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Entered According to Act of Pa.liament of Canada, in the year 1880, by Major Douglas Jones, in the Office of the Minister of Agriculture. 1880, by iilture. ABBREVIATIONS. Act A. W. C in C. - ldior, constitute a serious otfonco against Military Discipline. I Military Law has a distinct code, is regular in its application, and i? adminis- |red by persons having power to do so. Martial Law has no code, is irregular in its application, and unless proclaimed Parliament, is administered by persons who have either assumed the power to do ► or received it without legal sanction. It affects all persoui), whether civil or lilitary. CHAPTER II. MARTIAL LAW. It is difficult to clcai-ly define Murtial Law, or to state wliat offences may be tried by it, when it may bo proclaimed, and how offenders are to be tried and con- victed under it. On all these points guidance has to be sought by what has been done in the past. Up to the close of the seventeenth century Martial Law had boon 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. In 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 Marliai Law. But the diffioulty 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. Alilitary Law is to be found in the M.A. and A.W. — those and those alono it is which are properly called the Military Code, and by which the land forces of Her Majesty are regulated. Martial Law is not a written law; it arises on a necessity to bo 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. Martial 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 : — Ist. As applicable to ofticers and soldiers under the Discipline Act, and under what circumstances it is to supersede the latter; 2nd. Applicable to provinces occupied during the continuance of war ; 3rd. Applicable to a whole community in time of rebellion ; 1st. It is admitted beyond a question that the law of necessity may arise and may bo 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 Liout.-Coloncl in the army, and Gover- nor and Commandant of an island on the coast of Africa in 1782, the garrison of which consisted of abou . 150 men : — One day several men of the detachment wont to the paymaster's houie to demand an allowance to which they considered they had a right. The Governor intorposeil, ordered a parade, and had a sergeant, who was among tho,-!e wh ) went to the house, severely flogged with a one inch rope, inflicting on him 800 lashes, from the effects of which the man died five days after. The Governor loll the island the day after this flogging and arrived in England, but went abroad again, on Uie advice of his friends, to bo out of the way. Twenty yours later he was brought lo 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 pp<*ado had nces may be I'iod and con- luit has been from time to ign, but even ) to proclaim states that no iin this realm )claim Martial ?rcised. efoctive. Sir nish between .A. and A.W. Code, and by lOt a written 8 the instant I forces men- 'sons, whether od rather than ry law, which ), judicial and the Duke of joneral of the ct, and under ar; so and may be ont lawyers. J', and Gover- garrison of use to demand or interposed, t to the house, )m the ofl'octB id in England, vay. Twenty ison, and that n pi"*ado had [formed a " drum- head " CM. before the flogging, and that he, the Governor, merely carried out thoir nentonco. The statement as to the CM. he failed to establish, Ibut the Ju(ig<try, when face to face with tho enemy, 8cau8o his paramount duty is the defence of tho country. 3rd. When may Martial Law be resorted to as alfocting tho whole community, [ivil and military, and how ? This presents greater difficulties, and is not a problem to be solved in anticipa- ion of tho event. All acts committed under tho authority of Martial Law are always scrutinized, knd must bo justitiod subsequently by an Act of Indemnity, passed to cover only such ](Ct8 as have been properly done under tho " law of necessity," but Parliament does jiot indemnify acts not of necessity but of oppression. 8 r When Parliament sanctions the introduction of Martial Law in a country, CM. can legally try any person. No authority but Parliament has really the power to proclaim Martial Law. The military authorities are justified, however, under certain circumstances, in taking the law into their own hands in self-defence, — the case is analogous to that of killing ■a. man 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 of war, and the forms and practice of C M. is always advisable. The question of the co-existence of Military Courts with Civil Courts has never been fairly settled- When Martial Law was instituted in Ireland, in 1*71)8-99, lt03 and 1833, the Civil Courts sat for all ordinary cases. In the Petition of Eights it was acknowledged that Martial Law was a necessity ivhero 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 bo not slain .at the time of his rebellion, he is to be tried afterwards by the Common Law. In 1799 the Iribh 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-jc, and the King's Bench granted a writ to take a rebel sentenced to death by a Court Martial out of military custody. The rebel was too ill to be removed and died subsequently, and hence the case was unfortunately never decided. However, this shows that the supremo 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-Goneral Commanding stated: —'' In all cases ■where the unlimited authority you arc now vested with can be exercised in co- operation with, or ji subordinalion 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 Dnndas, in evidence before the Ceylon Committee, stated: — " What- ever pr wer the Crown can wield the representative of the Crown in a colony can also talce upon himself to wield, andjio ^can therefore proclaim Martial Law in the 'r'r)lor>ie8." The question arises, is the proclamation 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 Governr>r which he had not without it; the only purpose is to give UDtice 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 death all persons engaged in the actual work of resistance. This prei-ogative does not extend beyond the case of per- sons tukon 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 18(>7 a circular despatch was sent to the Governors of Colonies with reference to Martial Law : " Her Majesty's Government does not prohibit resort to Martial Law under urgent circumt^tancos and in anticipation of an Act of Indemnity, but the justi- fication of such a step must rent 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." Controverpiies 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 "f M sountry, CM. [artial Law. 363, in taking ]at of killing iaraont being i of Military 11 matorially to the ostab- and practice ts has never [1d8-Q9, lt03 IS a necessity 3use were :— t work there I bo not slain Law. rail whether id a collision ih granted a y custody, ice the case ?a8 admitted. 1837, a letter '' In all cases Brcised in co- oquired to so jlaim Martial od:— " What- a colony can 1 Law in the f put in force, -" The proda- it ; the only to put down • the sake of ?af(od in the e case of per- handod over 86. ith reference I Martial Law but the justi- local Gover- ature of th* ial Law." not that the generally are are — its continuance after the necessity for it has ceased, and the cxorci.se of excessive severity —hence strict caution is necessary to see that the general principles of justice are carried out. The difficultiep of the Jamaica case in 18G j apj-ear to have added confusion and danger rather than enlightenment. Governor Eyre proclaimed Martial Law in the disturbed 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 CO. of troops at a plaoe where Martial Law prevailed, with instructions to try him by CM. lie was tried, convicted of high treason, and sentenced to death. The proceedings were confirmed by the officer commanding 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 • — f 1. ZocaZiYy of arrest not under Martial Law; )| 2. Crime committed prior to dale of proclamation ; 4 3. Only evidence was documentary, and insufficient before an ordinary cou»"t ; I 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 gin bringing Gordon into the proclaimed district for trial. Otitors, however, con- % fiidered 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 Jr balance of opinion was that no proclamation of Martial Law can have a retrospeo- jftive elibct. With regard to the tiiiid, the C M. consisted of a Lieutenant Royal Navy as ''President, with another Lieutenant Royal Navy and one Ensign West India Regi- I ment as members, and no allegation as to the legality of the court was made. The jf objection of insufficiency of evidence was not much argued, as it was considered that /the court's opinion must be decisive. *j Mr. Disrujli, in 1806, as Chancellor of the Exchequer, stated in reply to a quoa- #t'0" •" Parliament, "In the state of Martial Law there can be no irregularity in the ^CGinposition 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 thereft>ro considered to have acted wrongfully in arresting s|Gordon out of the proclaimed district and transferring him to the proclaimed district ■*ifor trial ; also, that as he committed the crime before the proclamation of Martial Law, :VGordon should only have been tried by Civil Law. It was, however, acknowledged Hhat Governor Eyre had act^d in good faith and had brought the colony safely |through a great danger, so that, notwithstanding these errors, protection was afforded :^him. 'M In the United States a very proper distinction is drawn between Military (/ourts j|asRombled under the Statute, which are called "Courts Martial," and those assembled iwhen Martial Law is in force, which are called "Military Commissions." In Eng- Jlnnd both descriptions of Courts are called Courts Martial, and the ircnoral public are iptK [consequently not able to discriminate between the two. y 10 CHAPTER III. UISTORICAL SUMMARY OF MILITARY LAW. The Study of Military Law involves considerations of its origin and progress, as well fls of the exact details of the law as it at present exists ; and though this latter point is undoubtedly of the greatest importance, still it is cleai-ly necessary that something should be said concerning the introduction of a law, which, till the close of the 17lh century, was unknown in Englar.d. Boforo the days of standing armies, troops in peace time were few, they were paid and kept by the Sovereign as his personal guards, and were liable to punish- ment like any other of his servants. Whenmilitary forces wore collected for expedi- tions, or for suppressing rebellions, "Special Ordinances of War" wore istuiod under the Royal Prerogative and applied by the C. in C. in the field, and these ceased when the ai-my was disbanded. The idea of a separate code wiih distinct courts was taken from a Statute of Richard II. (IHTT-DO), which established a court of the Constable and Marshal, which dealt with military matters not cognizable by Common Law. The first trace of the issue of laws applicable to soldiers (not in war time) was in l(i25, for the government of troops guilty o/ offences Oivil and Military, returned from Spain, whom Claries I. ordered not to be disbanded. The Common Law of England, having sprung up in an age 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 Rights " (1628), by which soldiers were not to be withdrawn from the protection of Civil Law, nor from its punishments. The civil wars in England brought numbers into the profession of {vjrns, and at the restoration of Charles [I the army then existing had been raised by the common- wealth. The Parliament of the Restoration (166(1) 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 legislated for these troops the country would have to pay for their mainten- ance, and consequently the King was left to govern them under his perogativo. The first A.W, sanctioned by Parliament were in 1642, when the King issued orders for the mustering, regulation and payment of these troops. Laws and " Ordi- nancesof War " were 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 bo inflicted, the prisoner was to bo tried according to the known laws of tho land, — if the offence was not so puniHhablo, then the trial was to take place by special Royal Commission under the Great Seal. The Articles of ItlGfi and 1672 established a General CM. for offence? punishable with life or limb, and Rogimontal or Djtachmont Courts for lessor olfonces. Tho code of 1672, known as Princo Rupert's Code, did not differ, materially, from that of 1666, though the ])unifilunents wore not so severe. These articles, more than any other, have formed the model on which tho present military code and system of military judicature have boon formed. All this took place under tho authority of tho Crown, though Lord Essex' Code (1642) for a Parliamentary Army had tho sanction of Parliament. Throughout the reigns of tho Stuarts, the army wtis entirely under tho Sovereign. In 16S8 came tho revolution which doposod Jamos II, and placed William, Princo of Orange, on the English Throne. This change was not universally acquiesced in by the soldiers serving in tho army ; and on tho abdication of Jamos II, the Scotch regi- I 1 I )rogross, as 1 thiH latter essary that I the close thoy wore > to puiiish- foi" expedi- itiiiod under cased when ft Statute of shal, which • time) was y, returned men bore \o of peace 1 to soldiers ' Petition of •otection of ■ms, and at le common- '. to retain, 000 strong, rming - the lent feared lir mainten- jtivo. The ing issued and "Ordi- iven to the 1 appointed ho prisoner was not so under the punishable i. The code •oin that of ■0 than any system of authority of ny had the Sovereign. I, Prince of )sced in by Scotfli regi- 11 o^ mcnts refused to recognize the new Sovereign William III. Some soldiers even refused to Ki-ht .broad ngainrst foreign enemies, jind no constitutional law existed b}' whoh the mutinous troops could be punished, as hitherto soldiers had been regarded only as citizens, and amenable on'y to the civil tribunals. The necessity of having a code of military law was now apparent, and in 1G8H Parliament passed the Ist Mutiny Act. While giving the King the nee essary power to punish oHencos against discip- line commit'ed by suldiers, it was resolved to guard against his employing the soldiers to overturn the Government. Mutiny, sedition and desertion were tho'oni} offonces provided for therein ; and were to be punishable by death. The duration of this Act was limited to 6 mor)ths; but it was at the eml of that time renewed, and with few intermissions it has boon passed annually ever since, up to 1S79. This Act authorized the convening of CM. by warrant from tho t'rown or General in Command. The preamble (or introduction) stated that though the raising or keeping a stand- ling army within tho realm in time of peace, unless with the consent of Parliament, [was against law, and that thcngh no man might bo subjecte fifth part d auxiliary ies thn law {orre. juch it altogether ions. int, service bribiture of id or reen- d or reen- of consent) if they aie ilistmont is, recollected ciitenced of )rought the and Marine id the object 11 of Rights e raising or mo of peace, he purposes gdom, Pro- ) U.K. and le numbers of corps in L. then fol- wUhin th's to a n)oro be tried by '! I ^K [ impc m Eegi latio ^'M shall im thor< 'm such Act; r^ C M woul ^ ^m 68801 gIVCl 1 estin 1 linei ; A.W This line Bupp force re8ei "' IS np and ■ |Comi PI inch- per8( force Hl^ 13 Note that the limitations '' within this realm" and '' in time of peace " have ai> important bearing on the prerogative of the Crown for putting in force Martial Law. The object of the Bill brought into Parliament, termed " the Army DiBcipline and Eegulation 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 purs'.ianco of an annual Act of Parliament 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 estimntj " C. in C." m'jans the field marshal or other officer commanding in chief H.M igO forces. : " Officer " means an oflScer 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, Vis appointed to any department or corps in any of 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. oj "Soldier " does not include an officer, but with certain modifications it doey I inclrde 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.). gj "Superior Officer," when used in relation to a soldier, includes a N.C.O. ?f "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 reserve and the militia jeserve. f "Auxiliary Forces" mean the militia, yeomanry and volunteers. A General Order of 1879 defines somewhat the position of a warrant officer not olding an honorary commission. It says conductors of supplies and conductorf^ of toros are senior to all N.C.O's. ; tlicy will supply the place of subaltern officers when ^required, but they will not i^it as members of Courts of Inquiry or on Regimental J Boards. N.C.O's. and men will address them in the same way as they do ofliLors, but will not salute them. They may become honorary members of sergeants' messes. PERSONS SUBJECT TO TUB ACT. Those may bi- classed generally as follows : — (a) All persons commissioned and paid us officers, belonging to the regular • 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 i Military Law, but who, acting in an official capacity, are treated on the same footing ias officers, such vm Yeomanry or Volunteer officers and persons accompanying troops Lute legal Secretary to the War Ollice. 1^8 W^sm U 1Y3 on active service and placed on the footing of an officer. (Officers on half pay arc not under the Act). (i) All men attested for II. M. service, or paid as soldiers, including Royal Marines when on shore, and non-combatant as well as combatant branches ; also, persons not otherwise subject to Military Law yet who are 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. (^) Militia— during preliminary training, annual training or embodiment. (.3 ) Yeomanry and Volunteers when outtor training and when on actual military service, and the Yeomanry in addition when called out in aid of the Civil Power. The permanent staflfs 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 AKMY DISCIPLINE AND REGULATION ACT. Note. — All persons suhject to Military Law are so subject either as officers or as soldierg. I. Regular Forces.., A. British Forces. B. Indian Forces, C Colonial Forces. ir. Auxilinr}' Forces, (1) Land Forces. (2) Marine Forces. (a) Officers and soldiers of the army. (6) Armj' Reserve — Class 1. — Geiieral service. Class 2. — Service in the United Kingdom.... (c) .Militia Reserve ; general when called out. Officers and soldiers of Royal Marines, when not subject to Navy Discipline Act. (1) Officers and soldiers, not beingnatives 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. A. Militia. H. Yeomanry. C. Volunteers Officers and soldiers belonging to a body of troops raiHcd by order of iler Mujosty beyond the limita of the U K and of India, and bcrving under the command of an officer of the regular forces. 'Officers of the Mil'tia are always subject to Military Law. The officers and soldiers of the permanent staifis uf tiio Militia, Yeomanry and Volunteers U'-e ali-o alwiiys subject to Milittiry Law, either as being part of the regular forces or as being subjected to Military Law at all times by express enactment. The N.C.O'e and men of tr.e Militia, Yeomanry and Volun- teers are subjected to Military Law only on tho occasions spocificd in the Act. alf pay aro iding Eoyal Dche8 ; alHO, ' accompan J out for per- rily kept on iment. ual military Power. ! Act. tho regular LINE AND as soldiers , le army. when called out. al Marines, 7 Difecipline a of India* tary Law, India, sub- y of troops d the limitf* 5 under tho forces. subject to diersof the >manry and toMilittiry ?ular forces Law at all e N.C.Oe and Volun- oiily on tho III. T, to not the iliui those i Christii <))erf>onE to Her lable, r iieh Ml «feo certair ylribun pin a log «of Civi corroci ordina genera i Tl I power overe mand Gi Bibilit} iThJH a AS offlc offence Tl of the contirn theO. M and to intorfo Buperit III. Poreona aubject^ to Military Law. not belonging to the regular or aux-' iliary forces A. As Officers 15 ' (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 Military Law. (6) Persons not otherwise subject to Military Law accompanying a force on active service, and holding a paws from the C O. entitling thera 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 { ^2) Persons not otherwise subject to Military Law and being followers of or accompanying H.M. troops on active service beyond the seas. NoTK as to (1) and (2). — Natives of India* are subject to India Military Law except in the (improbable) event of their folio win": British forces only. • The Indian Articles of War (Act No. 6 of 1869) provide that the Military Law enacted by Ithoee Articles shall not apply "to any British-born subject of Her Majesty, or any legitimats ^Christian lineal descendant ot such subject, whether in the paternal or maternal line, but all such erBons belonguig to Her Majesty's India army shall be triable and punishable as if they belonged .J Her Majesty's British forces." The expression " Natives of India," (or the purposes of this ^able, means all persons belonging to H.M. India arniy wiio are triable by India and not by Eng- ^ftieh Military Law. MAINTENANCE OF DISCIPLINK. '. For the maintenance of discipline in the army, C.O's of regiments are given ^lloertain powers lor the punishment of minor offences, but for graver offences military iribunals, termed CM., are authorized by the Act. These military tribunals are .