himself make inquiry. But now, whenever any inquiry
affects the character or military reputation of an officer
Courts of Inquiry.
or soldier, full opportunity must be given him of being present at the inquiry and of giving any evidence or making any statement, or cross-examining adverse witnesses, or producing witnesses, on his own behalf.
Evidence may now be ordered to be taken on oath if the
assembling officer thinks the case requires it. No proceedings
of a court of inquiry, no confession, statement or answer,
is admissible in a court martial. But an officer or soldier
tried by court martial in respect of matter which has been
the subject of a court of inquiry is entitled to a copy of the
proceedings on payment of the cost of the copy. The
finding and sentence are only valid after confirmation by
the proper military authority. A sentence of death or penal
servitude can only be confirmed by the general or field officer in
command of the forces with which the prisoner is present. The
rule which allows the prisoner and his wife to tender their evidence
on oath under the Criminal Evidence Act 1898 as regards
evidence is applicable to field general courts martial. It is useful
to note that the Army Act, sec. 70, enables His Majesty to
make new provisions under the hand of a secretary of state for,
amongst other things, the assembly and the procedure of courts
of inquiry. The power to make changes by Army Order or
rule is only limited by the principle that the rules must not be
contrary to or inconsistent with the act.
In an authoritative report published by the Norwegian government, and compiled by a trained Norwegian lawyer who visited the various countries, the systems of twenty-two states are reviewed. 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. There are two kinds of military courts of first instance: (1) those belonging to separate military bodies, such as divisions, brigades, regiments; (2) those having jurisdiction in a certain territory, and their seat determined. In times of war the courts must follow the military bodies. In Bavaria and Switzerland a military jury is attached to a court martial. In several states “auditors,” i.e. judicial guides, are attached to courts martial. In some a military jurisconsult (lawyer) is attached as judge, always a fixed post. This obtains in Sweden, Finland, Austria-Hungary, Switzerland and Portugal. In Norway, Denmark, Sweden, Finland, Belgium, Great Britain, Germany, Austria, United States, Spain, Württemberg and Switzerland the presiding officer is chosen for the single trial. In other states the military judges are appointed for a certain term, usually six months. The quorum of judges required on military courts on the continent differs. Seven judges sit in Belgium, Holland, France, Spain, Portugal, Greece, Turkey and Württemberg; three only, in cases of ordinary offences committed by non-commissioned officers and soldiers in Switzerland, Russia, the United Kingdom, United States and Bavaria. In grave cases in the United Kingdom five to nine sit, nine in Russia, five to thirteen in the United States. In Norway and Denmark the court is of thirteen up to twenty-five, unless replaced by a commission and a military lawyer.
In Norway, Denmark, Sweden, Finland, and Bavaria and other places in Germany, special summary courts martial are held when necessary. Certain forms and legal guarantees are then dispensed with. Such are held in Belgium and Holland “in a town or place in state of siege.” La Prévoté is a special court of a judge assisted by a Summary Courts Martial. registrar, for vagabonds, servants, sutlers, and with a very limited competence over soldiers who have committed a petty offence, held in time of war in France, Rumania and Greece. The United Kingdom has a summary court martial when the regular court martial cannot be held without injuring the military service. In the United States there are the “field officers’ court martial” and “military commission,” consisting of three officers. The second is for judging spies and some other matters that escape the jurisdiction of the regular courts martial. 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.” This was only a commission of inquiry, but it is now public, the accused is present, and the witnesses are sworn.
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. Sweden, Great Britain, France, Italy and the United States, as a general rule, place offences against the common law (infractions de droit commun) in time of peace under the jurisdiction of the civil courts. In the United States offences against good order, in Great Britain personal offences (such as drunkenness), are judged by courts martial. In most other states the general rule is that soldiers, even in time of peace, if on actual service are judged by courts martial. In the case of complicity between a soldier and a civilian, sometimes one is judged by a military and the other by a civil court (in Germany, Switzerland and Spain), sometimes both by a military court (Belgium, Italy, Servia, Rumania and Greece); sometimes it depends on the nature of the crime—in the United Kingdom, United States, Sweden, Finland, Holland and Portugal. In Norway a mixed tribunal judges them.
The procedure in military courts differs according to the countries. In some systems (a) the examination and preparation of evidence are confided to a juge d’instruction; (b) in other systems they are confided to a special commission of inquiry; (c) again, in other places they are left to the court martial itself that will judge the case. The United Kingdom and the United States Procedure.follow the last plan. There is no preparatory examination in these two countries. A commission of inquiry for the preparation of evidence is held in Norway, Denmark, Germany, Württemberg, Austria-Hungary, Servia, Belgium and Holland. An auditor directs these courts of inquiry. In Russia an officer acts as juge d’instruction; in grave cases he must be a military jurisconsult. In Italy, Spain, Rumania, Greece and Turkey an officer acts as juge d’instruction.
The proceedings before a court martial are usually public, except in the case of matters that offend morality, compromise public order, or where publicity is considered injurious to the interests of the service (cases of discipline, disclosing plans, &c.). This does not apply (except in Great Britain and the United States) to the proceedings before the courts charged with Publicity. preliminary investigation. In several states, i.e. Norway, Denmark, Holland, Austria, Servia, Germany and Württemberg, the public prosecutor is also the counsel of the accused. The auditor who directs the court of inquiry fills these offices (except in cases of small importance in Germany and Württemberg). In other states there is a special office of public prosecutor. In Spain, Portugal, Rumania, Greece and Turkey he is an officer. In Russia, Belgium, Bavaria, Switzerland and Italy he is a military lawyer. In these countries the accused has the right to choose a counsel, or one is assigned him. In the United Kingdom and the United States, when the matter is grave, the direction of the case is put in the hands of a judge advocate. In the United States the judge advocate is the public prosecutor.
There is no superior tribunal to which to appeal in Denmark, Great Britain and the United States. In Denmark the cases are sent to the auditor-general, who can annul if there is error in form, and send back the case to be tried anew. In Great Britain and the United States judgment in ordinary cases must be confirmed by the commanding Appeal when allowed and to whom.officer by whose order the court was called. He can lighten the sentence. In certain cases of great gravity it must go to the head of the state, after passing the revision of the judge advocate general, who in Great Britain is the constitutional adviser of the crown as regards courts martial from the view of legality. There is also in these two countries a special revision of judgments in the judge advocate general’s office. This revisional power is the safeguard of military justice, as all decisions are reviewed, and if any illegality is pointed out the proceedings are consequently
quashed. The effect of this disapproval is not merely to annul the