Page:The New International Encyclopædia 1st ed. v. 05.djvu/596

* COUKTS. 312 COURTS. equal or superior to that of the accused. He also avoids detailing the officer who has investi- gated tlic charges against the accused, or one who will be a principal witness against him, or tlic immediate commanding olhcer of the accused. A member of a court of inquiry respecting the matter on which the charges are founded, or an ollicer who has a personal interest in the case, iB not detailed. Court-martial procedure does not differ materially from that of the ordinary criminal courts of the country. This court is, howexer, a judge of the law as well as of the facts of the case it tries. Before it proceeds upon any trial the judge-advocate administers an oath to each member which requires hirn, as a juror, to well and truly try and determine, ac- cording to evidence, the matter. . . before him, etc., and as a judge to duly administer jus- tice without partiality, favor, or affection, etc. This oath includes also one of secrecy as to the votes of members, and of the sentence of the court, until approved. The judge-advocate is also reqiircd to take a similar oath of secrecy. Congress has power to prescribe not only the orgiinization and jurisdiction of courts-martial, but also their practice, and the mode of exe- cuting their sentences. It has secured to the accused a right of challenge to a member of his court, and immunity from a second trial for the same offense. It lias fixed the period of time Aithin which the accused must be prosecuted. The form of procedure for a general court- martial is laid do^^^l in works treating of the subject of military law. SuAiM.RY CouRTS-M.VETiAi, have been insti- tuted for the purpose of trying enlisted men for offenses ordinarily cognizable by garrison or regimental courts-martial, which courts they have practically displaced. This court, as in- stituted in the' United States, has no power to try capital cases or commissioned officers. In England this court has been instituted for the purpose of trying offenses committed in active service, which, xvith due regard to the public service, could not be tried by the ordinary courts. It is competent to try any officers, sol- diers, or other persons subject to military law for any offense, and if composed of three officers, can award all the punishments of a general court-martial. In the United States the sum- mary court is composed of a single officer, and has 'power to try, in time of war, as well as of peace, enlisted men and general prisoners. Its power to punish is limited by statute. The com- manding officers authorized to approve its sen- tences, and superior authority, have power to remit or to mitigate them. G.-VRRisoN Courts-Martiai. are composed of three members and a judge-advocate. All are commissioned officers. They may be appointed by any officer commanding a. garrison, fort, or other place where the troops consist of different corps. The order appointing a garrison court must state the fact giving it jurisdiction. As regards persons, offenses, and limit of power to punish, its jurisdiction does not differ from that of the summary court. In the military seri'ice of the United 'States this court is now seldom assembled except in the cases of non-commis- sioned officers objecting to trial by the summary court, and in the event of the accused refusing to consent in writing to trial by that court, when they may be brought to trial before garrison, regimental, or general eourt.s-martial. The tes- timony taken before a garrison or regimental court-martial is not reilueed to writing. The garrison court-martial corresponds to the dis- trict court in the English Army. The Regimental Court-IMartial is in com- position the same as a garrison court-martial, with the exception that its members and judge- advocate are of the same regiment or corps as the offender. Every officer commanding a regi- ment or corps may appoint this court, which has jurisdiction only over offenders belonging to the same regiment or corps from which the court is appointed. In all other respects this court is like the garrison court-martial. In England regimental courts-martial can be convened by any officer authorized to convene the higher courts, by a commanding officer, or officer in command of two or more detachments, provided he be not imder the rank of captain, and on board a ship, by a commanding officer of any 'rank. After investigating the charge against a prisoner a co:nmanding officer, if he does not dis- pose of the case summarily, must without un- necessary delay, which should not exceed thirty- six hours, either refer the ease to superior authority, order a regimental court-martial to assemble, or apply to a superior to convene a higher court. Clode says: "These three 'gen- eral,' 'district,' and 'regimental' courts are those mder which the army is governed, and by which the military law is administered." A Court op Inquiry is, in its function, anal- ogous to a grand jury in civil procedure. It is convened to examine into the nature of any transaction of, or accusation or imputation against, any officer or soldier in the service. Un- less specially ordered to do so, it does not give an opinion on the merits of the case it investi- gates. A dissenting opinion is authorized. A court of inquiry may be ordered by the President, or by any commanding officer, but shall never be ordered by a commanding officer, except upon a demand by the officer or soldier whose conduct is to be inquired into. It consists of one or more officers, not exceeding three, and a recorder. The order convening' a court of inquiry details the members and recorder by name, specifies the subject matter of inquiry, and directs a report of the facts, or of the facts with opinion. Under the military laws of the United States, a court of inquiry and the recorder thereof have the power to summon witnesses and to take, evidence on oath. This is not so in the English service, where it has no judicial power, and is simply a board directed to collect evidence with respect to a transaction into which the commanding officer himself cannot conveniently inquire. A court of inquiry, rote Sir Charles Napier, "ought gen- erally to be a closed court, no one allowed to enter but such individuals as are called for, and who, being privately examined, are sent out. . It is generally objectionable to make a court of inquiry an open court." MiLiT.Ry Courts of Other Countries. In the army of Germany there are general and regimental courts. In trials of enlisted men a certain proportion of the members of the court are of the rank of the accused. In the Russian Army there is a supreme tribunal at Saint Petersburg, and district and regimental courts- martial. In the French Army individual officers have large powers of imprisonment, and there