^analogous in their jurisdiction to petty sessions, quarter sessions and the higher courts l^f 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, &c., are fenerally dealt with by CM. The Sovereign is primarily entrusted with the command of the army, and with )wer to enforce discipline. This power is delegated, in the first instance, by the Jovereign to the C in C, and through him to General and other officers having com- loiand under him. General officers commanding districts or stations have ordinarily entire respon- fsibility and authority over all troops serving for the time under their command. [This authority is not required to interfere with the immediate command of regiments, [as officers commanding regiments have not only summary power to punish ordinary [offences, but also power to summon RCM, when necessary. Thus, minor offences are to be punished in the regiment, gruvor 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 supreme authority of ItheC inC. Maintenance of good order — Every CO. is required to keep order in his comoaand, [and to the utmost of his power prevent disorder. All officers are requirotl at oiice to interfere for the prevention of quarrels or frays, though the persons concerned he of I superior rank, an immediate report to be made to the CO. 16 For the purpose of keeping a proper record of offences committed by soldiers, three separate books are kept, one or more sheets being devoted to each soldier : — 1. The Regimental Court Martial Book contains a record of the trial of soldiers by CM., showing the charges, finding and sentence; 2. The Regimental 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. COURSE OF PROCEDUHE ON COMMISSION OP OFFENCES. 46. Every person subject to Military Law charged ^with an offence punishable 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 ariest. 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 swords. 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 guard 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 be arrested, "or after arrest to demand trial by CM. 45 A superior officer ma}' order an inferior into military custody, and an officer may order into custod}' any officer of whatever corps, though ho be of higher rank, 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 others which cannot be legislated for beforehand but which can only be justified after the event, as it is an illegal act which may bo 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, Ihe 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 committeJ 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 custody. Prisoners are not to bo 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 who manages thof-e duties, because the confinement may have been imposed by garrison authority such as militar}' police, &c. A jicrson illegally or unnecessarily detained in confinement has a legal remedy at law, but law courts will not give damages for any honest exercise of military authority, even though exercised on mistaken facts and on wrong inferences, and though prejudicial to the prisoner. A prisoner must therefore have a very strong case indeed to obtain compensation by civil law. The next step is the investigation of the cause of arrest which is to take place without unnecos'jary 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 by soldiers, soldier : — il of soldiers M. book, and B. are given, (ntries in the ) punishable confinement, on arrest or jincts of the >fficers when treme cases, nent to the the guard horses, &c., pe is punish- emaad trial d an officer igher rank, dition have e have been letified after stances. A his conduct nor handed and crime, hours after lo commits in writing, !ic necessity ,sed without •ison guards lo manages n authority igal remedy of military )ronces, and very strong take place s dealt with of a more 9rs are not ir Itobekcntin confinement for moro than 43 hours willioiit an investigation of the [charges brought against them, by their CO. in the presence of the oMcor commanding their troop, battery or company, the adjutant and the prisoner; nor are they to bo detained in military custody for a longer period than 8 days, except on rctivo service, without 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 are not to bo put on duty, but they ai-o liuble tJ carry their arms if necessary and to hand over any supplies of cash, stores, 'etc., fo. hich they may be responsible. If b}' errur a prisoner has been permitted to perform any duty he is not thereby absolved from liability to punishment for his offence. The Duke of Wellington's opinion was that if an offender w.is called upon to erform any honorable duty, such as to take ))art in an action against the enemy, his should bo held to condone the offence. This is now the general opinion, though egally the prisoner is n it absolved by being put on such duty. Arms are only restored to a prisoner by orJer of his captain or other superior ifficer. In tho case of a commissioned officer, the CO. can either dispose of the matter imself or forward it for tho opinion of superior authority. If tho nature of the ffonce does not admit of disposal by admonition or reprimand, the officer must be ried by a G.CM. or Field G.C.M. which are the only two descriptions of courts hich can try commissioned officers. It is usual to have a full inquiry by a board of officers bofoi-e resorting to trial, record facts and evidence ; but it is not necessary that the officer should be tried iehatever the opinion of tho court may bo. I If an officer thinks himself wronged by his CO. and cannot receive from 42 s'^^im, after due application, the redress to which he considers himself entitled, he may iomplain to the C in C, who, after inquiring into the complaint, will report to Her ilajesty through a S. of S. and receive her directions. 'f fy If a soldier thinks himself wronged in any matter by any officer or soldier, 43 e may complain to his captain ; if he thinks himself wronged by the latter then to is CO., and ultimately, if he considers himself still wronged, to the general or thor officer commanding the district, who will have to inquire into the matter. A Idler is in no way punishable for making a complaint whether it be frivolous r not. Every description of military offence can technically be tried by any Military ribunal, that is, by tho CO. or by any description of C.M. ; at tho same time, a limitation is imposed on tho punishments which a CO. or tho lower descriptions of M. can inflict, and it is not the object of the Act that serious offences should in practice bo summarily dealt with by the CO. or bo tried by II.C.M.; but that a higher pr lower description of CM. should be convened, according to the nature and degree ^f tho offence. A General Order lays down that in the disposal of a charge aga'^-f.* a soldier of aving committed an offence, commanding and other officers will bo guided by tho Uowing rules: — 1. A C O. may, without leforenco to superior authority, dispone Jammarily of, or try by KCM., a charge of an offence under sections 11,* 15 (except bsenco \yithout leave exceeding 21 days), 10, 24 and 40. A charge for any other ffonce will, excepting as provided for in para. 3, bo referred to a superior officer. 2. A inperior officer to whom a case is referred may deal with it as follows: — (a) Ho may for the ca.se to a superior officer, or (li) ho may direct tho di-»po.«al of tho case nmmarily, or by RCM.; or (ined with impt. (but the total punishment is not to exceed 28 days), deprivation of j ;])ay or fine. euch case ho cer to whom to convene a is authorized a R CM., ho 0. to convene ) to form an nks fit, or ho ►., ho may bo y be reverted itingNCO'a imaj-y reduc- ary appoint- i awarded : — ' days (or 168 ,h or without exceeding 7 10 shillings, » or without nection with drill for 14 ling disease, i- any offonco, inco to super- rther punish- and that the hat given to rd IS in hours, ren when the ms drunk on al drunkard," er disposal, absence witli- ino, but such if trial as an :)ut leave arc may be com- ioprivation of] 4. Dor in hospital to make go any proper Total 1 after pay in pose of dcd six hours o On boi for 2S dayt> 5. Ext <;onnected ' A sold ■his pay, m: An offi with euram Award •coraraandir under their of thoC.O. If' For tl provost ma ing a body These Military L ■ments to b( their own i When ">fficor in ii against an^ officer, if h a Field G.C A sent confirmed forms part, in such for A pre •committed vost marsh Jiimself, of 24 mmm 19 4. Dopiivation of pay is awarded for Aye of absence without leave, for days when in hospital for illness caused by an offence committed by him (mutilating himself), to make good loss or damage done to arras, ammunition, eq^uipmont, 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 penny 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 2S days, or, if he does not receive euch ration, of one penny a day pay in lieu. 5. Extra guards or piquets can only be awarded as punishment for offences : .. * Death. . . . ^ ■ P.S. for a term not less than five j'carf!. . . Impt , with or without hard labour, for a term not exceeding two year^-. Cashiering. Dis^mi.ssal from II . M. service. (Cashiering is a stronger term than dismiHsai ) Forfeiture of seniority of rank, cither in the army or in the corps to which the offoncler belongs, or in both. Reprimand or severe reprimand. An otlicer 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 j-ear.s. Impt., with or without hard labour, for a term not exceeding two years. Discharge with ignominy from II. M. service. Dismissal, if a Volunteer, from II. 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 p'inishment lower in the above scales may bo awarded. ■ nro &v officer is sentenced to P.S. or impt., he must bo cashiered. ii . N^.C.O. is gentonced to any other punishment ho must first bo reduced to tho ru, An ovl. r when sentenced to forfeiture of rank may also bo sentenced to repri- mand or severe reprimand. A soldier sentenced to P.S. or impt, or to corporal puoishraont mny in additiot* bo sentenced to bo discharged with ignominy. Two punishments of distinctly opposite natures cannot, however, be awarded for the same offence, unless authorised by tho Act. Thus, combined sentences of corporal punishment and P.S , or P.S. and impt. would bo illegal. On tho 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 tho case of N.O.O.'s any reduction, may be joined with any other legal award. A Bcntcpce of P.S. , or discharge with ignominy, necessarily entails forfeiture of all claim as to good conduct pay, or pension, derived from former service, as well as forfeiture of any medals, annuity or gratuity; it would therefore be superfluous to add those forfeitures as part of the sentence. A sentence of corporal punishment must not exceed twenty-five lashes, and is not to be inflicted on a ^ CO., nor on a reduced N.C 0., for any offence committed . while holding the rank of IS .CO. Corpoial punishment can only bo inflicted on active service and for offences punishable with death. On active service, therefore, a sentence of death or P.S. may bo commuted to corporal punishment, and a sentence of corporal punishment may bo 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.CSf. may sen- tence an offender to forfeit, for any period not less than 18 month.'', any good conduct badge or pay earned by j)ast service, and all past service towards pension; also ta 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 tho President signs tho original sentence and proceedings. The term of impt. is limited strictly to two years, whether under one or more sentences, and a sentence of P.S. or impt. cannot be awarded to commence at the Lo tho fitl- years. lismisnal ) i to which yeai's. rank of a ence, any lO reduced 1 to re pri- ll addition warded for f corporal d, punish- arcfs good he case of rfeiture of as well as jrfluoua ta 108, and is jommitted )r offences ■ P.S. may nont may joeding 42 . may son- id conduct n ; alflo tO' nduct pay immences ingH. 10 or more nee at the m expiration of a previous sentence, except when a sentence of corporal puninhmenf is commuted to impt., when the commuting authority may direct the commuted' sentence to commence at the expiration of the impt. under a previous sentence. Supposing, thei-eforo, a court 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 sentence 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 S months, with or without hard labour, or with such haru abour a^, in the opinion of tho medical officer of the prison, the prisoner is equal to. A soldier under a sentence of impt. may be removed to any place beyond the seas where his corps, or part thereof, may be serving, as it is considered that soldiers^ 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 fiaudulent enlistment upon his conviction by CM., or having confessed his offence, upon his trial being dispensed with, forfeits tho. whole of his previous service, and begins again as if he had been enlisted at the data of his conviction, or at the date of tbe 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 tho 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.C.O's. A C.O. cannot deal summarily with a N.C.O. charged with drunkenness. The C. in C. may reduce any N. C O. to any lower grade, or to the ranks. When reduced to a lower grade he takes precedence in that grade. A N.C.O. 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 cai ^^ot be reduced to the ranks, but the C. in C. may dismiss him or sentence him to foriol'^ service towards pension. Application of the Act to a Warrant Officer not holding an honorary com- mission. He cannot be punished by his C O., nor tried by R. C M . Ho is not liable to corporal punishment, but he may be sentenced to bedibiirissed tho service, suspended from rank pay and allowances, or to be reduced !o the bottom or any other place on the list of tho rank which he holds, or to be reduced to an inferior class of Warrant Officer, or if he originally enlisted as a soldier to be reduced to the ranks or to be transferx'ed to a coips in the same arm of the service, and in the same rank as that in which ho served in^mediately before his transfer to bo Warrant Officer, but a Warrant Officer so reduced to the ranks cannot be required to eerve in the ranks as a soldier. Application of the Act to persons who do not belong to H.M. forces. 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 the 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 the force. 6& IS vm lt4 ♦ r I 116 FORFEIT'JKES, STOPI'.\GES AND FINES. Forjeilvres relate to : 1. Forfeiture of service towards limited eng.agcniept. 2. Forfeiture of service towards pension. 3. Forfeiture of ordinary pay. 4. Forfeiture of good conduct jmy and gratuities. ' 6. Forfeiture of military decorations and rewards. 184 24 Forfeiture of service toward? liraiteJ engagement has already been dealt with. Forfeiture of service towarda pension, of good coiiduot pay and gratuities, also of military decorations and rewards, have been left in the Act to be dealt with by Eoyal Warrants or Queen's Regulations, as those are in the nature of rewards, and not of the essence of a soldier's service. Fines are only inflicted in case of drunkenness, i^v which 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 (e.e , before petty sessions or a magistrate), and in case of 161 non-ptiyment, 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 STOPPAGES FROM ORDINAKY PAY. 133 Officers' pay. — When absent without leave, unless a satisfi^clory ^explanation has been 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 ISoldiers" pay. — For every day of absence on desertion or without leave, as pri- soner of war, ever}'- day of impt. awarded by Civil Court, C. M., or C. 0., or under detention for any ott'ence of which bo is afterwards convicted by Civil Court or CM. For days in hospital on account of sickness caused by an ott'ence committed by him; such as drunkenness, wilfull}' maiming, kc—i.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 crlrao or incurred illness by an otTence [as mutilating hiniself, &C.J Sum requiied to make good any loss damage^or_destruction awarded by C. M. or by the authority which di^penses with his trial. Sura 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 CO., or in case he requires to bo tried by C M., by that court. Sum equivalent to soldiers' liquor ration, orp.iy in lieu of that ration, stopped by his C O. on board any ship commissioneJ or not, not exceeding one penny a day lor 28 days. Sum required to pay a titio awarded by a Civil Court, C. M. or C O. Sum ordered to bo j)aid by a S. of 8. 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 mossing and washing, will leave tho soldier less than one penny a day. 135 Subject to instructions from a S. of S., a C M., or, v/hero 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. FORFEITURE OF SERVICE TOWARDS PENSION, OF GOOD CONDUCT PAY AND GRATUITIES, ALSO OF MILITARY DEC0R.\TI0N3 AND REWARDS. 44 Oil conviction 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 consequence 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 rewaids. On conviction of desertion, a soldier forfeits all monies in the Regimental Savings Bank. dealt with, luities, also lit with by iwards, and M. may I court in case of of >y articles r property ;lect ; also, nation has good any otaiced or ive, as pri- ., or under tor CM. nit ted by 1 to forfeit ing to his f himself, Y 0. M. or ammuni- iry decor- eqnires to , stopped ny a day liltl, or of 3 his wife ig for his lot tried, ' when it actions, a ATUITIES, maiming entenced igibio or 1 service aids. Savings 1 25 A soldier confessing desertion, whose trial is jJispcnseJ with, incurs the name forfeitures as a convicted deserter. 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 been awarded by the C. O. During irapt. under sentence 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. 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 OP 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 the com- 49, t2 mand of the convening officer, and award any punishment. A E. C. M. cannot try officers or warrant officers, nor any person not belonging 47,1*74, to H. M. forces. 176 It cannot award death, P. S., dischavgo with ignominy, nor foi'foiture of any good conduct pay, or service towards pension, nor of any military decoration or rewai'd. The term of impt. it can inflict is limited to 42 days. Any person subject to Military Law in H. M. dominions may bo 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 those olfences, when on active service, or if the place is more than 100 miles, measured in a straight line from any town in which ho can bo tried by a competent Civil Court. In anyplace beyond the seas he may be tried for any offence committed against the property or person of any inltabitant 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 offence within the meaning of Section 41, whether murder, raj)0, robbery with violence, &C. A person who has been acquitted or convicted of an offence by a competent 46,150, Civil Court, or by a C. M., or if he has been dealt with summarily by his C. O., is 155 not liable to be tried again by C. M. for the 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 bo proceeded against by the ordinary course of law after conviction for any offence, except for an offence declared in the 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 sentence passed by a Military Court. If a person subject to Military 1... r commits a military offence, ho maybe 111 tried and punished for that offence al •■ ^h ho may have ceased to bj subject to Military Law, provided he be tried within three montlis after he has ceased to be subject to Military Law, except for mutiny, desertion or fraudulent enlistment, for which ho 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., ho remains subject to the Act > I ; I , t • Chapter VI. 2G during tlie term of his .sentence. This rule is very necessary, as a solJior repeatedly changes hi.s status from soldier to civilian f.nd from civilian to soldier. In the regular forces this change takes place when a soldier is transfei'red to the reserve, and wheft he comes back to the army from the reserve. A militiaman is, as a rule, only for a eh ")rt time in every year under Military Law, and returns again to civil lite. Tho volunteers arc constantly changing their status, as they are subject to .Military Law when acting with tho regular foices, and are not subject to that law under ordinary circumstances, except when on actual service. Military Law is not local, like Civil Law, and an offender may be tried by CM. for an offence at any pl.ice which is within the jurisdiction of an officer authorise(J to convene G.C.M., just as if the offence had been committed where the trial by CM. takes place, but tho punishment in- flicted by such court must not bo greater than if the offender had been tried where the crime was committed. 