The Sun.
London, England, 1863-11-21 00:00:00

MILITARY JUSTICE,

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Chapter xix, of Mr. Warren's Law Studies.
Military and naval authorities are very tenacious in re-
sisting any interference, by "lawyers," with their adminis-
trations of justice in courts martial. It has several times
been observed by officers, in the author's presence, that,
" it is rather hard to be subject to your aws, as well as our
own; and besides that, have to submit to your interference,
or dictation, in administering our orders, among ourselves,"
A different view of the case, however, is often taken by an
officer who finds himself ordered to stand a general court
martial on charges of a serious nature, involving his very
existence as an officer and a gentleman—his whole military
and social status : or when the destructive sentence of dis-
missal, or cashiering, has been pronounced, confirmed, pro-
mulgated, A "lawyer's" assistance is then frequently
and eagerly sought for, to conduct the defence at the trial,
or advise on the steps to bo taken, in order, to obviate, or
mitigate, the effect of a hostile verdict, deemed unjust or

This is not the place for discussing the excellen-
cies or detects of the existing administration of
military law : though the author has probably had
more professional experience on the subject than
may fall to the lot of most of his readers; has
had opportunities of expressing his views in print, and was
engaged in preparing a bill in conformity with them, when
he suddenly quitted the House of Commons. All that will
be here attempted, is to give the student a general idea of
the dutios he will have to discharge, if his services should
be called for by an officer, imperilled, o r conceiving himself
aggrieved, by proceedings ordered by the Commander-in.
Chief.

Counsel, under such circumstances, when attending at
the trial—before a tribunal brilliant and imposing in ap•
pearance—feels, in spite of the dignified courtesy exhibited
to him on all sides, in a position anomalous, and exqui-
sitely embarassing, charged—only as the " friend of the
prisoner," not of the court—with most serious responsibi-
lity : fettered and harassed by the court's professed non-
recognition of him, and the compulsory silence he must
observe, on even the most critical and momentous occa-
sions ; when satisfied that the court is, unawares, going
egregiously wrong, and sacrificing the character and
honour, dearer infinitely to him than life, of the British
officer sitting beside him in mental agony. The stately
deliberation with which the proceedings are conducted—
questions and answers being in writing, alike in
examination in chief, in cross-examination, and re-
examination, and recorded at the time, not in
short hand, but by the pen of the deputy judge advocate -
surely tries the temper and patience of one trained to the
rapid, efficient, and at the same time decorous conduct of
proceedings in the ordinary courts of justice.

