 
 sentence. 
 
 Tho proceedings arc signed by the President arid also by the J. A. ; and tho latter 
 also signs all separate documents belonging to the proceedings. It is usual for him to 
 obtain the signature of the President to the finding and sentence of the proceedings 
 as prepared in court, and before the rising of the court, and he then afterwards prO'- 
 
 Eares a fair copy. The two copies are then compared and the fresh copy signed by 
 oth ; the fair copy is then sent for confirmation , At foreign stations it is usual for 
 the General to require the J. A. to give him a copy of the proceedings for record in 
 his office; usually the rough copy prepared in court does for this. 
 
 In the U. K., as has already been said, the Deputy J. A. transmits tho proceed- 
 ings with as little delay as possible to the J. A. G. in London, for confirmation. 
 Abroad they are sent to the J. A. G. after confirmation and promulgation. 
 121 The J. A. G. carefully preserves all proceedings of G. C. M. for at least seven 
 
 years, and those of D. C. M, and Field G. C. M. for three years. 
 
 The J. A. at a 0. M., whether consulted or not, will give his advice on any ques- 
 tion before the court. The opinion of an Officiating J. A. should be conclusive on 
 any point of law or procedure. 
 
 When there is no J. A., the President is responsible for the due forraalitj' and 
 legality of the proceedings, but when a J. A. is present he is responsible, although 
 this does not release the President from the responsibility of remonstrating with tho 
 J. A. on any question ho, or the court, may consider contrary to law, though in aU 
 matters of law the J. A's. opinion is final. Members of C. M. should, however, bear 
 in mind that by acting upon the opinion of the Officiating J. A. on questions of law, 
 they are not thereby exonerated from their responsibility, for whatever degree of 
 deference may be duo to the advice of the Officiating J. A., it must bo remembered 
 that ho is not responsible to any court of justice for the opinion ho may give. Should 
 a C. M. decline to act upon the advice of the J. A., it then becomes his duty to trans- 
 mit, with the proceedings, to the J.A.G., if in England, or to the confirming authority 
 abroad, a statement of those circumstances which he considers material as affecting 
 the legality of the proceedings. 
 
 When the prisoner is undefended the J. A. has to take care that tho prisoner 
 does not lose any privilege that the law allows him in the conduct of the trial owing 
 to Ignorance. At the conclusion of the prosecution and defence he sums up tho 
 whole of the evidence and gives his opinion upon the legal bearing of tho case before 
 the court proceeds to deliberate upon its finding. While taking care that all legal 
 details are strictly observed, he must maintain a strictly impartial attitude. 
 
 Sometimes, when the case before a D. C. M. is complicated and the court gets 
 into difficulties, the President adjourns it, and applies for a J. A. On his coming^ 
 into court the proceedings are gone over again, and the prisoner may then revert to- 
 questions about which ho was not satisfied. 
 
dsioiiod 
 
 thority 
 mother 
 
 of the 
 ow his 
 lenoral' 
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 f thorn. 
 
 :an acc 
 
 merits, 
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 J latter 
 him to 
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 Is prov- 
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 sever* 
 
 quos- 
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 ree of 
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 Should 
 trans- 
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 •i" 
 
 V 
 
 I 
 
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 i 
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upoi 
 
 the 
 
 pros 
 
 the 
 
 apix 
 
 tion 
 
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 offic 
 
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 his 
 
 thos 
 
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 cerii 
 
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 thou 
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 trial 
 oral! 
 
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 arrai 
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88 
 
 TUB PBOflEOUTOR. 
 
 The duties of tho prosecutor may devolve either upon the prisoner's C. O., or 
 upon a staff or other otflcor detailed to perform the duty. At I). M. or R C. M., 
 the Adjutant of the prisoner's regiment is usually the prosecator. In all cases tho 
 prosecutor must be subject to Military Law and the prosecution must be considered at 
 the suit of tho Crown. If possible, no officer who is to be called as a witness is tO be 
 appointed to act ns prosecutor. When the prosecutor is a witness for the prosecu- 
 tion, he should be sworn after his opening address, if atiy, and should give his evidence 
 as the first witness for tho prosecution. The President or a member of tho court may 
 also bo called upon as a witness, and if so he is sworn as such. 
 
 If during the trial illne- ) prevent the attendance of tho prosecutor, another 
 ofHcer may bo ap|)ointod to perform tho duty. 
 
 Tho J, A. and piosocutor must not bo the same person. 
 
 Tho prosecutor gels up the case, conducts the prosecution, and he has to obtain a 
 conviction by all legal moans in his power, and he furnishes the J. A. with a Ifst of 
 his witnesses. He examines his own witnesses by questions, and cross-examines 
 those of tho prisoner, and explains by addresses to the court, when required, the 
 bearing of any particular point in evidence on the case. In oi-dinary cases the 
 prosecutor calls on the witness to make a statement : " State what you know con- 
 cerning the charges against the prisoner which you have heard read." S'atements 
 are not strictly legal but usually done. 
 
 The prosecutor's name is given in the record of the j)roc'cedings. 
 
 THE PRISONER. 
 
 No proceedings in open court can take place in tho absence of the prisoner. Even 
 though he may have been in close confinement, or in irors, bo has a right during his 
 continuance in court, to bo unfettered and free from bonds or shackles of any kind, 
 unless there be danger of escape or rescue, or unless his violent or outrageous conduct 
 renders restraint unavoidable. 
 
 Although a prisoner may have a professional adviser to assist him during the 
 trial, such aJviser is not permitted to address the court, or to examine witnesses 
 orally, which must be done by the prisoner himself. 
 
 INTERPRETER. 
 
 / 
 
 An interpreter may be employed at any period of tho proceedings, if required by 
 cither party, or judged necessary by the court. Ho must bo sworn or make a solemn 
 affirmation before being required to interpret. A member of tho court is not dis- 
 qualified from acting as interpreter, but it would be attended with great inconveni- 
 ence, and might possibly bring him into collision with the parties, if ho were to act 
 as interpreter throughout any extended proceedings. Neither tho prosecutor nor any 
 other interested parly can act as interpreter. The J. A. being required to maintain 
 an impartial position„is also precluded from acting as interpreter. 
 
 
 I 
 
 5 I 
 
 THE COURT. 
 
 No CM. is to proceed to trial until they have satisfied themselves of their com- 
 petence to deal with the charge, both as respects their jurisdiction, and the precision 
 with which the charge is worded, so as to enable the court to know with certainty the 
 issue to bo tried, and to frame a finding and judgment thereon. The initiative of such 
 questions rests with the President, and he must also satisfy himself that the court is 
 legally constituted both as regards tho authority constituting it and the number and 
 qualifications of members. 
 
 With the exception of mere clerical corrections, C. M. have no authority to 
 arraign a prisoner upon charges which have in any way been altered after he has 
 been ordered for tria', unless such altei-ed charges have been sanctioned by the con- 
 
 3 
 
34 
 
 veninpf authority who may amend the charges, or add fresh ones, at any time before 
 the prisoner la arraigned, but not afterwards. 
 
 So long as a C. Al. does not exceed its jurisdiction, no other court is competent to 
 slay its proceedings or to revoke ita sentence, but the members are collectively and 
 individually responsible to the >upreme Courts of Civil Judicature, not only for any 
 abuse of power, but also for any illegal proceedings, but t-o long as the pioceedings 
 are legal all officers composing the court are exempt irom proceedings atCivil Law for 
 what they do or say in the ditcharge of their dutj'. 
 163 Any prosecuiion instituted against officers acting under the Act must bo com- 
 
 menced wilhin 12 months ol the commission of the act complained of. 
 
 The President of a CM. is charged with the duty of conducting the trial and with 
 the maintenance of proper order, lie seats the members according to rank, allows no 
 •questions to be put to witne ses except through him, collects votes, and as the prisoner 
 Seldom has a legal adviser, ho is required to hold throughout a strictly impartial posi- 
 tion towards him and the convening officer. He should also see that the prisonAr is 
 ^as far as he knows) subject to Military Law, and is charged with an oftenco against 
 that law. He is the channel of communication between the court and the convening 
 authority; he is responsible that every person attending the court is treated with 
 proper respect ; he signs the proceedings. Where there is no J. A. he summons and 
 swears the witnesses and members, and forwards the proceedings for confirmation ; ho 
 is also responsible thai a proper record of the proceeeings is made, and he is the 
 recognised advisor of the court in law at;d procedure; in fact, besides his own partic- 
 ular duties, he acts for a J. A. 
 53 All deliberations, of the court take place with closed doors. At other times, 
 
 J except to those persons who have been summoned as witnesses, a C. M., like other 
 courts of criminal jurisdiction, is an open court and is open to the public, subject to 
 the amount of room available and the convenience of tho court and parties betore it. 
 The Piesident orders the clearing of the court for deliberation on any incidental 
 discussion when he may deem it expedient, or at tho instance of a member or the 
 J. A. It is competent to a C. M. to forbid the publication of a report of tho trial 
 during its continuance, and if the court notifies this to tho audience and warns in 
 writing the publishers of newspapers, such decision is binding, and any offender may 
 be proceeded against criminally in the Court of Queen's Bench. The general practice 
 is, however, to admit reporters without imposing any restriction. 
 
 Except to disallow the prisoner's objection to the President, and to pass sentence 
 of death, whore two thirds of the members must concur, all questions are decided by 
 a majority of votes. Should the court (which^UKually consists, when sworn in, of an 
 uneven number of members), be reduced by death, sickness, or challenge, to an 
 even number, and their votes be equallj'^ divided, the prisoner would have the benefit 
 of having his objection allowed in the case of a challenge and the benefit of an 
 acquittal in the case of a finding. In the case of an equality of votes on the sentence, 
 or any question aiising after the commencement of the trial except the finding, tho 
 President has a casting vole, fiom the necessity of arriving at such a conclusion as 
 will permit tho progress of the trial. 
 
 In taking tho votes of the court, the President is to begin by that of tho youngest 
 member. 
 
 Each member [for himselfj is requiicd to form an opinion from tho evidence 
 adduced of tho prisoner's guilt or innocence on anj' or all of the chargot', and give his 
 vole when called upon by the President. 
 
 Whenever a CM. is deprived of its President, the court must adjourn for the 
 convening officer to appoint a fresh President, as the President is always appointed 
 by name; but should a CM., consisting of more members than the number legally 
 required, be deprived of its President, tho senior member, if qualified by rank. Ac, 
 tnuy be appointed President by the convening authority, and in that case the proceed- 
 ings en on flora the point at which they weie left off. 
 
 Whatever casualties may occur aniong the members, so lojig as the legal number 
 remains, the trial is proceeded with without reference to the convening authority. 
 
 Bui a CM. must always commence its sittings with the number specified by (ho 
 convening officer . 
 
no before 
 
 I potent to 
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 occedings 
 1 Law for 
 
 t bocom- 
 
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 allowii no 
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 onvening 
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 vn partic- 
 
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 ubject to 
 betore it. 
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 the trial 
 warns in 
 tider may 
 1 practice 
 
 I sentence 
 icided by 
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 uje, to an 
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 sfit of an 
 sentence, 
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 elusion as 
 
 youngest 
 
 evidence 
 id give his 
 
 n for the 
 iippoinlcd 
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 rank. Ac, 
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 1 number 
 uthority. 
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 11 
 
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£5 
 
 Tho absence of any member, by aicknoss or otherwise, during any part of the 
 trial necesMurily prevents his resuming his seat. 
 
 No now member can be appointed after the court has been sworn in, even an 
 •officer who has been detailed in orders as '"in waiting," if not required at the time of 
 the court being sworn in, cannot, at any subsequent stage of the proceedings, replace 
 ..ny member. Therefore, if a court, after being sworn in, be reduced by death below 
 the legal number, it is necessarily dissolved. 
 
 jf, during tho trial, a new President or a new member bo appointed, tho trial 
 ■must begin afresh. 
 
 A court may also be di-ssolved by the convening authority, if the illness of any 
 member be s-o serious as to render necessary such an adjournment as would prove 
 inconvenient to tho service. 
 
 In either case, provided the court had not proceeJed so far as to give judgment, 
 another court may be assembled for tho trial of the prisoner, the proceedings being 
 commenced de novo. 
 
 It would generally bo sufficient, if th'. prisoner raised no objection, ihat the evidence 
 formerly given be read over to the witnesses re-sworn, and that the latter be allowed 
 ito correct their evidence and be cross-examined ; but each witness must be asked if 
 Ahiit be his evidence, ana if he has any additions or corrections to make. But the 
 court and each witness have to bo re-sworn. 
 
 The illness of the priMoner, if it promise to suspend the proceedings of tho court 
 to the serious prejudice of the service, may also justify its being dissolved ; the 
 prisoner remaining liable to future trial. 
 
 Should the death of a prisoner put a stop to the trial, the fact must be established 
 by evidence and recorded on the proceedings before the court is finally adjourned. 
 Sometimes in his defence a prisoner makes remarks reflecting on the regiment or on 
 the conduct, &c., of others. The court must not allow those statements to be refuted 
 by the prosecutor. If they are unsupported by evidence, where they affect discipline 
 generally a' I the credit of the corps, the confirming authority usually gives tho 
 assailed |v tho opportunity of refnting them for his satisfaction, but not in court. 
 
 It i^ iinpoi'tant that every trial by vJ.M., when once begun, should, as far as 
 possible, proceed with regularity and without interruption to its conclusion. The 
 court have the power of granting an adjournment which may become necessary on 
 account of illness, &c., but they should in no case permit an adjournment for the pur- 
 pose of obtaining further evidence, either on behalf of the prosecution or the prisoner, 
 unless they are satisfied that such an adjournment and evidence are not unjust to the 
 prisoner, and are necessary to assist the course of justice. Great care should, there- 
 lore, be taken, both by tho prosecutor and prisoner, to have ready at the trial all the 
 witnesses and documents they may desire to produce in support of their respective 
 •cases. 
 
 THE PROCEEDINGS, 
 
 All essential features relating to the conduct of (ho proceedings of a O.M. are 
 laid down in the Act, and those must be slriclly observed to render the trial legal. 
 These pi'ovisions aro supplemented by regulations as to details, and afforjd aguiJe for 
 almost every contingency that maj' occur. The non-observance of the first invalidates 
 the trial ; the same, in the case of tho latter, would not necessarily do so unless the 
 oidinary principles of justice aie departed from. Ii regularities and departure from 
 regulations aro often animadvorlod on by tho confirming authority, sooiotimos in the 
 proceedings, sometimes by a separate minute to the members. 
 
 Trials are to bo held between 8 a.m. and 4 p.tn., except in India, where trials 
 may commence at H am. If the Court consider it necessary, they may continue any 
 trial beyond 4 j) m , recording in the proceedings their reason for so doing. In 
 cases requiring an immediate o.xample, or when tho General or other officer com- 
 manding an}' body of troops shall certify under his hand that the same is expedient 
 for tho public service, trials may be held at any hour. 
 
 The whole of the proceedings aro to be accurately recorded in a clear, legible 
 hand, without erasures. In the case ot tho Superior Courts a printed form is tilled 
 3i . 
 
36 
 
 up; in the case of E-CM. the proceedings are written on fool- cap paper, a margii» 
 being always left. To ensure the legality of the proceedings, a form is appended to- 
 the Act which is to be accurately followed. This is given in the appendix. 
 
 When corrections or interlineations are unavoidably made, they are to be verified! 
 by the President's initials. The pages are to bo numbered, and the sheets fastened 
 together. 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 
 station and date are to bo added in alt cases. 
 
 At Field G. CM. the President has not |to record the proceedings or evidence, 
 but he has only to fill in two columns of a schedule supplied by the Provost Marshal, 
 i.e., the plea, finding and sentence, which" he signs as well as a certificate giving date 
 of assembly of court and verifying the entries in the schedule. These schedules con- 
 tain 4 columns. 1. Name of offender ; 2. Otfence charged ; 3. Plea; 4. Finding, and, 
 if convicted, how dealt with by the confirming officer. 
 
 The officers appointed to serve on the court having assembled accoiding to 
 order, the President, who must in all cases be a combatant officer, takes his seat at 
 the head of the table, and the J. A. (or President) calls over the names of the mem- 
 bers, who take their seats according to rank alternately to the right and left, and 
 may not leave them without permission of the President. The court is then pro- 
 claimed open, and the prisoner, prosecutor and witnossei^ appear in court. 
 
 The hour at which the court opens is a'ways recorded, and every adjournment 
 must be precisely noted in the minutes; also the time at which the court re-assembles, 
 and alterations, if any, in its composition. 
 
 The presence of the prisoner is entered, as all proceedings in open court must 
 take place before him. 
 
 As there is only one legal manner in which any court can assemble, the order 
 for convening the court, by whom, and the date of the order are then read, also the 
 warrants appointing the President and J. A. The names of the President and mem- 
 bers are then read over, and they severally answer to their names, so that the prisoner 
 may identify them, and the following question is put by the President to the prisoner : 
 — " Do you object to bo tried by me as President or by any of the officers whose 
 names you have heard read over ? " 
 
 A prisoner cannot challenge (i.e., object to) the court generally, nor the whole 
 of the members collectively, but he has the privilege of objecting to all or to any one 
 of the officers composing the court individually, and each objection is entertaiiiM 
 separately. The member who is challenged generally leaves the room, and his. 
 challenge is decided by the votes of all the rest. When the case of the first member 
 challenged has been disposed of, ther that of the second member challenged is con- 
 sidered in the same way. Although members may be challenged, th'y have to vote 
 for deciding whether another member's challenge is void or not. Peremptory 
 challenges — that is, challenges without reasonable cause assigned — are not allowed 
 by C . M ., but for every challenge a cause must be shown. This diflcrs from tho 
 civil practice, where, in trials for felony before Criminal Courts, the prisoner has a 
 right of peremptory challenge of twenty jurors without showing cause, and then 
 J,,^ rnnxr challcngc others with showing cause. 
 
 In tho* case of challenges, the court must decide on the assertion of tho prisoner 
 challenging, of the officer challenged, and of the witnesses adduced, since it cannot 
 receive evidence on oath before being itself sworn in — the court being cleared for 
 deliberation. 
 
 The following are some valid causes of challenge against officei-s of the court : — 
 
 1. Having declared an opinion unfavorable to the prisoner maliciously, or 
 Jiaving expressed an opinion respecting the prisoner in connection with tho charge 
 in question. 
 
 2. Being an interested or an injured party. What constitutes an interest? The 
 proceedings of a court for the trial of a private fur stealing a case of wine from the 
 officers' mess was quashed by the J. A. G. in London, although the pi'soner himself 
 raised no objection, on the ground that sori<o members of the court boiongcd to the 
 prisoner's regiment, and wore therefore interested parties. S3 again, a drum-case 
 
margiib 
 snded to- 
 
 I verified! 
 fastened 
 elow the 
 >r. The 
 
 vidence, 
 Vlarshal, 
 ing date 
 lies cori- 
 ng, and, 
 
 ding to 
 s seat at 
 le mem- 
 ieft, and 
 ion pro- 
 
 arnment 
 semblcp, 
 
 irt must 
 
 \e order 
 also the 
 nd mem- 
 pi'isoner 
 »riBoner :: 
 8 whose 
 
 10 whole 
 
 any one 
 
 tertaiit'"'! 
 
 and his- 
 
 member 
 
 id is con- 
 
 e to vote 
 
 •omptory 
 
 t allowed 
 
 from tho 
 
 ner has a 
 
 md then 
 
 prisoner 
 it cannot 
 eared for 
 
 court : — 
 )H8ly, or 
 charge 
 
 St? Tho 
 from the 
 ir himself 
 cd to the 
 [rum-case 
 
37 
 
 'was stolen by a private, which was considered to belong to the regiment, and the 
 iprocoedings were quashed becauHe an otficer of the regiment sat on the trial. 
 
 3. Having been a member of a Court of Inquiry to investigate the charge whether 
 an opinion was given or not. 
 
 4. Being a material witness on the trial. 
 
 The C. O. of a corps to which the prisoner belongs, or the officer who investigated 60 
 the charges, may not sit on the C. M. except on Field G.C M. — nor act as J. A's. 
 
