The rules of the service require that the president of every general court-mar tial should be a field-officer, if one of that rank can be obtained ; but, in no case, must he be inferior in rank to a captain. And it should be observed, that none of the members are to be subalterns when a field-officer is to be tried. As the presi dent has the power of reviewing the pro ceedings, it is prescribed, and the pro priety of the regulation is manifest, that he be not the commander-in-chief or governor of the garrison where the offend er is tried. A judge-advocate is appointed to conduct the prosecution in the name of the sovereign, and act as the recorder of the court.
No general courts-martial held in Great Britain or Ireland are to consist of less than thirteen or nine commissioned officers, as the case may require ; but in Africa and in New South Wales the number may be not less than five ; and, in all other places beyond sea, not less than seven. Commonly, however, a greater number are appointed, in order to guard against accidents arising from any of the members being found disqualified or falling sick. An uneven number is purposely appointed, in order that there may be always a casting vote ; and the concurrence of two-thirds of the members composing the court is requisite in every capital sentence. No officer serving in the militia can sit in any court-martial upon the trial of an officer or soldier in the regular army ; and no officer in the regulars is allowed to sit in a tial on the trial of an officer or private serving in the militia. Likewise, when marines, or persons in the employment of the East India Company, are tried, the court must be composed of members con sisting in part of officers taken from the particular service to which the offender belongs. The members both of general and regimental courts-martial take rank according to the dates of their com missions ; and there is a particular regu lation for those who hold commissions by brevet. [BREVET.] They are always sworn to do their duty, and witnesses are examined upon oath.
In the accusation the crime or offence must be clearly expressed, and the acts of guilt directly charged against the accused; the time and place must be set forth with all possible accuracy ; and, at a general court-martial, a copy of the charge must be furnished by the judge-advocate to the accused, that he may have full opportu nity of preparing his defence. The ac cused has the power of challenging any of the members, but the reason of the chal lenge must be given, and this must be well founded, otherwise it would not be admitted ; for the ends of justice might be often defeated from the impossibility of getting members to replace those who were challenged.
The court must discuss every charge brought against the accused, throwing out only such as are irrelevant; and judgment must be given either upon each article separately, or the decision of the court upon all may be included in one verdict. The evidence is taken down in writing, so that every member of the court may have the power occasionally of comparing the proceedings with his own private notes ; and he is thus enabled to become com pletely master of the whole evidence before he is required to give his opinion. At the last stage of the trial the decisions of the several members are taken in succession, beginning with the junior officer on the court : a regulation adopted obviously in order to insure the unbiassed opinions of those who might otherwise be influenced by deference to the members who are superior to them in age or Regimental or garrison courts-martial are appointed by the commanding officer, for the purpose of inquiring into criminal matters of the inferior degrees ; and they are empowered to inflict corporal punish ments to a certain extent only. The
articles of war require that not less than five officers should constitute a court of this nature, or three when five cannot be obtained. The practice is to appoint a captain as president, and four or two subalterns as the case may be ; the court has no judge-advocate to direct it; there fore the members must act on their own responsibility. The proceedings are to be taken down in writing, and the sentence cannot be put in execution till it has been confirmed by the commanding officer, or by the governor of the garrison.
No commissioned officer is amenable to a regimental court-martial ; but if an in ferior officer or private should think him self wronged by such, he may, on appli cation to the commanding officer of the regiment, have his cause brought before a regimental court-martial, at which, if the complaint is judged to be well founded, he may on that authority require a general court-martial to be held.
An appeal may be made from the sen tence of a court-martial by the party who conceives that he has suffered injustice : the appeal lies from a regimental to a general court-martial ; and from this to the supreme courts of law in the kingdom. It is easy to imagine, however, that the superior court will refuse to receive the appeal unless there should be very satis factory evidence that the merits of the case have not been fairly discussed.
After the sentence of the court-martial has been pronounced, it is transmitted to the king, who may either confirm it, or, if sufficient reason should exist, may, on the ground that the process is not complete till the royal sanction has been given to the judgment, return it to the court for revision ; or again, by virtue of his pre rogative, he may remit the punishment awarded.
The chief distinction between the trial by court-martial and by jury is, that in the latter the verdict must be unanimous, while in the former the concurrence of a majority only in opinion determines the verdict. The writers on military law have endeavoured to show that the advan tages in this respect are on the side of the court-martial they contend that every member of such court delivers the opinion which he has formed from the evidence before him ; while it may frequently happen in other courts that, in order to procure unanimity, some of the jury must surrender their own opinions. It may be observed, however, that in such a case the decisions are at least of equal value, since, in the event of a concession of private judgment, the verdict is in fact formed on the opinion of the majority.
(Grose, Military Antiquities ; Tytler, Essay on Military Law ; Samuel, His torical Account of the British Army ; Simmons, On the Practice of Courts Martial, with Supplement.)