Page:Encyclopædia Britannica, Ninth Edition, v. 6.djvu/549

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The history of English courts affords a remarkable illustration of the continuity that characterizes our institutions. It would hardly be too much to say that all the courts now sitting in England may be traced back to a common origin, and at any rate the higher courts are all offshoots from the same original judicature. Leaving out of account the local courts, we find the higher jurisdiction after the Conquest concentrated along with all other public functions in the king and council. The first sign of a separation of the judicial from the other powers of this body is found in the recognition of a Curia Regis, which may be described as the king s council, or a portion of it, charged specially with the management of judicial and revenue business. In relation to the revenue it became the Exchequer, under which name a separate court grew up whose special field was the judicial business arising out of revenue cases. By the Great Charter, the inconvenience caused by the curia following the king s person was remedied, in so far as private litigation was concerned, by the order that common pleas (Communia Placita) should be held at some fixed place; and hence arose the Court of Common Pleas. The Curia Regis, after having thrown off these branches, is represented by the Queen s Bench, so that from the same stock we have now three courts, differing at first in functions, but through competition for business, and the ingenious use of fictions, becoming finally the co ordinate Courts of Common Law of our later history. In one line of development the council becomes, by the addi tion of representatives from counties and boroughs, the Par liament in its two Houses of Lords and Commons. But an inner circle of counsellors still surrounded the king, and in his name claimed to exercise judicial as well as other power ; hence the chancellor s jurisdiction, which became, partly in harmony with the supra-legal power claimed from which it sprang, and partly through the influence of the ecclesi astical chancellors by whom it was first administered, the Equity of English law. Similar developments of the same authority were the Court of Requests (which was destroyed by a decision of the Common Pleas) and the Court of Star Chamber, a Court of Criminal Equity, as it has been called, which, having been made the instrument of tyranny, was abolished in 1641. Even then the productive power of the council was not exhausted; the judicial committee of the Privy Council, established by 2 and 3 Will. IV. c. 92, superseding the previous Court of Delegates, exercises the jurisdiction in appeal belonging to the king in council. The appellate jurisdiction of the Lords rests on their claim to be the representatives of the ancient great council of the realm.  COURT-MARTIAL. Courts-martial have inherited part of the jurisdiction of the old Curia Militaris, or Court of the Chivalry, in which a single marshal and at one time the High Constable proceeded &quot; according to the customs and usages of that court, and, in cases omitted according to the civil law, secitndvm legem armorum &quot; (Coke, 4 Ins. 17). The modern form of the courts was adopted by ordinance in the time of Charles I., when English soldiers were studying the &quot; articles and military laws &quot; of Gustavus Adolphus and the Dutch military code of Arnhem ; it is first recognized by statute in the first Mutiny Act, 1 Will, and Mary c. 5. The royal prerogative of issuing commis sions under the sign-manual for holding courts-martial, although superseded as regards the United Kingdom by the express power to make certain articles of war which the Mutiny Acts confer on the sovereign, still exists as regards courts-martial held abroad. But the Mutiny Acts also provide for the issue to commanders abroad of warrants to convene courts-martial, or to authorize field-officers to con vene them, and even make it lawful in special cases beyond sea for any officer to convene a detachment general court-martial without warrant or commission. The trial of the militia, yeomanry, and volunteers is provided for by &quot;The Volunteer Act, 1863, and &quot;The Regulation of the Forces Act, 1871.&quot; In India the punchayats, or native military tribunals, are frequently employed. All commis sioned officers on full pay, officers of the general staff, although on half staff pay, and officers on brevet rank, are eligible as members of a court-martial. The president of the court is necessarily the senior combatant officer present, unless it has been his duty to investigate the charges against the prisoner ; and it is a general rule that the members should be of equal, or superior, rank to the prisoner. Im partiality is secured by the system of &quot; roster;&quot; i.e., the &quot; tour of duty &quot; is from the senior downwards. The juris diction of courts-martial is not confined to purely military offences, but, as regards felonies and misdemeanours mentioned in the Mutiny Act or the Articles, is concurrent with, though subordinate to, the jurisdiction of the ordinary criminal courts. The Mutiny Act, indeed, directs that soldiers charged with common offences agajnst the peace should be delivered up to the magistrate. Officers tried in an ordinary court can be punished afterwards by court-martial only by cashiering or reduction. There is a wholesome regulation against sending home for trial accused officers or men, except in cases of unavoidable necessity, but the jurisdiction extends to offences Avherever committed. No court-martial can sit in one of H. M. ships in commis sion, but the &quot; Naval Discipline Act, 1866, &quot; subjects land forces on board to its provisions. Half-pay officers are not subject to martial law, but it is thought they ought to be made so, as they derive advantage from retaining their commissions. Even the licensed sutlers, who follow the autumn manoeuvres, are under the Mutiny Act. So are paid recruiting officers, though not themselves enlisted, and, to a certain extent, the &quot; army reserve.&quot; But a prisoner of war ou parole cannot be brought to trial, and all mili tary offences prescribe in three years. From the adminis tration of martial law must carefully be distinguished the procedure by court-martial authorized by the 143d Article of War in places where there is no &quot; form of civil judicature in force/ and with regard to civil crimes. In such cases the court-martial applies the civil law, but; its jurisdiction is ousted wherever there is a competent civil court under the royal authority, although that court may itself administer not British law, but French, or Roman-Dutch, or any other form of colonial law, and may do so