Powers of district or garrison

a general court-martial to sentence any soldier to such punishments as shall accord with the provisions of this Act:—PROVIDED always, that no such district or garrison courtmartial shall have power to try a commissioned officer, or to pass any sentence of death or penal servitude.

courts martial.

Powers of regimental or detach

10. A REGIMENTAL or detachment court-martial shall consist of not less than five commissioned officers, unless it is found to be impracticable' to assemble that number, in ment courts which case three shall be sufficient, and shall have power to sentence any soldier to corporal punishment, or to imprisonment, and to forfeiture of pay, in such manner as shall accord with the provisions of this Act.

martial.

Courts-mar

march or in

&c.

11. IN cases of mutiny, and insubordination [accompanied with personal violence,] or other offences committed on the line tial on line of of march, or on board any transport ship, convict ship, troop ships, merchant-vessel, or troop ship, not in commission, the offender may be tried by a regimental or detachment court-martial, and the sentence may be confirmed and carried into execution on the spot by the officer in the immediate command of the troops, provided that the sentence shall not exceed that which a regimental court-martial is competent to award.

Powers of detachment

12. IT shall be lawful for any officer commanding any detachment or portion of troops serving in any place beyond seas where it may be found impracticable to assemble a Courts-mar- general court-martial, upon complaint 5 made to him of any offence committed against the property or person of any

general

tial.

In the American Code, where the Court cannot proceed with less than s maximum of members, where "that number can be convened without manifest injury to the Service," the convening decision has been held conclusive, and the proceedings of the Court valid, though a less number be summoned. Martin v. Molt, 12 Whea. Rep. pp. 34-35. Chap. IX. par. 8. 2 Inserted in 1867.

3 See Sec. 30 and Art. 135. A Soldier in Billet after the day's march was held by Judge Advocate Grant to be not included in this term, May 1834.

This is a Drum-head Court-martial, which on Foreign Service may be conveniently resorted to. The Sentence may be confirmed and carried into execution on the spot, but the measure of Punishment must not exceed that which the Regimental Court can award. Though this Court appears to have been resorted to in the Peninsular War, it was not authorised by the Mutiny Act till 1830. Compare 10 Geo. III. with 11 Geo. IV. c. 74, s. 10; and see 7 Vie. c. 10, s. 10. The resort to such Courts in time of peace would be reprehensible. Vol. II. p. 177 (Note). Chap. IV. par. 23, and Chap. X. par. 12. The history of the introduction of this section, in pp. 662-666, and in Vol. VI. of Wellington Despatches. IV. p. 13; Chap. IX. p. 12; Chap. XI. p. 11.

1814, is given in Vol. II. Chap. VII. p. 23; Chap.

inhabitant of or resident in any country in which such troops are so serving, by any person serving with or belonging to Her Majesty's armies, being under the immediate command of any such officer, to convene a detachment general court-martial, which shall consist of not less than three commissioned officers, for the purpose of trying any such person;-and every such court-martial shall have the same powers in regard to sentence upon offenders as are granted by this Act to general courts-martial:—PROVIDED always, that no sentence of any such court-martial shall be executed until the general commanding the army of which such detachment or portion forms part shall have approved and confirmed the same.

As to swearmoning of

ing and sum

witnesses.

13. ALL general and other courts-martial shall administer an oath to every witness or other person who shall be examined before such court' in any matter relating to any proceeding before the same ;- -and every person, as well civil as military, who may be required to give [or produce"] evidence before a court-martial, shall, in the case of general courtsmartial, be summoned by the judge advocate general, or his deputy, or the person officiating as judge advocate, and in the case of all other courts-martial by the president of the court; and all persons so summoned and attending as witnesses before any courtmartial shall,3 during their necessary attendance in or on such courts, and in going to and returning from the same, be privileged from arrest, and shall, if unduly arrested, be discharged by the court out of which the writ or process issued by which such witness was arrested; or if such court be not sitting, then by any judge of the superior courts of Westminster or Dublin or of the Court of Session in Scotland, or of the courts of law in the East or West Indies, or elsewhere, according as the case shall require, upon its being made to appear to such court or judge, by any affidavit in a summary way, that such witness was arrested in going to or attending upon or returning from such court-martial;—and all witnesses so duly summoned as aforesaid who shall not attend on such courts, or attending shall refuse to be sworn, or being sworn shall refuse to give evidence, [or not produce the documents under their power or control required to be produced by them,] or to answer all such questions as the court may legally demand of them,