15 i Mo person can bo tried by CM. for any ofTonco committed more than three years before tho date at which the trial begins, except in tho case of mutiny, desertion or fraudulent enlistment, which may be tried at any time. With respect ta desertion, however, if a soldier has served continuously in an exemplary manner for three years in the regular forces, he cannot be ' for any previous offonce of desertion unless he deserted on active service, i. .jless ho has been guilty of one of tho greatest crimes of which a soldier can be guilty. In the same way, after three years' exemplary service he cannot be tried for any previous offence of fraudulent enlistment, though, of course, hi& service is only reckoned from the date of his fraudulent enlistment. Thus, tho only two offences for which a soldier is triable after tho expiration of any period of time are mutiny and desertion on active service. A civilian who ia a deserter maj, 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 be gone into by a staff officer, and it would then generally be referred to the confirming officer, and thon to higher authority. ov ropeatcdiy [n the regular /e, and when le, only for a i^il lilc. Tho lilitary Law der ordinary !al, like Civil ace which is if tho otfonco nielimcnt in- I tried where [ more than >^. A inBtan veniei billing the SI! condu' AJ gravel difficn is in a of eacl may b the pl( howev require tage ol once. G( that be and oit name, a8 men comma Ri assemh by nar A board ] senior i It crime a of this Or tracted bhould from ll the pro for casii It and tha eludes iSovoi'ci Hh< (o roste rcgiilnti involvci Tli( ortioers i objectio Wli order to li)U cuui 29 A not uncommon practice, leading to confusion, was to fnimo 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 offences, such as the C. O. could dispo.«-o of, are not to be included with graver offences, for if acquitted of the graver and not of the minor the court is \i> difficulty as to the punishment to award. When more prisoners than one are tried sepiiralcly by the same C. M., the court is in all cases to be resworn at the commencement of each trial, and the proceedings of each trial are to bo 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 ho recorded separately for each. Practically, however, this is not fou .d sufficient, as it is usual for the General in Command la 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 FUR THE ASSEMBLY OK THE COURT. General and D. C. M, are assembled by an order of the officer duly authorised in that behalf. This order specifics 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 ditterent 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 B.C. M., and in this case all the officers to form tlie court are mentioned by name equally with the President. ACM. may be assembled in any place where troops may be serving except on board II. M. ships in commission, when all power of jiunishment is vested in the senior officer of the ship. It is not necessary that the trial should bo held in the same ])lace in which the crime was committed, as Military Law operates against offenders, not as inhabitants of this or that district, but as soldiers of 11. M. Service. On G. C. M. at all times, and on minor C. M. when there is a prospect of pro- tracted proceeding-*, it is desirable that a number, exceeding that legally necessary, should bo detailed as members to guard against the inconvenience which might ari.se from the sickness or death of a member. The additional members take part in ail the proceedings. One or more officers are sometimes detailed in waiting to provide for casualities, or for the case of challenge being allowed. It is directed that CM. duty is to be detailed after regimental duties under arms,. nnd Xhat \u aW tliiilef, the roster is to commence from the senior doicniriVifs. This pre- cludes the possibility, without a glaring breach of the expresi orders of the SoviM'eign, of selecting or packing a C. M. ShoulJ the Court bo ]>acked, >'.(;, individual members nominated not acconling to rosier, the prisoner may complain that the court is not ap|)uintod according to • regulation, and this plea, if well founded, would be valid, — for to pack u court involves the legality of the trial. Tbe general officer, vvlien reforrod to, may say that ho retiiiirod such and such officers for other special duties, etc., and it such bo reiilly the ease, the prisoner's objection does not hold good.. When it appears desirable that the court should have a view of any place in g^ order to their better understanding the evidence that may be given upon the trial, the court may view such place. I 30 WARNING THE PRISONER FOR TRIAL. Upon any trial by C. M. being ordered, tbe CO. of the corps to which the accused belongs or is attached, is responsible that the accused is furnished by the Adjutant or by a commissioned officer with a copy of the charges against him at '.east 2-t hours before the trial, unless the exigencies of the service render this impos- sible. To a soldier who cannot read, the charge is to be read, and if necessary explained by the p rson who warns him for trial, and a list of all witnesses for the prosecution is at the same time to be given to the prisoner. He is aiso 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 bo duly warned. The prisoner is not confined to the list he names at the time, but tne court neerf nof adjourn to enable him or the prosecutor to summon ivitneeses 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 witnesse.s, 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- cumatancos. It is not only necessary to give the prisoner the names of witnesses before the trial, but if he applies for it, ho 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 him on payment, and also he 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 ho must demand to do bo, otherwise he has no excuse. A C. M. has no control over the nature of arrest or confinement of a prisoner, the 0. O. «>f the regiment being responsible for this. The court has only control over the prisoner when before it, and then the prisoner must have perfect freedom. In some cases prisoners have appeared handcuffed; these should bo removed. Should he afterwards become violent ho may have his liberty restrained. WITNESSES. - Por.5uiio, civil and military, are summoned by the Deputy J. A. or Officiating J. A. in cases of G. 0. M., and by the President in all other courts, except in Field G. C. Al. when they are summoned by the Provost Marshal. 1.2 Civil witncssi'H during attendance, and in going 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." 12.i if civil witnesses refu.se to attend after payment of their expenses, refuse to bo 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 {i)junctions of the court, or are guilty of any contempt of court, I hoy are liable to be attached by the President before a Civil Court having power to commit for contempt. Should such persons give wilful false evidonao tlioy are liable to be convicted of perjury. It is not necessary or usual to send a formal summons to military witnesses, it is u-tual to insert a clau.se 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 bo lield, application is made to the General (Officer commanding in the district in which which the ihed by Iho inst him at this impoB- f necessary ases for the a-ked what or has any mayboduly It trie court whom they to give the at he has to le length of . materially a these o.ir- )re the trial, e evidence ict accord- the subject nst him on the deposi- ig the trial 1 to do BO, a prisoner, ily control ;t freedom. 9 removed. iating J. A. old G. CM. privileged only from !0urt called 1SC8, refuse ich can bo , cause dis- on tempt of lurt having idonso they fitnesses, it end. When !. M. is to be t in which 31 8U0h soldier is serving, for him to utlend, naming the probable daj' of assembly of the 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 oflfonce is committed. Should a prisoner be guilt}' of such conduct, the court would be adjourned and a report made to the convening officer. But where such a person, whether present as 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 oven 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 1887 a circular was issued on this subject, 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 C. 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 SQmmo.ns 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 as possible, they KhouUi 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 the necessary witnesses have been summoned; but care has to ba taken, in refusing to summon witnesses, that the prisoner does not thereby suffor 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 lo be sworn, the oath being administered 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 JUDGE 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 u Court ot Appeal, and therefore takes no part in the actual preparation, conduct or management of prosecutions. The J. A. G. is a member of the Privy Council, and all i)r<)ceedings ofG.C. M., which must bo confirmed by the Sovereign are sent to I he J. A. G.,and the Sovereign confirms on his rosponsibilily as a Minister of the Crown, and acts on his recom- mendation. TheJ.i^. G. is responsible to Parliament, hence a prisoner if wronged, can appeal at law against him, for the Soveieign can do no wrong. The duties of the J. A. G. are confinod 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 these points. 121 The presence of an officiating J. A. duly appointed, who must be a com missioned 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 couil, Out of the U. K., General Officers are empowered by warrant to apjmint 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 thom. 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 pro-ent he makea^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 ho 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 the sentence. The proceedings are signed by the President and also by the J. A. ; and the 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 proceodiogs as prepared in court, and before the rising of the court, and he then afterwards pro- pares a fair copy. The two copies are then compared and the fresh copy signed by both ; 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 the 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. 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 C. 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 formality 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 the J. A. on any question he, or the court, muy consider contrary to law, though in alt matters of law the J. A's. opinion is final. Members of C. M. shoulii, however, bear in mind that by acting upon the opinion of the Officiating J. A. on questions of law, they arc not thereby exonerated from their responsibility, for whatever degree of deference may bo due to the advice of the Officiating J. A., it must be remembered that he 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 statomcnt of those circumstances which he considers material as att'ceting the Icgiilily of the proceedings. When the prisoner is undefended the J. A. has to take care that the prisoner does not lose any privilege that the low allows him in the conduct of the trial owing to Ignorance. At the conclusion of the prosecution and defence ho sums up the whole of the evidence and gives his opinion upon the legal bearing of the 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 pn>oner may then revert tO' questions about which ho was not satisfied. missioucd authority d another 361- of the show his ,, General K:. the J. for thom. r), can act gemonts, the court, 10 conclu- ]ich be is abroad to ifirm the the latter or him to »ceoding8 ards pro- a;ned by usual for record in proccod- rmation. 3t seven ny quos- isive on ilitj' and tlthough with the h in all^ er, bear of law, ?groo of 3 in bo red Should to trans- ithority iffccting prisoner owing up the J before .11 legal irt gets coming avert ta *\ I upon the A prose the SI appoi tion, i a8 th( also fc I officei 1 1 convii his \v those boarir prose( cernir are nc 1 thous^ contiii unless ronde A trial, orally A cither affirm qualifi ence, ; as iiiU other an im poton( with \ isBue 1 (juestii lej^all^ qualifi arraig been o 33 THE PROSECUTOR. The duties of tho prosecutor may devolve either upon the prisoner's C. O., or upon a statl'or other officer detailed to perform tho duty. At I). C. M. or R. C. M., llie Adjutant of the prisoner's regiment is usually the prosecutor. In all cases the prosecutor must be subject to Military Law and tho prosecution mast be coqaidered at the suit of tho Crown. If possible, no officer who is to be called as a witness is to be appointed to act as prosecutor. When the prosecutor is a witness for the prosecu- tion, he should be sworn after his opening address, if aiiy, and should give his evidence as the first witness for tho prosecution. The President or a member of tho court may also bo culled upon as a witness, and if so he is sworn as such. If during tho trial illno-s prevent the attendance of the prosecutor, another officer may bo appointed to perform tho duty. The J. A. and piosecutor must not be the same person. The prosecutor gets up tho case, conducts the prosecution, and he has io obtain a conviction by all legal moans in his powtr, and he furnishes the J. A. with a Hst of his witnesses. He examines his owi» witnesses by questions, and cross-examines those of tho prisoner, and explains by addresses to the court, when required, tho bearing of any particular point in evidonco on the case. In ordinary 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 proceedings. 1 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 tho trial, such aJvisor is not permitted to address the court, or to e.xamine witnesses orally, which must bo done by the prisoner himself. INTERPRETER. An interpreter may be employed at any period of the proceedings, if required by cither party, or judged necessary by tho 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 the prosecutor nor any other interested parly can act as interpreter. Tho J. A. being required to maintain an impartial })osition, is also precluded from acting as interpreter. 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 findingand judgment thereon. Tho initiative of such questions rests with the President, and he must also satisfy himself that tho 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 ha'? been ordered for tria', unless such altered charges have been sanctioned by the con- 34 venin/y authority who may nmciid the charges, or adil fresh ones, at any timo boforo Iho prisonor in arraigned, but uot aficrwardH. 80 long as a C. M. does not exceed Utt jurisdiction, no oilier court is competent to slay its proceedings or to revoke its Hentcnco, but the members are collectively and individually responsible to the >uprenie Courts of Civil Judicature, not only for any abuse of power, but also for any illegal proceedings, but ^o long as the pioccedings «ro legal all officers coinposing the court are exempt from proccodiirgs at Civil Law for whai they do or say in the di^charge of their duty, 163 Any prosecuiion iuhtitutcd against officers acting under the Act raust becom- menoed wilbin 12 months of ihccommission 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 ^eats the members according to rank, allows no 'questions to be put to witno ses except through him, collects votes, and us the prisoner Seldom has a legal adviser, he is required to hold throughout a strictly impartial posi- tion towards him and the convening officer. lie should also see that the prisoner is {as far as he knows) subject to Military Law, and is charged with an otVence against that law. lie is the channel of communication between the couil and the convening authority; he is responsible that every ])erson attending the court is treated with proper respect; he signs the proceedings. Where there is no J. A. he summons and «wears the witnesses and members, and forwards the proceedings for confirmation ; ho is al^o responsible thai a i)roper record ot the proceeeings is made, and ho is the rt'Oiignised advisor of the court in law aial 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, , except to those jtersons who have been summoned as witnesses, a C. M., like other courts of criminal jurisdiction, is an open court and is open to the ])ublic, subject to the amount of room available and the conveiiience ot the court and parties botoro it. The Pi esident orders the clearing of the court for deliberation on any incidental discussion when ho may deem it oxpedient, or at the instance of a member or the J. A. It is comjiolent to a C. M. to forbid the publication of a report of the trii'! during its continuance, and if the court notifies this to the audience and warns in writing the publishers of newspapers, such decision is binding, and any olFondor may bo proceeded against criminally in the Court of (iuoen's Bench. The general j)ractico is, however, to admit reporters without imposing any restriction. Except to disallow the prisoner's objection to tlio President, and to pass sentence of death, where two thuds of the members must concur, all (juostions are decided by a miijcirity of votes. Shoultl the court (whieh^usually consists, when sworn in, of an uneven number of members), bo reduced by death, sickness, or challottge, to an even nuinlior, and their votes be ctjui'liy divided, the ])risoner would have the benefit of having his objection allowed in iho case of a challenge and the benefit of an flcquittal in the case of a finding. In the case of an Cijuality of votes on (he sentence, or any (juestion arising after the commeneonicnt of the trial except the finding, tlio President has a casting vote, fioin the necessity of arriving at such a conclusion as will permit tho progress of the trial. in takiiig the votes of tho court, the President is to begin by that of tho youngest member. Hach member [for hiinselfj is required to f>)rin an opiiii 10 youngo.st 10 evidence and givoliis 1111 for the I appointed ber legally f rank. Ac. ho piocood- ;al number authoritv. ied by Uio £6 Tho absence of any member, by sickness or otherwise, during any part of tho trial necessarily prevents his resuming his seat. No now member can be appointed after the court has been sworn in, oven 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 any member. Therefore, if a court, after being sworn in, bo reduced by death below the legal number, it is necoss'arily dissolved. jf, during tho trial, a new President or a new member bo appointed, tho trial •must begin afresh. A court may also bo dissolved by the convening authority, if tho illness of any member be s-o serious ah to render necessary such an adjournment as would prove inconvenient to the service. In either case, provided the court bad not procee Jod so far as to give judgment, another court may bo assembled for the trial of the prisoner, tho proceedings being commenced de nooo. It would generally bo sufficient, if th". prisonerraise(lnoobjection,ihatiheQv\dence formerly given be read over to tho witnesses re-sworn, and that the latter be allowed to correct their evideni^e and be cross-examined ; but each witness must bo asked if 'that be his evidence, ana if he has any adiiitions or corroulions to make. But the court and each witness have to bo re-sworn. The illness of the priMonor, if it promise to suspend tho proceedings of tho court 1o tho serious prejudice of tho service, may also justify its being dissolved; the prisoner remaining liable to future trial. Should tho death of a prisoner put a stop to tho trial, the fact must bo established by evidence and recorded on tho proceedings before tho court is finally adjourned. Sometimes in bis defence a prisoiujr makes remarks reflecting on the regiment or on tho conduct, &c., of others. The court must not allow those statements to be refuted by tho prosecutor. If they are unsupported by ovidenco, where they affect disciplino generally und tho credit of tho corps, tho confirming authority usually gives tho assailed party tho opportunity of refuting them for liis satisfaction, but not in court. It i> important that evoiy trial by O.M., when once begun, should, as far as possible, pioceod with rogulaiity and without interruption to its coiiclusion. Tho court havo tiio power of granting an adjiturnment which may become necessary on account of illness, o provisions arc sii])plcnichU'd by rcguliilions as to details, and iill'orjJ a gui le for almost every conliiigcmy that may occur. The noii-observaiico of the first invali a in. It the Court coiisidei- it necessary, they may continue any triid beyond 4 p m , rcconiing ii. tho jtrocee.litigs their reason for so doing. In cases requiring an immediate example, or when tho ttoneial (»r other officer com- manding any Unly of troops shall ccrlily under his hand that the saino is expedient for the public service, trials may be held at any hour. 