Online Encyclopedia

JUDGE ADVOCATE

Online Encyclopedia
Originally appearing in Volume V18, Page 449 of the 1911 Encyclopedia Britannica.
Spread the word: del.icio.us del.icio.us it!
JUDGE ADVOCATE GENERAL). - The Army Act applies to European officers and soldiers serving in India in the same manner as to the rest of the army, but natives of India are governed by their own Articles of War, and in the case of civil offences they are dealt with according to the provisions of the Indian penal code. There are judge advocates general for each of the presidencies, and a deputy judge advocate at each of the more important military centres. Important changes were made in the system of courts of inquiry by an Army Order of the loth of February 1902. A court of inquiry is and has been an assembly of officers directed by a commanding officer to collect evidence and report with respect to a transaction into which he cannot conveniently himself make inquiry. But now, whenever any inquiry affects the character or military reputation of an officer or soldier, full opportunity must be given him of being Courts of /nqulry 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- Conttne' two states are reviewed. The earliest military law Military Law, still in force is found in Norway and Denmark, Law. and dates from 1683, while England and Sweden 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: (I) 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, Wurttemberg 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 Wurttemberg; 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 Summary held when necessary. Certain forms and legal courts guarantees are then dispensed with. Such are held martial' in Belgium and Holland " in a town or place in state of siege." La Prevote is a special court of a judge assisted by a 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, Wurttemberg, 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, Competence whether on active service or no, should be judged by~tMrtsitary military courts. In time of war, it is equally ad- mitted, 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 Procedure. 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 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, Wurttemberg, 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 Pubttcity. 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 preliminary investigation. In several states, i.e. Norway, Denmark, Holland, Austria, Servia, Germany and Wurttemberg, 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 Wurttemberg). 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 Appeal, error in form, and send back the case to be tried anew. In In Great Britain and the United States judgment in towed and ordinary cases must be confirmed by the commanding to whom. officer by whose order the court was called. He can lighten the sentgnce. 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 Forfeiture. but it also prevents the accruing of any disability or forfeiture. The British judge advocate's office has been much strengthened. It now consists of: (I) The judge advocate general (one of H.M. judges) ; (2) a deputy judge advocate general, who is a trained lawyer; (3) a deputy judge advocate, also a trained lawyer; (4) a military officer of the rank of colonel who has been called to the bar; (5) in South Africa (since 1899, and on a five-years' appointment from 1902) a colonel who has been called to the bar. In Germany there is no appeal, except for officials attached to the army. In Austria-Hungary the sentence can be lightened by the commanding officer. It can also be returned for trial by a superior court if it appears to him too light. In Spain all judgments have to be confirmed, and if confirmation is refused, it is carried before the supreme court of the navy and army. The condemned has no power of appeal himself, but all cases of death or life sentences go before the supreme court of the navy and army. Russia only requires the confirmation of the commanding officer. In Rumania and Greece all condemned prisoners in time of peace can demand a court of revision, composed of a general and four superior officers. In time of war the court may be composed of three. Certain forms of punishment, in all countries but the United States, can be given by the superior officer, without judicial intervention, Dlsdpllnaryfor small purely military offences, where a summary Disc:10 rocedure is required. The offender, if he prefers, may meats. be carried" before court-martial. The punishment is immediately carried into force, but the person punished can complain to higher military authority. In that case, if the complaint is not admitted, the punishment is enhanced. The commonest of these disciplinary punishments are deprivation of liberty, confined to barracks, arrests and prison. Certain special punishments obtain in certain countries—for instance, imprisonment in Turkey may be accompanied by a bread-and-water diet; and officers in Finland and Russia may be deprived of advancement. In 1908 France took steps to abolish courts-martial in time of peace, all common law offences to be judged by the ordinary courts, and breaches of military discipline such as rebellion, insubordination, desertion and the like by mixed courts composed of civil and military magistrates. See Clode, Military Forces of the Crown; T. Gram, Fonctionnement de la justice militaire clans les differents Etats de l'Europe. (JNo. S.)
End of Article: JUDGE ADVOCATE
[back]
JUDGE (Lat. judex, Fr. juge)
[next]
THE BOOK OF JUDGES

Additional information and Comments

There are no comments yet for this article.
» Add information or comments to this article.
Please link directly to this article:
Highlight the code below, right click and select "copy." Paste it into a website, email, or other HTML document.