Page:Encyclopædia Britannica, Ninth Edition, v. 16.djvu/316

Rh 298 MILITARY LAW to billeting or the impressment of carriages, making a false answer to a question put upon attestation, being concerned in unlawful enlistment, using traitorous or disloyal words regarding the sovereign, disclosing any circumstance relating to the numbers, position, movements, or other circumstances of any part of her majesty s forces so as to produce effects injurious to her majesty s service, fighting or being concerned in or conniving at a duel, attempting suicide, obstructing the civil authorities in the apprehen sion of any officer or soldier accused of an offence, any conduct, disorder, or neglect to the prejudice of good order and military dis cipline, any offence which if committed in England would be punish able by the law of England. There is another offence which can be committed by officers only, namely, &quot;scandalous conduct unbecom ing the character of an officer and a gentleman.&quot; It necessitates cashiering, a punishment which in the case of an officer may be awarded as an alternative to imprisonment in several other instances. There is also an offence peculiar to officers and non-commissioned offi/ers, that of striking or ill-treating a soldier or unlawfully detaining his pay. A sentence of cashiering as distinguished from that of dismissal in the case of an officer involves an incapacity to serve the crown again. An officer may be also sentenced to forfeiture of seniority of rank and to reprimand or severe reprimand. A non-com missioned officer may be sentenced to be reduced to a lower grade or to the ranks, and where sentenced to penal servitude or imprisonment is deemed to be reduced to the ranks. The com- mander-in-chief at home or the commander-in-chief in India or in either of the presidencies may also cause a non-commissioned officer to be reduced to a lower grade or to the ranks. An acting non commissioned officer may be ordered by his commanding officer for an offence or for inefficiency or otherwise to revert to his per manent grade, in other words, to forfeit his acting rank. It will have been observed that persons subject to military law ire liable to be tried by court martial for offences which if com mitted in England would be punishable by the ordinary law, and to suffer either the punishment prescribed by the ordinary criminal law or that authorized for soldiers who commit offences to the prejudice of good order and military discipline. The effect of the latter alternative is that for many minor offences for which a civilian is liable to a short term of imprisonment, or perhaps only to a fine, a soldier may be awarded two years imprisonment with hard labour. A court martial, however, cannot take cognizance of the crimes of treason, murder, manslaughter, treason-felony, or rape if committed in the United Kingdom. If one of these offences be committed in any place within her majesty s dominions other than the United Kingdom or Gibraltar, a court martial can deal with it only if it be committed on active service or in a place more than 100 miles from a civil court having jurisdiction to try the offence. With regard to all civil offences the military law, it is to be understood, is subor dinate to the ordinary law, and a civilian aggrieved by a soldier in respect of a criminal offence against his property or person does not forfeit his right to prosecute the soldier as if he were a civilian. The crimes for which soldiers are most usually tried are desertion, absence without leave, loss of necessaries, violence or insubordina tion to superiors, drunkenness, and various forms of conduct to the prejudice of discipline. The punishments are generally speaking gauged as much with regard to the character and antecedents of the prisoner as to the particular offence. For a first offence of an ordinary kind a district court martial would give as a rule fifty-six days imprisonment with hard labour, for a second or graver crime eighty-four days. There are not many instances in which the period of imprisonment exceeds six months. Corporal punishment, which had been practically limited to offences committed upon active service, and in 1879 to crimes punishable with death, was finally abolished in 1881, and a summary punishment substituted. This summary punishment includes the liability for a term of three months to be kept in iron- fetters and handcuffs, and while so kept to be attached to a fixed object so that the offender may remain in a fixed position for a period not exceeding two hours in the day for not more than three out of any four consecutive days and for not more than twenty-one days in the aggregate. The offender may also be subjected to the like labour and restraint, and may be dealt with in the same manner as if sentenced to hard-labour imprison ment. But these summary punishments are to be inflicted so as not to cause injury to health or leave a permanent mark on the offender. The first instances in which this kind of punishment was inflicted occurred during the campaign of 1882 in Egypt. Estimated by the results, the abolition of flogging does not appear to have injuriously affected discipline, the conduct of the troops in Egypt having been exceptionally good. The practice of marking a soldier with the letters &quot; D &quot; (deserter) or &quot;BC&quot; (bad character), in order to prevent his re-enlistment, was abolished about a dozen years ago in deference to public opinion, which erroneously adopted the idea that the &quot;marking&quot; was effected by red-hot irons or in some other manner involving torture. Military men for the most part regret its abolition, and maintain that if the practice were still in force the army would not be tainted by the presence of