 Should the prisoner object to the President, the objection is only valid if allovfed. 
 by at least one-third of the members, in which case the court adjourns for the 
 appointment of another President; but should he object to any officer other than 
 the President, the objection is decided by a majority of votes. If the challenge is 
 allowed the member retires, and if his retirement reduces the number of officers 
 'below that named in the order convening the court, the President may appoint any 
 officer nominated for the purpose as " in waiting " by the convening authority to take 
 his place, and if no such officers have been nominated the court must be adjourned 
 for the convening authority to nominate another officer. 
 The J. A. cannot on any grounds bo challenged. 
 
 The prisoner may also object to the composition of the court for defect in rank 
 or otherwise. Such a matter should, of course, be discovered by the court itself; if 
 not, it would be bettor for the prisoner not to challenge, but to allow the trial to 
 proceed and get it quashed afterwards. 
 
 After all challenges have been disposed of, the J. A. administers the oaths, first 
 to the President by himself, as a mark of respect, and afterwards to the members col- 
 lectively. The oath of secrecy is then adrainistord by the President to the J. A. On 
 trials by minor courts the oaths are administered by the President to the other 
 members, and afterwards by any sworn member to the President. 
 
 The President and members are sworn to administer justice fairly according to 
 the evidence, and not to divulge the sentence until duly confirmed, nor to divulge the 
 voto or opinion of any particular member of the C. M. unless required to do so in 
 duo course of law. No oath is necessary in cases where by law a solemn affirmation 
 may be made. 
 
 The charge is then read in open court to the prisoner. The witnesses are 
 
 directed to withdraw, when tho President, or J. A., at his desire, proceeds to arraign 
 
 the prisoner by addressing him by his rank and name and to the following effect :— 
 
 " Are you guilty or not guilty of tho charge (or charges) against you, which you 
 
 have heard read ? " 
 
 When two or more prisoners are tried together, each is separately arraigned in 
 like'form. Tho prisoner pleads either "guilty "of " not guilty," or he stands mute, 
 or refuses to plead, or answers foreign to the purpose, or pleads " in bar of trial." 
 
 A plea of " guilty " is in law a conclusive admission by the prisoner of his guilt, 
 and further evidence is not required for the purpose of proving the charge, and in a 
 C. M. the plea of guilty is considered equally conclusive, but in every case whore a 
 prisoner pleads guilty, a C. M is, nevertheless, enjoined to investigate the charge, so 
 that all the circumstances connected therewith may be known to tho confirming 
 authority and to tho court to enable them to become acquainted with the facts and 
 give sentence accordingly. 
 
 Before recording a plea of "guilty," the court will satisfy themselves that the 
 prisoner fully understands all the advantages he forfeits by tho plea. 
 
 A prisoner pleading guilty is not debarred from producing evidence as to the 
 fact as well as character of the offence, nor from addressing the court on his defence 
 in extenuation of the offence or in mitigation of punishment, nor from cross-examining 
 the witnesses for the prosecution. 
 
 If a prisoner stands mute, refuses to plead or answers foreign to tho purpose, a 
 plea of " not guilty " is recorded on his behalf. 
 
 Pleas in " bar of trial " may be either to the jurisdiction of the court or " special 
 pleas in bar," as they are termed. 
 
 A prisoner pleading to the jurisdiction, may aver that he is no soldier or not 
 amenable to a C. M., or that the court is not legally constituted, or that the offonoQ 
 was committed more than three years before the warrx*ant for trial, &c. 
 
 i 
 
 I i 
 
88 
 
 A prihoner urging a " speciul [ilea in Imv " mny allege a former acquittal or con- 
 viction, or proviouH punithmont for the oil'enco, or a pardon, or tliat tlio oftenco is- 
 condoncH by his having boon intentionally roleaaetl from coiiHncment and placed on 
 duty, or want of fpeciticalion in tho charge, &c. 
 
 If tho plea in bar of trial appears to be plausible, evidence on oath, when neccs- 
 Bary, is heard to tho point; and, if on deliberation, the pleii bo allowed, tho fact is 
 recorded, tho court adjourns and tho circumstance is reported to the convening oflrtcor,. 
 but H the ploa in bar of trial be disallowed by the court, tho priijonor is then re(iuired 
 to plead to the charge. 
 
 A ploa of guilty or not guilty having been recorded, tho prosecution is com- 
 moneed. 
 
 During the taliing of evidence any member may put a question to a witno's or 
 to tho J. A., but such questions have to bo put to tho President, as tho tourt has to 
 decide whether there is any objection to put any particular question, and if objected 
 to it is not ])ut; if it is allowed it is put as a "question b}* a member," name not given. 
 
 A member who, in tho finding, has voted for acquitting tho prisoner, must, never- 
 theless, vole for the sentence if the court has found the prisonov guilty. 
 
 AKDRESSES. ■ ■'■ " '■■:'" 
 
 At a C. M. addro-ses are seldom necessary, but when offered they are to bo- 
 handed in in writing to'the court, read, and attached to tho proceodin^js. 
 
 The following are the rules as to addresses to the court from the piosocutor and 
 prifoncr : — 
 
 Tho prosecutor is in every case allowed an opening address. IIo may, however, 
 pi'ocoed to call witnesses for tho prosecution at once, but in all important or diffi- 
 cult cases, it is usual for him to open tho case by a statement of tho facts he proposes 
 to prove, and the nature of the evidence by which ho intends to establish the difler- 
 ent points of the case. 
 
 At the close of the prosecution, tho J. A. (or President) asks the prisoner if he 
 intends to adduce evidence in his defence. If ho does not desire to call any wit- 
 nesses, the prosecutor is allowed a second address for tho purpose of summing up the 
 tvidence for tho prosecution and explaining anything which requires to be mado 
 cleir. This concludes the prosecution which may not be renewed. The prisoner is 
 then allowed to address tho court in his defence ; after which the J. A. sums op 
 the whole case in open court. After the J. A. has spoken, no other address is 
 allowed, and the court will retire to consider the finding. 
 
 "When, in reply to the question, put to him, the prisoner states he intends to 
 adduce evidence, he may open his case with an address, then call his witnesses, and 
 at tho conclusion of the evidence in his defence he can make a second address, to 
 which tho prosecutor may reply. The court, may, if necessary, adjourn to enable 
 the prosecutor to prepare his reply. 
 
 In those special cases where the prosecutor is allowed to bring fresh evidence in 
 reply, the prisoner's second address follows immedititely after such evidence and 
 immediately before the prosecutor's reply, to be followed by the J. A. summing up. 
 But this is only allowed under special circumstanco^^, as when the prisoner's witr 
 nesses have raised now matter which tho prosecutor could not have foreseen or thought 
 of, and then ho may be allowed to call witnesses to refute this new matter. 
 
 If any question arises during the trial as to the admissibility of a question or of 
 evidence, tho person requiring tho opinion of tho court it* to speak first, the other 
 party then answers, and the first person is allowed to reply. 
 
 Tho addresses of the prisoner should be confined to the matter before the court ; 
 his opening address to the points on which his defence is grounded ; tho second to a 
 brief summary of tho importrtnco of evidence adduced. It is clear that making 
 violent attacks on tho prosecutor, or assigning to him or any other person, improper 
 motives, would bo no defence. The value of any opening address depends on ita 
 boing corroborated by evidence on oath ; otherwise, treated as a mere statement, it ia 
 of no value. 
 
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 Examination of Witnesses. — Eviilonco is to bo given on oath or solemn afTlrma- 52 
 tion, bcloio nil 0. M. Tlio wilnossoa for the pro.scciition aro examined first by the 
 proMOcutor. The |)risoni)r is alw!iy« to have an opportunity of cro.-is-examinin^ every 
 witnesrt, after whicii re examination ny tiie pro-*ecutor is allowed. If the prisoner 
 docbnes crosH-examinin;^ the witnoHs, it is Htatod in the proccodin;ij-<. 
 
 The court may awk questions of any witness (throuji^h the )'!'rosidont) at any 
 time, though it is advisable to refrain till the examination of tho witness by the 
 prosecutor and prisoner is concluded. 
 
 Defence. — I'lio prisoner being called upon to make his defence, may have nothing 
 to urge, or may make a Him|(lo statement, or may have prepared a regular addros* 
 to bo corrobei'atod by witncs^'cs. 
 
 In the first two cases the facts would bo recorded on the proceedin,<Tg and tho 
 court would at once call on tho J. A. to sum *up. Tho last case has already boon 
 considered. 
 
 The summing up of tho J. A. is 'o bo handed in in writing, real to the court and 
 attached to the proceedings. 
 
 The court is then cleared to deIibera!o upon the finding. 
 
 Finding. — The finding is tho opinion of the court relative to tho prisoner's guilt 
 or innocence with regard to each for all) of tho charges preferroJ against him. Tho 
 court deliberates on tho evidonco with closed doors. It is still in tho power of tho 
 court to recall a witness to put to him any particular question— not to ro-opon tho 
 evidence, but to gain some particular information — tho prisoner and prosecutor must 
 necessarily bo present and may cross-examine such witnesses on tho points touchei 
 upon. 
 
 Every member who has been sworn, an I attended tho proceed ingsi, is required to 
 give his vote on each charge separately; the junior member voting first, tho Presi- 
 dent last. 
 
 It is not necessary to find a verdict of guilt oi acquittal upon the whole of each 
 charge or instance. Tho finding may be special, that is the finding may be guilty of 
 part of any charge, tho exception being stated. It may state specially which of the 
 facts, as charged, the court finds to bo proved ; or it may amend slight errors in the 
 charge not material to the merits of the case ; for instance, a prisoner charged with 
 having committed an offence on a certain date and at a certain place, may bo con- 
 victed of having committed the offence, but on some other date or at some othet 
 place. A prisoner charged with stealing a certain sum of money may bo convicted 
 of stealing another sum; or tho prisoner may be convicted of a minor offence, if 
 included in the greater offence of the same kind ; thus, a soldier charged with deser- 
 tion may bo convicted of attempting to desert or of absence without leave. But if 
 the part of tho charge which is not proved constitute tho essence of the offence, the 
 court must acquit altogether. For instance, if a soldier be charged with having 
 wilfully maimed himself, and if the evidence prove that he maimed himself but not 
 wilfully, the court must acquit altogether, as the word '' wilfully " constitutes tho 
 essence of the offence. 
 
 A prisonoV charged with attempting to desert may be found guilty of desertion 
 or of absence without leave. A prisoner charged with stealing may bo found guilty 
 of ombezzlement or of fraudulently misapplying money or property — so also if 
 charged with embezzlement he may be found guilty of stealing, or of fraudulently 
 misapplying money or property. 
 
 In all cases when tho court acquit the prisoner, tho finding is to bo recorded in 
 simple terms, " Not guilty," except when tho acquittal is on the ground of insanity, 
 when it would be worded as follows : — 
 
 " The court find that tho prisoner was of nnsound mind at the' time he com- 126 
 mitted the offence and do therefore acquit him of tho same." 
 
 If, on the trial of a Commissioned* Officer, tho court desire to acquit the prisoner 
 honorably, they are to state so in a separate letter. 
 
 If the finding of " Not Guilty " is on all tho charges, the finding must be ])ro- 
 nounced in open court, and the prisoner rolcasfd. 
 
 If a soldier is found guilty of either the whole or any part of the charge 166, 
 or charges preferred against him, for the guidance of the court in awarding punish- IBt, 
 
 
 I 
 
40 
 
 n 
 
 K8 mont, as well as for thai of tho convening offiiior, the court ro-opens to inquire into 
 and recoi-d tho prisoner's former convictions, whether by Militaiy Court or Civil 
 Court, tho former of which may bo proved by the entry thereof in the llogimontal 
 CM. Book, or Defaulter's Book or by a certified copy of such entry, and the latter by 
 the certificate obtained from such court, or by certified copy thereof, or by tho ontrv 
 of the conviction in the CM. Book or Defaulter's Book, or by certified copy of such 
 entry, which entry shall only be made upon such oerlificate. 
 
 When a soldier is found guilty of drunkenness, tho court rocoivos evidence of all 
 his former entries of drunkenness in any Defaulter's Book to assist the court in deter- 
 mining the punishment. 
 
 After this the court receives evidence as to any sontence^the prisoner may then 
 bo undergoing, abo his age, date of attestation, service allowed to reckon towards 
 limited engagement, his general character and any medals, good conduct badges or 
 other honorary rewards in possession ; also, as to the length of time tho prisoner has 
 been in confinement before his trial. 
 
 This evidence is to be given, when possible, by a commissioned officer who is not 
 a member of the court; generally by the prosecutor, who is first sworn. 
 
 On the trial of an officer only evidence of former convictions (if any) is produced 
 at this stage of the proceedings. 
 
 Sentence. — Tho prisoner's previous convictions, &o., having been inquired into, 
 the court is again cleared for the purpose of deciding upon tho sentence secretly, and 
 the votes of all members are taken in the same manner as for tho finding. 
 
 It is often convenient, if tho court differ as to the punishment, first to decide as to 
 its nature, and then as to its extent. 
 
 In all cases there must be an absolute majoiity of the whole court. It is not 
 sufficient that a greater number of votes should be given for any one kind of punish- 
 ment than for any other punishment, unless that greater number should form a 
 majority of tho whole. It is illegal to determine tho a.nount of p-inishmont by divid- 
 ing the aggregate amount awarded by all the members collectively, by the number of 
 members constituting the court, for the opinion of the majority may often bo over- 
 ruled thereby. 
 
 CM. before passing sentence, are to ascertain that the state of health of tho pri- 
 soner will admit of tho sentence being forthwith carried into effect. If tho medical 
 certificate stales that tho prisoner is unable to undergo hard labour, the court may 
 nevertheless award "impt. with such hard labour as, in the opinion of the medical 
 officer of the prison, the prisoner may be eqi'al to." 
 
 Sentences of impt. are always to be specified in days. 
 
 Just discrimination is to bo used by the court in applj-ing tho quantum of punish- 
 ment to the nature and degree of the offence, so that the award may bo final and 
 carried into effect ; as it is indisputable that crimes are more effectually prevented by 
 tho certainty than by the severity of punishmeht. 
 53 If the court whh to recommend the prisoner to mercy, or to remark on the con- 
 
 duct of the parties before Ihem, or on the manner in which a particular, witness has 
 delivered his testimony, they should embody their views in a separate letter, to bo 
 signed by the President and forwarded with the proceedings. 
 
 The proceedings of a G. C M., if held in tho U. K , are transmitted by the 
 Deputy J. A. to the J. A. G. for the decision of the Sovereign ; and in the case of the 
 Boyal Marines, to the Secretary of the Admiralty for the decision of the Admiralty; 
 if held abroad, to tho General in Command, or other officer vested with authority to 
 confirm the proceedings. 
 
 The proceedings of a D. C. M. are forwarded by the Presidoit to the General 
 Officer commanding tho district, or to army headquarters, where there is no General 
 Officer in command, for confirmation. 
 
 The proceedings of a R. C. M. are forwarded to tho C. O. of the regiment. 
 
 With regard to Field G. C M. the Provost Marshal is responsible that a ])ropor 
 record of the proceedings is kept. Ho may be the Prosecutor, but he must nevertheless 
 see that the prisoner has a fair trial, for which he must summon all necessary witnesses, 
 &c. He takes charge of the Proceedings to get them confirmed, and then transmits 
 them when promulgated to tho Staff Officor of the force to which he is attached. 
 
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41 
 
 For trial by a Fiekl G. C. \5., the complaint against the prisoner must be made 
 by a Provost Marshal or by one of his assistants. 
 
 Wlion a C. M. has been confirmed it is sent to the C. O. of the regiment who causes 
 the charges, finding, sentence, also the remarks and confirmation of the confirm- 
 ing authority to be promulgated to the prisoner on parade. If the court recommended 
 the prisoner to mercy, such recommendation is also to be promulgated and communi- 
 cated to the prisoner. 
 
 5S 
 
 CONFIRMATION OF'COUBTS MARTIAL. 
 
 The finding and sentence of a C. M. are not valid unless confirmed by tho 54 
 proper authority, except in the ease of the finding of acquittal, whether on all or 
 some of the charges, which finding does not require confirmaf'^n, nor is it subject to 
 revision, and If it relates to the whole of the ultbncos it is pronounced at once in open, 
 court, and the prisoner is discharged. 
 
 The duty of the confirming authority is one of the first importance, as on him 
 devolves the whole i-esponsibility of giving effect to the proceedings, lie is required 
 to be totally independent of the court. 
 
 The object of interposing tho confirming authority before the execution of any 
 sentence awarded by C. M. is, undoubtedly, with a view to a thorough investigation 
 of the whole circumstances, and that justice may be mercifully administered. The 
 oflicer entrusted with this duty is not restricted from making any enquiries necessary 
 on questions raised on the trial, and ho may act on them in confirming or remitting 
 the sentence. 
 
 The following authorities have power to confirm the findings and sentences of 
 C. M. :— 
 
 In tlie case of a • — 
 
 (rt). R. C. M., the convening oflicer, or officer having authority to convene 54 
 such a C. M., at the date of submission of the finding and sentence, that is, generally 
 the C. O. of the regiment. 
 
 (6.) D. C. M., an officor authorised to confirm a G. C. M., or some officer deriving 
 authority to confirm a D. C. M. from an officer authorised to confirm a G. C. M., 
 generally in England the oflicer commanding a district. 
 
 (c.) G. C. M„ in the U. K., Her Majesty or the 0. in C. — abroad, an officer hav- 
 ing authority under warrant from Her Majestj'. 
 
 (d) Field G. C. M., an oflicer authorised to confirm G. C. M. for tlie trial of 49, 
 off'ences in the force of which the detachment or portion of troops under the command 54, 
 of the convening officer forms part. If the sentence is not capital any general oflicer 12 
 or F. O. authorised to confirm G. C. M. to whom the proceedings are brought by tho 
 Provost Marhhnl; if capital, then by the General or F. O. commanding the force. 
 
 No member of a C M. cin confirm its finding and sentence. Where a mem- 
 ber of a C. JM. becomes confirming officer, he must refer the matter to a superior 
 oificer competent to confirm tho like description of C. M., who will then be tho con- 
 firming authority. 
 
 An officer having authority to confirm a C M. may withhold his confirmation 
 and refer the matter to any competent superior authority, who will then be tho 
 com ming authority. In a colony where there is no such superior authority, tho 
 Governor of the colony may be tho confirming authority. 
 
 A sentence of death passed in a colony, unless passed fi^r an offence committed 
 on active service, must, in addition to the ordinary confirmation, be approved by the 
 Governor of the colony; and in India by tho Governor of a Presidency, if within the - 
 limits of any Presidency ; otherwif by tho Governor General. 
 
 If the punishment awarded is in excess of that authorised by law, tho confirm- 
 ing ai'tlioi'ty inay vary the sentence so as to make it legal, and confirm the sentence 
 as 80 varicJ. 
 
 Where a person 's convicted of manslaughter or rape, or any other civil off'once 
 by C. M., and is sentenced to P. S., such sentence, in addition to the usual confirma- 
 tion, must bo approved by the Governors above mentioned. 
 
 
 i 
 
 ,1E' 
 
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 42 
 
 ':! 
 
 The proceedings of C. M., wliothor original or revised, may bo "confirmed"' 
 either wholly or in part, or " not contirmod." If the contirming authority withholds 
 his confirmation the sentence is annulled, and the prisoner relurna to his duty, and 
 he cannot be tried again, though couviciiin leniains if the finding was g'lilty, and 
 there is no remission of any penalty consequent on his conviction, t-uch as forfeiture 
 of service towards pension, good conduct pay, &c. 
 
 When the proceedings aie quashed, oi- not aside, on account of their illegality, or 
 form, or any other circumstance, which is an action taken after confirmation, in the 
 case of a I). C M. by the J. A. G., in that of a li. C. xM. by authority of the General, 
 the soldier is to be relieved from all consequences of his trial and all record of it is 
 erased. The confirming autho* ..y cannot quash the proceedings. 
 
 If the confirming otiiccr disapproves of either the finding or sentence, he may 
 order the court to re-asserable for the purpose of revision, the part to bo revised and 
 the necessity of revision being stated to the court in a separate minute. 
 