'J'lio whole of tho proceedings aio to be accuiatoly recorded in a clear, legible hand, witliout erasures. In the case of tho Superior Courts a printed form is tilled 3i 36 up; in the case of B.C.M. the proceedin^fs are written on fool.- cap paper, a margin* 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 bo left immediately below the President's signature for the remarks and signature of the confirming officer. The station and date are to be added in all 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 pica, 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 scliedulos con- tain 4 columns. 1. Name of offender ; 2. Offence charged ; 3. Plea; 4. Finding, and, if convicted, how dealt with by the confirming officer. The officers appointed to servo on the court having assembled according 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 witnos.se^^ 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-asscmblcs, and alterations, if anj', in its composition. The pretsenco of the prisoner is entered, as all proceedings in open court must take place belore 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 bj' 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 ho has the privilege of objecting to all or to any one of the officers composing the court individually, and each objection is entertairiod seprately. J he member who is challenged generally loaves the room, and bis challenge is decided by the votes of all the rest. When the case of the first member challenged has been disposed of, then 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 reanonable cause assigned — are not allowed by CM., but for every challenge a caufo must bo shown. This differs from tho civil practice, where, in trials for felony liofore Criminal Courts, the prisoner has a right oC ])eremptory challenge of twenty jurors without showing cause, and then he may challenge others with showing cause. In the case of challenges, the court must deciile on iho assert ''on ot tho prisoner challenging, of the olHcor challenged, and of tho 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 officers of the court : — 1. Uaving declared an opinion unfavorablo to tho prisoner maliiiously, or liaving expressed an opinion respecting the prisoner in connection with tho charge in question. 2. Being an interested or an injured i)arty. What constitutes an interest? The proceedings of a court for tho trial of a private fi>r stealing a case ot wine from tho officers' mess was quashed by the J. A. it. in London, although the prisoner himself raised no objection, on tho ground that sorno members of tho court belonged to tho prisoner's regiment, and wore therefore interested partioi. S) again, a drum-case , a margin? ppended to r. be verified ts fasten ed y below the Picor. The I' evidence, it MarBhal, ;iving date sdulos con- iding, and, sording to his scat at the mem- id left, and then pro- journment asscnabloH, curt must the order d, also the and mem- 10 prisoner I prisoner : era whose the whole to any one ntertitiiuHl I, and his (t member ;;ed is con- vo to vote I'omptory ot allowed iiom the aner has a and then > I I I i prisoner it cannot •loarcd for 3 court: — ioiisly, or ho climge [)^t? The J from the or himself ^cd to the irum-caso m -was stolen by a private, which was considered to belong to the regiment, and tho proceedings were qaashed because an officer of tho 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 tho trial. The C. O. of a corps to which the prisoner belongs, or the officer who investigated 50 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 challenoje is allowed the member retires, and if his retirement reduces the number of officers ^below that named in the order convening tho court, the President may appoint any officer nominated for the purpose as " in waiting " by tho convening authority to tako his place, and if no such officers have been nominated the court must be adjourned for the convening authority to nominate another officer. Tho J. A. cannot on any grounds bo challenged. The prisoner may also object to the composition of tho court for defect in rank or otherwise. Such a matter should, of course, bo discovered by the court itself; if not, it would be better for the prisoner not to challenge, but to allow tho trial to proceed and get it quashed afterwards. Afier all challenges have been disposed of, tho J. A. administers tho oaths, first to tho President by himself, as a mark of respect, and afterwards to the members col- lectively. The oath of secrecy is then administerd by tho President to tho J. A. On trials by minor courts the oaths are administered by the President to tho other members, and afterwards by any sworn member to tho President. The President and members are sworn to administer justice fairly according to tho evidence, and not to divulge the sentence until duly confirmed, nor to divulge the Toto or opinion of any particular membor of the C. M. unless required to do so in duo course of law. No oath is necessary in cases whore by law a solemn affirmation may be made. The charge is then read in open court to tho prisoner. The witnesses are directed to withdraw, when tho President, or J. A., ut his desire, proceeds to arraign the prisoner by addressing him by his rank and name and to the following offoct : — " Are you guilty or not guilty of tho charge (or charges) against you, which you havo heard road ? " When two or more prisoners are triod together, each is separately arraigned in like'form. The prisoner pleads either "guilty "or " not guilt}-," or he stands mute, or refuses to plead, or answers foreign to tho purpose, or pleads " in bar of trial." A plea of " guilty " is in law a conclusive admission by tho prisoner of his guilt, and further evidence is not required for tho purpose of proving the charge, and in a O. M. tho plea of guilty irt considered equally conclusive, but in every case whore a prisoner pleads guilty, a C. M is, nevertheless, enjoined to investigate tho charf>e, so that all the circumstances connected therewith may bo known to tho confirming authority and to tho court to ouiiblo them to bocomo acquainted with tho facts and give sentence accordingly. Jiofore recording a pica of "guilty," the court will satisfy themselves that tho prisoner fully understands all the advantages ho forfeits by tho plea. A prisoner pleading guilty is not debarred from ])roducing evidence as to the fact as well as character of tho otVonco, nor from addressing tho court on his defence in extenuation of theotrenco or in mitigation of punishment, nor from cross-examining tlie witnenses for the prosecution. If a prisoner stands mute, refuses to plead or answers foreign to the purpose, a plea of " not guilty '* is recoi'ded on his behalf. Pleas in " bar of trial " may be either to tho 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 tho court is not logally constituted, or that the offence was committed more than throe years before tho warrrant for trial, &c. 88 A prisoner urging a " j>pecial iilca in bar " mny allege a former aequiltiil or con- viction, or proviouw punit-hnrient for the olVencc, or a paidon, or that llio ofi'enco is- condoncil by his having boon intentionally released from contineinent and placed on duty, or want of specification in the charge, &c. if the plea in bar of trial appears to be plausible, evidence on oath, when neces- eary, is heard to the point ; and, if on deliberation, the plea bo allowed, tho fact is recorded, tho court adjourns and tho circuntstanco is reported tothe conveningofficer, but M the plea in bar of trial be disallowed by tho court, the [)rii«oner is then required to plead to the chai-go. A plea of guilty or not guilty having been recorded, tho prosecution is com- menced. During the talecutor is allowed. If tho prisoner declines cro.-«»-exaniinin^ the witness, it is stated in tho proceeilini^s. Tho court may ask questions of any witness (through the Presiilont) at any time, the i;h it is advisable to refrain till the examination of tho witness by the prosecutor and prisoner is concluded. Defence. — 'I'ho prisoner being called upon to make his defence, may have nothing to urge, OP may make a simple Htatoment, or may havo prepared a regular addrosr* to be corroborated by witnesses. In the first two cases the facts would be recorded on the proceedings and the court would at once call on tho J. A. to sum 'up. The last case has alreaily been considered. Tiie summing up of tho J. A. is to be handed in in writing, real to tho court an^l attacheii to the proceedings. The court is then cleared to deliberalo upon the finding. Finding. — The finding is the opinion of the court relative to tho prisoner's guilt or innocence with regard to each Cor all) of the charges proferroi against him. Tho court deliberates on the evidence 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 re-open 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 touched upon. Every member who has been sworn, an I attended the proceedings, is required to give his vote on each charge separately; tho junior member voting first, tho Presi- dent last. It is not necessary to find a verdict of guilt oi acquittal upon tho whole of each charge or instance. The finding may be special, that is the finding may be guilty of part of any charge, the exception being stated. It may state speoially which of the facts, as charged, tho court finds to bo proved ; or it may amend slight errors in tho charge not material to tho 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 tho offence, but on some other date or at some other place. A prisoner charged with stealing a certain sum of money may bo convicted of stealing another sum; or tho prisoner may bo 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 tho offence, tho court must acquit altogether. For instance, if a soldier be charged with having wilfulli/ mii\mod 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 prisoner charged with attempting to desert may be found guilty of desertion or of absence without leave. A prisoner chai'god with stealing ma}"- be found guilty of embezzlement or of fraudulently misapplying money or property — so also if charged with embezzlement he may bo found guilty of stealing, or of fraudulently misapplying money or property. In all cases when tho court acquit tho prisoner, tho finding is to be 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 unsound mind at tho" time he com- 120 mitted tho offence and do therefore acquit him of the same." If, on the trial of a Commissioned* Officer, tho court desire to acquit tho prisoner honorably, they are to state so in a separate letter. If tho finding of "Not Guilty " is on all tho charges, the finding must bo ])ro- nounced in open C(mrt, and the prisoner released. If a soldier is found guilty of either tho whole or any part of the charge 166, or charges preferred against him, for the guidance of the court in awarding punish- 167, 40 K8 ment, as well an for thai of tho convoning oflScer, the court re-opens to inquire into and recoi-d the prisoner's former convictions, whether by Military Court or Civil Court, the former of which may bo proved by the entry thereof in the Regimental 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 the entry 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 eertificate. When a soldier is found guilty of drunkenness, the court receives 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^tho prisoner may then bo undergoing, also 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 possowsioii ; 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 tho court; generally by tho prosecutor, who is first sworn. On the trial of an officer only evidence of former convictions (if any) is produced at tins s(age of the proceedings. Sentence. — The prisoner's previous convictions, &c., having been inquired into, tho court is again cleared for the purpose of deciding upon the sentonco secretly, and the votes of all members are taken in tho 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 bo an absolute majoiity of the wholo 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 the a.nount of p'lnishmont bj' divid- ing the aggregate amount awarded by all the members collectively, by the numberof members constituting the court, for the opinion of tho majority may often bo over- ruled thereby. CM. before passing sentence, ai-e to ascertain that tho state of health of tho pri- soner will admit of tho sentence being forthwith carried into effect. If the medical certificate states that tho prisoner is unable to undergo hard labour, tho court may nevertheless award "inipt. with such hard labour as, in the opinion of the medical officer of the prison, the prisoner may be equal to." Sentences of inipt. are always to bo specified in daj's. Just discrimination is to be u.sc'd by the court in applying the quantum of punish- ment to tho nature and degree of tho offence, 80 that the award may bo final and carried into etTect ; as it is indisputable that crimes are more effectually prevented by th'j certainty than by tho severity of punishment. 53 If tho couit wish to recommend tho prisoner to more}', or to remark on tho con- duct of tho parties before ihem, or on tho manner in which a particular, witness has delivered 'lis tostimoriy, they should embody their views in a separate letter, to bo signed by the President and forwarded with tho proceeding.s. Tho proceedings of a G. C. M., if held in tho U. K , are transmitted by the Deputy J. A. to tho J. A. G. for tho decision of tho Sovereign ; and in the case of tho . . Koyal Marines, to the Secretary of the Admiralty for the decision of the Admiralty; if held abroad, to tho General in Command, or other officer vo-sted with authority to confirm tho proceedings. Tho proceedings of a ]). C. M. are forwarded by tho President to tho General Officer commanding tho district, or to army headquarters, where there is no General Officer in command, for con tirnialion. The proceedings of a R. C M. are forwarded to the C O. of the regiment. With regard to Field G. C M. tho Provost Marshal is responsible that a pripor record of the proceedings is kept. IIo may be tho Pro.secutor, but ho must nevertheless see that the prisoner has a fair trial, for which ho must summon all necessary witnesses, &c. IIo takes charge of tho Proceedings to get them confirmed, and then transmits them when promulgated to tho Staff Officw of tho force to which ho is attached. qutro into t or Civil iegi mental e Inttor by the entry >y of such ence of all rt in doter- may then n towards badges or isoner has who is not i produced lired into, 3rotly, and ocidc a.s to It is not )f punish- d form a t bj'divid- n umber of bo ovor- >f tlio pri- e medical ourt may e medical of puniab- Unal and vented by 1 the con- tne83 has ter, to bo id by the aso of the (Imiralty ; Ihority to > General ) Genoial tit. a jonpor 'ertheless vitnosses, transmits lohed . catc prof tioni< rcvit cour (levo to b< senU ofth otiicc on q tho h C. M such thoC uuth( iiiga offoni of till or F. J'l'OVc ] bor o 0lli(30 rirni>i J .v.i 1 ♦■otilii (jo\ c; J on nc (lOVOl limits I ing a\ ns BO V hyc. lion, 1 41 For trial by a Field G. C. M., the complaint against llie pri-^onor must be made by a Provost Marahal or by on© of his assistants. When a C. M. has been confirmed it is sent to the C. O. of the regiment who causes 53 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. CONFIRMATION OK'COL'BTS MARTIAL. The finding and sentence of a C. M. are not valid unless contirmv^d by the 54 proper authority, except in the case of the finding of acquittal, whether on all or some of the charges, which finding docs not require confirmation, nor is it subject to revision, and if it relates to the whole of the uffences it is pronounced at once in open court, and the prisoner ia discharged. The duty of the confirming authority is one of the first importance, as on him devolves the whole responsibility of giving ott'oct 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 awai"ded by C. M. is, undoubtedly, with a view to a thorough investigation of the whole circumstances, and that justice may be mercifully administered. The officer entrusted with this duty is not restrictcl from making any enquiries necessary on questions raised on the t-iil, and he may act on thoin in confirming or remitting the sentence. Tlie following authoi-ilios have power to confirm tho findings and sentences of C. M. :— In the case of a : — (a). K. C. M., the convening officer, or otficor having authority to convene 54 such a C M., at the date of submission of the finding and (•eiitonco, that is, generally tho C. O. of the regiment. (6.) D. C. M., an officer authorised to confirm a G. C. M., or some officer deriving authority to confirm a I), C. M. from un officer authorised to confirm a G. C. Al., generally in England tho officer commanding a district, (c.) G. CM., in the U. K., Her Majesty or the C. in C. — ai»road, an officer hav- ing authority under warrant from llor Alajosty. {(l) Field G. C. M., an officer authorised to confirm (j. C. M. fo. the trial of 49, offences in the force of which the detachment or portion of troops under tho command 54, of the convening officer forms ))art. If tho sentunce is not capital any general ollicer T2 or F. O. authorised to confirm G. C. M. to whom tho proceedings are brought by the Provost Marshiil; if capital, then by tho General or F. O. commanding the force. No member of a C M. cin confirm its finding and sentence. Where a innm- bor of a C. AI. becomes confirming officer, he must i-el'er tho mutter to a superior officer competent to confirm the like description of C. AI., who will then be tho con- firm. n. authority. An )fHcer having authority to confirm a C Af. may withhold his confirmation ir ^ lufor the matter to any competent superior authority, who will then be the i'onfirming authority. In a colony where there is no such sw|>eri('r authority, the Goxernor of the colony may be the contirming authority. A sentence of death i)asse(i in a colony, unless passed for an offence committed on active service, must, in addition to tho ordinary C()nfirmation, bo approved i>y the (iovernor of tho colony ; and in India by the (iovornorofa I'residcncy, if within tho limits of any Presidency ; otherwise by tho Governor (Jeneral. If the punishment awarded is in excess of that authorised by law, the confirm- ing authority may vary the sentence so as to make it legal, and conlii-m the sentence as HO varied. Where a percon is convicted of manslaughter or rape, or any other civil offenco by CM., and is sentenced to P. S., such sentence, in addition to the usual confirma- tion, must bo approved by tho Governors above mentioned. 