A courtmartial cannot be demanded as of right. Manner of preferring a charge. On home stations. CHAPTER IV. OF THE APPLICATION FOR A COURT-MARTIAL. No person serving in the navy has any legal right to demand a trial by court-martial for the adjudication either of charges against himself, or of charges preferred by him against any other person subject to the Naval Discipline Act. A discretionary power to grant a trial is vested in the authority empowered to order a courtmartial.1 Every charge or complaint to be investigated by court-martial, must be made in writing, setting forth, circumstantially, the offence or offences charged, and the day or days on or about which (or between which if the offences have been of continuous character) the said offence or offences was or were committed." When a court-martial is required at home, the officer preferring the charge addresses a letter to his superior officer, or to the Lords of the Admiralty; this letter states the substance of the charge, and is forwarded to the Admiralty; upon which their Lordships (if they consider the case a 1 See 1 McArthur, 224. Queen's Regs. C. M. art. 3. proper subject for trial) issue their warrant directing a court-martial to be holden, and in the warrant the charge is specifically set forth.' stations. When a court-martial is required abroad, the On foreigu officer preferring the charge addresses a similar letter to his immediate superior officer, or to the superior officer of the station holding a commission from the Admiralty to order courts-martial. The latter (if he deems it necessary to proceed with the case)2 selects a president, transmits the letter with the substance of the charge to such president, and issues a warrant ordering him to assemble a court-martial for the trial of the accused. The practice in dealing charge. A full statements of all circumstances connected with the transaction on which the complaint with the is founded, is necessary in the first instance for the consideration of the authority that has the power either to grant or withhold a trial: when a courtmartial is ordered, the allegations of the charge are drawn up, and laid before the court in a concise form all the incidents, and details of the case are supplied by evidence. 1 Adm. Rec. 1856, 28, No. 10. 2 Queen's Regs. C. M. art. 3. 3 This statement must be confined to the transaction on which the charges are founded. The prosecutor may have been influenced by a variety of motives in applying for a court-martial; but it is his duty to abstain from instancing criminality or matter of aggravation against the accused on any other occasion than that actually in question. It is objectionable to read the letter of the prosecutor at the opening of the court-martial, as there is no sufficient security for the exclusion of imputations prejudicial to the accused, and at the same time irrelevant to the issue to be tried. Constitution of courtsmartial. CHAPTER V. OF THE CONSTITUTION OF COURTS-MARTIAL. THE Constitution of courts-martial is determined by the following regulations of the Naval Discipline Act:-1 "(1.) A court-martial shall consist of not less 66 66 (4.) No officer shall sit on a court-martial who is under twenty-one years of age: (5.) No court-martial for the trial of a flag 1 This Act is intituled "An Act for the Government of the Navy," though by s. 74 it is provided that it "may be cited for all purposes as The Naval Discipline Act, 1861,'" which is the title used throughout this work. 2 S. 50. 3 The marines, officers, as well as men (when afloat), are liable to be tried by a naval court-martial; yet, by a strange anomaly, no officer of that service can sit as a member of the court. officer shall be duly constituted unless the president is a flag officer, and the other officers composing the court are of the rank of captain, or of higher rank: "(6.) No court-martial for the trial of a captain in Her Majesty's Navy shall be duly constituted, unless the president is a captain or of higher rank, and the other officers composing the court are commanders or officers of higher rank: "(7.) No court-martial for the trial of any person below the rank of captain in Her Majesty's Navy shall be duly constituted, unless the president is a captain or of higher rank, nor unless in addition to the president there are two other members of the court of the rank of commander or of higher rank: "(8.) The prosecutor shall not sit on any courtmartial for the trial of a prisoner whom he prosecutes : "(9.) The Admiralty shall have power to order courts-martial to be held for the trial of offences under this Act, and to grant commissions to any officer of Her Majesty's Navy on full pay authorizing him to order courts-martial to be held for the trial of such offences: "(10.) An officer holding a commission from the Admiralty to order courts-martial, shall not be empowered to do so if there is present at the place where such courtmartial is to be held any officer superior in rank to himself, although such lastmentioned officer may not hold a commission to order courts-martial; and in such a case such last-mentioned officer may order a court-martial, although he does not hold any commission for the purpose: "(11.) If any officer holding a commission from the Admiralty to order courts-martial, having the command of a fleet or squadron, and being in foreign parts, die, be recalled, leave his station, or be removed from his command, the officer upon whom the command of the fleet or squadron devolves, and so from time to time the officer who shall have the command of the fleet or squadron, shall, without any commission from the Admiralty, have the same power to order courts-martial as the first-mentioned officer was invested with: "(12.) If any officer holding a commission from the Admiralty to order courts-martial, and having the command of any fleet or squadron of Her Majesty's ships in foreign parts, shall detach any part of such fleet or squadron, he may, by commission under his hand, empower the commanding officer of the squadron or detachment ordered on such separate service, and in case of his death or ceasing so to command, the officer to whom the command of such separate squadron or detachment shall belong, to order courts-martial |