 Iiecision can on\y be oidered once. The same members who formed the court 
 originally must reassembio. No additional evidence respecting tho charge can bo 
 taken, and no portion of the original ])roceed.ngs can be altered! No sentence can 
 be incroascd on revision, and if any alteration is made in tho finding, tho sentence 
 must bo given afresh, and tho opinion of tho court stated in addition. Tiio minute 
 of tho contirming officer, or a copy thereof, containing tho instructions to tho court 
 and the reasons for requiring tho revision is also attached to tho proceedings. 
 
 The court may either revoke their former finding or sentence, or both (a» 
 required), or adhere to their former opinion. In tho latter case tho proceedings 
 must be confirmed, though not necessarily with approval; and the confirming officer 
 may still, if ho think fit, transmit the pioceedings to higher authority. 
 56 The confirming authority has power to mitigate or remit tho -punishment 
 
 awarded, or commute it for any less punishment or punishmentf to which the 
 offender has been sentenced by tho court. Ho may also for a time suspend the 
 execution of a sentence, but ho cannot remi^ any penalty consequent on conviction. 
 
 The confirming authority has power to commute a sentence of death to P.S. or to 
 impt, with or without hard labour, or a sentence of P. S. to impt,, with or without 
 hard labour. On active service a sentence of death, or P.S. for a crime for which 
 death might have been inflicted, may be commuted to corporal punishment, and a 
 sentence of corporal punishment to impt. with or without hard labour, not exceeding 
 42 days. 
 
 If the sentence of death on an officer or N. C. O. is commuted to P. S. or impt., 
 tho commuted sentence must first provide that tho officer be cashiered, and the 
 N. C O. reduced to the ranks. 
 
 Impt, with hard labour may bo mitigated to^simple impt. ; cashiering to dismissal ; 
 public reprimand to private reprimand, etc. 
 
 Her Majesty alone can pardon any prisoner convicted by CM. when tho pro- 
 ceedings have been confirmoil. 
 56 When a sentence passed by a CM. has been confirmed, the following 
 
 authorities have power to mitigate or remit tho punishment awarded, or commute 
 such punishment for any less punishment to which tho offender might have been 
 sentenced : 
 
 1. As respects persons undergoing sentonco in any place whatever : Her Majesty 
 or tho C in C or tho officer commanding the district or station where tho prisoner 
 may for the time be. 
 
 2. In India by tho C in C of tho forces in India, or in any Presidency by tho C. 
 in C. of the forces in that Presidency. 
 
 3. In a colony by tho officer commanding the forces in that colony. 
 
 4. In any place not in the U.K., India, or a colony, by tho officer commanding 
 the forces in such place. 
 
 Provided that every officer exercising this authority holds a command superior 
 to the confirming authority. 
 
 Miecution of Sentence : The authority confirming a sentence of death fixes the tin^e 
 anl place. The court specifies whether the sentence is to be carried out by shooting or 
 
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 hanging. On a sentence of P.S. being confirmed, a judge's order must bo obtained 
 before sending the prisoner to a convict prison. 
 
 In cases of irapt., if a man is to be discliai'ged he is sent to a civil prison ; in all 
 other cases, to a military prison. 
 
 The place of impt. under sentence of a G.C.M. is to bo appointed by iho officer 
 commanding the station ; and under the sentence of any other CM., by the officer 
 confirming the proceedings; or if not by him, then by the U.O. of the prisoner's 
 regiment or corps. 
 
 Corporal punishment must always be inflicted in the presence of a commissioned 
 officer, and, whenever practicable in presence of a medical officer. The latter, or in 
 his absence the former, may order the punishment to cease at any time time, which 
 shall then bo deemed to have been fully inflicted. 
 
 DISPOSAL OF PROCEEDINGS. ' "' ' ! ' 
 
 The proceedings having been confirmed, an e.Ktract therefrom in the case of aG. 
 
 C. M., and the original proceedings in the case of a D. C. M., are forwarded for promul- 
 gation on parade to the prisoner's C. O., who then returns them to the convening 
 officer. In the case of a D. 0. M. the convening officer returns them to the President . 
 by whom they are forwarded under cover to the J. A. G. 
 
 In the case of Eoyal Marines; he sends them direct to the Secretary of the 
 Admiralty, 
 
 The proceedings of General or D.C. M. and Field G.C. M. after being confirmed 121 
 and promulgated are kept deposited in tho office of the J. A. G. in London, or at the 
 Admiralty; those for G.C. M. are kept for not less than seven years; those for 
 
 D. C. M. and Field G. C. M. for not less than three years. 
 
 The proceedings of R C. M. are to be kept by corps for not less than three 72 
 years. 
 
 Any person tried by G. C. M., or any person on his behalf, can within seven 121 
 years, and in tho case of any other C. M., within three years after confirmation of the 
 finding and sentence, obtain a copy of the whole proceedings, paying tor tho same at 
 the rate of two pence per folio of 72 words. 
 
4i 
 
 CHAt»TER Vr. 
 
 CBIMBS AND PUNISHMENTS. 
 
 Tho principle of classification adopted in tho Act classifying the different military 
 offences is that of fjrouping together offences of a similar character, and ranging the 
 various groups as between themselves in a manner intended to impress the soldier 
 with their relative importance. For example, the Act begins with the punishment 
 ■of "offences in respect of military service," on tho ground that misbehaviour in tho 
 field is the greatest crime that a soldier can commit. This is followed by " mutiny 
 and insubordination" by way of ehowing that after misbehaviour in the field, mutiny 
 4ind insubordination rank next in order amongst a soldier's crimes. Tho offences 
 here enumerated refer only to "every person subject to Military Law," an expression 
 used throughout the Act for the purpose of including persons other than officers and 
 soldiers, such as camp followers, sutlers, etc., who are subject to Alilitary Law. 
 
 The punishmeni's specified for each offence are maximum punishments, and the 
 offender when convicted by C. M. of the offence is only liable to suffer such maximum 
 punishment, " or such less punishment as is in this Act mentioned." 
 
 A maximum punishment is only intended to be imposed when the offence committed 
 is the worst of its class, and is committed by an habitual offender, or is committed 
 under circumstances which require an example to be made by reason of the unusual 
 prevalence of that offence in the force to which the offender belongs, 
 ^ The following are the principal offences enumerated in tho Act. 
 
 . -^ OFFENCES IN RELATION TO THE ENEMY PUNISHABLE WITH DEATH. 
 
 4 Shamefully abandons or delivers up a post or induces others to do so, — casts away 
 
 arms, etc , in presence of an enemy, — assists the enemy in anyway, — misbehaves or 
 induces others to misbehave before tho enemy so as to show cowardice, — knowingly 
 does anything calculated to imperil the success of H. M. forceji, — treacherously holds 
 correspondence with or gives intelligence to the enemy &c. 
 
 Punishment — Death. 
 
 OFFENCES IN RELATION T3 THE ENEMV NOT PUNISHABLE WITH DEATH. 
 
 6 Leaves the ranks without orders to secure prisoners horses, to take wounded to 
 
 the rear, — wilfully destroys property without orders, — is taken prisoner by wantof due 
 precaution, disobedience of orders, &c., and fails to rejoin the service when able to do 
 so; — without authority holds correspondence with or gives intelligence to the enemy 
 (doing this without treachery is not so serious a crime) ; — spreads reports, or in action 
 or previous to going into action, uses words ealculatod to create unnecessary alarm 
 or despondency. 
 
 Punishraent--P. S. ' 
 
 OFFENCES PUNISHABLE MORE SEVERELY ON ACTIVE SERVICE THAN AT OTHER TIMES. 
 
 6 Loaves his C. O. to go in search of plunder, loaves guard, post, &c., without 
 
 orders ; — forces a safeguard or a sentry; — impedes the Provost Marshal or his assistants 
 or refuses to assist them in the execution of their duty ; — does violence to tho person or 
 property of any inhabitant ; — breaks into any house in search of plunder ; — intentionally 
 ■occasions false alarms, treacherously makes known the parole or watchword, or gives 
 a W'ong one, [if the latter two offences are not done intentionally or treacherously 
 they are only punishable by cashiering or impt.,] — appropriates to his own corps any 
 
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45 _ - 
 
 Bupplies proceeding to the forces contrary to orders ; — a sentinel who sleeps or is drunk 
 on his post, — leaves his post before boin^ regularly relieved. 
 
 Punishment — on active service, death ; not on active service, cashiering or impt.* 
 
 MUTINY AND SEDITION. 
 
 Causes, conspires witli other persona to cause, endeavours to seduce others, *z 
 joins in, or does not endeavour to suppress, or conceals knowledge of a muiir.y or 
 Keditiou in any forces. 
 
 Punishment — death. 
 
 STRIKING OR TUREATENINa A SUPERIOR OFFICER. 
 
 Strikes or uses or olfors any violence to his superior officer in the execution of 8- 
 his office. 
 
 Punishment — death. 
 
 Strikes or uses or offers any violence to his superior officer, or uses threatening 
 or insubordinate language to his superior officer. 
 
 Punishment — on active service— P. S. ; not on active service, cashiering or impt. 
 
 DISOBEDIENCE TO SUPERIOR OFFICER. 
 
 Disobeys so as to show a wilful defiance of authority any laiOful command 9" 
 given personally by his superior officer in the execution of his office. 
 
 Punishment — death. 
 
 impt. 
 
 Disobeys any lawful command given by his superior officer. 
 
 Punishment — on active servicn — P. S. ; not on active service— cashiering or 
 
 INSUBORDINATION. 
 
 Being concerned in any fray refuses to obey any officer (though of inferior jo 
 rank) who orders him into arrest, or strikes, uses or offers violence to such officer, — 
 or to any person in whose custody he is placed,— resists an escort sent to apprehend 
 him, — being a soldier breaks out of barracks, camp or quarters. 
 
 Punishment — cashiering or impt. 
 
 S' 
 
 NEOLECT TO OBEY GARRISON OR OTHER ORDEHS. 
 
 Punishment — cashiering or impt. 
 
 11 
 
 DESERTION. 
 
 Deserts or attempts to desert, persuades, &c., others to desert. * 12: 
 
 Punishment — on active service, or under orders for active service — death ; under 
 any other circumstances, for tirst offence — impt. ; for subsequent offences — P. S. 
 
 ■ ' ^ FRAUDULENT ENIJSTilENT. • 
 
 ' When belonging to regular forces, re^icrve forces or militia, enlists in anv of 13. 
 the above forces or enters tiio Hoyal Navy. 
 
 Punishment — for lirst oft'enco — impt. ; subsequent offence — P. S. 
 
 In addition to these prescribed punishments, the court may, of course, also sen- 
 tence the offender to make good any expenses, loss, damageor destruction occasioned 
 by the commission of the offence, and, therefore, to make good the value of a free 
 kit, if it is shown by evidence that one was leceived, 
 
 * i.e. Cashiering if an officer; impt. if a soldier. 
 
PERSUASION OV OR OONNIVANCK AT DESERTION. ''i'i'%' 
 
 14 AssiMts othoi's to dosor^, or being jvwure of any dosortion or in tended deser- 
 tion, does not inform his C. O., or cndojivoiir to liavo the deserter apprehended. 
 
 *. Puuibhment — inipt. 
 
 ABSENCE FROM VVTY WITHOUT LEAVE. ' 
 
 15 Absent wilhout loa%'o, — fails to appear at place appointed by hia C. O. or 
 leaves it without being relieved, — being a «oldior, is found be3'orid any limits fixed or 
 in any place prohibited by any oidor, without a pass or written leave of his C. 0. 
 
 Punitihment — cashiering or impt. 
 
 SCANDALOUS CONDUCT OP AN OFFICER. 
 
 16 Behaves in a scandalous manner, unbecoming the character of an officer and 
 a gentleman. 
 
 Punishment — cashiering. 
 
 • 
 
 STEALING AND EMBEZZLEMENT. 
 
 17 • Being charged with or concex'ncd in the care or distribution of any public 
 
 money or goods, steals, fraudulently misapplies or embezzles the same, or connives 
 thereat, pr wilfully damages such goods. 
 
 Punidhment — P. S. ' • . 
 
 ' DISGRACEFUL CONDUCT OF SOLDIER. 
 
 ■■- . • 
 
 18 Malingers or feigns or produces disease or infirmity, — wilfully maims or injures 
 himself or other soldier, with intent to render himself or other soldier unfit for 
 service ; — wilfully produces or aggravates diiseaso in any way ; — steals or embezzles, or 
 receives, knowing them to be stolen or embezzled, any money or goods ; — is guilty of 
 any other offence of a fraudulent nature not specified in the Act, or of any other dis- 
 graceful conduct of a cruel, indecent or unnatural kind (words " disgraceful conduct " 
 are only to be used for offences under this last para.). 
 
 Punishment — impt. 
 
 . DRUNKENNESS. 
 
 19 Drunk, whether on duty or not on duAy. 
 
 Punishment — an officer — cashiering; a soldier — impt., and in addition to or in 
 substitution lor any other punishment, to pay a fine not exceeding one pound. 
 
 JERMITTING ESCAVE OF PRISONER, 
 
 20 lleleaFCS wilhout authority, when in command of a picket, guard, patro! or 
 pest, any prisoner committed to his chnige, or allows his escape. 
 
 Punishment — if he has acted wilfully — P. S. ; if he has acted negligently — impt. 
 
 IRREGULAR IMPRISONMENT. 
 
 21 Unnecessarily det'.ins a prisoner in custody wilhout bringing him to trial, 
 
 or fails to bring his case before proper authority for investigation, or when in con. 
 mand of a guard, does not, within 24 hours, give in writing a report of prisoner's name 
 and crime, and the name and rank of person by whom ha was charged. 
 
 Punishment — cashiering or impt. 
 
■ in- 
 
 led deser- 
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 C. O. or 
 
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 his C. 0. 
 
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47 
 
 ESCAPE FROU CONFINEBIENT. 
 
 £->capes or attempts to escape from lawful cuHtody. 
 
 Punishment — cashiering or impt. 
 
 22 
 
 COBRUPT DBALINQS IN RBSP20T OF SUPPLIES TO FORCES. 
 
 Being in command ot nny garrison, fort or barrack, connives at the exaction 23 
 of exorbitant prices for houses or stalls let to sutlei-s; — orluysanyduty upon, or takes 
 any fee or advantage in respect of, or is in any way interested in the sale of provi- 
 sions or merchandise brought into places under his command. 
 
 Punishment — irapti 
 
 DEFIOIBNCr IN AND INJURY TO EQUIPMENT. 
 
 Pawns, sells, loses by neglect, makes away with or wilfully spoils (or defaces) 24 
 his arms, ammunition, equipment, inNtrumeiUs, clothing, regimental necessaries or 
 military decoration ; — illtreats or unlawfully sells or makes away with any horse of 
 which he is in charge. 
 
 Punishment — impt. 
 
 FALSIFYINO OFFICIAL DOCUMENTS AND FALSE DECLARATIONS. 
 
 In any report, return, pay-list, book, route or other documnnt made or signed 26 
 by him, or of the contents of which it is his duty to ascertain the accuracy, know- 
 ingly makes or is privy to making any faihe or fraudulent statement, or any omission 
 with intent to defraud, — or knowingly and with intent to defraud, or to injure any 
 person, suppresses, or makes away with any documents which it is his duty to pre- 
 serve, or whore it is his official duly to make a declaration respecting any matter, 
 knowingly makes a fialse statement. 
 
 Punishment — impt. 
 
 > 
 
 NEGLECT TO REPORT AND 81 ININU IN BLANK. 
 
 When signing any document relating to pay, arms, ammunition, Ac, or any 2» 
 stores, leaves in blank any material part for which his signature is a voucher, or 
 refuses, or by culpable neglect omits to make or send a report or return which it is 
 his duty to make or send . 
 
 Punishment — cashiering or impt. ' 
 
 FALSE ACCUSATION OR FALSE STATEMENT BV SOLDIER. 
 
 Being an oflScer or soldioi, knowingly makes a false accusation against any 27 
 Other offii^cr or soldier, or in making a comjJaint whore ho thinks himself wronged, 
 makes any false statement affecting the character of an officer or soldier; — or know- 
 ingly and wilfully Kuppres os any material facts ;— or, being a soldier, falsely states to 
 his C.O. that ho haw uecn guilty of desertion, fraudulent enlistment, or of desertion 
 from the navy, or has served in and been discharged from any portion of the regular, 
 reserve or auxiliary foj-cos, or the nav; — or makes a wilfully false statement res- 
 pecting prolongation of furlough. 
 
 Punishment — impt 
 
 OFFENCES IN RELATION TO COURTS MARTIAL. 
 
 Being duly summoned or ordcod to attend as a witness before a CM.., makes 2i 
 dePault in attendi ag ; —or refuses to take any oath or make a solemn declaration legally 
 required ; — or to produce nny document in his power legally required, or refuses to 
 answer any question legally required ; —is guilty of contempt of a C.M. by using insult 
 
48 
 
 ing or threatening language, or by causing any interruption or disturbance in tho 
 proceedings of such couit. 
 
 Punishment — Cashiering or impt. 
 
 (These offences cannot be tried by the court in relation to or before whom the 
 oflPence was committed, except when any person, other than the prisoner, subject to 
 Military Law, is guilty of contempt of court when that court may punish him with 
 21 days impt.) 
 
 PERJURY Oa i'ALSE DECLARATION. 
 
 29 When examined on oath or solemn declaration before a CM., or any court 
 
 authorised to administer an oath, wilfully gives false evidence. 
 
 Punishment — impt. 
 
 OFFENCES IN RELATION TO BILLETINO. 
 
 SO Is guilty of any ill-treatment, by violence, extortion, &c., of the occupier of 
 
 a house in which any person or hoi-seis billetted ;— or an officer who refuses to cause 
 compensation to be made for the same ;■ — or fails to meet the just demands of the per- 
 son on whom any person or horee is billetted ; — or wilfully demands billets not actually 
 required for those entitled to bo billetted ; — or takes, or knowingly suffers to be taken, 
 from any person any money or reward to relieve him of his liability as to billetting ; — 
 or uses or offers any menace to, or compulsion on, a constable to make him give 
 billets contrary to the Act, or todiscourage him from doing hisduty ; — or uses or offers 
 any menace or compulsion on any person tending to oblige him to receive, without 
 his consent, any person^ or horiso not duly billetted. 
 
 Punishment-^Caishiering or impt. 
 
 OFFENCES IN RELATION TO THE IMPRESSMENT Of CARRtAOES AND THEIR ATTENDANTS. 
 
 31 Wilfully demands any carriages, animals or vessels, not actually required for 
 purposes authorised in the Act ;— or fails to comply with the Act as regards payment 
 of sums due, and weighing of the load ; — constrains any carriage, animal or vessel to 
 travel against the will of tho person in charge beyond the proper distance, or carry 
 a greater weight ; — or does not di^^charge, as speedily as practicable, any carriage, &c., 
 impressed ; — compels any person in charge, or permits him to be compelled, to take 
 any baggage or stores not entitled to be carried, or any soldier, servant, woman or 
 person (except such as are sick); — or ill-treats or permits ill-treatment of any person 
 in charge; — or uses or offers violence to a constable, &c. ; — or forces any carriage, 
 animal or vessel from the owner. 
 
 Punishment — Cashiering or impt. 
 
 ENLISTMENT OF SOLDIER OR SMLOR DISCHARGED WITH IGNOMINY OR DISGRACE. 
 
 32 Having been discharged with ignominy, or as incorrigible and worthless 
 from the regular or reserve forces, or auxiliary forces, when subject to Military Law; 
 or having been dismissed with disgrace from the navy, has afterwards enlisted in the 
 regular forces without declaring the circumstance of h'S discharge. 
 
 Punishment — P. S. 
 
 FALSE ANSWERS OR DECLARATIONS ON ENLISTMENT. 
 
 33 Uaving made a wilfully false statement to a justice or wilfully false answer 
 to any question in the attestation paper. 
 