42 The proceedings of C. M., wliothor original or revised, may bo "confirmed" either wholly or in part, or " not contirmcd." Jt' the confirming nulhority wiliiholds hJB confirmation the scntenco is annulled, and the prisoner returns to his duty, and he cannot he tried again, tliougli coiiviclion lemuins if the finding was guilty, and there is no remission of any penalty c«)n»eqiient on his conviction, t-uch as forfeiture o: service towards pension, good conduct juiy, &c. When the proceedings are >juaslud, or sot aside, on account of 4heir illegality, or form, or any other circumstance, which i". un :u;tion taken after confirmation, in tho case of a D. C. M. by the J. A. G., in that of a J{. C. M. by nulhority of tho General, the soldier is to be relieved from all consequences of his trial and all record of it is erased. The confirming authority cannot quash the proceedings. If tho confirming otticcr d.sap])iovcs of either tho finding or sentence, he may order the court to reassemble for the purpose of revision, the part to be revised and the necessity of i-evision being stated to tho court in a separate minute. Jieciswn can only bo oidered once. Tho same members who formed the court originally must rca>senible. No additional evidence respecting the churge can be talien, and no |)ortion of tho origitud proceedings can bo altered! No sentence can be iiicrf-ased on revision, and if any alteration is made in the finding, tho sentence must be given afresh, and tho opinion of the court stated in addition. Tiio minut'> of tho confirming otficer, or a copy thereof, containing the instructions to the court and tho reasons lor requiring tho revision is also attached to tho proceedings. Tho court may either revoke thoir former finding or sentence, or both (as required), or adhere to their former opinion. In the latter case the proceedings must bo confirmed, though not necessarily with approval; and tho confirming ofticer may still, if he think fit, transmit the proceedings to higher authority. 66 The confirming authority has power to mitigate or remit tho -punishment awarded, or commute it for any less ])unishment or punishmontf to which tho olTonder has been sentenced by tho court, llo may also for a time suspend the execution of a sentenco, but ho cannot remi^^ any penalty consequent on conviction. Tho 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 crimo for which death might have been inflicted, may be commuted to corporal punist mcr)*^ and a eentcnco of corpora! punishment to impt. with or without hard labour, no: <. xcoeding 42 days. If the sentence of death on an officer or N. C. O. is commuted to P. S. or impt., tho commuted se-itenco must first provide that the otlicer bo cashiered, and tho N. C. O. reduced to tho ranks. Jp'pt. with hard labour may bo mitigated to^simplo impt. ; cashiering to dismissal ; public reprimand to private reprimand, etc. lleriMiiJosty a!ot)o can pardon any prisoner convicted by CM. when the pro- ceedings have been confirmed, 56 When a sentence passed by a CM. has boon confirmed, the following authorities have jtower to mitigate or remit tho ]iunishment awarded, or commute such jiunishment for any less j)unishmont to which tho ofl'endor might have been sentenced : 1. As respects persons undergoing sentence in any place whatever : Hor Majesty or the C in C or the otlicer comtnandiiig the district or station where tho prisoner may for tho time bo. 2. In India by the (', in ('. of tho forces in India, or in any Presidency by tho C. in C of the forces in that ['residency. 3. In a colony by tho officer commanding the forces in tirit colony. 4. In any place not in the U.K., India, or a colony, by the ofiicor commanding the l(uces in such itlace. Provided that every ofiicor oxeri'ising this authority holds a command superior lo tho confirming authorit}'. ExecHtionof St'txtenc, : Tho authority confirming a sentence of death fixes tho time an I place. The court specifies whether the senlonce is to be carried out by shooting or \ bofoi 48 hnnging. On a sentonco of PS. being confnm'ed, a judgo'n order must be obtained before sending the prisoner to a convict prison. In cases of impt., if a man in to be dischai-gcd he is 8ont 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 otlicer conhrming the proceedings; or if not by him, then by the CO. of the prisoner's regiment or corps. Corporal punishment must always be inflicted in the prosonco 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 coase at any time time, which shall then be deemed to have been fully inflicted. DI.SPOSAL OP I>ROCEEDI.\(iS. r. xif'^^^'^ pi-ooeedings having been confirmed an extract therefrom in the case of aG. C M., and the original proceedings in the case of a D. C M., are forwarded f m- promul- gation on parade to the prisoner's C O., who then returns them to the onveni.ig ohicor. In the case of a I). C M. the convening officer returns them to the President by whom they are forwarded under cover to the .1. A. (1. in the case of Jtoyal Marines; he sends them direct to the Secretary oUhe Admiralty. '' The proceedings of General or D.C. M. and Field G.C M. after being confirmed 121 and promulgated are kept deposited in the oflk-e of the J. A. G. in London, or at the Admiralty; those for G. C. M. are kept for not less than seven years; tho.se for D. 0. M. and Field G. C M. for not less than three years. The proceedings of 11 C M. are to be kept by corps for not less than throe 12 years. i ^ i Any person tried by G. C M., or any person on his behalf, can within seven 121 years, and in the case of any other C M., within three years after confirmation of the hnding and sentence, obtain a copy of the whole proceoJin/'s, paying tor the same at the rate of two pence per folio of 72 words. 4^ CnAt»TER VI. CBIMSS AND PUNISHMENTS. Tbo principle of classification adopted in the Act classifying the ditforont military offenees is that of grouping together otfonceti 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 the ground that misbehaviour in the field is the greatest crime that a soldier can commit. This is followed by " mutiny and insubordination" by way of phowing that after misbehaviour in the field, mutiny xind insubordination rank next in order amongst a soldier's crimes. The 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 Military Law. The punishments specified for each offence are maximum punishments, and the offender when convicted by C. M. of the otfonce is only liable to suffer such maximum punishment, •' or such loss punishment as is in this Act mentioned." A maximum punishment is only intended to be imposed when the offence committed is the worst of it^ 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 the Act. OFKEXCES IS RELATION TO THE ENEMY PUNISHABr.E WITH DEATH. Shamofullj' abandons or delivers up a post or induces others todo so, — casts away arms, etc , in presence of an enemy, — assists the enemy in anyway, — misbehaves or induces others to misbehave before the enemy so as to show cowardice, — knowingly does anything 'calculated to iniporii the success of II. M. forces, — treacherously holds cone!ur in the " mutiny d, mutiny offences ixpre88ion [icors and aw. and the maximum lommittod lommittod 1 unusual asts away ohaves or :nowingly usli/ hoUU oundod to ant of duo able to do ;ho onomy r in action aiy alarm I T(MB3. 5., without asHistants I person or tentionally , or givea icho.rously cor ^8 any I I 45 Hupplies proceeding to the forces contrary to orders ; — a sentinel who sleeps or is drunk on his post, — leaves his post before boinj^ regularly relieved. Punishment — on active service, death ; not on active service, cashiering or impt.* I MUTINY AND SEDITION. Causes, conspires with other persons to cause, endeavours to seduce others, T joins in, or does not endeavour to suppress, or conceals knowledge of a unuiry or sedition in any forces. Punishment — death. STRIKING OR TIIREATEXINQ A SUPERIOR OFFrCER. Strikes or uses or oilers any violence to his superior ofiicer in the execution of 8- his office. Punishment — death. Strikes or uses or otters any violence to his superior officer, or uses threatening or insubordinate language to his BU|)orior otticor. Punishment — on active service— P. S. ; not on active service, cashiering oi- iinpt, DISOHEDIENCE TO SUPERIOR OFFICER. Disobeys so as to show a wilful defiance of authority any laioful command I> given personally by his superior officer in the execution of his office. Punishment. — death. impt Disobeys any lawf'd command given by his superior officer. Punishment — on active service —P. S. ; not on active service— ca.shiering 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 ott'ers violence to such officer, — or to any person in whose custody ho is placed,— resists an escort sent to apprehend him, — being a soldier breaks out of barracks, camp or quarters. Punishment — cashiering or impt. 1 1 NEGLECT TO OBEY GARRISON OR OTHER ORDERS, Punishment — cashiering or impt. It DESERTION. J)eserts or attempts to desert, jiorsuados, &c., others to desert. * 12 Punishment — on active service, or under orders for active service — death ; under any other eircumstaiicos, for first oilenco — impt. ; lor subsequent offences — P. 8. FRAUDULENT ENLISTMENT. . When belonging to regular forces, reserve forces or mililia, enlists in anv of 13. the above forces or enters the Royal Navy. Punishment — for first ottenco— impt. ; subsequent off"enco — P. S. In addition to those prescribed punishments, the court may, of course, also sen- tence the ortetidor to make good any expenses, loss, damage or doAtruction occa.iioned by the commission of the ollence, and, therefore, to make good the value of a (roe kit, if it is shown by evidence that one was leceived, • <.«. Cashiering if an otliuer; inipt. if a eoKiicr. 46 pernuasion of or connivanck at desertion. 14 AssisU othors to dosor^, or being nveure of any do-^ortion or intended deser- tion, docs not inform liis C. O., or endeuvour to have the doserlor apprehended. Fuuibhment — iropt. AB8ENCB PROM DUTV WITHOUT LEAVE. 15 Absent without leave,— fails to appear at place appointed by his C. O. or loaves it without bning relieved, — beint^ a soldier, is found bej'Otid any limits fixed or in any place prohibited by any order, without a pass or written loave of his C. 0. Punibhment — cashiering or impt. SCANDALOUS CONDUCT OP AN OFFICER. 16 Behaves in a .-candalous manner, unbecoming the character of an officer and a gentleman. Punishment — cashiering. STEALING AND EMBEZZLEMENT. 17- Being charged with or concerned in the care or distribution of any ])ublic money or goods, steals, fi-audulently misapplies or embezzles the same, or connives thereat, pr wilfully damages such goods. Punishment — P. S. DISORACEFUL CONDUCT OF SOLDIER. IS Malingers or feigns or produces disease or infirmit}'-, — wilfully maims or injures himself or other soldier, with intent to render himself or other soldier unfit for service ; — wilfully produces or aggravates dihcaso in any way ; — steals or embezzles, or receives, knowing them to be stolen or «'mbezzled, any money or goods ; — is guilty of any other otl'onco 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. 10 Drunk, whether on duty or not on duty. Puiiishmcnt — an officer — cashiering; a soldier — impt., {^nd in addition to or in hubstitution for any other j)unishniont, to pay a fine not exceeding one pound. J ER.niTTlNO ESCAl'E OF PRISONER. 20 ItcleaKCS without auUiority. when in command of a picket, guard, patrol or ])( St, any prisoner tonimittcd to his chmge, or allows his escape. Punihlimcnt— if he has acted n-ilfuUy — P. S. ; if he has acted negligently— uwYti. UlUEOULAR IMPRISONMFNT. 21 Unrccessarily det'.ins a prisoner in custody without 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 nar j and crime, and the name and lank of'iierson by whom he was charged. Punishment — cashiering or impt. ided dener- prehcnded. C. O. or lils fixed or f hia C. O. officer and fvny public r connives 3 or injures ir unfit for ibezzlcH, or is puilly of Y other dis- I conduct " )n to or in ound. patrol or ly — impt. 1 to trial, on in con^ ner's nar j 1 IMAGE EVALUATION TEST TARGET (MT-S) J/ O 4. 1.0 1.1 1.25 112.8 M 2.2 It: 1^ 12.0 1.4 1.6 .S&. V] <^ /a 01 ^m Photographic Sciences Corporation 73 WRST MAIN STREET VfBBSTIR, N.Y. MS80 (716) S7a-4503 4? V iV N> ^ O^ 4^'f- ^ I 47 ESCAPE PROM CONFINEMENT. Eicapes or attempts to escape from lawful custody. Punishment — cashiering or impt. 22 CORRUPT DEALINGS IN EESPSCT OF SUPPLIES TO FORCES. Being in command of any garrison, fort or barrack, connives at the exaction 23 of exorbitant prices for houses or stalls lei to sutlers; — or lays any dut^Mipon, 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 i)is command. Punibhment — impt* DEFIOIENCV IN AND IN.Jl'RY TO EQUIPMENT. Pawns, sells, loses by neglect, makes away with or wilfully spoils (or defaces) 24 his arms, ammunition, equipment, instruments, clothing, regimental necessaries or military decoration ; — illtroats or unlawfully sells or makes away with any horse of which he is in chaigo. Punishment — impt. FALSIFYING OFFICIAL DOCUMENTS AND F4LSE DECLARATIONS. In any report, return, pay-list, book, route or other document made or signed 25 by him, or of the contents of which it is his duty to a.-certain the accuracy, know- ingly makes or is privy to making any falho or fraudulent stato'ment, 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 where it is his official duly to make a declaration respecting any matte*, knowingly makes a fialse statement. Punishment — impt. NEGLECT TO REPORT AND 8IJNI.\(i IN BLANK. When signing any document relating to pa}', arms, ammunition, &c., or any 2 5 stores, leaves in blank any material part for which his signuturo is a vouchor, 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 HV SOLDIER. Being an officer or soldier, knowingly makes a false accusation ai^ainst any 27 other offii or or soldier, or in making a complaint whore ho thinks himself wronged, makes any false statement affecting the character of an olficer or soldier; — or know- ingly and wilfully suppresses any maloiial facts ; — or, being a soldier, falsely states to his C.O. that he has been guilty of desertion, li-aadulont enlistment, or of desertion from the navy, or has served in and been di>cliargt'(l fVomany portion of the regular, reserve or auxiliary forces, or the navy; — or makes a wilfully false statement res- pecting prolongation of furlough. Punishment— impt. OFFENCES IN RELATION TO COURTS MARTIAL. Buing duly summoned or ordo'ed to attend as a witness before a CM., makes 2i default in attending ; —or refuses to take any oath or make a solemn declaration legally required ; — or to ])roduee any 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 the proceedings of such comt. Punishment — Cashiering or impt. (These offences cannot be tried by the court in relation to or before whom the offence 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.) I'ERJCRY OR FALSE DECLARATION. 29 When examined on oath or solemn declaration before a CM., or any court authoi'iscd to administer an oath, wiUully gives false evidence. Punishment — impt. OFFENCES m RELATION TO BILLETING. SO Is guilty of any ill-treatment, by violence, extortion, &c., of the occupier of a house in which any person or horse is biliottod ; —or an officer who refuses to cauFo compensation to be made for the same ; — or fails to meet the just demands of the per- son on whom any person or horse is billetted ; — or wilfully demands billots not actually required for those entitled to bo billotted ; — or takes, or knowingly suffers to be taken, from any person any money or reward to relievo 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 to discourage him from doing his duty; — or uses or offers an menace or compulsion on any person tending to oblige him to receive, without his consent, any person^ or horse not duly billetted. Punishment— Cashiering or impt. OFFENCES IN R^ILATION TO THE IMPRESSMENT Cf CARRIAGES AND THEIR ATTENDANTS. 31 Wilfully demands any carriages, animals or vessels, not actually required for purposes authorised in the Act ; — or ifails to comply with the Act as regards payment of sums duo, and weighing of the load ; — constrains any carriage, animal or vessel to travel against the will of the person in charge beyond the proper distance, or carry a greater weight ; — or does not discharge, 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 poi'son (except such as are sick") ; — or ill-treats or permits ill-treatment of any person in charge; — or uses or oilers \ lolenco to a coiistublo, &c. ;— or forces any carriage, animal or vessel from the owner. Punishment — Cashiering or impt. ENLISTMENT OF SOLDIER OR 8MLOR DISCHARUED WITH IGNOMINY OR DISGRACE. 32 Having been discharged with ignominy, or as incorrigible nnd worthless from the regular or reserve forces, or auxiliaiy lorcos, when subject to MItitary Law; or having been dismissed with disgrace from the nav}', has afterwards otilistod in the regular ibrces without declaring the circumstance of h's dischaige. Punishmor.t — P. S. FALSE ANSWERS OR DECLARATIONS ON ENLISTMENT. 33 Having made a wilfully false statement to a justice or wil.'^ully false answer to any question in the attestation paper. Punishment — Impt. ce in the whom tho subject to him with any court coupler of es to cauFG of the por- ot actually be taken, Hotting; — hina f^'we es or offers e, without :'rENDANTS. quired for 3 payment >r vessel to 0, or carry rriage, &c., ed, to take woman or iny person y carriage, SORACE. I worthless itary l^aw; istod in the dso answer 49 GENERAL OFFENCES IN KELATION TO ENLISTMENT. Enlists for service in the regular forces, any man not anthori83d to lie en- 34 listed, or wilfully contravenes any provit^ions or regulations relating to enlistment or attestation. Punishment — Impt. TRAITOROUS WORDS. Uses traitorous or disloyal words regardin:^ the Sovereign. Punishment — Cashiering or impt. 35 INJURI0';3 DISCLOSURES. Whether serving with any of H. M. forces or not, without duo authority, 36 either verbally or in writing discloses the number.'^ 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. Attompt8_t j 38 commit suicide. Punishment — Cashiering or impt. REFUSAL TO DELIVER TO CIVIL POWER OFFICERS AND SOLDIERS ACCUSED OF CIVIL OFFliiNCES. 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 officer or soldier accused of an offence punishable by a Civil Court. Punishment — Cashiering or impt. CONDUCT TO PREJUDICE OP MILITAUY DISCIPLINE. Is guilty of any act, conduct, disorder or neglect, to the pr^^judico of good 40 order and military discipline. Punishment — Cashieiing 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. t t OFFENCES PUNISHABLE UY ORDINAIIY LAW. The Act gives absolute jurisdiction to a C. M. to try any civil offence, as a 41 C. M. may try any offence of a felonious or fraudulent nature, or of any offer. ce to the prejudice of good order and military discipline, which term embraces nearly ail 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 cannot 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 50 offender can bo tried for such offence by a competent Civil Court. If convicted by C. M. of any civil offence other than the above, lie may receive thosaine puiushraont as in respect of an act to the prejudice of good order and military discij»lii»e, or any punishment assigned for such oflence by the law of England. REMARKS ON CERTAIN CRIMES AND PUNISHMENTS. 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 "juiltyof felony unless there was a speeific intent t.