1 Before the full Court, not a "deputation" of one or two members to take evidence. * Inserted in 1849. * These (like others) witnesses (before other Courts) are entitled to their reasonable expenses in going to or from, or remaining at, the place of trial. The Home Office scale for the Witnesses at Civil Criminal trials is usually adopted by the War Office. As to the section generally, see Chap. IX. pars. 47 and 49. 4 Inserted in 1849.

shall be liable to be attached in the Court of Queen's Bench in London or Dublin, or in the Court of Session or sheriff or stewart courts in Scotland, or in courts of law in the East or West Indies, or in any of Her Majesty's colonies, garrisons, or dominions in Europe or elsewhere respectively, upon complaint made, in like manner as if such witness, after having been duly summoned or subpoenaed, had neglected to attend upon a trial in any proceeding in the court in which such complaint shall be made PROVIDED always, that nothing in this Act contained shall be construed to render an oath necessary in any case where by law a solemn affirmation may be made instead thereof: 1IT shall be lawful for the to shorthand president of any court-martial to administer an oath to a writer. shorthand writer to take down according to the best of his power, the evidence to be given before the court.

Oath to be administered

No second

trial for the same offence,

may be

14. NO officer or soldier who shall be acquitted or convicted of any offence shall be liable to be tried 2 a second time by the same or any other court-martial for the same offence; but reversion and no finding, opinion, or sentence given by any court-martial, and signed by the president thereof, shall be revised, more than once, nor shall any additional evidence in respect of any charge on which the prisoner then stands arraigned be received by the court on any revision.

allowed.

ishable with

15. IF any person subject to this Act 3 shall at any time during Crimes pun- the continuance of this Act begin, excite, cause, or join in death. any mutiny or sedition in any forces belonging to Her Majesty's army, or Her Majesty's royal marines, or shall not use his utmost endeavours to suppress the same, [or shall conspire with any other person to cause a mutiny,] or coming to the knowledge of any mutiny or intended mutiny shall not, without delay, give information thereof to his commanding officer; or shall hold correspondence with or give advice or intelligence to any rebel or enemy of Her Majesty, either by letters, messages, signs, or tokens, in any manner or way whatsoever; - or shall treat or enter into any terms with such rebel or enemy without Her Majesty's license,

1 Added in 1865.

2 The words, "tried a second time for the same offence," must be noted. The rule of ordinary Criminal Justice is, " that no man be brought into jeopardy more than once for the same offence," Rex v. Taylor, 3 Bar. and Cress. p. 502. If the first be not a trial completed, the plea would not (I apprehend) avail. Winsor v. the Queen, 6 B. and S. p. 143, and 7 ib. p. 491. As to the history of the section see Vol. I. pp. 165-167, and Vol. II. p. 361; Chap. II. par. 3, ante; and Chap. IX. pars. 45 to 75.

3 Compare this section with section 1 of the Mutiny Act, 1716, Appendix A, 4 Inserted in 1867.

ante.

or license of the general or chief commander; have himself before the enemy;

or shall misbe

or

or shall shamefully abandon or deliver up any garrison, fortress, post, or guard committed to his charge, or which he shall have been commanded to defend ; shall compel the governor or commanding officer of any garrison, fortress, or post to deliver up to the enemy or to abandon the same; or shall speak words or use any other means to induce such governor or commanding officer, or others, to misbehave before the enemy, or shamefully to abandon or deliver up any garrison, fortress, post, or guard committed to their respective charge, or which he or they shall be commanded to defend; or shall desert Her or shall leave his post before being reguor shall sleep on his post; or shall strike or shall use or offer any violence against his superior officer, being in the execution1 of his office, or shall disobey any lawful command of his superior officer; or who being confined in a military prison shall offer any violence against a visitor or other his superior military officer, being in the execution of his office; 3-all and every person and persons so offending in any of the matters before mentioned, whether such offence be committed within this realm or in any other of Her Majesty's dominions, or in foreign parts, upon land or upon the sea, shall suffer death, or penal servitude; —or such other punishment as by a court-martial shall be awarded:

Majesty's service; larly relieved;

2

PROVIDED always, that any non-commissioned officer or soldier attested for or in pay in any regiment or corps who shall, without having first obtained a regular discharge therefrom, enlist himself in Her Majesty's army, may be deemed to have deserted Her Majesty's service, and shall be liable to be punished accordingly.