 ' Punishment — Impt. 
 
in tho 
 
 lom the 
 bject to 
 tn with 
 
 y court 
 
 upier of 
 to cause 
 "the pei'- 
 actually 
 )e taken, 
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 ENDANTS. 
 
 lired for 
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 vessel to 
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 oman or 
 
 r person 
 carriage, 
 
 IRACE. 
 
 worthless 
 xry Law; 
 Oil in the 
 
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f 
 
 list 
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 Civ 
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 civi 
 
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 hun 
 
49 
 
 » 
 
 GENERAL OFFENCES IN UELATION TO ENLISTMENT. 
 
 Enlists for service in the regular forces, any man not anthorisad to be on* 34 
 listed, or wilfully contravenes any provisions or regulations relating to enlihtment or 
 attestation. 
 
 Punishment — Impt. 
 
 TRAITOROUS WORDS. 
 
 Uses traitorous or disloyal words regarding the Sovereign. 
 Punibhraent — Cashiering or impt. 
 
 86 
 
 INJURIOUS DISCLOSURES. 
 
 Whether serving with any of H. M. forces or not, without due authority, 36 
 either verbally or in willing discloses the numbers or position of any forces, or 
 any magazine or stores, or any preparation for, or orders relating to, operations or 
 movements, at such time and in such manner as, in the opinion of the court, to have 
 produced effects injurious to H. M. service. 
 
 Punishment — Cashiering or impt. 
 
 ILL- TREATING A SOLDIER. 
 
 Strikes or Otherwise ill-treats any soldier; or having received the pay of any 37 
 officer or soldier, unlawfully detains or refuses to pay the same when due. 
 
 Punishment — Cashiering or impt. 
 
 DUELLING AND ATTEMPTING TO COMMIT SUICIDE. 
 
 Fights, or promotes or is concerned in or connives at fighting. Atlempt8_to 38 
 commit suicide. 
 
 Punishment — Cashiering or impt. 
 
 REFUSAL TO DELIVER TO CIVlL 
 
 POWER OFFICERS AND SOLDIERS ACCUSED OF CIVIL 
 OFFENCES. 
 
 On application being made to him, neglects or refuses to deliver over to the 39 
 Civil Magistrate, or to assist in the apprehension of, any olficer or soldier accused of 
 an offence punishable by a Civil Court. 
 
 Punishment — Cashiering or impt. 
 
 CONDUCT TO PREJUDICE OF MILITARY DISCIPLINE. 
 
 Is guilty of any act, conduct, disorder or neglect, to the prejudice of good 40 
 order and military discipline. 
 
 Punishment — Cashiering or impt. 
 
 No person can'bo charged under this section for any offence for which special 
 provision is made in any other part of the Act. 
 
 OFFENCES PUNISHABLE BY .DINAHY LAW. 
 
 The Act gives absolute jurisdiction to a C. M. to try any civil offence, as a 41 
 CM. may try any offence of a felonious or fraudulent nature, or of any otfei>ce to 
 the prejudice of good order and military discipline, which term embraces nearly all 
 civil crimes; with the important exception, however, that a CM. cannot try treason, 
 murder, manslaughter, treason-felony, or rape, if committed in the U. K., and eannot 
 try any of such crimes in any place within H. M. dominions other than Gibraltar, un- 
 less the offence was committed when on active service, or such place is more than one 
 hundred miles as measured in a straight line from any city or town in which the 
 
offondor can bo tried for such offence by a competent Civil Court. If convicted by 
 C. M. of liiiy civil oft'ence other than the above, he may receive thosame punishment 
 as in rcopeot of an act to the prejudice of good order and military diauijtiino, or any 
 puniahment assigned for such offence by the law of England. 
 
 
 
 RKMABKS ON CERTAIM OBUIES AND PUNISBMKNTS. 
 
 What constitutes a crime ? Will and 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. 
 
 If a person kills another, he is not fljuiltyof felony unless there was a epenific 
 intent to do harm or commit murder. Killing is not murder unless there bo m: lice. 
 Appropriation of another's property is no thoft unless it is feloniously appropriating. 
 The word " malice" is frequently used in legal phraseology, and moans evil intent, 
 and malice is deemed a ni cessary ingredient in one form or another of all crimes. 
 
 The law presumes every man to contomplato the natural and nocossary conao- 
 quonce of his own a-'ts until he ehows justification or excuse. 
 
 " Whon the act is in itself unlawful, the proof of justification or excuse lies with 
 the accused, in failure whereof the law implies criminal intent." This principle 
 applies also to crimes of omission, as a woman neglecting her helploss child is guilty 
 of murder by the Civil Law. In the army a large clabs of offences are crimes of 
 oraission . 
 
 Thus the law assumes malice and throws on the accused the onus of clearing 
 himself, and it is for the latttr to disprove malice by showing justification or excuse. 
 
 Treason is defined to be an offence against the security of the Queen and Her 
 Dominions. 
 
 Felony and Misdemeanour. — There is no exact definition of felony, and it has been 
 considered injudicious to make a distinction between felony and misdemeanour, yet 
 the Statute distinctly calls certain crimes felonious, and lays down certain rules 
 respecting felor/. 
 
 Felony is defined by Sir W. Blackstono to be un "offence which occasions a total 
 forfeiture of either lands or ^oods, or both, at Common Law, and to which capital or 
 other punifhment may be superadded according to the degree of guilt." 
 
 Tho principal felonies pronounced so by St&tuto are: Murder, manslaughter, 
 attempt to murder, wounding with intent to do bodily harm, theft, burglary, house- 
 breaking, rape, arson, forgery. 
 
 The term misflemeanmr, in its legal acceptation, is confined to euch indictable 
 offences as do not amount to treason or felony. 
 
 Homicide may be either felonious, justifiable or excusable; in either of the two 
 latter cases no penalty is incurred. Felonious homicide, again is divided into murder and 
 manslaughter. Murder is the unlawful kilting of a human being with malice afore- 
 thought, tho malice being any felonious mteiit. Manslaughter is the unlawful killing 
 of another without any malice, and may be either voluntary upon a suddon provoca- 
 tion, or involuntary when eneaged in some unlawful act. Homicide is excusable 
 when by accident while engaged in a lawful act. It is justifiable whon imposed by 
 law, or when a person having committed, or being charged with a felony, will not 
 fiutfer himselt to be arrested, in cases of riot, or to prevont any forcible or atrocious 
 crime, &c. There must, in all thodo cases, be an apparent necessity for the homicide 
 to render it justifiable. 
 
 Th-ft h 18 been dofined as " tho wrongful or fraudulent taking and carrying 
 away l»y one pernoa of the mere personal goods of another with the fe'oniom intent, 
 to convey to the taker's own use and make them his own property, without the con- 
 sent of tho owner " 
 
 The taking must not only bo wrongful but wilfully wronf *'ul, for if the accused 
 believed in his mind that be had a right to take the goods, and took them in good 
 faith, it is not theft. To prove theft the intent must therefore be shown, and it must 
 also be shown that tho goods taken are the property of the ownor specified. For 
 this purpoHO property is said to belong to tho person who is lawfully charged with 
 it, as an officer in ohargo;of any government property, postmaster, washerwoman, &o. 
 
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51 
 
 Thoft is known to the ordinary criminal code as larceny, and there are two 
 Ikinde: iHt, nimple larceny ; 2nd, compound larceny. 
 
 The latter Ih accompanied by ciicumstauceH of aggravation, such as stealing from 
 a house, or from a person with violence. 
 
 Rubbery is the folonioua and ioi'ciblo taking of any property from the person of 
 another, or in hia |)re8onco aguinHt hia will. A peitioo charged with robbery may be 
 convicted only of an assault with intent to rob. 
 
 Burglary in a breaking and entering by night the dwelling house of another with 
 intent to commit felony within the t-ame, whether the felonious intent be executed 
 oi* not. The nighf, in England, Ih considered to be Irora 9 p.m. to (J a.m. 
 
 Arson is the wilful anil malicious burning of a house, whether the house bo the 
 offender's or Jjnolher's. 
 
 Forgery is the false making, altering or adding to, any writing or document with 
 intent tu defraud ; it is not nccussary to allege or ptove an intention to defraud any 
 particular person. 
 
 Perjury is defined to bo "a wilful false oath by one who, being lawfully required 
 to depo.-e the truth in any judicial proceeding, swears absolutely in a \i\St.iiQV material 
 to the point in question, whether ho be believed or not." 
 
 A solemn declaration, when authorised, is equivalent to an oath. 
 
 One witness is sufficient to prove the taking of the oath, but two witnesses aro 
 necessary to prove the oath to be failse. 
 
 Perjury is not a felony, but a misdemeanour. To bring this crime under the Act 
 the oath must bo authorised and required to bo taken by the Act. 
 
 Tho court, therefore, must have jurisdiction in the cause in which the perjury is 
 committed ; otiiorwise the offender cannot be lawfully required to swo.ir to the truth. 
 
 The swearing must bo absolute. 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 conv -ary, ho 
 could still bo indicted 'for perjury. 
 
 The statement must bo wilful and not dae to any mistake, surprise or inad- 
 vertency. 
 
 Tho matter must bo material to the issue; this moans that tho statement must 
 have a tendency directly or indirectly to influence tho trial; immaterial statements 
 aro no< t>"iablo for perjury. 
 
 Forcing a S'ifeguird. — A safeguard is a kind of protection to yjorsons or ])roperty 
 granted by the (J. O. ot troops to inhabitants, and guaranteed by the presence of one 
 or more soldiers or officer specially nllotled for thi't purpose. A safeguard is not in 
 any way synonymous with seulinel, but tho crime of forcing a safeguard is a con- 
 temptuous vii>lalion of ilio orders of tho General, bringing his honour into disrepuio. 
 The idea is that tho 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. 
 
 A sentry s'eeping on his post or leacing h'S post. — To convict under this heading 
 tho evidence that tho man was posted vviili sutlii-iont ceremony must be comjjlete 
 and is essential. A ^oldier who has posted himself is not deemed posted. 
 
 Mutiny and Sedition. — Mutiny is an act committed more or less in conjunction 
 with others; it implies extreme and collective insubordination, or rising against or 
 resi ting military authority in combination or himultanoously, with or witiiout actual 
 violence, surh acts generally proceeding from alleged or protended grievances of a 
 military nature. A single individui.l csm only bo guilty of insubordination. 
 
 Sedition.— T\n'' uiHorence botweon sedition and mutiny is not very clear, yet 
 sedition is generally coisiderod as trea-*oiiable or rioiious acts committed by soldiers 
 against the Government or civil authorities rather than against military superiors, 
 though necessarily involving or resulting in insubordination to the latter. 
 
 insubordinnfion i'nplies the striking, using or offering of violence to any superior 
 officer in the execution of his office. 
 
 To constitute tho offence of offering violence there must bo an overt act, i c, a 
 real attempt to use violence which w juld have taken effect but for some proventativft 
 
52 
 
 ^i" 
 
 'f- 
 
 VO 
 
 11 
 
 oaase. A mere throat or gesture, such as shaking the Qat, is not an offer of violence^ 
 unless close to the person thrbateneU. 
 
 The term "execution of his office" applies more particularly to officers and N. C. 
 O'h being on duty at the time the offence was comraitto I. N. 0. O's, however, 
 being continuously in uniform, it is laid down that they are, while with the regiment 
 or any portion of it, always to be considered on duty. There has always boon a 
 doubt as to whether officers dressed in plain clothes could bo considered as on duty. 
 This is provided for in the Act by making the same crimes to a superior (not in the 
 execution of his office) military offences, though not of so serious a nature. Could it 
 be proved, however, that the officer in plain clothes was known to the oflfender ho 
 would in giving an order be doomed to oe in the oxocution of his office. 
 
 Disobeying t/u laxoful command of a superior officer. — No offences differ so much in 
 degree as those falling under tho general description of insubordination. An offence 
 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. 
 
 Under this heading there are two distinct offences specified. The essentiul 
 ingredients of the graver offence are that it should show a wilful rf^^awoe of authority, 
 and should be disobedience of a Uiwful command given personally by a sup'rior officer 
 in the exe- ution of his office. Each of those particulars must be proved before the 
 prisoner can bo convicted of the graver offence of disobedience. The lesser offonco 
 consists of disobedience to any lawful command given by a superior officer, divested 
 of the special conditions which mark out tho greater offence. 
 
 Further, the order must be lawful, and this offers a wide field for discussion, as 
 this implies that it would be lawful in a military sense to disobey the unlawful com- 
 mand of a superior. A great authority on Military Law (Simmons) comes to the 
 following conclusion : " So long as the orders are not pointedly and decidedly con- 
 trary to the known laws of the land or custom of the service, or if in opposition to 
 those laws that the acts ordered to be done do not tend to an irreparable result, they 
 are lawful and the orders must be unhesitatingly oboj'od." 
 
 Desertion and absence without leave. — Desertion io defined as '' illegal absence from 
 duty without intention of returning." Hence a soldier must not be charged with 
 desertion unless the officer charging him is satisfied that he has gone away with the 
 intention of leaving H. M.. service. Further, even assuming ho is charged with 
 desertion, the court that tries him should not find him guilty of desertion unlosHthey 
 are fully satisfied upon the evidence that ho has been guilty of desertion ; in any ca^o 
 of doubt tho court should find him guilty of absence without leave. In charging a 
 man with desertion for any short absence without leave, it is necessary that there 
 should be clear proof of his intention to stay away. On the other hand, absence 
 without leave for any considerable time, if not satisfactorily accounted for, is in itself 
 strong presumptive evidence of an intention to dosert. A soldier may be tried for 
 desertion from any regiment or corps into which he may have unlawfulfy enlistod, 
 although ho may by right belong to another c )rns and be a deserter therefrom, and 
 any number of charges for desertion may form trie subject of a single arraignment. 
 
 When a soldier has been absent without leave for 2 1 days a court of inquiry 
 of three officers is to assemble, and having received proof on oath the court has to 
 declare the absence and the period thereof and the deficiency, if any, in his kit, and 
 the 0. O. will enter a record of the declaration of the court in the regimental books. 
 Kthe absent soldier does not afterwards surrender oris not apprehended, such record 
 has the legal effect of a conviction by C. M. for desertion ; and if sueh soldier should 
 afterwai"ds surrender or bo apprehended such record, or a copy thereof purporting 
 to be signed by tho officer having custody of the books, is, in tne trial of such soldier, 
 to be admissible in evidence of the facts therein recorded. 
 
 Where a soldier signs a confession that he has been guilty of desertion, or of 
 fraudulent enlistment, the C. in 0., A. G., or officer commanding tho forces in any 
 colony, &c., may dispense with his trial and order him to suffer the name forfeitures and 
 deductions of pay as if he had been convicted by C. M. for the offence. If upon such 
 confession, ovidonco of the truth or falsehood of it cannot then bo conveniently 
 
triolenc&r 
 
 nd N. C. 
 lowovor, 
 ■ogiraont 
 I bocD a 
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 3t in tho 
 Could it 
 endcr bo 
 
 much in 
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 absolute 
 
 CBsentiul 
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 divcHted 
 
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 'ful com- 
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 jdly con- 
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 iull, thoy 
 
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 , absence 
 9 in itself 
 tried for 
 enlidtod, 
 from, and 
 nmont. 
 f inquiry 
 irt has to 
 s kit, and 
 lal books, 
 eh record 
 ior should 
 urporting 
 ;h soldier, 
 
 Lion, or of 
 !S in any 
 itures and 
 ipoQ such 
 veniontly 
 
 I 
 
 'i' 
 
 'It 
 I 
 
 I 
 
53 
 
 obtained, the record of such confeasion, countersigned by the C. O., ie entered in tho 
 regimental bool<s, and tho soldier continues to do duty in tho corps in which he it) 
 serving or in any otiicr corps to which he may bo transferred, until his discharge or 
 transfer to the reserve, or until legal proof can bo obtained of tho truth or falsehood 
 of such confession. 
 
 When a soldier re-joins from absence as a prisoner of war, a C. M. enquires into 
 bis case, and unless it is proved that he was taken prisoner from wilful neglect, or 
 had not returned to the service as soon as possible, or hud served with or aided the 
 enemy, he may be recotnmonded to receive arrears of pay, or a proportion thereof, 
 and to reckon service during his absence. 
 
 Upon reasonable suspicion that a person is a deserter, a constable, or if no lit 
 constable can be immediately mot with, then any officer or soldier, may apprehend 
 him and bring him before a court of summary jurisdiction ; and if satisfied by evi- 
 dence or on oath that he is a deserter, such court may direct him to be delivered into 
 military custody. 
 
 If confession of desertion is made when a man is not serving, he is to bo broughc 
 before a court ol summary jurisdiction, and if his statement appears to be true, he is 
 remanded until reference can bo made to the S. of S. for War. If false, he is to be 
 summarily punished by irapt. for a period not exceeding 3 months. Civilians who 
 porsuado soldiers to desert, or assist them in deserting, or conceal deserters, &c., may 
 on summary conviction bo imprisoned, with or without hard labour, for a period not 
 exceeding 6 months. 
 
 With the crime of desertion, attempt to desert, or absence withnn.*- leave, is 
 frequently associated that of making away with clothing, equipment or necessaries. 
 
 Disjraceful Conduct is the heading under which are included in the Act offences 
 by commissioned officers of a scandalous nature, unbecoming the character of an 
 officer and a gentleman, and all offe.ices by soldiers of a fraudulent nature not par- 
 ticularly specified in the Act, or of any other disgraceful conduct of a cruel, indecent 
 or unnatural kind. 
 
 '"' ''■'' •;■"■' DRUNKENNESS, 
 
 Within the last fifty years several attempts have been made to repress this crime 
 in the army. In ISdO was introduced the system of charging men before C. M.with 
 the crime of habitual drunkenness, i.e , a man must have been druak four timeH 
 within twelve months, or twice within the same period when on or for duty, or on 
 the line of march. 
 
 This plan was continued till 1:)69, when C. O's wore authorised to punish sum- 
 marily by fine, simple acts of drunkenness; and trial by C. M. for habitual drunken- 
 ness was done away with. 
 
 Tho Act of 1875) again introduces the crime of habitual drunkenness, and defines 
 an habitual drunkard as one who " has been guilty of drunkenness on not loss than 
 four occasions in the preceding twelve months." 
 
 An officer or a N. C. O. may be charged before a C. M. with a single act of I'yj 
 drunkenness, whether committed on duty or not on duty (for a single act of drunken- 
 ness in tho case of an officer or N. C. O., affects the nosition of the offender), but a 
 N. C. O. will not be punished summarily by his C. O. for the offence of drunkenness. 
 The C. O. is to deal summarily with tho case of a soldier drunk, when not on duty 46 
 nor warned for duty, unless he has been guilty of drunkonnen on not loss than four 
 occasions in the preceding twelve months. 
 
 When drunkenness is accompanied by another offence, for which tho offender is 
 to be tried by C. M., the act of drunkenness is to be summarily dealt with by the 
 C. O. previous to the trial for the offence. 
 
 Yet tho discretion of a C. O. with respect to sending cases of drunkenness not 
 on duty for trial is unfettered, and it is for him to judge whether the offence com- 
 mitted is of so serious a nature as to require being brought before a C. M. 
 
 « 
 
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 1 
 
 u 
 
54 
 
 CHAPTER VII. 
 
 
 COURTS OF INQUIRY. 
 
 There is no material difforenoo between a " Bjard" and a " Court of Inquiry;" 
 by Regulations they are considered the same; honco, all Boards specified in the Regu- 
 lations may be regarded as Courts of Inquiry, but Courts of Inquiiy which are 
 specially directed to be assembled for some extraordinary purpose are different. 
 These are of two kinds : — 
 
 1. Boyal Commissions, held under the prerogative of the Crown, institutoil by a 
 special warrant issued for the occasion, such as to enquire into the failure of expedi- 
 tions, etc. The proceedings of these courts are privileged, being secret procee<lings, 
 and oaths are administered under the prerogative of the Crown. The duties of these 
 commissions are quite undefined, but they proceed by the custom of tlie service,. 
 and in accoixlance with their particular instructions. 
 