> do harm or commit murder. Killing is not murder unless there bo m; lico. Appropriation of another's property is no theft unless it is f'^loniously appropriating. The word "malice" is frequently used in legal phraseology, and moans evil intent, and malice is deemed a nt cessary ingredient in one form or another of all crimes. The law presumes evoiy man to contemplate the natural and necessary conse- quence of his own a-ts until he ehows justification or excuse. " When the act is in itself unlawful, the proof of justification or excuse lies with the accused, in failure whereof iho law implies criminal intent." This principle ap|)lies also to crimes of omission, as a woman neglecting her helpless child is guilty of murder by the Civil Law. In the army a large chibs of offoncos are crimes of omission. Thus the law assumes malice and throws on the accused the onus of clearing himself, and it is for the latttr to di-prove 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 felony. Felony is defined by Sir W. Blackstone to beun "offence which occasions a total forleituro of either lands or woods, or both, at Common Law, and to which capital or other punishment may be superadded according to the degree of guilt." The principal felonies pronounced so by Statute aio : Murder, manslaughter, attempt to murder, wounding with intent to do bodily harm, theft, burglary, house- breakirig, rape, arson, forgery. The term misdemeanour, in its legal acceptation, is confined to such 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 killing of a human being with malice afore- thought, the malice being any felonious intent. Manslaughter is tho unlawful killing of another without any malice, and may be either voluntary upon a sudden provoca- tion, or involuntary when eniraged in some unlawful act. llomicido is excusable when by accident while engaged in a lawful act. It is justifiable when imposed by law, or when a person having committed, or being charged with a felony, will not euffer hiinselt to be arrested, in cases of riot, or to |)rcvont any forcible or atrocious crime, &c. There must, in all those cases, be an apparent necessity for tho homicide to render it justifiable. Th ft hiS boon defined as "the wrongful or fraudulent taking and carrying away by one per-ioo of the raero personal goods of another with tho fe'oniom intent, to convoy to tho taker's own u-io and make them his own property, without tho con- sent of tho owner " Tho taking mu>f clearing or excuse. n and Her it has been anour, yet •lain rules ions a total capital or islaughtor, aiy, house- indictable of the two nurderand alico afore- pful killing in provoca- cxcusablo ra posed by y, will not • atrocious homicide d carrying ioui intent, ut the con- he accused m in good md it must I i tied. For irged with woman, &c. l-f 61 Theft is known to the ordinary criminal codo as larceny, and there are two liinds: Ist, niniplo larceny; 2nd, comjionnd larceny. The latter is accompanied by ciicuinstuncos of aggravation, such as stealing from a house, or from a person with violence. Robbery is the felonious and lorcible taking of any property from the person of another, or in his presence against his will. A person charged with robbery may be convicted oidy of an assault with intent to rob. Burglary is a breaking and entering by night the dwelling house of another with intent to commit felony within the same, whether the felonious intent bo executed oi" not. The night, in Eiigjjind, is considered to be from 9 p.m. to G a.m. Arson is the willul arnl malicious burning of a house, whether the house bo Iho offender's or another's. Forgery is the false making, altering or adding to, any writing ordocumont with intent to defraud ; it is not necessary to allege or ])iovo an intention to delraud any particular person. Perjury is defined to be "a wilful false oath by one who, being lawfully required to depo.-e ilie truth in any judicial proceeding, sweais absolutely in a xn&iicv 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 false. Perjury is not a felony, but a misdemeanour. To bring this crime under the Act the oath must be authori>od and required to bo taken by the Act, The court, therefore, must have jurisdiction in the cause in which the perjury ia committed ; otlicrwiso the offender cannot be lawfully required to swo.ir to the truth. The swearing must be absolute. If a witness speaks to the best of his belief, and it is accepted, and it can be shown that ho hud knowledge to the contrary, ho could still be indicted 'for ])erjury. The statement must bo wilful and not dao to any mistake, surprise or inad- vortoMcy. The matter must be material to the issue; this means that the statement must have a tendency directly or indirectly to itifluenco the trial; immaterial statcmonts are not ti-iablo for j)cijuiy. Forcing a S'ffeguird. — A safeguard is a kind of protection to persons or property granted by the C. O. ot troops to inhabitants, and guaranteed by the prosonco of ono or more soldiers or officer specially allotted for thi't purpose. A safeguard is not in any way synonymous with sentinel, but the crime of forcing a safeguard is a con- teni|)tuous vi'>lation of ilio orders of the General, bringing his honour into disrcpuio. The idea is that the General having granttni a safeguard for the protection of the lives and projKMty of inhabitants, his honour is touched if it is forced by one of his own soldiers. A sentry sleeping on Ids post or leacing Ivs post. — To convict under this heading the oviilence that the man was po.tooldier who has j)i)stcd liim.-elt is not deemed posted. Mutiny and Sedition.— MuUuy is an net committed more or less in conjunction with others; it implies extreme and collective insubordination, or rising against or jesi ting military authority in ccmibination or i>imultaneou>>ly, with or witiiout actual violence, sueh acts genei ally proceeding from alleged or pretended grievances of a mililar}' nature. A single imlividiul cun only be guilty of insubonlinalion. Sedition. — The uifiereneo between scdilion and mutiny is nut very clear, yot sedition is generally co isideroil as treasonable or riotious acts committed by soldiers iigainst the Government or civil authorities rather than ag.ainst militaiy superiors, though necessarily involving or rcsulling in insubordination to tho latter. Insubordination inplies tho striking, usinj; or offering of violence to any superior officer in the execution of his offieo. To constitute tho offence of offering violence there mu^t bo an overt act, i e., a re:il attempt to use violence which w juld have taken effect but for some provcntativQ » i > I 52 >•■ •70 n cause. A mere throat or gesture, suc-h as shaking the fist, is not an offer of violence, unless close to the person threatened. 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. C. 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 bo considered on duty. There has always been a doubt as to whether officers dressed in plain clothes could be considered as on duty. This is provided for in the Act by making the same crimes to a superior (not in tho execution of his office) military offences, though not of so serious a nature. Could it be proved, however, that the officer in plain clothes w;is known to the ofTcider he would in giving an order be deemed to be in the execution of his office. Disobeying the lawful command of a superior officer. — No offences dit!br 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 oflenco of the most serious description, amounting, if two or more persons join in it, to absolute mutin3^ Under this heading there are two distinct offences specified. The essential ingredients of the graver offence aro that it should show a wilful (/f_/?a«ce of authority, and should bo disobedience of a lauful 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 be convicted of the graver offence of disobedience. Tho lesser offence 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 ileld for discussion, os this implies that it would bo lawful in a military sense to disobey tho unlawful com- mand of a superior. A great authority on Military Law (Simmons) comes to the following conclusion : " So long as the orders aro not pointedly and decidedly con- trary to the known laws of the land or custom of tho service, or if in opposition to those laws that the acts ordered to bo done do not tend to an irreparable result, they are lawful and the orders must be unhosifatingiy oboj'od." Desertion and absence without leave. — Desertion is defined as '■ illegal absence from duly without intention of returning." Hence a soldier must not bo charged with desertion unless the officer charging him is satisfied that he has gone away with the intention of leaving H. M. service. Fui'ther, even assuming he is charged with desertion, tho court that tries him should not find him guilty of desertion unless they are fully satisfied upon the evidence that he has been guilty of desertion ; in any cas-e 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. Un 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 desert. A soldier may be tried for desertion from any regiment or corps into which he may havo unlawfully enlisted, although he may by right belong to another c )rps and be a duoorter therefrom, and any number of charges for desertion may form t'lo subject of a single arraignment. When a soldier has been absent without leave for 21 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 tho period thereof and tho deficiencj', if any, in his kit, and tho 0. O. will enter a record of the declaration of the court in the regimental books. If the absent soldier does not afterwards surrender oris not apprehended, such record has the legal elfojt of a conviction by C. M. for desertion ; and if such soldier should afterwards sui-render or bo apprehended such record, or a copy thereof purporting to be signed by the officer having custody of tho books, is, in the tiial of such soldier, to be admissible in evidence of the facts therein recorded. AVhere a soldier signs a confession that ho has been guilty of desertion, or of fraudulent enlistment, tho 0. in C, A. G., or officer commanding tho forces in any colony, «&c., may dispense with his trial and order him to suffer the hamo iorfoituros and deductions of pay as if ho had been convicted by C. M. for the offence. If upoa such confession, evidence of the truth or falsehood of it cannot then bo conveniently if violence, and N. C. , however, ) regiment ya been a on duty. not in the Could it •fTciUer ho 10 much in A.n offence often CO of ,0 absolute 3 essential authority, rior officer before the ser oifonce r, dive8ted cussion. 8s iwful com- ics to the dedly con- )osition to osult, they sence from j'ged with y with the rgcd with in loss they n any cas-e L'harging a that there id, absence I is in itself 9 tried for y enlisted, efrom, and ignmont. of inquiry ourt has to lis kit, and ntal books, iuch record dior should purporting ich soldier, rtion, or of 303 in any bituros and upoa such nvoniontly ii I "^ I > •I'l ob rej 801 trs of bif hii en an CO bii de mi be re I 8U po on ex frc by otf tie or lU tht wii tht ma net an fou dm nos N. TIk nor occ to 1 C. ( on I mit 53 •obtained, the record of r j>roved that he was taken prisoner from wilful neglect, or hivd not returned to the service as soon as possible, or hud served with or aided the enemy, he may be recommended to receive arrears of pay, or a proportion thereof, and to reckon service during his absence. U|wn reasonable suspicion that a person is a deserter, a constable, or if no 147 constable can be immediately met 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 ho is a deserter, such court may direct him to be delivered into military custody. If confession of desertion is made whon a man is not serving, he is to bo brought before a court ol summary jurisdiction, and if his statement ap])ears to bo truo, he is remanded until reference can bo made to the S. of 8. for War. If false, he is to bo summarily punished by impt. for a period not excooding 3 months. Civilians who porsuudo soldiers to desert, or assist them in deserting, or conceal deserters, &c., may on summary conviction bo imprisoiiod, with or without hard labour, for a period not exceeding 6 months. With the crime of desertion, attempt to desert, or absence without leave, is freqtiontly associated that of making away with clothing, equipment or nccossaries. Disjraceful Conduct is the heading under which are included in tho Act offences by commissioned officers of a scandalous nature, unbecoming the character of an officer and a gentleman, and all offences by soldiers of a fraudulent nature not par- ticularly sj)ccified 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 boon ma/'e to repress this crime in the army. In, ISdO was introduced tho system of charging men belbro C. M.with the crime of habitual drunkenness, i.e , a man must have boon drunk four times within twelve months, or twice within the same period when on or for duty, or on the line of march. This plan wus continued till I'lGQ, when C O's were authorised to punish sum- marily by fine, simple acts of drunkenness; and trial by 0. M. for habitual drunken- ness was done away with. The Act of 1871) again introduces the crime of habitual drunkonnoss, and defines an habitual drunkard as one who " has been guilty of drunkenness ou not loss than four occasions in the preceding twelve months." An officer or a N. C. O. may bo chargcil before a C. M. with a single act of 1*75 drunkenness, whether committed on duty or not on duty (for asiiiL^le act of drunken- ness in tho case of an officer or N. C. O., affects tho nosition of the offender), but a N. C O. will not be punished summarily by his C. O. for tho 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 drunkenness on not loss than four occasions in tho preceding twelve months. When drunkonnosb is accompanied by another offence, for which tho offender is to be tried by C. M., tho act of drunkenness is to bo summarily dealt with by tho C. O. previous to tho trial for the offence. Yet tho discretion of a 0. 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. t u CHAPTER Vir. irni COURTS OF ISQUIKY. ^ Thoro is nv3 material (litforonco botwocn a"B:>anl"and a " Court of Inquiry ;" by Regulations they are considered the same ; honco, all Boards speoitied in the Rettu- lations may bo regarded as Courts of Inquiry, but CJourts of Inquiry which aro specially dirccloJ to bo assembled for some extraordinary purpose aro ditferent. These are of two kinds : — 1. Royal Commissi&ns, held under tho prerogative of the Crown, inbtitutod 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 isecret proceedings, and oaths are administered under tho prerogative of the Crown. The duties of these commissions are quite undefined, but they jiroceed by tho custom of the tervico, and in accordance with their particular instructions. 2. Courts of Inquiry, held under statute for the pui-poso of dcterming the illegal absence of soldiers. *10, 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 fm- tweniy-ono days. It is composed of three officers. Witnesses are examined (on oath) as to tho fact of tho soldier's illegal absence, and the deficiencies, if any, of his kit. Tho court is then required to declare tho period of absence and dodciencies of kit. This declaration is to be recorded in tho regimental books by the C. 0., and if tho 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 tho deficiencies of kit. The members of the court are not themselves sworn, and witnesses take the samo oath as is prescribed at a C. M. Ordinary Courts of Inquiry may bo 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-offlcer-liko conduct, to report upon officers 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 he may wish to have further information. The following are tho Regulations respecting Courts of Inquiry : — A Court of Inquiry may bo assembled by tho officer in command of any body cf troops, whether belonging to ono or more coips. It may bo composed of any number of officbrs of any rank, and of any branch or department of tho service, accoi'ding to tho nature of tho investigation. Three ollicors aro generally considered sufficient in ordinary' courts. The court is guided by the vvrittMi instructions of ttie otficer assonibling it. Those instructions should bo lull and specific, and must slate tho gereial character of tho information required from tho couit in their report,— i.e., whether they are merely to collect evidence, or go further and give an 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 ho cannot conveniently himself make inquiry. Previous notice should bo given of tho time and place of tho meeting of a Court of Inquiry, aud of all adjournmonta of tho court, to all persons concerned in tho inquiry. Whenever any inquiry affects tho characfer of an officer or soldier, full oppor- tunity must bo attbrdid such officer or soldier of being present throughout 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 Inquiry ;" the Retfii- ?l)ich aro ditt'erent. utoti by a )f expedi- )cee(lingsi, s of these 3 tforvico, he illegal (except ivhon iiiiy of three r's illegal ;o declare corded in y has the is legal the anmo uch as to eived, on lue to the wounded x)r aiding )r detach- ormation. y bodycf li of any > service, ansidored nbling it. aniclcrof they aro irtat all, jpect to a r a Court od in the ill oppor- hoiil the xamining irodiicing 1, 65 any witnesses in defonco of ijis character. Such a court ha3 no power to compel civilian witnesses to attend, and evidence cannot be taken on oath. Military wit- Bosses would, of course, bo ordered to attend. A Court of Inquiry is not to give an opinion on the conduct of any officer or soldier, and the procoodings of these courts cannot bo given in evidence again.st iin officer or soldier. Nevertheless, in the event of an officer or soldier being tried by C JJ , in respect of any matter or thing which has been reported on by a Court of Inquiry, such officer or soldier shall bo entitled to a copy of the proceedings of tho Court of Inquiry. Tho whole of the proceedings are forwarded by the President to tho C. O. who assembled the court, and the latter will, on his own resiponsibilily, form such opinion as he thinks just. When, in consequence of tho assembling of a Court of Inquir}', an opinion adverse to tho character of any officer or soldier is formed by tho oificor who deter- mines the case so inquired into, whether such officer bo tho oliioer who assembled tho court, or a superior officer to whom the case hiis boon referred by such last mont.oned officer, such adverse opinion must be communicated to tho officer or soldier against whom it has been given. The court may be ro-assembled as often as the convening officer maj 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 recorded in a form similar to that for CM. They are signed by the President and each member; if any one of them differ from the others, ho is entitled to record his opinion separately. The proceedings are usually kept secret. They are privileged, and recognised as such by civil courts. When the conduct of officers or soldiers is matter of inquiry, they cannot legally refuse to attend, if ordered, though they may decline to take any part whatever in tho 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 Eogi- 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 tho 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. Discharge Boards.— Regimeiita\ Discharge Boards are assembled to recoi-d tho 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 the regiment is to be President, and tho two next senior officers members. The duty of the Board is to make a faithful and impartial record of tho soldier's services, conduct, etc., in accordance with the rules of tho service. A declaration to this effect is to bo msvle by tho members in tho presence of the soldier whose case is under inquiry. 56 CUAPTER VIII. EVIDENCE. 125 Tho rules which guide C. M. as to the admission and rejection of evidence must be the same ns those which guide Civil Courts ; and no person can be required to answer any question or produce any document which 1 > could not be required to answer or to produce if before a Civil Court. The 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 trials, and tho 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 ])0ssible, avoid minute points and subtle variations not essential. Ordinary cases tried by CM. are so simple that the rules of evidence scarcely come into use, yet in more important cases, which attract public attention, any departure from those rules would cast discredit upon Military Courts. Often the question of admissibility of evidence forms an important part of tho trial, especially in cases of embezzlement, and the prisoner frequently has a legal adviser, which neither the prosecutor nor Officiating J:.\. have. Another eminent lawyer, stating that the laws of evidence should be regarded, said: — *' I cannot understand 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 tho admission or rejection of evidence, and as in the colonies these are generally staff officers, it is important to know tho principles on which evidence should be admitted or rejected, especially as more CM. are quashed on grounds of want of knowlodgo on the question of evidence ilian on any other. . <: The General Rules of evidence are five in number : — ' ' 1. The evidence on either side must be confined to the points in issue. ■' 2. Tho point in issue must be proved by the party who asserts tho affirmative. 3: It is sufficient to prove tho substance of the issue or charge. 4. i/eflrsay is not evidence. ' : . 