1911 Encyclopædia Britannica/Court-martial

COURT-MARTIAL, a court for the trial of offences against military or naval discipline, or for the administration of martial law. In England 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 “according to the customs and usages of that court, and, in cases omitted according to the civil law, secundum legem armorum” (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 “articles and military laws” of Gustavus Adolphus and the Dutch military code of Arnheim; it is first recognized by statute in the first Mutiny Act of 1689. The Mutiny Act (with various extensions and amendments) and the statutory articles of war continued to be the sources of military law which courts-martial administered until 1879, when they were codified in the Army Discipline and Regulation Act 1879, which was, in turn, superseded by the Army Act 1881. This act is re-enacted annually by the Army (Annual) Act. The constitution of courts-martial, their procedure, &c., are dealt with under Military Law.

Naval Courts-Martial.—The administration of the barbarous naval law of England was long entrusted to the discretion of commanders acting under instructions from the lord high admiral, who was supreme over both the royal and merchant navy. It was the leaders of the Long Parliament who first secured something like a regular tribunal by passing in 1645 an ordinance and articles concerning martial law for the government of the navy. Under this ordinance Blake, Monk and Penn issued instructions for the holding general and ship courts-martial with written records, the one for captains and commanders, the other for subordinate officers and men. Of the latter the mate, gunner and boatswain were members, but the admirals reserved a control over the more serious sentences. Under an act of 1661 the high admiral again received power to issue commissions for holding courts-martial—a power which continues to be exercised by the board of admiralty. During the 18th century, under the auspices of Anson, the jurisdiction was greatly extended, and the Consolidation Act of 1749 was passed in which the penalty of death occurs as frequently as the curses in the commination service. The Naval Articles of War have always been statutory, and the whole system may now be said to rest on the Naval Discipline Act 1866, as amended by the act of 1884. The navy has its courts of inquiry for the confidential investigation of charges “derogatory to the character of an officer and a gentleman.” Under the act of 1866 a court-martial must consist of from five to nine officers of a certain rank, and must be held publicly on board of one of H.M. ships of war, and where at least two such ships are together. The rank of the president depends on that of the prisoner. A judge-advocate attends, and the procedure resembles that in military courts, except that the prisoner is not asked to plead, and the sentence, if not one of death, does not require the confirmation of the commander-in-chief abroad or of the admiralty at home. The court has a large and useful power of finding the prisoner guilty of a less serious offence than that charged, which might well be imitated in the ordinary criminal courts. The death sentence is always carried out by hanging at the yard-arm; Admiral Byng, however, was shot in 1757. The board of admiralty have, under the Naval Discipline Acts, a general power of suspending, annulling, and modifying sentences which are not capital. The jurisdiction extends to all persons belonging to the navy, to land forces and other passengers on board, shipwrecked crews, spies, persons borne on the books of H.M. ships in commission, and civilians on board who endeavour to seduce others from allegiance. The definition of the jurisdiction by locality includes harbours, havens or creeks, lakes or rivers, in or out of the United Kingdom; all places within the jurisdiction of the admiralty; all places on shore out of the United Kingdom; the dockyards, barracks, hospitals, &c., of the service wherever situated; all places on shore in or out of the United Kingdom for all offences punishable under the Articles of War except those specified in section 38 of the Naval Discipline Act 1860, which are punishable by ordinary law. The Royal Marines, while borne on the books of H.M. ships, are subject to the Naval Discipline Acts, and, by an order in council, 1882, when they are embarked on board ship for service on shore; otherwise they are under the Army Acts. By s. 179, sub.-sec. 7, of the Army Act, in the application of the act to the Royal Marines the admiralty is substituted for military authorities.

Authorities.—Simmons, On the Constitution and Practice of Courts-Martial; Clode, Military and Martial Law; Stephens, Gifford and Smith, Manual of Naval Law and Court-Martial Procedure. The earlier writers on courts-martial are Adye (1796), M’Arthur (1813), Maltby (1813, Boston), James (1820), D’Aguilar (1843), and Hough, Precedents in Military Law (1855).