 2. Courts of Inquiry, hold under statute for the purpose of determing the illegal 
 absence of soldiers. 
 
 •70, This court is for the purpose of recording a fact, and is the only one (except 
 177 Royal Commissions) which can take evidence on oath. It is assembled when any 
 soldier has been absent from duty for tweniy-one days. It is composed of three- 
 officers. Witnesses are examined (on oath) as to the fact of the soldier's illegal 
 absence, and the deficiencies, if any, of his kit. The court is then required to declare 
 the period of absence and deficiencies of kit. This declaration is to be recorded ia 
 the regimental books by the C. 0., and if the soldier never rejoins, such entry has the 
 legal effect of a conviction for desertion. If he does rejoin, the record is legal 
 evidence on trial for his absence and the deficiencies of kit. 
 
 The members of the court are not themselves sworn, and witnesses take the same 
 oath as is prescribed at a C. M. 
 
 Ordinary Courts of Inquiry may be held for all kinds of purposes, such as to 
 report on soldiers about to be discharged, to report on any injuries received, on 
 officers taken prisoners of war to ascertain whether the occurrence was due to the 
 chances of war or the result of un-officer-liko conduct, to report upon officera wounded 
 in action to secure for them a pension for life, etc., and are also assembled for aiding 
 a C. in C, a General commanding a district, or any C. O. of a regiment or detach- 
 ment, in determining any matter on which ho may wish to have further information. 
 
 The following are the Regulations respecting Courts o. Inquiry : — 
 
 A Court of Inquiry may be assembled by the officer in command of any body cf 
 troops, whether belonging to one or more corps. It may bo composed of any 
 number of offlcfers of any rank, and of any branch or department of the service, 
 according to the nature of the investigation. Three officers are generally considered 
 sufficient in ordinary courts. 
 
 The court is guided by the written instructions of tfie officer assembling it. 
 Those instructions should bo lull and specific, and must state the gereial character of 
 the information required from the court in their report, — i.e., whether they are 
 merely to collect evidence, or go further and give nn opinion, &o. 
 
 A Court of Inquiry has no judicial power, and is in strictness not a court at all, 
 but an assembly of persons directed by a C. O. to collect evidence with respect to a 
 transaction into which he cannot conveniently himself make inquiry. 
 
 Previous notice should bo given of the time and place of the meeting of a Court 
 of Inquiry, aad of all adjournmenta of the court, to all persons concerned in the 
 inquiry. 
 
 Whenever any inquiry affects the character of an officer or soldier, full oppor- 
 tunity must be affordtd such officer or soldier of being present througho"' tho 
 inquiry, and of making any statement he may wish to make, and of cross-examining 
 Any witness whose evidence, in his opinion, affects his character, and of producing 
 
*■■ 
 ( 
 
 > 
 
 I 
 
 1 
 
 SI 
 
 u 
 
any witnesses in dofonco of bis character. Such a court has no power to compel 
 civilian witnesses to attend, and evidence cannot b« taken on oath. Military wit. 
 cesses would, of courno, bo ordered to attend. 
 
 A Court of Inquiry is not to give an opinion on the conduct of any officer or 
 soldier, and the proceedings of tiioso courts cannot bo given in evidence against Jin 
 officer or soldier. Novortheloss, in the event of an officer or soldier being tried by 
 C M , in respect of any matter or thing which ha* been reported on by a Court of 
 Inquiry, such officer or soldier shall be entitled to a copy of tho proceedings of the 
 Court of Inquiry. 
 
 Tho whole of the proceedings are forwarded by the President to tho C, O. who 
 assembled the court, and tho latter will, on his own responsibility, form such opinion 
 as he thinks just. 
 
 When, in consequence of the assembling of a Court of Inquir)', an opinion 
 adverse to the character of any officer or soldier is formed by the offioor who doter- 
 mincs tho case so inquired into, whether such officer bo the officer who assembled tho 
 court, or a superior officer to whom the case has boon referred by such last mentioned 
 officer, such adverse opinion must be communicated to the officer or soldier against 
 whom it has been given. 
 
 The court may be re-assembled as often as the convening officer may direct, for 
 tho purpose of examining additional witnesses or recording further information. 
 Members of a Court of Inquiry in a case which is subsequently tho subject of a C. M., 
 may not bo detailed as members of the CM. 
 
 The proceedings of a Court of Inquiry are recoi*ded in a form similar to that for 
 CM. They are signed by the President and each member; if anyone of them 
 differ from tho others, ho is entitled to record his opinion separately. 
 
 Tho proceedings are usually kept secret. They are privileged, and recognised as 
 such by civil couits. When the conduct of officers or soldiera is matter of inquiry, 
 they cannot legally refuse to attend, if ordered, though they may decline to take any 
 part whatever in the proceedings, — that is, they may refuse to answer any 
 questions, &c. 
 
 Investigation of injuries received. — A soldier becoming maimed or injured, even by 
 tho merest accident, used to be tried by CM, Now there is first of all a Eegi- 
 mental Court of Inquiry, and only if tho latter reports it wrongful is a C. M. sum- 
 moned. This Court of Inquiry has to ascertain whether the injury was caused 
 by accident or design ; whether inflicted on himself, or by another at his instigation, 
 with intent to render him unfit for the service. 
 
 DiscAar^e ^oarrfs.— Regimental Discharge Boards are assembled to record the 
 services, character and cause of discharge of any soldier, at the close of his military 
 service, with a view to his being pensioned or not. It is composed of three officers. 
 The second in command in tho regiment is to be President, and the two next senior 
 officers members. The duty of the Board is to make a faithful and impartial record 
 of the soloie'd services, conduct, etc., in accordance with the rules of the service. A 
 declaration '/» this effect is to be made by the members in tho presence of the soldier 
 whose case is under inquiry. 
 
56 
 
 CHAPTER VIII. 
 
 EVIDENCE. 
 
 f 'V. 
 
 125 Tho rules which guide C. M. as to the admission and rejoclion of eviaenco must 
 
 be tho same as those which guide Civil Court:^ ; and no person can be req^'ired to 
 answer any question or produce any document which he could not be required to 
 answer or to produce if before a Civil Court. 
 
 Tho five rules of evidence are the result of accumulated experience of the ablest 
 lawyers, as to the b^st and most direct way of arriving at the truth. Yet there are 
 some statutes which also lay down what shall be evidence in certain cases, — these 
 chiefly refer to documentary evidence, and not to verbal. 
 
 In applying these rules, evidence is doubtless occasionally excluded which might 
 be of great importance to both sides; yet no system is perfect, and these rules are 
 acknowledged to have the effect of arriving directly at the truth, and of protecting 
 the court from lengthened tvUiU, and the accused from false conclusions. 
 
 Eminent writers on Military Law agree that a CM. should adhere to these rules of 
 evidence strictly, and, as far as possible, avoid minute points and subtle variations 
 not essential. Oixiinaiy. cases tried by CM. are so simple that the rules of evidence 
 scarcely como into use, yet in more important cases, which attract public attention, 
 any departure from these rules would cast discredit upon Military Courts. Often the 
 question of admissibility of evidence forms an important part of the trial, especially 
 in cases of embezzlement, and the prisoner frequently has a legal adviser, which 
 neither the pro.secutor nor Officiating J:A. have. 
 
 Another eminent lawyer, stating that the laws of evidence should be regarded, 
 said: — *' I cannot underptand how justice can be done by persons who do not under- 
 stand what tends to prove guilt or establish innocence." 
 
 It is the duty of the J. A. to advise the court as to the admission or rejection of 
 evidence, and as in the colonies these are generally staff officers, it is important to 
 know the principles on which evidence should bo admitted or rejected, especially as 
 more CM. are quashed on grounds of want of knowledge on the question of evidence 
 than on any othox*. 
 
 The General Rules of evidence are five in number : — 
 
 1. The evidence on either side must be confined to the points in issue. 
 
 2. The point in issue must be proved by the party who asserts the affirmative- 
 s'. It is sufficient to ptove the substance of the issue or charge. 
 
 4. Hearsay is not evidence. 
 
 5: The best evidence must be produced which the nature of the case will admit of. 
 
 1st Bale. — A CM. cannot insist too strongly upon rejecting all evidence which is 
 foreign to the charge, but circumstances which may not have any immediate or direct 
 bearing upon the very point in issue, may, nevertheless, afford an indirect and conse- 
 quential inference to prove or disprove the disputed fact; and, therefore, evidence to 
 prove them ought not to be disallowed, provided the party who urges them shall 
 satisfy the court as to their relevancy. For instance, in a case of desertion, the pur- 
 chasing of plain clothes by the prisoner would afford grounds for the inference that 
 he had no intention of returning, and, therefore, evidence to pro *e such fact would 
 be admissible. 
 
 This Ist Rule includes — 1st. Evidence as to character; 2nd. Evidence in Bes 
 gestae. 
 
 It is acknowledged that evidence may be given of acts so closely in connection 
 with the matter in issue as to form one chain of facts, and that their exclusion would 
 make the re^t of the evidence at least obscure. Hence, such come under the rule of 
 confinement to the point in issue. 
 
I'll 
 I 
 
 ii 
 It 
 
 I 
 
 

57 
 
 Definition of Res gestae — " Matter so connected with tho subject of the trial as to 
 explain itn object, illustrate itn character and form with it one continuous tranHaction, 
 though not in itself proof of the main tact" 
 
 It ia admitted that fact;), by whomsoever done, if relevant ta tho matter in issue, 
 may be given in evidence as pf t of the Res gestae. 
 
 In case oi conspiracy, the «'onneclion of each individual with tho conspiracy must 
 first bo proved, and then thea^ics of each m>>mber are, in tho eyes of tho law, the acts 
 of the whole confederacy, and hence all eviaence on such acts are admitted as against 
 any member. 
 
 It is now held to be no objection in itself, that evidence discloses other offoncen. 
 Evidence cannot be refused on such grounds. Tnis rule, however, must not include 
 evidence to show tnat a prisoner charged with a particular crime hod a general ten- 
 dency to commit that particular kind of crime, nor that he had committed other 
 offences of the same kind quite unconnected with the crime in question. 
 
 Thus on a charge of murder, former acts or conduct towards deceased showing 
 goodwill or malice would be relevant, but conduct towards other persons would not 
 be relevant. 
 
 On this head it often happens that evidence, otherwise inadmissible, serves to 
 identify the prisoner with the crinrio — as his having been in a certain place at a cer- 
 tain time, and of having an opportunity of committing the ci'ime. 
 
 Also, in a caoe of arson, evidence that property then taken out of the house while 
 on fire was found in the prisoner's possession, is sidmissible. 
 
 It lies at tho discretion of the court whether to accept or refuse such evidence. 
 
 Clode, in his Chapter on Evidence, says: — •• A collateral inquiry into other facts 
 and circumstances should only be received when Ihey bear upon the charge and con- 
 stitute presumptive proof.'' 
 
 Tho court would act wisely in receiving rather than rejecting doubtful evidence, 
 if tendered by the prisoner. 
 
 2nd. Rule. — That tho point in issue is to be proved by the party who asseits the 
 affirmative, is a rule of evidence arising from the difficulty, in many cases the impos- 
 sibility, of proving a negative. T>ius, the burden of proving the charge usually 
 rests on the prosecutor, who asserts that the prisoner has committed such 
 and such a crime, and he must prove the commission of that crime, i. e., be 
 "assorts tho affirmative." The burden of proof or onusprobindi is in many cases, 
 however, shifted to the prisoner in consequence of the " presumptions of the law," 
 and "presumption." arising from the evidence." 
 
 For instanQe, proof of the possession of stolon goods shifts the necessity of ex- 
 plaining his having thorn to the prisoner ; proof of atsjnce without leave for a con- 
 siderable time shifts to the prisoner tho burden of proving his intention 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 whore it must be supposed to bo within his 
 knowledge. 
 
 PRESUMPTIONS OF THE LAW. 
 
 The presumptions of the law with reference to criminal matters are simple and 
 easily defined, and they hold good until the contrary is proved: 
 
 1. That every roan is innocent until the contrary is proved. 
 
 2. That every man is acquainted with the state of the law. 
 
 3. That every man must contemplate the necessary and natural consequence of 
 his own act. Ex: The law presumes malice when a man has been killed. Tho 
 indictment for murder always runs " with malice aforethought," but it is unneces- 
 sary to prove the malice. 
 
 There are other presunptioos of the law which are specially defined by Statute. 
 For instance, in cases of larceny, if a man is found by night with weapons used for 
 housebreaking, with intent to commit a felony, the law presumes he is there with 
 such intent, and the onus of proving ho had a proper right to those weapons lies oa 
 the prisoner. 
 
 
 
68 
 
 Sotting flro to a Mill : — The judges ruloJ that it might be assumed that there was 
 intent to mui*der the occu|iiei'H. 
 
 The following '\h I^oid MansHo'dV rule : 
 
 " Where an act, in itself indifferent (i. e., not ciiminal), if done with a particular 
 intent becomes criminal, then the intent must bo proved and found, but when the act 
 ia in itself unlawful, tho proof of justification or excuHO lios on the accused, and the 
 law implies a criminal intent." 
 
 This principle holds good if tha act bo done by a man whon voluntarily drunk 
 and thtrofore without premeditation. 
 
 A letter when used against tho writer, and generally any document, is presumed 
 to have boon written on the day of its dato until the contrary h:is boon proved. 
 
 Persons absent for seven 3'oars are prosuinod to bodetui, honce bigamy cannot bo 
 found after 8ovon yoai 8, etc. 
 
 If 
 
 ■ ■■"!; 
 
 NEXT CLASS — PRESUMPTIONS DRAWN PROM TUB EVIDENCE. 
 
 Definition by Chief Justice Abbot — " The presumption of any fact is an inference 
 of that fact fiom other facts that are known ; it is an act of reasoning." 
 
 Archibold. — "Natural conclusions from other facts proved, hO as roiulily to gain 
 at^eni." 
 
 The noecssity for admitting such evidence, known as " circumstantial evidence" 
 in criminal canes, is owing to the diflSculty of gaining direct and positive evidence. 
 Such presumptions, standing in tho place of actual proof, have several degrees of 
 weight. 
 
 Archibold divides them into three clashes. — Violent, probable and slight. 
 
 1. Violent presumption. — When the presumption of one fact necessarily follows 
 from anoiherfuct proved. (As a man found near a house with goods stolen out of 
 it.) 
 
 2. Probable presumption. -Whon the facts proved are Msuatfy attended hyiho fact:^ 
 presumed. As a man found with stolen goods in his possession, but not in the vicinity of 
 the place where stolen, as at his lodgings, — it would be a probable presumption that ho 
 is a thief, but a violent pi'osumption that he is either the thief or tho receiiver with 
 guilty knowledge, and a priwner with such a presumption against him has to provo 
 it false. 
 
 In caHes of theft it must bo first proved that the articles have been stolen, and 
 then identified, but this is not always possible; as whon articles such as sacks of 
 corn have been stolen out of a barn or ship, then, if the articles in possession of tho 
 prisoner are found to be of the same kind as thoso remaining, the identification is 
 jiresumed to be complete, and this is a violent presumption. Also, presumption of 
 guilt depends considerably on the Icigth of time stolen goods have been in posses- 
 sion, for recent possession may be takon to imply a presumption of guilt. 
 
 Insanity. — Every man is assumed to bo sane until the contrary is proved. 
 
 To establish the defence on tho ground of insanity, it must be proved that tho 
 accused at the time of committing the act was labouring under such a defect of reason 
 that ho did not know the nature and the quality of tho act, or if he did this, that ho 
 did not know it was wrong. 
 
 Tho evidence of insanity must bo confined to the act in question, not to tho 
 general state of iho accused. 
 
 A temporary delusion may have tho effect of acquittal, as it has been ruled that 
 '* if a man kills another whom he fancies to bo taking his life, ho must bo acquitted." 
 If he killed him in revenge for destroying his character or fortune he is punishable." 
 
 '6rd Rule. — That it is sufficient to provo the substince of tho issue or charge is 
 applicable in cases where there is a variance between tho evidence and the charge, 
 thi.t is, if the e^ence of the issue is proved, an offence of the same kind but of less 
 degree may be found. This rulo has already been alluded to under " putiishments." 
 A prisoner charged with desertion may bo convicted of absence without leave, for 
 absence is tho substance of the charge, tho motive and design being matter of aggra- 
 vation. A person charged with murder may bo found guilty of manslaughter, — the 
 
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 killing bcirig Iho ebscnco oi tho offcnco, malico tho aggrnvation. A |)iit'oner 
 chui'gotl with oftoi'ing violence to hia oiiperioi- otlicoi iii tlio execution of hi8 otHeo^ 
 may bo conviclod merel}' of olforing violoii^-e, for offering violence is Iho ossonco of 
 tho charge, the rank of tho peruon and tho fact of hiu being in tho execution ot bin 
 office being circumstnncoB in aggruvntion, and it may bo bhown that tho priboner did 
 not know tho lank and poHilion of the porBOn asHiiiled. 
 
 It has boon ruled in Civil Law that, " if tho evidence fail to prove tho complolion 
 of nn ottenco charged, the vcrdittt may acquit of the ollbnco itself, but convict of an 
 attempt to commit nuch a'n offence, provided tho attempt is itself against tlio law. 
 On Huch conviction he may bo punished as if ho had been charged originally with 
 tho attempt." Thus a prisjonor charged with desertion may bo convicted of an at- 
 tempt to desert. 
 
 When it is found that tho names of persons or things, or ownoi ship of property, 
 as stated in tho indictment, do not agr«o with the ovidenco, a ,Tudgo in a Civil Court 
 may amend the indictment, hut a C. M. cannot altera charge which has been apj)roved 
 by the convening offici r, but in the tinding a "special finding" is given which 
 specifies the amendment. Tho result is tho same in tho two cases, but the mode of 
 proceeding is ditt'eient. 
 
 In an indictment for larceny tho evidence must agree with tho chaigo in tho 
 species of articles stolen, but not necessarily in tho nun.'jor or value of tho articles. 
 Money or bank notes aro simply charged as money, it not being necessary to 
 describe tho coins, whether gold, silver, &<•. A form for words spoken in order to 
 meet unimportant variances is laid down in regulations, and is found to bo very 
 efficient. When certain woi-ds spoken constitute a crirao they are preceded by "in 
 substance and to the effect following, that is to say." — 
 
 A prisoner cannot be found guilty of a crimeof greater degree than that charged 
 (except embezzlement for theft), or ofan offence of a different nature ; but if arraigned 
 for a lesser offence and found guilty of a greater degree ol the same kind of offence, 
 ho may be convicted of tho lesser offence. As a man tried for desertio).- may bo found 
 guilty of absence without leave, and convicted and punished for that offence 
 
 4th Rule — That hearsay is not evidence arises from the admitted principle of ■• 
 
 English Law that every fact against a prisoner should be proved on oath, a id in the 
 presence of the accused, so that he may have an opportunity of cross-questioning the 
 witness as to his means of knowledge, his accuracy of observation, the strength of his 
 recollection and his disposition to speak the truth. Hearsay- evidence is, therefore, 
 rejected for these two reasons, viz. : — That what the person said was not upon oath ; 
 and that tho prisoner had no opportunity of cross-questioning tho individual. 
 
 The term " hearsay," in its legal sense, is used with reference both to that 
 which is written and to that which is spoken, being applied to that kind of evidence 
 which does not derive its effect solely from the credit to bo attached to tho witness 
 himself, but depends also in part on tho voracity and competency of some other 
 person, from whom the witness may have received his information. Although 
 hearsaj' is not evidence, words or writings of third parties are often admissible in 
 evidence, not in proof of circumstances related in such words or writings, but merely 
 in proof of such words or writings having been spoken or written, as being in fact 
 transactions concerning which inquiry may bo instituted as to whether they have 
 taken place or not. 
 
 As exceptions to the general rule that hearsay is not evidence, the dying declar- 
 ation of a man who has receiver a mortal injury is admissible in evidence where the 
 death is the subject of the charge, and tho circumstances of the death the si^bject of 
 tho dying declaration. Tho declaration of a person robbed, or of a woman ravished, 
 as to tho fact, made immediately afterwards, may be received as confirmatory evi- 
 dence, but no names or details of what was said at the time are received. 
 
 f>ih Rule, Tho best ovidenco must be produced which the nature of the case will 
 admit of. 
 