5: The best evidence must bo produced which tho nature of tho case will admit of. Isf liule. — A CM. cannot insist too strongly upon rejecting all evidence which is foreign to the charge, but circumstances which may not haveany immediate or direct bearing upon the very point in issue, may, nevertheless, afford an indirect and conse- quential inference to prove or disprove tho disputed fact, and, therefore, evidence to prove thom ought not to be disallowed, provided the party who urges them shall satisfy tho court as to their relevancy. For instance, in a case of desertion, the pur- chasing of plain clothes by tho prisoner would atford grounds for the inference that he had no intention of retuining, and, therefore, evidence to pro "e such fact would be admissible. This 1st Rule includes :— 1st. Evidence as to character; 2nd. Evidence in Res gestiv. It is acknowledged that evidence may bo given of acts so closely in connection with the matter in issue as to form one chain of facts, and that their exclusion would m:ike tho rest of the evidence at least obscure. U Mice, such come under the rule of confinement to the point in issue. Il *' 9 m Definition of Res gest'£ — " Matter so connected with the subject of the trial as to explain its object, illustrate its character and form with itone continuous transaction, though not in itself proof of the main lact " It is admitted that facts, by whomsoever done, if relevant to the matter in issue, may be given in evidence as part of the Ees gestae. In case of conspiracy, the connection of each individual with the conspiracy must first be proved, and then theaots of each member are, in the eyes of the law, the acts of the whole confederacy, and hence all evidence on such acts are admitted as against any member. It is now held to be no objection in itself, that evidence discloses other offences. Evidence cannot be refused on such grounds. This rule, however, must not include evidence to show that a prisoner charged with a particular crime had a general ten- donc}'- 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 bo 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 crime — as his having been in a certain place at a cer- tain time, and of having an opportunity of committing the crime. Also, in a case of arson, evidence that property then taken out of the house while on fire was found in the prisoner's possession, is admissible. It lies at the 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." The court would act wisely in receiving rather than rejecting doubtful evidence, if tendered by the prisoner. 2nd. Rule. — That the point in issue is to be proved by the party who assei ts the affirmative, is a rule of evidence arising from the difliculty, in many cases the impos- sibility, of proving a negative. Taus, the burden of proving the charge usually such e., be cases, law," rests on the prosecutor, who asserts tl.afc the prisoner has committed and such a crime, and he must prove the commission of that crime, i. "asserts the affirmative." The burden of proof or omisprobmdi is in many however, shifted to the prisoner in consequence of the " presumptions of the and "presumptions arising from the evidence." For instanQo, proof of the possession of stolon goods shifts the necessity of ex- plaining his having them to the prisoner; proof of alsjnce without leave for a con- siderable time shifts to the yrisoner the 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 where it must be supposed to be within his knowledge. I. 'It I »«|| '1 1 PBESUMPTIONS OF THE LAW. The presumptions of the law with reference to criminal matters are simjjle and easily defined, and they hold good until the contrary is proved: 1. That every man is innocent until the contrary is proveJ. 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 bus been killed. The indictment for murder always runs " with malice aforethought," but it is unneces- sary to prove the malice. There are other presumptions 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 these weapons lies oa the prisoner. 55 Sotting firo to a Mill : — Tho judges ruloJ that it might be assumed that there was intent to murder tlio occu|iitMH. Tho following iH Lord Mansfio'd's rule: "Whore an act, wiVse// m'//#t;ren/ (i.e., not criminal), if done with a particular intent becomes criminal, then tho intent must bo proved and found, but when tho act is in itself unlawful, tho proof of justihcation or excuse lies on tho accused, and the law implies a criminal intent." This principle holds good if tho act be doQO by a man whon voluntarily drunk and thuv'foro without premeditation. A letter when used against tho writer, and generally any document, is presumed to have been written on the day of its date until the contrary has boon proveJ. Persons absent for seven ^'oars are prosuinod to bodead, honco bigamy cannot bo found after seven years, etc. NEXT CLASS— PRESUMPTIONS DRAWN FROM THE EVIDENCE. Definition by Chief Justice Abbot — " The ])resumption of any fact is an inference of that facL from other facts liiat are known ; it is an act of reasoning." Archibold. — "Natural conclusions from other facts proved, bO as readily to gain assent." The necessity for admitting such evidence, known as " circumstantial evidence" in criminal ca^^cs, is owing to the difHculty 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 classes.— Violent, probable and slight. 1. Violent presumption. — Whon the presumption of one fact necessarily follows from another fact proved. (As a man found near a houise with goods stolen out of it.) 3. Probable presumption.- When the facta proved are Msua% attended by the lact^v presumeci. As a man found with stolen goods in his possession, but not in the vicinity of tho place where stolen, as at his lodgings, — it would be a probable presumption that ho is a thief, but a violent presumption that he is either the thief or tho receiver with guilty knowledge, and a prisoner with such a presumption against him has to prove it false. In cases of theft it must bo first proved that the articles have been stolen, and then identified, but this is not always possible; as when articles such as sacks of corn have been stolon out of a barn or ship, then, if the articles in possession of tho prisoner are found to bo of tho same kind as those remaining, the identification is jircsumed to be complete, and this is a violent presumption. Also, presumption of guilt depends considerably on the length of timo stolon goods have boon in posses- sion, for recent possession may bo taken to imply a presumption of guilt. Insanity. — Every man is assumed to be sane until the contrary is proved. To establish tho defenco on the ground of insanity, it must bo proved that tho accused at tho time of committing tho act was labouring under such a defect of reason that he diil not know tho nature ami tho quality of the act, or if ho did this, that he did not know it was wrong. Tho evidence of insanity must bo confined to tho act in question, not to tho general state of the accused. A temporary delusion may havo the ofTuct of acquittal, as it has boon ruled that "if a man kills iiiiothcr whom ho fUncios to bo taking his lifo, ho must bo acquitted." If ho killed him in revenge for destroying his character or fortune he is punishable." Hrd Rule. — That it is sufiicient to prove tho substance of the issue or charge is applicable in cases where there is a variance between tho evidence and tho charge, thi.t is, if tho essence of tho issue is proved, an offence of tho same kind but of less degree may bo found. This rule has already boon alluded to under " punishments." A prisoner charged with desertion mny bo convicted of absence without leave, for absence is the substance of tho charge, the motive and design being matter of aggra- vation. A person charged with murder may bo found guilty of manslaughter, — the there was particular on tho act I, and the ily drunk presumed cannot bo 1 inference ily to gain evidence" evidence. Jegrees of ht. ily follows len out of Y the i\Q,i^ vicinity of Ion that ho iver with 9 to prove tolen, and 3 sacks of iion of tho Scation is raption of in posses- 'od. that tho i of reason ■>, that ho ot to tho •u!ed that cquitted." ishablo." charge is 10 charge, >ut of 1688 shments." leave, for • of aggra- itei", — the I. wmm • y ■ ' ' % ■ ■ , ' *<■.-..,. ■ . " kill; » ■ ' ' ,. ' ' ' ' ■ ' •' char muy tho ( oflSci ■ " '*'.,;'.>''*■''''■ not ' ~ ■ * -, ' . . -,..■'''■'■ 1 1 '« ■■ of a after On H tho: ' Icmj as 8t miiy by 1 Bpec proc spec Mori dcsc < - ^ ■'.*>., ■■ mee 'h ' efflci H" '!*»• subs ''■?i. ■ - : ■ '^ " ■ ■' '^' ' 1 . ■■-"'' ^ (ex( 1 ! , ■ for i 1 "',-■■ ■ ho n guil Eng pl■e^^ toitn reco •' rejet . ^ ^ -■, ,, . ,,, : , ■::-„,.., ,A .,.,;■., and , . : ; -■ -.■■.^ .,■■■;■ ^o5 whi* " " ^ ■ ■ ' ■" ■■*". ' " '■ t ■; ( . whic himh . i- ■'•:■'■ i ^ ■:■';''- '^ pevs , . ; ; ,. ■ ' \.' .,,.■,--,■.■';, hear .. ■: , :, ■ '■' / - .- . ■:^ %:.:;■- '.&«.■• . evid ■. .. ■", • ".• ■ i:-.- <.!■ i,s.., ihji-rvc in p 1 trail : -i- 1 ■ ■ ■'.' - ■ ■■ ■ '•::-•.■■•.■'.,: . r ■ ^'^ ■- >;; '^ /■' ; take "'-"'-') \ ■ - ■■■''■ atioT deat the( ;r aa to ■■■ '■ s, ■ -■ ...-,.. "■... dene adm obta 69 killing bcirig the essence of the offcneo, malice llio aggiavalion. A pi i>oner chutgcil with ottering violence to his Bupei-ior oflicoi in the execution of his ofHco,^ may bo convictocl merely of olFenng violeiue, for offering violence is the essence of the charge, the rank of the person and the fad of his being in the execution ot his oflBee being circumstances in aggi-avation, and it may bo shown that the prisoner did not know the lank and position of the person assailed. It has been ruled in Civil Law that, " if the evidence fail to prove the completion of an ottenco charged, the verdiat may acquit of the ollcnco itself, but cciivict of an attempt to commit such a'n offence, provided the attempt is itself against the law. On such conviction he may bo punished as if ho had been charged originally with the attempt.' Thus a prisoner charged with desertion may bo convicted of an at- tempt to desert. When it is found that the names of persons or things, or ownci ship of property, as slated in the indictment, do not agree with the evidence, a Judge in a Civil Court ma}' amend the indictment, but a C. M. cannot altera charge which has been ap))roved by the convening ofliccr, but in the finding a "sjiccial finding" is given which specifies the amendment. The result is the same in the two cases, but the mode of proceeding is different. In an indictment for larceny the evidence must agree with the chatgo in the species of articles stolen, but not necessarily in tho number or value of the articles. Money or bank notes are imply charged as money, it not being necessary to describe the coins, whether g, Id, silver, &c. A form for words spoken in order to meet unimj)ortant variances is laid down in regulations, and is found to bo very efficient. When certain words spoken constitute a crime they are preceded by "in substance and to tho effect following, that is to say." — A prisoner cannot bo found guilty of a crime of 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 of the same kind of offence, ho may be convicted of tho lesser offonce. As a man tried for desertion may be found guilty of absence without leave, and convicted and punished for that offence. ■\th Rule — That hearsay is not evidence arises from tho admitted principle of English Law that every fact against a prisoner should be proved on oath, and in tho presence of tho accused, so ihat he may have an opportunity of cross-questioning the ioitness as to his means of knowledge, his accuracy of observation, the strength of his recollection and his disposition to speak tho 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 the individual. Tho term " hearsay," in its legal sense, is used with reference both to that whirh is written and to that which is spoken, being applied to that kind of evidence which docs not derive its effect solely from the ciedit to be attached to tho witness himself, but depends aho in part on tho veracity 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 pM'oof of such words or writings having been spoken or written, as being in fact transactions concerning which inquiry may be instituted as to whether they have taken place or not. As exceptions to the general rule that hearsay is not evidence, tho dying declar- ation of a man who has received a mortal injury is admissible in evidence where tho death is tho subject of the charge, and tho circumstances of the death tho subject of the dying declaration. Tho declaration of a peison robbed, or of a woman ravished, as to tho fact, made immedialel}'' afterwards, may be received as confirmatory evi- dence, but no names or details of what was said at tho time arc received. 5th Rule. Tho best evidence must be produced which the nature of the ca-^o will admit of. Secondary evidence is only admissible when tho best and most direct cannot be had. Tho evidence prcdaeed must bo legal evidence, for instance, if the best evidence obtainable bo heai-say it would bo inadmissible. Tho best legal evidence not being '.I obtainable, tbon, ami then only, is the next best legal evidence admitt3d, — for the pro- duction of secondary evidence, when better evidence is obtainable, would tend to raise a presumption ot same secret or sinister motive for withholding the bettor and more satisfactory evidence and would lead to the inference that the better evidence, if p oduced, would disclose some concealed falsehood. Secondary evidence will not be received until it has been clearly shown to the satisfaction of the court that bettor cannot be obtained. The law will receive the following secondary evidence : — Statements in ancient documents, and also^statements of decoa^ied persons as to podigfee. Jrilvidence 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 entiies in books, &c., when carrj'ing on their professional duties. Statements having reference to health and sufferings of a person ; as in the case of murder. "' ■I 'M 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 be 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 dme in the hearinj of the prisoner, otherwise only the general purport of such sayings sufficient to show that a conspiracy existed. It is often necessary to prove that a certain order was given, or that a person was acquainted with certain facts at a certain time. What has been said or written would, under such circumstances, be important evidence and not classed under second hand evidence. The value of evidence and what constitutes sufficient evidence, is a matter which cannot, of courcio, bo defined by law. WRITTEN DOCUxMENTS. The most important application of this (5th) rule is to the contents of written documents. The broad rule is " contents of documents must 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 pi'ocooding^*. 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 destroyed, or that diligent searcli has bjcn made for it in the proper place. 2. When it is in the hands 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. Ti»o following are certain privileged communications which are exempt from production: — 1. Communications betwoen husband and wife made during marriage, and whioh do not cease on death or divorce. .' 'or the pro- end to raise r and more jvidence, if lown to the rdons as to ■8 (as doctor, osts. , &c., when 9 in the case •• . ... ,.:,;,vv-,.v/:-.v mutiny and nutiny must dence must sayings and , otherwise acy existed, at a person or written nder second atter which --. ■.».;■.:' - ■' ■. ■■■ - .'. • '■'... - ' " ""V ;, ■ ♦ • X, ■■-..■,•,, .■.■■■ 'K of written '■■■■ ■ ■■■ i ' eduction of .: .:'J/-^'. ' .' ;•, '. '-'p":r-:"'. a it must be ', , ■ V . , ' ■ ■ practicable, ' ice is admis- hat diligent ' ' "' . -,';-, 7 '■ -i- ,. t '■ \ Juco it. It summons to insists on ko it almost Kempt from 0, and whioh It 61 2. Communications, written or verbal, to legal advisers, barristers, solicitors or attorneys profesKionally employed. The privelege does not extend to any other clasa of persons whatever, as clergymen in conlension, medical men, clerks, or confidential friends, but it does 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 giving ii. formation need not be disclosed — as a detective, not to divulge his informynt, states: — "From information received." 'This is a very important ])rivilcge. i. Official communications between heads of departments and^subordinatc officers, are privileged. Exceptions by statute to the rule that the best evidence must be produced. Public documents are admissible bj' secondaiy evidence, i. e., copies are allowed. Public documents are held to be the acts ol ^/MWiV/wnc^/owrtr/es in the execution of their businet^s. All ]ublic 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 IJegi&tering Office. For instance, the Piison Register is admissible to pi-ove the dates of commitment and discharge of prisoners, but not to prove the caut-e of commitment. Whenever any book or other document is of such a public nature as to be admis- sible in evidence, any copy or extract is admissible provided it bo authenticated by the officer to whose custody the original is entru.sted. But all other documents which do not come within the above catcgojy, and all letters of whatever description, whether ofHcial or not, must be proved by primary evidence. Private writings, including what arc 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, therefore, admitted when in the nature of acts, or as proof of intention, or when they form part of the subject matter of n 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 bo signed by a recruit, or a declaration on re-engagement, to prove the several particulars represented tlioroin. 3. The last quarterly pay list is evidence of being borne on iho strength and in pay of corps. 4. Descriptive return of a de.^-eiter sent ly a Justice of the Peace to fci. of S. for War is legal evidence of facts stated, and 8. ol 8's. letter to C (). in reply. 6. A letter from an}' 0. O., or commander of a ship fiom which any person shall appear to have been discharged, shall be evidence of the fuels stated. (). Jiccord of a man's confession of desertion by his C. O. to prove the making of such confession. 7. licttcr from his former CO. in iej)Iy to eixjuiiy on the subject to prove facts therein stated. 8. Record of Court of Inquiry on illegal absence to prove facts therein statetl. 5). Evidence before any C. Al. or Court of Infjuiiy on illegal absom o, to prove- that such and such statements were made before them, but no proof of Ine facts. 10. Court Martial book or defaulter's book to prove previous convictions, either civil or military, and defaulter's book to prove instances of druiiUenness. 11. A copy of any of the above i-ecords, certified to bo a true copy by the officer having the cuf*tody of such rccoid, is evidence. lli. Queen's regulations, royal warrants, ai my circulars, general orders, nood not be proved. ^ 15 > G2 13. Vurj)orlin<^ to bo pritituil by (iueon's or Government jninter is proof of the jcgality of documents. 14. An official army list is evidence of status and rank. 15. Delivery at tbi» re^ihtered jilaoo of abode of a man in the army reserve of a notice issued by proper authority, i.s evidence that such notice was brought to the man's knowledge. The meaning of " purporting to be signed," (Act 8S Vic.) makes it unnecessary to prove the seals or the writing or ofHuial character of the person who signs a document and takes for granted it is properly signed unless the contrary can be shown . By the same Act a safeguard against forgery is made, as any document may be impouudcd in court on the application of cither party with a view to proving it a forgery. Parole evidence cannot be substituted 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 how it cannot be p.oduccd. The producer of secondary documeuiary evidence must know it to be a true copy. Thus a prosecutor must have compared it with the original. If say, the 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 hi7hse'f. 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 witnes.-«. PROOF OF IIANDWRITINO. 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 write. 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 bo made to prove the handwriting. EVIDENCE AS TO ClIAUACTER. Tiie character given of a j)risoner-must have some connection with the charge, as ii IS no use to give a ])crson chai-gcd with murder a character for honesty, though probablj' a C. M. would receive sucli evidence. hi addition to the evidence produced after the finding, a prisoner may produce evidence as to his character during the trial, and such is rccciveil as part of hi.*! iiefeiice. The prosecutor may cross examine such witness, but he may not bring other witnesses to robut their statements till after the finding, as the prosecutor can bring ',0 evidence against the prisoner's character till after the finding. After the finding both parties mnj'^ jiroduce witnesses as to character and cro.js- oxainine them. (In prosecuting, a prosecutor may refer to any papers or books to refresh hi.s n^cmory, but he may not read thcin or lay them before tlio court.) iSiiinelinies prisoners [•\y befoi-e the court tes'.iruoiiials, letters as to character, etc. (Such documents are not legal, as such cviilorico must bo viva vone and made by witnesses who can speak from their own knowledge ivgaiding the prirtoner. In CM. it is b;A'eve(f usual not to accept such documents as evidence, but as an indulgence to tlio ))risoner, and to append them, not to the proceedings, but to a separate letter forwarded to the confirming ofiicer for him to take them into ooiisideralion, and, if ho thinks fit, niiligalo the punisliment. CONKE' 10N8 BY PRISO.XERS. 