John Scott

“ Whether upon active service or not, a soldier also becomes liable to the punishment of death who mutinies or incites to or joins in or connives at a mutiny, who uses or offers violence to or defiantly disobeys the lawful command of his superior officer when in the execution of his office. Penal servitude is the maximum punishment for various acts and irregularities upon active service not distinctly of a treacherous or wilfully injurious character, for using or offering violence or insubordinate language to a superior, or disobeying a lawful command when upon active service. ”

“ A person who has suffered injustice may appeal to the king’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 sovereign and the military authorities that the law shall be complied with (see Judge Advocate General) . ”

“ When a person subject to military law commits an offence he is taken into military custody, which means either arrest in his own quarters or confinement. He must without unnecessary delay be brought before his commanding officer, who upon investigating the case may dismiss the charge, if in his discretion he thinks it ought not to be proceeded with, or may take steps to bring the offender before a court martial. ”

“ A non-commissioned officer may be sentenced to be reduced to a lower grade or to the ranks, and where sentenced to penal servitude or imprisonment the tribunal also has power to deprive him of his seniority. The Army Council in England, 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 permanent grade—in other Words, to forfeit his acting rank. ”

“ The prisoner is allowed to address the court in his own defence.
The Army Act prescribes the maximum punishment which may be inflicted in respect of each offence. That of death is incurred by various acts of treachery or cowardice before the enemy, or by, when on active service, interfering with or impeding authority, leaving without orders a guard or post, or when sentry sleeping or being drunk on a post, plundering or committing an offence against the person or property of an inhabitant, intentionally causing false alarms, or deserting. ”

“ The Mutiny Act legislated for offences in respect of which death or penal servitude could be awarded, and the Articles of War, while repeating those provisions of the act, constituted the direct authority for dealing with offences for which imprisonment was the maximum punishment as well as with many matters relating to trial and procedure. ”

“ In time of peace all persons who belong to the military class in most European continental countries are judged by military law and by military courts. There is also in most continental countries an intermediate stage between war and peace, known as in état de siege, which may be declared for a fixed period for a district, or even a city, by reason of domestic insurrection or the presence of an enemy. ”

“ Soldiers not on active service, says the Swedish report, should be answerable for infractions of common law under the jurisdiction of the civil courts. All infractions of military order or discipline committed by soldiers, whether on active service or no, should be judged by military courts. In time of war, it is equally admitted, Competence of Military Courts. military courts must judge all offences, even offences at common law, committed by soldiers forming part of an army on campaign. The difference lies in regard to offences committed in time of peace. ”

“ 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 inquiry into the facts, who is the prisoner’s commanding officer, or who has a personal interest in the case. ”

“ The officer must be satisfied that it is not practicable, with due regard to the public service, to try the person by an ordinary court martial. The quorum of the court is three, if consistent with military exigencies, and each member must have held a commission for not less than a year. The quorum may be reduced when the public service requires it. The procedure of ordinary courts martial is observed as far as possible, and the proceedings always should be in writing when possible. ”

“ The confirming authority in the case of a regimental court is the commanding officer, in that of a district court martial an officer authorized to convene general courts martial or some officers deriving authority to confirm the findings and sentences of district courts martial, and in that of a general court, if held in the United Kingdom, His Majesty, and if abroad in most cases the general officer commanding. ”

“ The Army Act, on the other hand, is a fixed permanent code. But constitutional traditions are fully respected by the insertion in it of a section providing that it shall come into force only by virtue of an annual act of parliament. This annual act recites the illegality of a standing army in time of peace unless with the consent of parliament, and the necessity nevertheless of maintaining a certain number of land forces (exclusive of those serving in India) and a body of royal marine forces on shore, and of keeping them in exact discipline, and it brings into force the Army Act for one year. ”

“ The Army Act applies to European officers and soldiers serving in India in the same manner as to the rest of the army, but natives of India are governed by their own Articles of War, and in the case of civil offences they are dealt with according to the provisions of the Indian penal code. ”

“ A special military tribunal in Germany judges the officials attached to the army. Courts of honour exist in Russia, Germany, Bavaria, Württemberg, Austria-Hungary and Spain. Great Britain and the United States have the system of a “court of inquiry.” ”

“ Many military men regretted its abolition, and maintained 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 earliest military law still in force is found in Norway and Denmark, and dates from 1683, while England and Sweden Continental Military Law.date from 1881. Sweden has a military penal code, and England is ruled by the Army Act. ”