 Secondary evidence is only admissible when tho best and most direct cannot be had. 
 
 Tho evidence produced must bo legal evidence, for instance, if the best evidence 
 obtainable bo hearsay it would bo inadmissible. The best legal evidence not being 
 
 I 
 I 
 
 Ml* 
 
60 
 
 obtainublo, tlion,an(l then only, is the next best legal evidence admittod, — foV the pro- 
 duction of secondary evidence, when better evidence is obtainable, would tend to raise 
 a presumption ot some secret or sinister motive for withholding the bettor and moro 
 satisfactory evidence and would lead to the inference that the better evidence, if 
 p oduced, would disclose some concealed false hood. 
 
 Secondary evidence will not be I'oceived until it has been clearly shown to the 
 satisfaction of the court that better cannot be obtained. 
 
 The law will receive the following secondary evidence ; — 
 
 Statements in ancient documents, and also^statements of deceased persons as to 
 pedigree. 
 
 Evidence as to reputation of being a good authority in technical matters (as doctor, 
 engineer, &c.) 
 
 Evidence of deceased persons when speaking against their own interests. 
 
 Statements found in the deceased's writings, as entries in books, &c., when 
 carrying on their professional duties. 
 
 Statements having reference to health and sufferings of a person ; as in the case 
 of murder. '' 
 
 FURTHER EXCEPTIONS. 
 
 A soldier is charged with coming to the knowledge of an intended mutiny and 
 not giving information. To prove this the existence of a conspiracy to mutiny must 
 first bo proved whether the prisoner was there or not. To do this evidence must 
 be taken of what others have done or said. But the particulars of such sayings and 
 doings must only be given when said or done in the hearinj of the prisoner, otherwise 
 only the general purport of such sayings sufficient to show that a conspiracy existed. 
 
 It is often neeessaiy to prove that a certain order was given, or that a person 
 was acquainted with certain facts a' a certain time. What Las been said or written 
 would, under such circumstances, bo important evidence and not classed under second 
 hand evidence. 
 
 The value of evidence and what constitutes sufficient evidence, is a matter which 
 cannot, of couri-e, be defined by law. 
 
 ii ' 
 
 WRITTEN DOCUMENTS. 
 
 The most important application of this (5th) rule is to the contents of written 
 ■documents. 
 
 The broad rule is " contents of documents mu^t be proved by the production of 
 the documents themselves." 
 
 A copy is not allowed unless the original is not forthcoming and then it must be 
 proved to be a true copy. 
 
 Although originals are required to bo laid before the court whenever practicable, 
 copies or extracts may bo attached to the proceedings. 
 
 The following are certain exceptions not provided for by the Statute : — 
 
 1. When the original document is lost or destroyed, secondary evidence is admis- 
 eible, but it must be shown that the document was lost or destroyod, or that diligent 
 search has bjcn made for it in the proper place. 
 
 2. When it is in the hiuids of the opposite party who .refuses to produce it. It 
 must be proved to be in his hands and that he has been served with a summons to 
 produce it. 
 
 3. When it is in the hands of a person privileged to withhold it, who insists on 
 his privilege. 
 
 4. When it is physically impossible or highly inconvenient as to make it almost 
 Impossible to produce it. 
 
 5. Documents of a public nature. 
 
 The following are certain privileged communications which are exempt from 
 production: — 
 
 1. Communications between husband and wife made during marriage, and which 
 do not cease on death or divorce. 
 
the pro- 
 
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 ns as to 
 
 
 IS doctor, 
 
 
 •I. 
 
 c, when 
 
 *= 
 
 the case 
 
 
 .iny and 
 iny must 
 ice must 
 
 
 ings and 
 
 iherwise 
 
 existed. 
 
 
 a person 
 
 written 
 
 r second 
 
 , 
 
 3r which 
 
 
 ' written 
 
 
 iction of 
 
 
 must be 
 
 
 cticable, 
 
 
 is admis- 
 diligont 
 
 
 e it. It 
 
 
 imons to 
 
 
 isists on 
 
 
 t almost 
 
 
 ipL from 
 
 
 nd whioh 
 
 
-4 i- 
 
 • * 
 
 
 attor 
 of pe 
 frionc 
 them 
 
 * 
 i 
 
 publi 
 
 di8cl( 
 recei 
 
 are } 
 
 of th 
 
 parti 
 then 
 inBta 
 disci] 
 
 sible 
 the c 
 
 lette 
 cvid( 
 
 evid( 
 (not 
 acts, 
 charj 
 writi 
 
 evid( 
 
 on n 
 pay 
 
 War 
 shall 
 of 8U 
 thcr 
 
 that 
 civil 
 havi 
 be p 
 
61 
 
 2. Communications, written or verbal, to legal advisers, barrislers, solicitors op 
 attorneys profesHionnlly employed. The privelege does not extend to any other cla8» 
 of persons whatever, as clergymen in cont'ession, medical men, clerks, or confidential 
 friends, but it docs extend to clerks or interpreters ot barristers employed by 
 them at the trinl. » 
 
 3. State Secrets, or matters the disclosure of which would be prejudicial to the; 
 public. 
 
 In Crown prosecutions the names of persons gi'vng information need not be 
 disclosed — as a detective, not to divulge his informuut, states: — "From information 
 received." 'This is a very important privilege. 
 
 4. Official communications between heads of depart ments and^^subordinate officer* 
 are privileged. 
 
 Exceptions by statute to the rule that the best evidence must be produced. 
 
 Public documents are admissible bj' secondary evidence, i. e., copies are allowed. 
 
 Public documents are held to be the acts o\ jmblic functionaries in the execution 
 of their business. 
 
 All ]!ubiic books and documents, such as registers, kept under the authority of 
 particular statutes, are admitted as evidence of such facts required to be entered 
 therein as are peculiarly within the knowledge of the Eegiatering Office. For 
 instance, the Piison Eegister is admissible to prove the dates of commitment and 
 discharge of prisoners, but not to prove the cause of commitment. 
 
 Whenever any book or other document is of such a public nature as to bo admis- 
 sible in evidence, any copy or extract is admissible provided it be authenticated by 
 the officer to whoso custody the original is entrusted. 
 
 But all other documents which do not come within the above category, and all 
 letters of whatever description, whether official or not, must be proved by primary 
 evidence. 
 
 Private writing?;, including what are known as official letters, are in no case 
 evidence of the fact stated therein, but they are the best evidence of their contents, 
 (not the truth of their contents) and are, therefoi'e, admitted when in the nature of 
 acts, or as proof of intention, or when Jiey form part of the subject matter of a 
 charge, as when the charge is for writing a disrespectful letter, for disobeying a 
 written order, &c. 
 
 The following are some of the principal cases when documentary and secondary 
 evidence are admissible at C. M. : — 
 
 1. Evidence of former convictions by C. M. or by Civil Court. 
 
 2. The attestation paper purporting to be signed by a recruit, or a declaration 
 on re-engagement, to prove the several particulars represented therein. 
 
 3. The last quarterly pay list is evidence of being borne on the strength and in 
 pay of coi'ps. 
 
 4. Descriptive return of a det^erter sent by a Justice of the Peace to S. of S. for 
 War is legal evidence of facts stated, and S. ot S's. letter to C. O. in reply. 
 
 5. A letter from any C. O., or commander of a ship fiom which any person 
 shall appear to have been discharged, shall be evidence of the fticls stated. 
 
 H. iiocord of a man's confession of desertion by liis 0. O. to prove the making 
 of such confession. 
 
 7. Letter from his former C. O. in reply to enquiry on the subject to prove facta 
 therein stated. 
 
 8. Record of Court of Inquiry on illegal absence to prove facts therein stated. 
 
 9. Evidence before any C. M. or Couit of Inquiry on illegal absence, to prove- 
 that such and such statements were made before them, but no proof of the facts. 
 
 10. Cuuit Martial book or defaulter's book to prove previous convictions, either 
 civil or military, and defaulter's book to prove instances of drunkenness. 
 
 11. A copy of any of the above records, certified to be a true copy by the officer 
 having the custody of such record, is evidence. 
 
 12. Queen's regulations, royal warrants, army circulars, general orders, need not 
 be proved. 
 
 15* 
 
 '! 
 
 
13. l^urporlin^ to bo priutod by Queen's or Government pilnter is proof of the 
 legality of documentu. 
 
 14. An official army list is evidence of status and rank. 
 
 15. Delivery at the re^ihtorcd place of abode of a man in the army reserve of a 
 •notice i>i8uod by proper authority, is evidence that such notice was brought to the 
 man's knowledge. 
 
 The meaning of " purporting to be signed," (Act 89 Vic.) makes it unnecessary to 
 prove th<J seal-* or the writing or official character of the person who signs a document 
 •and takes for gri ■ 3d it is |)roporly signed unless the contrary can be shown . By the 
 same Act a 8afegi.ard against forgery is made, as any document may be impounded 
 in court on the application of cither party wilh a view to proving it a forgery. 
 
 Parole evidence cannot bo substituied for any evidence which the law requires 
 in writing, unless it is first shown : — 1. That the document had no existence, or, 
 2. Account why and hoto it cannot be pioduccd. 
 
 The producer of secondary documentary evidence muat know it to be a true copy. 
 Thus a prosecutor must have compared it wilh the original. If say, tho adjutant 
 •signs copy of defaulter's book, goes away and leaves another officer to prosecute, the 
 lattor's evidence is not admissible if he has not compared the extract with the original 
 hiTHself. 
 
 When secondary evidence is admissible, a copy of an original document is no 
 ■evidence in itself, and only becomes so when verified by the oath of a witnosr*. 
 
 PROOF OF HANDWRITINQ. 
 
 1. Best evidence is the writer. 
 
 2. Next the person who saw the writing done. 
 
 3. Then any who know the handwriting, having actually seen him wi'ite. It is 
 not sufficient to have merely had correspondence with him. 
 
 The comparison of a disputed writing with a writing proved to be genuine may 
 be made to prove the handwriting. 
 
 EVIDENCE AS TO CHARACTER. 
 
 The character given of a prisoner-mu>(t have some connection with the charge, 
 us it IS no use to give a person charged with murder a character for honesty, though 
 probably a C. M. would receive such evidence. 
 
 In addition to the evidence produced after the finding, a prisoner may produce 
 evidence as to his character during the trial, and such is received as part of his 
 defence. The prosecutor maj' cross examine such witness, but he may not bring other 
 witnesses to rebut their statements till after the finding, as the prosecutor can bring 
 no evidence against the prisoner's character till after iho finding. 
 
 After the finding both parties m.-iy ])roduce witnesses as to character and cross- 
 examine them. 
 
 (In pros<ccuting, a prosecutor may refer to any papers or books to refresh his 
 memor}', but ho may not road them or lay thorn before the court.) 
 
 Sometimes prisoners l'\y before the court tes'.imonials, letters as to character, otc. 
 
 Such Jocumonts are not legal, as such evidence must bo viva voce and made by 
 witnesses who can speak tiom their own knowledge regarding the prisoner. 
 
 In CM. it is hovvevei^ usual not to accept such documents as evidence, but as an 
 indulgence to the prisoner, and to append them, not to the proceedings, but to a 
 separate letter forwarded to the confirming officer for him to take them into 
 consideralion, and, if he thinks fit, mitigate the punishment. 
 
 CONFESSIONS BY PRISONERS. 
 
 
 
 i ; 
 
 
 I. 
 
 'i 
 
 i 
 
 k 
 
 'l 
 
 Voluntary confe.-tsions of prisoners, whether made before approhonsioii or after, 
 •with refcionce to the charge to be made, are admissible ; and a confosirion is doomod 
 voluntary unless proved to the contrary. 
 
oof of tho 
 
 iorve of a 
 ht to tho 
 
 eossary to 
 
 documont 
 
 . By the 
 
 npouudod 
 
 ei-y. 
 
 ' I'equiroa 
 
 tonco, or, 
 
 true copy. 
 I adjiiiant 
 ecu to, the 
 idorigiiml 
 
 nent is no 
 
 ite. It is 
 ml no may 
 
 16 charge, 
 y, though 
 
 f produce 
 irt of his 
 •ing other 
 can bring 
 
 and cro38- 
 
 efrosh his 
 
 ■acter, etc. 
 I made by 
 
 bat as an 
 i, but to a 
 hem into 
 
 ) or after, 
 
 is doe mod 
 
 
 Dl 
 
au 
 
 1 
 
 au 
 
 pr 
 
 bu 
 in 
 
 to 
 
 pr 
 an 
 
 do 
 
 fei 
 
 in 
 
 tb 
 
 it 
 
 a] 
 so, 
 th 
 rn; 
 
 fo 
 if 
 
 nc 
 dc 
 
 bi 
 no 
 to 
 
 eb 
 bu 
 tri 
 ot 
 
 su 
 m< 
 
 wl 
 
 Li ' 
 
Any threat, promiso or hope of pardon hold out or sancl'iouoi by ani/ person in 
 authority will prevent the admission of such confosHion. 
 
 The following are considered persons in authority over a prisoner: — 
 
 The prosecutor i the constable in charge of a prisoner; any authority over him, 
 judicial or not, as the master or mistress in case of theft by a servant. 
 
 Any person apprehending another who is guilty of felony is a person in 
 authority. 
 
 From this it is deduced that the commander of a guaid or a sentry over a 
 prisoner arc 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. 
 
 It is considered highly objectionable for a constable or any person in authority 
 to interrogate a prisoner on a charge. 
 
 The inducement of a thiixl person persuading a prisoner to confess in the 
 presence of a person in authority, renders it inadmissible; but if one prisoner urges 
 another to confess in the hearing of a keeper such confession is admissible. 
 
 A confession obtained by artifice or deception is not in the same category and 
 does not invalidate the confession. 
 
 Ex : A prisoner is led to believe that all his accomplices are in custody, con- 
 fesses, his confession holds good. 
 
 A prisoner gives a letter to the gaoler to post, the letter is detained and is good 
 in evidence. 
 
 A ymisonor confesses to another who takes an oath not 16 reveal, breaks his oath, 
 the confession holds good. 
 
 A CM. would probably rejectsuchconfessiou'? because obtained by fraud, although 
 it would be legal to accept them. Also, a CM. would not accept admissions made by 
 a prisoner against himself before a Court of Inquiry, though ic would be legal to do 
 so, and even though the prosecutor might request such admissions to be received, 
 the court would overrule him on the principle that they were made in a collateral 
 matter, or on the broad rule that a CM. does not convict a vian out of his own mouth. 
 
 Admissions maoo by a witness at a trial may bo used subsequently ag:iinst hira, 
 for a witness may decline to answer any question tending to incriminate himself, yet 
 if he does so he is responsible. 
 
 Confessions of hny kind are evidence against the party making them only, and 
 not against another, 3 g not evidence against accomidices. 
 
 A confession is deemed voluntarily made unless disproved, for the prisoner is 
 deemed at liberty to open his mouth or not. 
 
 MODE OF PRODUCINO A WIIITTEN CONFESSION. 
 
 If it has been wiitten or signed by the prisoner, or its trulh acknowledged by 
 him, it may be received and road to the court; but if taken down by a person and 
 not signe I by the prisoner it is not evidence, but can bo used by the person who 
 took it down as a memo, to refresh his memor3^ 
 
 DEPOSITIONS. 
 
 A deposition taken on oath before a magistrate in the presence of the accused, who 
 shall have had an opportunity of cross-examining the deposir ut the time, may be 
 hud in evidence at the trial of the accused, when it shall have been proved at the 
 trial that the witness is either dead or so ill as to be unable to attend, but under no 
 other circumstances. 
 
 The application of this rule is very strict, a more ordinary indisposition is not 
 sufficient; it must be proved he is unable to be present by the surgeon in person, a 
 medical certificiite not being deemed sufficient. 
 
 If the inability to attend is not permanent, the Jud^je exercises his discrotioa 
 whether to postpone the trial or accept the deposition. 
 
64 
 
 % 
 
 h 
 
 11 
 
 •I 
 
 When it appoara to a Justice of the Peace that a person is dangerously ill and 
 not likely to recover, and that such person is able and willing to give material 
 evidence with reference to an indictable oifenco, or relating to any person accused, 
 such Justice may take down in writing the witness' deposition on oath, and such. 
 Justice shall sign it, record the reasons for taking the deposition, where taken, and 
 the names of all persons present. 
 
 Reasonable notice must, however, bo given to the person accused of the intention 
 to take the deposition, so that the accused may be present to refute the evidence 
 thus taken. If in custody, ho is to be brought for the purpose ; if not, it is optional 
 for him to attend. Then at the trial, if the witness is dead or too ill to attend, the 
 deposition may be read in court. 
 
 Prisoners are entitled to copies of such depositions against them. 
 
 Dying declarations or statements of any kind jiro admissible only under very 
 restricted conditiors, viz : 
 
 1. When the subject of the charge is the death of the person, i. e., relates only to 
 the cause of death, and only 
 
 2. When such person really thinks himself beyond hope of recovery, and 
 to bo in the presence of death. 
 
 Such declaration is not invalidated if the man recovers, or lives longer, contrary 
 to expectation. 
 
 It is not enough for the person to say he believes ho will not recover, nor to 
 express vague fears that ho is about to die, but it must be shown that he really 
 believed in his own mind that he had no hope of recovery. 
 
 Such declarations are admissible on the principle that the party injured is not 
 forthcoming, having been killed, and that it is not likely, considering the solemn 
 circumstances, that the party would tell an untruth. 
 
 It often happens in cases of murder that the constable obtains a statement from 
 the dying 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 age place of abode . and believinij 
 
 myself dying, I make the following statement: — 
 
 The expression of belief is the essence of the statement, and it only makes the 
 statement evidence. 
 
 1 ; 
 
 EVIDENCE OF EXPERTS. 
 
 Witnesses who depose to the l/est of their belief or knowledge as to handwriting • 
 Medical men as to the causes of death, or as to insanity; Engineers, etc., may bo 
 convicted for perjury for false evidence. 
 
 
 WITNESSES. 
 
 The law of England admits as sufficient the testimony of one creditable witness, 
 but two are required to prove perjury, because, with only one witness, there would 
 be one oath against another which would neutralize each other. 
 
 But in cases of perjury it is sufficient if one witness provo the perjury directly, 
 while strong cii-ciimstantial evidence would be sufficient for the second. 
 
 If the defendant has sworn in one case contrary to what he hassworn in another, 
 one evidence is sufficient to throw the balance over against the defendant. 
 
 In trials for high treason two witnesses are required, except in cases of high 
 treason in compassing or imagining the Sovereign's death. 
 
 It is usual, however, on all trials by C. M. to have the testimony of two 
 witnessess for the prosecution, though not always legally necessary. The evidence 
 of an accomplice even may suffice, and conviction thereon be strictly legal ; still it is 
 only prudent that the charge should bo contirraed by unimpeachable testimony in. 
 Morae material point. 
 
 h s.i. 
 
\y ill and 
 material 
 accut<ed, 
 
 and Buch. 
 
 iken, and 
 
 intention 
 
 evidence 
 
 1 optional 
 
 tend, the 
 
 dor very 
 
 )3 only to 
 
 ery, and 
 
 contrary 
 
 M', nor to 
 he really 
 
 od is not 
 solemn 
 
 lent from 
 evidence 
 
 belle vimj 
 
 nakes tho 
 
 1 writing ;, 
 ., may be 
 
 i witno8s^ 
 3re would 
 
 directly, 
 
 I another, 
 
 9 of high 
 
 y of two 
 
 I evidence 
 
 still it is 
 
 Limony in. 
 
 11* 
 
I 
 
 on 
 
 w 
 ch 
 
 ha 
 
 ov 
 Ik 
 br 
 
 bi 
 w 
 
 P< 
 
 b: 
 
 BC 
 
 id 
 
 at 
 m 
 
 ai 
 
 CI 
 
 ir 
 r< 
 
 o( 
 
 a 
 re 
 
 gi 
 ta 
 
 w 
 
 lii 
 m 
 h< 
 m 
 
 811 
 
 !•€ 
 d( 
 
 tb 
 hi 
 
65 
 
 OOMPITENCr or WITNE8SI8. 
 