'ohmtary Qow^nmowA of prisoners, whether mailo before apprehension or after, vloionco to the charge to bo made, are admi.ssiblo; and a eonfussion is doomed I ....<.....,! f f% t U.. n. .til 1..1I.1* with I o- volunlary unless proved to the contrary I'oof of the serve of a jht to the )cossary to document . By the inpouudcd ?eiy. iv requlroa stop.co, or, X true copy. iCi adjuiunt isecite, the he origi nul ment is no rite. It is muino may the charge, sly, though ay ]n'oduce part of his bring otiior • can bring ■ and cro38- rofre.vhen the prisoner in his defence has examined witnesses and brought outpointi n,if touched on in the prosecu- tion, or produced evidence reflecting on the credibility of the prosecutor's witnesses, but he muHt be confined to reestablishing the credibility of his witnesses, to im- E caching the witnesses for the defence, and to rebutting the new matter. He cannot e allowed to repair omissions by producing evidence directly in support of the charge. It is irregular to adjourn the court for tho purpose of obtaining further evidence on either side, but as an indulgence it is sometimes extended to tho prisoner but never to tho prosecutor. 'n that if a discrepan- t have boon r in the re- ords into a xw assumes ,0 the oppo- ons, with a ie. e you in ind he may > contradict B, and will 10 court to sees, whose to him on lis memory- id a distinct ilst the fact document, luion, etc. I him. He le transac- camination, 'e what he estion tend- 10 asks the )r evidence, ny or mis- is. }, and may lination of 1 separately oner in his he prosecu- ) witnesHcs, 868, to im- He cannot lort of the )r evidence )r but never APPENDIX. Form of Proceedings of a General CM. (including some of the more unusual incidents which may occur to vary the ordinary course of procedure, with instructions for the guidance of the court). PROCEEDiNas of a General Court-Martial, held at_ on the day of. 188 ., by order of day of_ ^Commandiiig^ _ , 188 . , dated the. Rank. President. Members. Name. liegimept. ,, Deputy Judge Advocate. At .o'clock the Court opens. First Daj. (1) 1 No. — Rank — Name— Regiment'] is brought a prisoner before the Court. ■i •;tt f ■■, -- ■ ■ \^R« Presi- . lent to the Prisoner. Instruction. — The questions are tr, bo numbered throughout consecutiva'y in a single series. The letters (I. and A. in the margin may str.nd for "Question" and " Answer " respectively.] - • N.B— For Gflriernl and Distrii-t M , WO. Form 642, to he obt .aica uom General Officers conimandiag, ia tu be uted ia accordance wilh tliese iristructioDa. - 68 VARTATIONS. 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 prisoner. The Court if cleared. Decision. — The Court disallow the objection. The Court is re opened and the above decision made known to the prisoner. Or, The Court allow 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. iV;jS.— The 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 o'oured. Decision. — The Court disallow the objection. The Court is re-opened, and the above decision is read to the pri- soner. Decision. — The 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 the above decision is made known to the prisoner. New Member. — {Rank — Name — Regiment) takes his place as a mem- ber of the Court. Question to Prisoner. — Do you ob- ject to be tried by__ as a member of this Court Martial ? Answer. — (Any objection is dealt with as in the case of any original member.) The President, Members and Judge Advocate are duly sworn (also any officer under instruction, and an}' shorthand writer or interpreter.) [^Instructions. — 1. It is generally advisable that the witnes.ses be ordered out of Court at this stage of the proceedings. 2. All proceedings of the Court, except when it is cleared for dolibora tion, are to take place in the prosonco of the prisoner. 3. No CM. 'should proceed to trial until they have satisfied thom- Rolves of their compet'^nce to deal with the charge, both as respects their jurisdiction and the precision with which the charge is worded. J Chage (2) The Prisoner [iVo. — R(tnlc — Name — Regiment] U arraigned upon the following t ' CiiAnnK. Question to Arc you guilty or not guilty of the charge against you, wliich you the PriBonerhavo hoard read ? AuBwer. jr. er. — Slalo tof hiaob- [uests por- _, &c., &c. isallow the [1, and the o the pri- low the ob- to serve on ed and the lowii to the — Name — as a mom- )o you ob- 't Martial ? with as in member.) iworn (also rprctor.) itnesses bo 'or doliborii sficd thom- ipec'ts their •J * arraigned which you mii'^immimmm sum ■it:' J?. r 1 VAaiATION?, 1. The prisoner not pleading [refusing to pbadj 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. — Have you any evidence to produce in sup- port of your plea ? Answer. — ^ ^_ ("Witness examined on o tth.) 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 further orders). (3.) The Prosecutor reads the following address, which 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 J"!"* witnew prosecutor. tioiu'"'**"* Q. A. Cross-examined by the prisoner. [Instruction. — Although a prisoner may have a professional adviser near him during the trial to advise him on all points, and to suggest, in writing, the questions to be put to witnesses, such advisor is not to be permitted to address the court or to examine witnesses orally.] Q. A. Re examined by the Prosecutor. Q. A. Examined by the Court. The witness withdraws. [Tnstructeon.—li 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 liie witnesses by the parties to the trial has been con- cluded.] Second vit- aesa for pro- Becution. Vakiation. Tl e prisoner declines cross-examining thi-j witness. [Instruction. — In every cas« where the prisoner does not cross- cxaiuiiie a witness for tie prosecution this statement is to be made, in order that it may appear on the ♦'"ace of the proceedings that he has had the opportunity given him of cross-examination, 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 Second day. On the of 18 at o'clock, the Court re-assemble, pursuant to adjournment; present, the same members as on Absent mem- ber. I. \k III (.11 New Preei- deat. New f-.dge A.' v-'.'.te. 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 ur.Jl The Court being below the number required by the order convening the Court, adjourn until further orders or. There being present {jiot 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 ol , who is 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. A, Qaesiion bj tne Oonrt to the Prisoner. A. Defence. The prosecution is closed. Do you intend to call any witness in your defence ? Yes. , , . . , DfiFENOE. (4.) The prisoner having been called upon to make his defence, Bflye : [or requests to be allowed days to prepare his defence.] lot cross- made, it) t he has a tor. recorded ho sent, ihe . is read. onvoning or, •ed by the the ho senior to is )0f either !ontinued. i defence, equeats to mm dow IV ■II If' by t the recc the: Ad\ pres 18 gi exc« m [7/iS^rMc^/on.— If a prisoner's defence be verbal, it should be taken u aa nearly aa possible in his own words, and in the first person ] down as nearly as possu The prisoner calls the following witnesses. {Rank — iVame — Regiment) is duly sworn. Examined by the Prisoner. Firat witness iordvftnce. Q. A. Cross examined by the Prosecutor. Q. A Ro examined by the Prisoner. Q' A. Examined by the Court. Q A. The witness withdraws. (5.) The prisoner reads an address, which is marked by the President, and attached to the proceedings. _, signed Close of the defence. [Instructim. — 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 reply, marked the President, and annexed to the proceedings. [Or the prosecutor declines making a reply.] The court adjourn until _, which is signed by Reply. Advocate to prepare his summing up. _to enable the Judge- (6.) The Court re-assemble on , and the prisoner being th day. present the Judge-Advocate reads the summing up, which is marked ""™™"'« "P" , signed by the President, and attached to the Proceedings. The Court is cleared for the purpose of considering the fading. Finding. (7.) The Court find that the prisoner (Jiio.— Rank— Name— Regiment) rinding. is not guilty of the charge ; Not Guilty. or. is guilty of the charge [all the chai-ges] Guiltj. or. is guilty of the first charge, and guilty of the second charge with the exception of . 11'! tr or, is not guilty of desertion, but is guilty of absence without leave. [ Instruction. — In all cases when the Court 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.] Froceedinqs before Sentence. (8.) The Court being .e-opened, the Prisoner is again brought before it. {Rank — Name — Rejiment) is duly sworn. Question by What record have you to produce in proof of former convictions the President against the prisoner ? I produce a certified copy from for (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. Answer. Q. A. Q. .A Q. In case of deaertioD. A. Q. A. Q. A. Q. A. Q. A. How many times has the prisoner's name been entered in the_ defaulter book for drunkenness ? On reference to the defaulter book now laid before the Court 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 pi'esent time ? Did the prisoner surrender or was ha apprehended ? What is the prisoner's general character ? W'hat 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 I'cokoned to date of desertion only.J Is the prisoner in possession of any decorations, good conduct badges, or honorary rewards ? A. How long has the prisorei* bcea in confinement in respect of this trial? A. iTO. risonor, the on the trial lonourably, ng must be ught before convictions ire none) "]. and found cbed to the 1 the I before the rein for the f desertion uct badg08, pect of thia t(ll' ' 73 Penal aerri- tude— jeara. Impriaonment H. L. for days. Cashiered. Diamissed. Forfeiture of raak. Tho Court is again cloarod. Skntence. \ Instruction. — The provisions of Section 44 of the Array Discipline and Reguhition Act* must bo carefully attended to by the court in passing sentence.] (9.) The court sentence the prisoner No. (flawA— iVame) — Regiment. Senteuce. {^Instruction. — The sentence is to be marginally noted in every case.] In the case of an officer : — (a) to suffer death by being shot (hanged]. Death. (6) to suffer penal servitude for tho term of years \_or for life]. (c) to bo imprisoned with [or without] hard labour for days j^and in consequence of the above imprison- mont IS not to be in tho United Kingdom]. (d) to bo cashiered. (e) to be dismissed from Ilor Majesty's service. (/) to forfeiture of rank. [Instruction.— Tho specific forfeiture to bo stated.] (g) to bo reprimanded [or severely reprimanded]. In tho case uf a soldier : — (A) to suffer death by being shot [hanged] . (/) to suffer penal servitude for tho term of years [or 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 tho United Kingdom]. [Instruction. — If a man while undergoing imprisonment is sentenced to a term of imprisonment which will make the aggregate imprisonment exceed two years, tho latter sentence will be invalid, (xreat care muet therefore be taken in not imposing any term of imprisonment which will purport to make the 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 paeseJ, been imprisoned for eleven months, the now sentence cannot excead such a term as will make up a period of two years from tho date of the original sentence, and a sentence for any term of imprisonment exceeding such ditferonca will render tho whole new sentence invalid. 2. If the term 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.] (Z) to bo discharged with ignominy from Her Majesty's service. (m) (if a volunteer] to be dismissed from Her Majesty's service. (n) [if a non-commissioned officer] to be reduced to the rank of [or to the ranks]. • Chapter VI. Reprimand, or aevere reprimand. Death. Penal seryi- tude years. Impt. H.L. for daya. DischarKO with igno- miny. Diamiaaed. Reduction. Fined £. s d. Stoppages. Forfeitures. u [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 ponce. to be put under stoppages of pay until he shall have made good the lollowing articloH, 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 has earned by past service. N.B. — Number of badges to be specified. or, to forfeit the annuity [gratuity, medal, or decoration, here specify each] which has been granted to him . or, to forfeit all or any advantage as to pension which he has 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. (Signature) (Signature) Judge- Advocate. President. Confirmation. (10.) Confirmed, or. [I confirm the finding and sentence of the Court, but mitigate er remit or commute Date. (Signature of confirming authority.) [Instruction. — Space of at least half a page is (o be loft 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 bo obtainod."] (11.) On. the the Court re-nssumble by order of_ of re-considering tiicir 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, murkod signed by the President, and attached to tho proceedings. of a non- 9 the case ;e. lavo made , as the 18 months, with pay ation, here jh he ha& ension on >rfeiture8. ,18. itigate &r hority.) B remarks each case ible under d consont _o' clock, e purpose ictions to quiring a signed by ^ % .III" 'I 'ill, ■ti T5 The Court linving attentively considered the obsorvations of thocon- ReTiaed find- firming ofticor and the whole of the proccodiug.s, '"Sf- a. do now revoke their former finding, and are of opinion, &c., I ., • ■ ■ -.■■■•• or, • b. do now revoke their former sentence, and now sentence the Rerised sen- prit^oner, &c., &c. tenee. or, c. do now revoke their former finding and sentence. The Court Revised find- are now of opinion, Ac, &c, >ng- d. do now respectful!}' adhere to their former sentence [finding Revised sen- and sentoncej. tence. Signed at_ .. thirty 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) Becommendation to MEacy. (See section 53 (9) of the Act )* [Imtruction. — When.the court havepanaed judgment, and denire to remark on the conduct of the parties before them ; or on the manner in which a particular witncHS haa delivered his teslimony, Ac,, they are to embody their views in a separate letter, to be signed by the President, and forwarded witii 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 on the court-martial has been ordered to assemble at .day of_ 18 , for the trial of . of the regiment. I do hereby summon and. reijuire you A. B. to attend, as a witness, the sitting of the said court at on the day of , at o'clock in the forenoon [uiid to bring with you the documents horein-aftor mentioned, namely, J, and so to attend from day today until you shall bo duly discharged J whereof you shall fail at your peril. Given under my hand at on the day of 18 .. (Sitjnature) Deputy or officiating Judge- Advocate (or President). • Chapter VI. ADMINI8Ta.\TI0N OF OATHS. 'I I, '52 When a J. A. is 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 evidence, and that you will duly administer justice according to the Army Discipline and Eogulation 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 pex'son 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 «t 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. Qath of Deputy or Officiating Judge Advocate. An oath shall be administered to the Deputy J. A., or person officiating as J. A., by the President, or by some member of the court authorised by the President, in the following form: — " You, A.B., do swear that you will not, upon any account whatsoever, disclose or discover the vote or opinion of any particular member of this C. M., unless thereupon required in duo course of law; and that you will not, unless it be necessary for the due discharge of your official duties, disclose the sentence of the court until it shall bo duly confirmed. So help you GOD." Oath of Officer in Attendance. An oath shall be administered to an officer attending for the purpose of instruc- tion by the President, or by 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 • — '• You, A.B., do swear, that you will not, on any account or nt any time whatso- ever, disclose the vote or opinion of any particular member of this 0. M. and that you will not divulge tho finding or eentonce of this C M. until it is duly confirmed. So help you God." Oath of Shorthand Writer. An oath shall be administere ^ to a shorthand writer by the President or by the Deputy J. A., or person olficialing as J. A., or by some member of tho court authorised by the President, in the following form : — " You, A.B., do swear that you will take down, to the beat of your power, (heevi. dence to be given before this court, and will faithfully and truly tranacribo the same So help you GOD." Oath of Interpreter. An oath shall bo 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 tho President, in tho following form : — y momber President ent. ' try the administer 3e, without livulge the r that you -he vote or due course oath, or is ncority of bjected to, lall permit prescribed ''■■■'' ' " ■ jmed to be . .; ....,,,,'■_ ■' ' ■ • ■ ■■ ', ■ ■ . g as J. A., esident, in . r, disclose M., unless ' . ' : . ' ^ .. ■ ■■ necessary ourt until I .■■.• '"' ■ ' of instruc- . A., or by irm • — ne whalso- , aiui that confirmed. or by the aiilhurisod '^or, theevi. ) the same 10 Deputy jed by tho "I % 1(11' I ''ii t n " You, A.B., do Bwear that you will, to the best of your abilit}', faithfully andi truly interpret and translate as you shall be required to do touching the matter now before the court. So help you GOD." Declaration of Member of Court Martial in lieu of Oalh. Where a solemn declaration is allowed, under section 52 of the Act, to be made by a member of a t). M., a solemn declaration shall be made before the officer 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 acconling to the evidence, and that I will duly administer justice according to the Army Discipline and Jlegulation 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 (J. M., unless thereunto required in due course of law." Declaration in Ueu of Oath in other Cases. Where, in any other ciiye. a solemn declaration is allowed, under section 52 of the Act, to be made, a solemn d.'iclaration shall be made before the officer authorised to administer the outh. The form of solemr. dccluration for the Deputy J. A., or person officiating as J. A., shall be as follows: — "I, il.-B., 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 confirmed." 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 C. 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 1 will laUo down, to the best of my power the evidence to be given before this court, and will faithfully and truly transcribe the same." Declaratim of Interpreter. The form of solemn declaration for an interpreter shall bo as follows : — " I, AJ?, do solemnly declare thai I will, to the best of my ability, faithfully and truly interpret and translate as I shall be required to do, touciiing 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 Lo tho truth, the whole iruth, and nothing but the truth. So help you GOD." 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 authorised to administer the oath, in the follow- ing form : — I, A B., do solemnly declare that the evidence which I shall give before this ■court shall be the truth, the whole truth, and nothing but the truth. le declara- ^lio follow- before this i I n TABLE OF CONTENTS. cnAPTER I. Introductory— Comparison between Civil, Military and Martial Law. CnAPTEU II. Martial Law CHAPTER III. Military Law — Short history of Short description of the Army Discipline Act.. Definitions of certain expressions Persons subject to the Act.. Maintenance of Discipline Course of procedure on commission of offences. Power of Commanding OflScer Provost Marshal Page 5 10 12 13 13 15 16 18 19 CHAPTER IV. Courts Martial — Descriptions of, convening. Composition Scale of punishments Forfeitures, stoppages and fines Pen,^U ptoppages from pay Forfeiture of service towards pension, etc... Jurisdiction of Courts Marlial CHAPTER V. Preliminaries to Trial Framing charges Order for the assembly of the Court Warning the prisoner for trial Witnesses «. The Judge Advocate The Prosecutor The Prisoner Interpreter The Court The Proceedings Confirmation of Courts Martial Disposal of the Proceedings 20 20 22 23 24 24 25 27 2-7 29 30 30 31 33 33 33 33 35 41 43 -, 1 * 0< H il 80 CHAPTER Vr. Page Crimes and punishments 41 Remarks on certain crimes and piinishmonts 50 CHAPTER VII. Courts of Inquiry 5A CHAPTER VIII. Evidence 56 APPENDIX. • , Form of Proceedings of a G. 0. M 67 , Administration of Oaths and Solemn Declarations 76 ) Page 41 50 5i 56 67 76