16. IN all cases where the punishment of death shall have been awarded by a general court-martial or detachment general courtmartial it shall be lawful for Her Majesty, or, if in any place out of the United Kingdom or British Isles, for the commanding officer

1 A non-combatantt-as a Surgeon-is entitled to the protection of this section (L. O. to Adm. 26th Feb. 1842). The history of this paragraph, introduced in 1728, is found in the letters, &c., printed Vol. I. pp. 511–515. "Murder" would not be triable under this section, but under the Homicide Act, 1862. See Vol. I. p. 207, and Vol. II. pp. 147–153. 2 Chap. II. par. 27. 3 Inserted in 1846.

Only one-not more punishments. Thus, in 1815, the L. O. held (1) “ Imprisonment, and (2) Corporal Punishment, not warranted (Hough, 1825, p. 90, note); but the Commanding Officer, by confirming the legal, and not the illegal, could make the sentence valid. Hutton v. Blaine, 2 Serj. and Rawle, p. 75.

This discretion cannot be taken from the Court except by the authority of Parliament, Vol. I. p. 518. The King v. Suddis, 1 East. Rep. p. 310.

This principle is as old as the Mutiny Act, but this proviso was inserted in 1783.

Judgment of commuted

having authority to confirm the sentence, instead of cansing such sentence to be carried into execution, to order the offender death may be to be kept in penal servitude1 for any term not less than for penal ser- five years, or to suffer such term of imprisonment, with or other punish- without hard labour, and with or without solitary confinement, as shall seem meet to Her Majesty, or to the officer commanding as aforesaid.

vitude or

ments.

Embezzle

ment, &c., of

stores pu

nishable by

penal servi tude, or by

fine, impri

sonment, &c.

17. ANY officer or soldier of Her Majesty's army, or any person employed in the War Department, or in any way concerned in the care or distribution of any money, provisions, forage, arms, clothing, ammunition, or other stores belonging to Her Majesty's army or for Her Majesty's use, who shall embezzle, fraudulently misapply, wilfully damage, steal, or receive the same, knowing them to have been stolen, or shall be concerned therein or connive thereat, may be tried for the same by a general courtmartial, and sentenced to be kept in penal servitude for any term not less than five years, or to suffer such punishment of fine, imprisonment, with or without hard labour, dismissal from Her Majesty's service, reduction to the ranks if a warrant or noncommissioned officer, as such court shall think fit, according to the nature and degree of the offence; and every such offender shall, in addition to any other punishment, make good at his own expense the loss and damage sustained, and in every such case the court is required to ascertain by evidence the amount of such loss or damage, and to declare by their sentence that such amount shall be made good by such offender; and the loss and damage so ascertained as aforesaid shall be a debt to Her Majesty, and may be recovered in any of Her Majesty's courts at Westminster or in Dublin, or the Court of Exchequer in Scotland, or in any court in Her Majesty's colonies, or in India, where the person sentenced by such court-martial shall be resident, after the said judgment shall be confirmed and made known, or the offender, if he shall remain in the service, may be put under stoppages not exceeding one-half of his pay and allowances until the amount so ascertained shall be recovered.

As to the necessity for this Statutory Power, which was first given in 1728, see Reports of Lord Hardwicke (then Sir P. Yorke), Vol. I. pp. 509–514. The section was amended in 43 Geo. III. c. 20, s. 4. Chap. II. par. 12; Chap. X. par. 16.

Embezzlement of public stores, &c., was a Military offence, by the earlier Articles of War (See s. 13 Art. 1 of 1749), and in 1809-1810 these sections were brought into the Mutiny Act. See Vol. I. pp. 181-182.

The same limit existed in 1749, but the Soldier could be imprisoned or whipped as a punishment.