 The person uccuBed is not a competent witness for or against himself. 
 
 In the case of several prisoners being tried separately for the same ofTonce, any 
 one not on his trial is a competent witness for, but not against the others; prisoners 
 jointly arraigned are incompetent witnesses on the trial of each other. A prisoner 
 who may desire to avail himself of the evidence of a person included in the same 
 charge, should therefore apply for a separate trial. 
 
 Witnesses are competent notwithstanding thoy have an interest in the case, or 
 have been convicted of a criminal offence not bearing on the subject under trial. 
 
 When persons are jointly arraigned and there is no prospect of obtaining other 
 evidence, one man implicated may receive a separate verdict of acquittal, and then 
 ho can become a witness against the rest. This turning " King's evidence" is often 
 brought about by pmmirtos of reward, etc. 
 
 in C. M. the usual course would be not for the court to give a verdict of acquittal, 
 but for the convening officer to dispense with the trial of any one of the accomplice?, 
 who can then become a witness. 
 
 Idiocy, confirmed insanity, or immaturity of intellect, render a witness incom- 
 petent. In lucid intervals, persons of disordered intellect are competent witnesses. 
 
 The admissibility of a child to give evidence is regulated, not by his years, bat 
 by the development of his mental faculties, by his religious knowledge, and by the 
 sense he may entertain of an oath, subject to which a child of any age may be exam- 
 ined as 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 court much younger children are admitted. " A child 
 mast be able to understand the obligation to speak the truth." 
 
 A prosecutor, though he may have himself originated the charges, or may, in 
 any other way. be personally interested in the result, is a competent witness. 
 
 Husband and wife are not admitted as witnesses for or against each other in any 
 criminal proceeding, where one of them may be party, except in cases of personal 
 injury of either by the other, but evidence of either for or against another person is 
 received, even though such evidence is liable to incriminate|the husband or wife. All 
 other relationships are exempted from this rule. 
 
 Deaf and dumb may nowgive evidence in writing or through a sworn interpreter. 
 
 Want of religious belief does not render a witness incompetent, as it is ruled that 
 a witness must be sworn in that form which he feels binding on his conscience. A 
 recognized form is, " I hereby solemnly promise and declare that the evidence I 
 givo * *," and if he gives false evidence he may be indicted for perjury as if he had 
 taken an oath. A witness may be asked after being sworn whether ho considers 
 the oath binding; if he answers i.n the aftirmutive it is sufficient. 
 
 EXAMINATIJN OF WITNESSES. 
 
 The examination should be conducted by question and answer, yet frequently 
 witnesses are directed to state what they know relative to the charge. A witness is 
 first examined by the party producing him. This examination is termed the '• exami- 
 nation-in-chief." He is then "cross-examined" by the adverse party, after which 
 he may be " le-examined " by the party who produced him, on such fresh matter as 
 may have been brought out by the cross-examination; and, finally, the court put 
 such questions as in their opinion may tend to elicit the truth. The court may put 
 questions at any time, but it is preferable to do so after the other parties have done. 
 
 The cross-examination is not limited to the matter which has been alluded to in 
 the examination-in chief, but extends over the whole case. It must, however, bo 
 relevant. 
 
 The reading of the charge to witnesses is not a recognised principle, though 
 
 done in most ordinary cases. It is the custom to examine witnesses separately whi'e 
 
 the other witnesses aie withdrawn; but no witness is incompetent by reason of his 
 
 having been present during the eridonco of another witness, although either side 
 
 5 
 
66 
 
 'i*: 
 
 ;■■ fi 
 
 ■( ; 
 
 J 2; 
 I 
 
 
 may request another witness to withdraw. Foi this reason it is laid down that if a 
 probccutur ia alho a wilncHH, ho hhouid, if popsibio, be examined firHt. 
 
 Witne»80» may be confronted, one with another, in court, to clear up discrepan- 
 cioB, identity, etc. 
 
 A witness once sworn may be cross-examined, though he may not have been 
 examined in chief. 
 
 ''Leading questions" are not admissible in the examination-in-chief or in the re- 
 ozaminaiion, but are admitted to the fullei^t extent " short of putting words into a 
 witness' mouth " in the cross-examination, the principle being that the law assumes 
 a witness to be biased in favour of the side which calls him, and hostile to the oppo- 
 site side. A leading question is one which suggests the answer. 
 
 Exceptions . Leading questions are admitted in introductory questions, with a 
 view to save time and to come more speedily to the points at issue, aa — We.e you in 
 such and such 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 another is called to contradict 
 that fact, he may be asked directly — Did that 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 youthful witnesses, whose 
 attention cannot otherwise be called. 
 
 A witness once cross-examined may have leading questions put to him on 
 re-examination. 
 
 A witness is not permitted to read his evidence, but he may refresh his memory 
 by referring to memoranda, entries in books, etc., made by him when he bad a distinct 
 recollection of the fact, or made by another and examined by him whilst the fact 
 TPas fresh in his memory. The opposite party has a right to inspect the document, 
 and may cross-examine the witness upon it, as to its origin, author, possession, etc. 
 
 A witness may decline to answer any question tending to criminate him. He 
 may alho decline to answer any question tending to degrade him, unless the transac- 
 tion as to which he is questioned is material to the issue. As in cross-examination, 
 when an attempt is made to impugn the character of a witness or to prove what he 
 has said is fal^e, he need not reply. If the witness chooses to answer a question tend- 
 ing to degrade him only indiiectly bearing on the charge, the party who asks the 
 quest'on is bound by the answer, and is not allowed to disprove it by other evidence, 
 except in the case of the witness denying having been convicted of felony or rais- 
 demennour, when the opposite side may bring evidence to show that he has. 
 
 The prosecution being cloned, the prisoner is placed on his defence, and may 
 either open his case with an address, or proceed at once to the examination of 
 witnesses. 
 
 When two or more prisoners are'tried together, the defence of each is separately 
 recordt'd. 
 
 The prosecutor is entitled to produce evidence in reply, when the prisoner in his 
 defence has examined witnesses and brought outpoints not touched on in the prosecu- 
 tion, or produced evidence rt-flocting on the credibility ot the prosecutor's witnesses, 
 but he muHt be confined to reestablishing the credibility of his witnesses, to im- 
 peaching the witnesses for the defence, and to rebutting the new matter. He cannot 
 be allowed to I'epair omissions by producing evidence directly in support of the 
 charge. 
 
 It is irregular to adjourn the court for the purpose of obtaining further evidence 
 on either side, but as an indulgence it is sometimes extended to the prisoner but never 
 to the prosecutor. 
 
1 that if a 
 
 discrepan- 
 
 hnve boon 
 
 in the re- 
 rds into a 
 (V osaumea 
 ► the oppo- 
 
 ins, with a 
 e.e you in 
 
 id he may 
 
 contradict 
 
 , and will 
 ) court to 
 
 JOB, whoae 
 
 him on 
 
 8 memory 
 
 1 a distinct 
 8t the fact 
 docament, 
 ion, etc. 
 him. He 
 
 9 transac- 
 imination, 
 ) what ho 
 stion tend- 
 } asket the 
 
 • evidence, 
 y or rais- 
 
 i. 
 
 and may 
 nation of 
 
 separately 
 
 nor in his 
 e prosecu- 
 witnesHes, 
 89, to im- 
 He cannot 
 rt of the 
 
 ■ evidence 
 
 • but never 
 
 ^1 
 
; 
 
 \ 
 
 
 • 
 
 F 
 
 
 P 
 
 -I, 
 
 
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 i 
 it 
 
 II 
 
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 C 
 
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 ^ 
 
 F 
 
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«7 
 
 APPENDIX. 
 
 Form of Proceedings of a General CM. (including some of the more unusual 
 incidents which may occur to yary the ordinary course of procedure, 
 with instructions for the guidance of the court). 
 
 PROCEEDiNas of a General Cotjet-Martial, held at 
 
 on the day of 188 , by order of 
 
 Commanding , dated the 
 
 day of , 188 . 
 
 President. 
 
 Members. 
 Rank. Name. Begimettt. 
 
 _, Deputy Judge Advocate. 
 
 At o'clock the Court opens. First Day. 
 
 (1) ( No. — Rayik — Name — Begiment'\ is brought a prisoner before the \ 
 
 Court. I 
 
 \^Rank — Name —Regiment, appears as prosecutor. Instruction. — If 
 possiole no officer who is to be called as a witness is to be appointed to act as 
 prosecutor.'] 
 
 The order for convening the Court, and the warrants appointing the 
 President and Deputy for officiating J Judge Advocate, (in these rules re- 
 ferred to as Judge Advocate), are read. 
 
 The names of tlie President and Members of the Court are read over 
 In the hearing of the prisoner, and they severally answer to their names. 
 
 Do you object to be tried by me as the President, or by any of the Question by 
 officers whose names vou have heard read over ? V'" Predi- 
 
 dent to the 
 Prisoner. 
 
 ( Instruction. — The questions are to be numboreil throughout consecutively 
 in a single series. The letters Q. and A. in the margin may stand 
 for "Question" and " Answer " respectively.] 
 
 N.B.— For Oeneral and District M , WO. Form 642, to be obtained from General 
 Officers oommandioKi is to be ubed in accordance willi ttiese instructions. 
 
 H 
 
68 
 
 VARtATIONS. 
 
 ib 
 
 
 !l 
 
 n 
 It 
 i\ 
 
 Challenging President, 
 
 Answer. — I object to 
 
 Question to the Prisoner. — State 
 your objection ? 
 
 Prisoner. — 
 
 The prisoner in support of his ob- 
 jection, requests permission to call 
 
 is called 
 
 into Court, and is questioned by the 
 priponer. 
 
 The Court is cleared. 
 
 Decision. — The Court disallow the 
 objection. 
 
 The Court is reopened and the 
 above decision made known to the 
 prisoner. Or, 
 
 The Court aliow the objection 
 and adjourn, first informing the pri- 
 soner of the decision. 
 
 At .o'clock the Court 
 
 resume their proceedings, and a 
 letter (&c,) is read to the prisoner 
 
 marked 
 
 and attached to the 
 
 proceedings. 
 
 N.B.—IYiQ Judge Advocate cannot 
 be objected to by the prisoner. 
 
 Challenging Member. 
 
 Answer. — I object to 
 
 Question to the Prisoner. — State 
 your objection to . 
 
 Prisoner. — • 
 
 The prisoner, in support of his ob- 
 jection to , requests per- 
 
 mission to call 
 
 _, &c., &c. 
 
 The Court is cleared. 
 
 Decision. — The Court disallow tho 
 objection. 
 
 The Court is re-opened, and the 
 above decision is read to the pri- 
 soner. 
 
 Decision. — Tho Court allow the ob- 
 jection. 
 
 The President informs 
 that he is not required to serve on 
 this Court Martial. 
 
 The Court is re-opened and thfr 
 above decision is made know a to the 
 prisoner. 
 
 New Member. — {Rank — jVame — 
 Regiment) takes his place as a mem- 
 ber of the Court. 
 
 Question to Prisoner. — Do you ob- 
 ject to be tried by__ 
 
 ns a member of this Court Martial ? 
 
 Answer. — 
 
 (Any objection is dealt with as irt 
 the case of any original member.) 
 
 I t 
 
 The President, Members and Judge Advocate are duly swo/n (also^ 
 any officer under instruction, and any shorthand writer or interpreter.) 
 
 [^Instructions. — 1. It is generally advisable that the witnesses be 
 ordered out of Court At this stage of the proceedings. 
 
 2. All proceedings of the Court, except when it is cleared for delibera 
 tion, are to take place in the presence of the prisoner. 
 
 3. No CM. 'should proceed to trial until they have satisfied them- 
 selves of their competence to deal with the charge, both as respects their 
 jurisdiction and the precision with which the charge is worded. J 
 
 (2) The Prisoner 
 upon the following 
 
 [No. — Rank — Name — Regiment. \ \^ arraigned 
 
 Cha-|;e 
 
 Charou. 
 
 Question to Are you guilty or not guilty of the charge against you, which you 
 
 the Prieonerhave heard read ? 
 
 Anawer. 
 
-Slato 
 
 of his ob- 
 
 lests per- 
 
 , &c., &c. 
 
 allow the 
 
 and the 
 the pri- 
 
 >w the ob- 
 
 serve on 
 
 i and the 
 twii to the 
 
 —Name — 
 iS a mom- 
 
 > you ob- 
 
 Maitial ? 
 
 vith as ia 
 ember.) 
 
 rorn (also- 
 n'eter.) 
 
 nesses be- 
 
 rdelibera 
 
 ied them- 
 ects their 
 
 arraigned 
 
 rhich you 
 
 k 
 

 ll 
 
 th 
 
 P< 
 
 tit 
 to 
 
 m 
 
 pi 
 
 
 d 
 
^9 
 
 Variations. 
 
 1. The pneonor not pleading [refusing to pload] to the above charge, 
 the Court enter a plea of " not guilty." 
 
 2. Plea. — The prisoner pleads (in bar of tiial). 
 
 Question to the Prisoner. — Ilavo you any evidence to prod ace in sup- 
 port of your plea ? 
 
 An:,>.rer. — 
 
 (Witness examined on outh.) 
 
 The Court are of opinion that the prisoner has not (has) substan- 
 tiated his plea, and in consequence proceed with the trial and require him 
 to plead t« the charge (do therefore adjourn until farther orders). 
 
 (3.) The Prosecutor reads the following address, wliich is marked , 
 
 signed by the President, and attached to the proceedings. 
 
 [^Instruction. — When the prosecutor is required to give evidence he 
 must be sworn.] 
 
 The Prosecutor proceeds to call witnesses. 
 
 (^Rank — Name — Regiment) being duly sworn is examined by the Piw* witaew 
 prosecutor. ^' proseca- 
 
 i\ 
 
 Q. 
 
 A. 
 
 Cross-examined by the prisoner. 
 
 [Instruction. — Although a prisoner may have a professional adviser 
 near him during the trial to advise hira on all points, and to suggest, in 
 writing, the questions to be put to witnesses, such adviser is not to be 
 permitted to address the court or to examine witnesses orally.] 
 
 Ee examined by the Prosecutor. 
 
 Q. 
 
 A. 
 
 Q. 
 A. 
 
 Examined by the Court. 
 
 Q. 
 A. 
 
 The witness withdraws. 
 
 [Instruction. — It is usual to read the whole of a witness' deposition 
 to him before he quits the Court, in order that he may correct any acci- 
 dental mistake or omission in the recorded minutes. The Court may put 
 questions to witnesses at any stage, but it is preferable to defer them until 
 the examination of the witnesses by the parties to the trial has been con- 
 eluded.] 
 
1": 
 
 Second wit- 
 neu for pro- 
 •ecution. 
 
 70 
 
 Variation. 
 
 Tl e prisoner declines cross-examining this witness. 
 
 [Instruction. — In every caso where the prisoner does not cross- 
 examine a witness for t.ie prosecution this statement is to bo made, in 
 order that it may appear on the face of the proceedings that he has 
 had the opportunity given him of cross-examinat'on. j 
 
 being duly sworn, is examined by the prosecutor. 
 
 (The examination, &c., proceeds as above.) 
 
 [Instruction — There is to be a lino drawn between the recorded 
 minutes of every two witnesses.] 
 
 At o'clock, the Court adjourn until o'clock on the 
 
 Seoood day. 
 
 On 
 
 the 
 
 of 
 
 18 at 
 
 o'clock, the Court re-assemble, pursuant to adjournment; present, the 
 same members as on 
 
 •4 
 
 4 
 
 H 
 
 HI 
 ■It. 
 
 Absent mem- 
 ber. 
 
 Kew Preei- 
 de>t. 
 
 New Judge 
 AdTocate. 
 
 Q. 
 
 A. 
 
 Variations. 
 
 (Rank — Name — Regiment) being absent. 
 
 (The absence is accounted for.) 
 
 The Judge Advocate produces a medical certificate, which is read,, 
 marked and attached to the proceedings. 
 
 The Court adjourned until 
 
 The Court being below the number required by the order convening 
 the Court, adjourn until further orders or. 
 
 There being present (not less than the least number required by the 
 order convening the Court) members, the trial is proceeded with. 
 
 A warrant is read, bearing date , appointing (the senior 
 
 member) President of the Court-Martial in the place of who 
 
 The trial is proceeded with. 
 
 A warrant is read, bearing date , appointing .to 
 
 act as Judge Advocate in the place ot , who _i8 
 
 duly sworn . 
 
 The trial is proceeded with. 
 
 [Instruction. — No proceedings can take place in the absence of either 
 President or Judge Advocate (if any).] 
 
 Examination (cross-examination) of ^continued. 
 
 The prosecution is closed. 
 
 aieetion by 
 e Gonrt to 
 the Prisoner. 
 A. 
 
 Defence. 
 
 Do you intend to call any witness in your defence ? 
 
 Yes. 
 
 Defence. 
 
 (4.) The prisoper having been called upon to make j defence, 
 says: ■ [or requests to 
 
 be allowed 
 
 .days to prepare his defence.] 
 
lOt crosB- 
 madu, ii> 
 i he has 
 
 itor. 
 
 recorded 
 tie 
 
 sent, ihe 
 
 is read» 
 
 onvening 
 
 ed by the 
 
 the senior 
 ho 
 
 to 
 
 ia 
 
 I of either 
 ontinued. 
 
 I defence^ 
 jquests to 
 
\M 
 
 im 
 
 m 
 
 m 
 
 ■y 
 
 .< ^ 
 
 ■Ml 
 
 d< 
 
 II 
 
 r 
 
 tl 
 
 e 
 
ITnstruction.—lf & prhomr'fi dofenco bo verbal, it sbould be taken 
 down as nearly as possiblo in his own wordn, and in the tiiHt person] 
 
 The prisoner calls the following witnesses. 
 
 (Rank— JS^ame—Itegment) \s d\i\y aw orn. KJmm." 
 
 Examined by the Prisoner. 
 
 Cross-examined by the Prosecutor, 
 
 Eoexamined by the Prisoner. 
 
 Examined by the Court. 
 
 Q. 
 A. 
 
 Q. 
 ▲. 
 
 Q. 
 A. 
 
 Q. 
 A. 
 
 The witness withdraws. 
 
 (5.) The prisoner reads an address, which is marked , signed Cloae of the 
 
 by the President, and attached to the proceedings. defence. 
 
 [Jnsfrucfion.— If necessary the Court may now be adjourned to enable 
 the prosecutor to prepare his reply; the fact of adjournment being 
 recorded as before.] 
 
 The prosecutor reads the loply, marked , which is signed by Reply. 
 
 the President, and annexed to the proceedings. 
 
 lOr the prosecutor declines making a reply.] 
 
 The court adjourn until.^ to enable the Judge- 
 Advocate to prepare his summing up. 
 
 (6.) The Court re-assemble on , and the prisoner being th day. 
 
 present the Judge-Advocate reads the summing up, which is marked °°°"°*°K "?♦ 
 *_ ^ signed by the President, and attached to the Proceedings. 
 
 The Court is eleared for the purpose of considering the fiading. 
 
 Finding. 
 
 (7.) The Court find that the prisoner (l^o.— -Rank— Name— Begiment) Finding. 
 
 is not guilty of the charge ; Not Ouilty. 
 
 or, 
 
 is guilty of the charge [all the charges] Guiltj. 
 
 or, 
 
 is guilty of the first charge, and guilty of the second charge with the 
 exception of. . 
 
72 
 
 
 ,1"' 
 
 II 
 
 It* r 
 
 or, 
 
 is not guilty of doHortion, but is guilty of absence without leave. 
 
 [Instruction. — In all cases when the Conrt acquit the Prisoner, the 
 finding is to be recorded in simple terms *' Not Guilty." If on the trial 
 of a commissioned officer they desire to acquit the Prisoner honourably, 
 they are to state so in a separate letter. 
 
 If the finding of not guilty is on all the charges, the finding must be 
 pronounced in open court, and the prisoner released.] 
 
 PROCEEDINOa BEFORE SENTENCE. 
 
 (8.) The Court being re-opened, the Prisoner is again brought before 
 it. 
 