many bad characters who find means of eluding the vigilance of the authorities and enlisting after previous discharge. The course of procedure in military trials is as follows. When a soldier is remanded by his commanding officer for trial by a district or general court martial, a copy of the charge, together with the statements of the witnesses for the prosecution (called the sum mary of evidence), is furnished to him, and he is given proper oppor tunity of preparing his defence, of communicating with his witnesses or legal adviser, and of procuring the attendance of his witnesses. Further, if he desires it, a list of the officers appointed to form the court shall be given him. Any officer is disqualified to sit as a member who has convened the court, who is the prosecutor or a witness for the prosecution, who has made the preliminary inqury into the facts, who is the prisoner s commanding officer, or who has a personal interest in the case. The prisoner may also object to any officer on the ground of bias or prejudice similarly as a civilian might challenge a juror. Except as regards the delay caused by the writing out of the evidence, the procedure at a court martial is very much the same as that at an ordinary criminal trial, the examination and cross-examination of the witnesses, addresses of the prosecutor and prisoner, and the rules governing the admission or rejection of evidence being nearly identical. At a general court martial, and sometimes at a district court, a judge advocate repre senting the judge advocate general officiates, his functions being very much those of a legal assessor to the court. He advises upon all points of law, and sums up the evidence just as a judge charges a jury. When the prisoner pleads guilty the court finds a verdict accord ingly, reads the summary of evidence, hears any statement in mitigation of punishment, and takes evidence as to character before proceeding to pass sentence. The sentence is that of the majority of the court, except where death is awarded, when two-thirds of the members in the case of a general court martial and the whole in that of a field general court martial must concur. When an acquittal upon all the charges takes place the verdict is announced in open court, and the prisoner is released without any further proceeding. When the finding is &quot;guilty,&quot; evidence as to character is taken, and the court deliberates in private upon the sentence, but the result is not made known until the proceedings are confirmed and promulgated. No conviction or sentence has any effect until it is thus confirmed by the proper authority. The confirming authority in the case of a regimental court is the commanding officer, in that of a district court martial the general officer commanding the district, and in that of a general court, if held in the United Kingdom her majesty, and if abroad in most cases the general officer commanding. The confirming authority may order the reassembling of the court in order that any question or irregularity may be revised and corrected, but not for the purpose of increasing a sentence. He may, however, of his own discretion, and without further reference to the court, refuse confirmation to the whole or any portion of the finding or sentence, and he may mitigate, commute, or entirely remit the punishment. In the case of a general court martial the proceedings are sent to the judge advocate general, who submits to the queen his opinion as to the legality of the trial and sentence. If they are legal in all respects he sends the proceedings to the commander-in-chief, upon whom rests the duty of advising the queen regarding the exercise of clemency. In addition to confirmation, however, every general or district court martial held out of India has another ordeal to go through. It is reviewed and examined in the office of the judge advocate general, and any illegality that may be disclosed is corrected and the prisoner is relieved of the con sequences. To a certain extent a protection against illegality also exists in the case of regimental courts martial. A monthly return of those held in each regiment is laid before the general command ing the district or brigade, by whom any question that might appear to him doubtful would be referred to the adjutant general or tin- judge advocate general for decision. It is to be noted, however, that the judge advocate general, although fulfilling duties which are in their nature judicial, is only an adviser. He is not actually a judge in an executive sense, and has no authority directly to interfere with or correct an illegal conviction. In many cases the law thus pro vides no remedy for an officer or soldier who may have been wronged by the finding or sentence of a court martial, for instance, through a verdict not justified by the evidence or through a non- observance of the rules and practice prescribed for these tribunals. A person who has suffered injustice may appeal to the Queen s Bench division of the high court of justice. But, speaking generally, that tribunal would not interfere with a court martial exercising its jurisdiction within the law as regards the prisoner, the crime, and the sentence. In most cases, therefore, the virtual protector of an accused person against illegality is the judge advocate general, who personally advises the queen and the military authorities that the law shall be complied with. As a privy councillor and member of the House of Commons that officer is responsible both to the queen and to parliament for the right and due administration of military law ; and, notwithstanding his want of direct executive authority, it is not to be contemplated that any military officer would hesitate to act upon advice given by him with reference to a