 (Bank — Xame — Regimenf) is duly sworn. 
 
 Qaestioa by What record have you to produce in proof of former convictions 
 
 tlie President against the prisoner ? 
 
 Abswaf. I produce a certified copy from \or (There are none) ]. 
 
 This document being read, compared with the original, and found 
 
 correct, is marked ^, signed by the President, and attached to the 
 
 proceedings. 
 
 Q« How many times has the pi-isoner's name been entered in the 
 
 defaulter book for drunkenness ? 
 
 On reference to the 
 
 defaulter book now laid before the 
 
 .A 
 
 Q. 
 
 Id case of 
 
 desertion. 
 
 A. 
 
 Q. 
 
 A. 
 
 0- 
 A. 
 
 Q. 
 A. 
 
 Q. 
 
 A. 
 
 A. 
 
 Ck>art it appears that the prisoner's name has been recorded therein for the 
 crime of drunkennens times since his enlistment. 
 
 Is the prisoner under any sentence at the present time ? 
 
 Did the prisoner surrender or was he apprehended ? 
 
 What is the prisoner's general character ? 
 
 What is his age ? 
 
 What is the date of his attestation? 
 
 What service is ho allowed to reckon towards discharge ? 
 
 [Instruction. — Deserter's service to bo reckoned to date of desertion 
 only.J 
 
 Is the prisoner in possession of any decorations, good conduct badges, 
 or honorary rewards ? 
 
 How long has the prisonet" been in confinement in respect of this 
 trial? 
 
0. 
 
 •isonor, the 
 3n the trial 
 onourably, 
 
 ig must be 
 
 ight before 
 
 JonviclioDS 
 
 re none) ]. 
 
 and found 
 ihod to the 
 
 the 
 
 before the 
 ein for the 
 
 desertion 
 ct badges, 
 
 BCt of this 
 
 1' 
 
ll 
 
 * 
 
 1 
 
 IJI' 
 
 11 
 
 iii! 
 
 . 1 
 
 '3 . 
 
 li 
 
 U » -J 
 
73 
 
 Tho Court 19 again cloaiod. 
 
 Sentenoc. 
 
 [Instruction. — Tho provisions of Section 44 of the Army Discipline 
 and Regulation Act* must be carefully attended to by the court in passing 
 sentence.] 
 
 (9.) The court sentence the prisoner No, (^Rank—Name) — Regiment. Sentence. 
 
 [Znsfrucfton.— Tho sentence is to be marginally noted in every case.] 
 In the case of an officer : — 
 
 (a) to suffer death by being shot (hanged]. 
 
 (b) to suffer ponal servitude for tho term of j'oars for for 
 
 lifej. 
 
 (c) to bo imprisoned with \or without] hard labour for 
 
 days fand in consequence of the above imprison- 
 
 mont 18 not to be in the United Kingdom]. 
 
 {d) to be cashiered. ' 
 
 («) to be dismissed from Her Majesty's service. 
 
 (/) to forfeiture of rank. ., 
 
 [Instruction. — Tho specific forfeiture to be stated.] ' '' 
 
 (<7) to bo I'oprimanded [or severely reprimanded]. 
 
 Death. 
 
 Penal aerTl- 
 tude— — 
 jean. 
 
 Imprisonment 
 H. L. for 
 -^daji. 
 
 Cashiered. 
 
 Dismissed. 
 
 Forfeiture of 
 rank. 
 
 '.i\ . 
 
 In tho case of a soldier : — •;■,., ■" 
 
 (A) to suffer death by being shot [hanged] . ' 
 
 (/) to suffer penal servitude for tho term of years for for 
 
 life]. "■ 
 
 (k) to be imprisoned with [or without] hard labour for 
 
 days [and in consequence of_ the above im- 
 prisonment is not to be in the United Kingdom]. 
 
 [Instruction. — If a man while undergoing imprisonment is sentenced 
 to a term of impi'isonment which will make the aggregate imprisonment 
 exceed two years, the latter sentence will be invalid. Great care must 
 therefore be taken in not imposing any term of imprisonment which will 
 purport to make tho prisoner subject to a continuous term of imprison- 
 ment exceeding in the whole two years. For example, if a man under- 
 going a year's imprisonment has, at the date of a new sentence being 
 pagseJ, been imprisoned for eleven months, the new sentence cannot 
 excesd such a term as will make up a period of two years from the date 
 of tbo original sentence, and a sentence for any term of imprisonment 
 exceeding such differenca will render the whole new sentence invalid. 
 
 2. If the terra of imprisonment awarded exceeds 12 months and 
 there are special reasons why tho prisoner should not be sent to the 
 United Kingdom to undergo his sentence, the Court must state the 
 reasons and give the direction.] 
 
 (l) to be discharged with ignominy from Her Majesty's service. 
 
 (m) (if a volunteer] to be dismissed from Her Majesty's service. 
 
 fn) [if a non-commissioned officer] to be reduced to the rank 
 of [or to tho ranks]. 
 
 Reprimand, 
 or severe 
 reprimand. 
 
 Death. 
 
 Penal servi- 
 tude— — 
 years. 
 
 Impt. H.L. 
 for days. 
 
 Discharjte 
 with igno- 
 miny. 
 Dismissed. 
 Reduction. 
 
 • Chapter VI. 
 
i 
 
 rined £. b. d. 
 Stoppagea. 
 
 Forfeitures. 
 
 r 
 
 1:1 ,ii' 
 
 T4 
 
 [Instruction. — Reduction to the ranks implies reduction of a non- 
 commissioned officer to gunner, driver, sapper, or private, as the case 
 may be. J 
 
 (o) to be fined pound shillings pence. 
 
 to be put under stoppages of pay until he shall have made 
 good the following articlep, viz. :— 
 
 [or until he shall have made good the sum of , as the 
 
 case may be."] 
 
 to forfeit absolutely (or for any period not less than 18 months, 
 as the case may be)— Good Conduct badge (or badges) with pay 
 which he bus earned by past service. ' 
 
 N.B, — Namber of badges to be specified. 
 
 or, 
 
 to forfeit the annuity [gratuity, medal, or decoration, here 
 specify eacAJ which has been granted to him. 
 
 or, 
 
 to forfeit all or any advantage as to pension which he h»» 
 earned by past service. 
 
 or, 
 
 to forfeit all right to good-conduct pay, and to pension on 
 discharge, whether in respect of past or future service. 
 
 N. B. — An offender may be sentenced to all or anj of these forfeitures. 
 Instruction. — ^The medals are to be described. 
 
 Signed at , this ^day of , 18. 
 
 (Siguature) (Signature) 
 
 Judge- Advocate. 
 
 President. 
 
 (10.) Confirmed, 
 
 Confirmation. 
 
 or, 
 
 [I confirm the finding and sentence of the Court, but mitigate er 
 remit or commute 
 
 Date. 
 
 (Signature of conftnrung authority.) 
 
 [Instruction. — Space of at least half a page is to be left for the remarks 
 of the confirming officer, who is to state the manner in which each case 
 is to be disposed of. 
 
 2. If the sentence is death, or if the offence is an offence triable under 
 section 41 of the Act and the sentence is penal servitude, the consent 
 of the Governor of the Colony must be obtained."] 
 
 4 h 
 
 (11.) On. 
 
 the 
 
 the Court re-ussemble by order of 
 of re-considering tueir 
 
 Eevision. 
 day of_ 
 
 at o' clock, 
 
 , for the purpose 
 
 Present, the same members as before . 
 
 The letter [order or memorandum] containing the instructions to 
 the Court and the reasons of the confirming authority for requiring a 
 
 revision of the finding (or sentence) is read, marked signed by 
 
 the President, and attached to the proceedings. 
 
a non- 
 jhe case 
 
 made 
 
 _, as the 
 
 months, 
 ith pay 
 
 ion, here 
 
 he hft» 
 
 ision on 
 'eitiireB. 
 
 18. 
 
 tigate or 
 
 ority.) 
 
 remarks 
 lauh case 
 
 3le under 
 connent 
 
 _o' clock, 
 ) purpose 
 
 ctions to 
 luiring a 
 igned by 
 
 I 
 
 wmM 
 
my, M 
 
 
 
 V*. 
 
 
 
 II' 
 
 'l 
 
 
 
 <; 
 
 
 tlL 
 
T5 
 
 The Court having attentively considered the ohservations of the con- Rerised fin4- 
 firming officer and the whole of the proceedings, '°2' 
 
 a. do now revoke their former finding, and are of opinion, &c., 
 
 or, 
 
 b. do now revoke their former sentence, and now sentence the Rerised Ben- 
 
 o e tenee. 
 
 prisoner, &c., &c. 
 
 or, 
 
 c. do now revoke their former finding and sentence. The Court Revised find- 
 are now of opinion, &c., &c. "*** 
 
 or, 
 
 d. do now respectfully adhere to their former sentence [finding Reyiaed sen- 
 and sentencej. ®''"" 
 
 Signed at , this ^day of 18 . . 
 
 (Judge Advocate.) (President.) 
 
 [Instruction. — No additional evidence for prosecution or defence can 
 be received on the revision, and no portion of the original minutes can 
 be altered. 
 
 2. When Courts Martial are re-assembled for the purpose of revising 
 their finding, and when any alteration therein is made, it is absolutely 
 necessary that the sentence in such revised finding shall be given afresh, 
 and it is not sufficient for the court to state that they adhere to their 
 former sentence in such cases.] 
 
 (12.) Eecommendation to Mercy. 
 
 (See section 53 (9) of the Act,)* 
 
 [Instruetion. — When;the court have passed judgment, and deaire to remark on the 
 conduct of the parties before them j or on the manner in which a particular witness 
 has delivered his testimony, Ac,, they are to embody their views in a separate letter^ 
 to be signed by the President, and forwarded with the proceedings to the confirming 
 authority, or to the Judge Advocate General, as the case may be.] 
 
 (13,) Form op Summons to a Witness. 
 
 To 
 
 Whereas a court-martial has been ordered to assemble at 
 
 on the day of 18 , for the trial of 
 
 , of the regiment. I do hereby summon and 
 
 require you A. B. to attend, as a witness, the sitting of the said 
 
 court at _on the day of , at o clock in tha 
 
 forenoon [and to bring with you the documents herein-after mentioned, 
 
 namely J, and so to attend from day to day until you shall 
 
 be duly discharged ; whereof you shall fail at your peril. 
 
 Given under my hand at .on the day of 18 .. 
 
 ( Signature) 
 
 Deputy or officiating Judge- Advocate 
 
 (or President). 
 
 • Chapter VI. 
 
w 
 
 
 m 
 
 If' 
 
 1 1 * 
 
 1 
 
 u 
 
 :-l 
 
 w 
 
 ADMINISTRATION OF OATHS. 
 
 62 When a J. A., ia present he administers the following oath to every member 
 
 of a CM.; if there is no J. A. then this same oath is administered by the President 
 to the other members, and afterwards by any sworn member to the President. 
 
 Oaths of Members. 
 
 "You do swear, that you will well and truly try the 
 
 prisoner before the court, according to the evidenoo, and that you will duly administer 
 justice according to the Army Discipline and Bogulation Act now in force, without 
 partiality, favour, or aflfection, and you do further swear that you will not divulge the 
 sentence of the court until it is duly confirmed, and you do further swear that you 
 will not on any account, at any time whatsoever, disclose or discover the vote or 
 opinion of any particular member of this CM. unless thereunto required in due course 
 of law. So help you GOD." 
 
 If a person required by the Act to take an oath, objects to take an oath, or is 
 objected to as incompetent to take an oath, the court, if satisfied of the sincerity •{ 
 the objection, or, where the competence of the person to take an oath is objected to, 
 of the oath having no binding effect on tho conscience of such person, shall permit 
 such person instead of being sworn, to make a solemn declaration, in the prescribed 
 form, and for the purposesof the Act such solemn declaration shall be deemed to be 
 an oath. 
 
 Oath of Deputy or Officiating Judge Advocate. 
 
 ' ' An oath shall be administered to the Deputy J. A., or person officiating as J. A., 
 
 |-» |i by the President, or by some member of the court authorised by the President, in 
 
 11 \> the following form : — 
 
 m " You, A.B., do swear that you will not, upon any account whatsoever, disclose 
 
 I or discover the vote or opinion of any particular member of this 0. M., unless 
 
 |i thereupon required indue course of law; and that you will not, unless it be necessary 
 
 i|i ^ for the due discharge of your official duties, disclose the sentence of the court until 
 
 y'iiii it shall be duly confirmed. So help you GOD." 
 
 m 
 
 md' Oath of Officer in Attendance. 
 
 mm 
 
 W-t}, An oath shall be administered to an officer attending for the purpose of instruc- 
 
 i f' tion by the President, or by the Deputy J. A., or person officiating as J. A., or by 
 
 |l ji some member of the court authorised by the President, in the following form • — 
 
 ■' •• You, A.B., do swear, that you will not, on any account or at any time whatso- 
 
 ever, disclose the vote or opinion of any particular member of this G. M. and that 
 you will not divulge the finding or sentence of this C M. until it is duly confirmed. 
 So help you God." 
 
 Oath of Shorthand Writer. 
 
 An oath shall be administered to a shorthand writer by the President or by the 
 Deputy J.A., or person officiating as J. A., or by some memberof the court authorised 
 by the President, in the following form : — 
 
 " You, A.B., do swear that you will take down, to the best of your power, the evi. 
 dence to be given before this court, and will faithfully and truly transcribe the same 
 So help you GOD." 
 
 Oath of Interpreter. 
 
 An oath shall be administered to an interpreter by the President or the Deputy 
 J.A., or person officiating as J.A., or by some member of the court authorised by the 
 President, in the following form :— 
 
 UHUBBBOHBaBBB 
 
mombor 
 resident 
 t. 
 
 .vj the 
 (ninister 
 without 
 ulge the 
 )hat you 
 I vote or 
 le course 
 
 th, or is 
 icrity %t 
 >cted to, 
 I permit 
 escribed 
 ed to be 
 
 18 J. A., 
 dent, in 
 
 disclose 
 , unless 
 scessary 
 rt until 
 
 instruc- 
 L., or by 
 I* — 
 whatso- 
 nd that 
 nfirmed. 
 
 • by the 
 Lhorisod 
 
 , the evi. 
 le same 
 
 Deputy 
 by the 
 
ili 
 
 ... "t- JI" 
 
 I I 
 
 
 ■ J 
 
 :i 
 
 
11 
 
 " You, A.B., do swear that you will, to the best of your ability, faithfully andl 
 truly interpret and translate as you eliall be required to do touching the matter now 
 before the court. So help you GOD." 
 
 Declaration of Member of Court Martial in lieu of Oath. 
 
 Where a solemn declaration is allowed, under section 62 of the Act, to be made 
 by a member of a tJ. M , a solemn declaration shall be made before the oflflicer author- 
 ised to administer the oath, in the following form ; that is to say : 
 
 " I, A.B., do solemnly declare that I will well and truly try the prisoner before 
 the court according to the evidence, and that I will duly administer justice according 
 to the Army Discipline and Eegulation Act, 1879, without partiality, favour oi affec- 
 tion, and 1 do further solemnly declare that I will not on any account, at any time 
 whatsoever, disclose or discover the vote or opinion of any particular member of 
 this C. M., rilees thereunto required in due course of law." 
 
 Declaration in lieu of Oath in other Cases. 
 
 Where, in any other case, a solemn declaration is allowed, under section 52 of 
 the Act, to be made, a solemn declaration shall be made before the officer authorised 
 to administer the oath. 
 
 The form of solemn declaration for the Deputy J. A., or person officiating as 
 J. A., shall } ^ QB follows : — 
 
 "I, il. 5., do solemnly declare that I will not, upon any account whatsoever, 
 disclose or discover the vote or opinion of any particular member of this C. M., 
 unless thereunto required in due course of law ; and that I will not, unless it be 
 necessary for the due discharge of my official duties, disclose the sentence of the 
 court until it shall be duly conflrmod." 
 
 Declaration of Officer in Attendance. 
 
 The form of solemn declaration for an officer attending for the purpose of 
 instruction, shall be as follows : — 
 
 "I, A. £., do solemnly declare that I will not, on any account or at any time 
 whatsoever, disclose the vote or opinion of any member of this 0. M., and that 1 
 will not divulge the finding, or sentence of this C. M. until it is duly confirmed." 
 
 Declaration of Shorthand Writer. 
 
 The form of declaration for a shorthand writer shall be as follows : — 
 
 "1, A.B., do solemnly declare that I will take down, to the best of my power 
 
 the evidence to be given before this court, and will faithfully and truly transcribe 
 
 the same." 
 
 Declaration of Interpreter. 
 
 The form of solemn declaration for an interpreter shall be as follows : — 
 
 " I, AB., do solemnly declare thai I will, to the best of my ability, faithfully 
 
 and truly interpret and translate as I shaii Lo required to do, touching the matter 
 
 now before the court." 
 
 Swearing of Witnesses. 
 
 All persons who give evidence before any C. M., other than those who are by 
 law empowered to make a solemn declaration, are to bo examined upon oath in the 
 following words : — 
 
 " The evidence which you shall give before this court shall Le the truth, the 
 whole truth, and nothing bat the truth. So help you GOD." 
 
m 
 
 18 
 Declaration in lieu of Oath. 
 
 If a witness is authorised by the Act to make a solemn declaration, the declara- 
 tion is to be made before the officer aiitboriBed to adminisier the oath, in the follow- 
 ing form : — 
 
 I, A B., do solemnly declare that the evidence which I shall give before thiH 
 <;ourt shall be the truth, the whole truth, and nothing but the truth. 
 
 y. 3 
 
 41 
 
 
 -> 
 
 i 
 
 Ill' 
 
 I s ;v: 
 
 ll! 
 
I deolara- 
 foUow- 
 
 >fore thiH 
 
:fi' 
 
 W^ 
 
 
 
 !* 
 
 
TABLE OF CONTENTS. 
 
 CHAPTER r. 
 
 PftK* 
 
 Introductory— Comparison between Civil, Military and Martial Law... 6 
 
 CnAPTER II. 
 
 Martial Law 6 
 
 CHAPTEa III. 
 
 Military Law — Short history of 10 
 
 Short description of the Army Discipline Act 12 
 
 Definitions of certain expressions lit 
 
 Persons subject to the Act 13 
 
 Maintenance of Discipline 15 
 
 Course of procedure on coraraiasion of offences 16 
 
 Power of Commanding Officer 18 
 
 Provost Marshal 19 
 
 CHAPTER IV. 
 
 Courts Martial — Descriptions of, convening 20 
 
 Composition 20 
 
 Scale of punishments 22 
 
 Forfeitures, stoppages and fines 23 
 
 Penal stoppages from pay 24 
 
 Forfeiture of service towards pension, etc 24 
 
 Jurisdiction of Courts Martial 25 
 
 CHAPTER V. 
 
 Preliminaries to Trial • 2T 
 
 Framing charges 27 
 
 Order for the assembly of the Court 29 
 
 Warning the prisoner for trial 30 
 
 Witnesses «. 30 
 
 The Judge Advocate ^1 
 
 The Prosecutor 33 
 
 The Prisoner 33 
 
 Interpreter °^ 
 
 The Court • 33 
 
 The Pi'oceedings "'••• ^^ 
 
 Confirmation of Courts Martial • ^^ 
 
 Disposal of the Proceedings ^* 
 
Pi 
 
 1 ' ! 
 
 I 
 
 3: 
 
 i 
 
 m 
 
 
 
 
 ii 
 
 I 
 
 
 %l^ 
 
 80 
 
 ouAPTiR vr. 
 
 Page 
 Crimes and punishmenta 41 
 
 Remarks on certain crimes and punishments 60 
 
 CHAPTER VII. 
 
 Courts of Inquiry 5^ 
 
 CHAPTER VIII. 
 
 Evidence 55 
 
 APPENDIX. 
 
 Form of Proceedings of a G. C. M 67 
 
 Administration of Oaths and Solemn Declarations ^(i 
 
 '^ <• 
 
 n 
 
 II 
 
 I 
 
 lil 
 
Page 
 41 
 60 
 
 5^ 
 
 56 
 
 67