The "charges"—equivalent to the indictment, in an ordi-
nary criminal case—are framed, or examined, by the military
authorities at the Horse Guards, and, when necessary, under
high advice : in order that it may be ascertained that they
are such as should be submitted to the cognisance of a court
martial, and that there is sufficient evidence to substantiate
them. "It is well known," said a high military authority,
"by everybody, that in the case of charges brought before
a court martial, they are not bound to the technical forma-
lities which prevail in other courts of law ; but there is this
essential principle in every charge, before any court that
can exist in the civilised world : that the charge shall be
sufficiently specific to enable the prisoner to know what he
is to answer, and the court to know what they are called to
inquire into."
this it may be added, that, in the language of the
great Duke of Wellington, " The proceedings of courts
martial are conducted on the principles of the civil law
courts, are founded on, in a great measure, and analogous
ta, the proceedings of the other courts of law." The rules
of evidence are those of all the other courts of justice.
The first point to be attended to by counsel, attending on
these occasions, is to avoid, as far as possible, technical
objections, which are, and naturally, irritating beyond
measure to officers intent upon getting at the merits of the
case, and hating and disdaining " pettifogging." He must,
however, take care not to carry his abstinence too far.
Objections founded on the hearsay character of evidence
are often indispensable, in order to protect an officer from
gross injustice inflicted on him unconsciously, by those not
aware of the grounds of the objections to such spurious
evidence. Objections, again, to questions as " leading," z.e.,
a question framed so as to suggest a desired answer, are
often equal in importance to those aimed at the exclusion of
hearsay, but even in our ordinary courts of justice, these ob-
jections are too often captious and futile, though sustainable
in technical strictness. The irrelevancy of particular ques-
tions, or heads of evidence, is another frequent subject of
objection, sometimes taken inconsiderately, and at other
times overlooked, and with dangerous consequences—the
result being to obscure the real points in issue, and create
cruel prejudice. Counsel must therefore always have his
eyes fixed on the real issue before the court, and be very
vigilant in preventing, as far as practicable, divergence
from it. Before a tribunal of gentlemen unversed in such
matters, it may be difficult to explain the point and force of
such objections, as the differential calculus, or the cligamma
and to advise an officer to insist, except on the best grounds,
upon such objections before his brother officers, is danger.
ous in the extreme. When an objection to evidence, or a
particular course of procedure is taken, by either the pri-
soner or the prosecutor, counsel should be prompt, terse, and
plain, in his written statement of objection or answer, so as
to be easily intelligible to a body of laymen, on its being read
out to them. For this purpose he must use his utmost efforts
to preserve calm collectedness throughout, and may safely
act on the assurance, which is hereby given him as the
result of personal experience, that the members of a court
martial, though its proceedings may be disfigured occasion-
ally by irregularity and illegality, as many a judge Advo-
cate-General can testify, mean to act fairly, honourably,
and in accordance with the very letter and spirit of their
oath. And here let it be said, with sincere and cordial
regard and respect for the British officer, that he is but
too apt, when called on to act as a member of a court
martial, to entertain the notion of administering criminal
equity. which, however pleasing to his mind, is nevertheless
to be sternly shunned and repelled, as, in the words of Ed-
mund Burke, " in truth, a mistake in Jurisprudence." The
student may hereafter be called on to cope with this ten-
dency on occasions most deeply affecting the honour, the
status, and even the life of a British officer, We are told
that Dr. Johnson, talking of a court-martial sitting on a
very momentous public occasion, "expressed much doubt
of an enlightened decision; and said that perhaps there was
not a member of the court who, in the whole course
of his life had ever spent an hour by himself in balancing
probabilities."
Counsel, again, must be exceedingly careful net to put
questions of an offensive or derogatory character to wit-
nesses, or indulge in comments of that kind, in framing the
prisoner's defence—unless it be absolutely unavoidable;
and questions should be couched in courteous terms. It is
vain to deny that a legal "friend" is too generally looked
at with jaundiced eyes by members of all courts martial, and
regarded as an unwelcome intruder, come to dictate to
officers and gentlemen—to teats, perplex, and mislead
them, by quirk and quibbles. It is necessary, therefore, to
disarm them—to melt away their prejudices by candour.
courtesy, and straightforwardness, alike in reality and in
manner. Let counsel, beware of resorting to anything like
a threat, either directly or indirectly—such, for instance, as
an allusion to what may be.thereafter done at headquarters
—or, "by the proper authority reviewing the proceedings."
The desired object may be obtained without acting thus
offensively, and laying himself open—or rather the anxious
and harrassed client sitting beside him—to the indignant
charge of "dragooning" the court. He should never for-
get that that client is responsible for what his " friend" is
doing, and if that client, himself a military man, strongly
object to the course taken by his " friend," he should pause,
and not persevere, unless perfectly satisfied, that he ought
to do so, or sacrifice the precious interests intrusted to him.
He must be firm, in that case, though his client may be
importunate, and even in the anxiety and excitement of the
moment, irritable—nay offensive. Yerbum sapienti.
In framing the written defence—a critical duty, and for
the discharge of which a reasonable time is always freely
granted by the Court, gretit discretion should be exhibited
in both selecting the topics, and the mode of deal-
ing with them. Brevity should be studied, and facts and
reasonings conveyed in language as plain and simple as
can be employed. The writer of that defence must not beat
about the bash, or bewilder the court with refined distinc-
tions, but ge to the true points in a frank, straight-
forward manner. If it be absolutely necessary to arraign
the conduct and motives of the prosecutor and witnesses, it
should be done with due courtesy and temper. Great cau-
tion should be observed in commening on the propriety
of instituting proceedings—it being borne in mind that
they have had the sanction of the supreme mili-
tary authority, under whose notice the issue will
come, and by whom every word of the writ•
ten " defence" in particular will be calmly and care-
fully weighed. The judge-advocate-general, who usually
is, and always ought to be, a lawyer, and one too of
superior professional knowledge and discretion, reviews
the proceedings immediately after the transmission of
them, sealed, to the Horse Guards. It is consequently im-
portant to have placei upon record all legal objections
taken by the prisoner, and for this purpose respectful
application must, as such objections arise, be made
to the court. Another circumstance worthy of attention
is, that the handwriting of the defence should be as dis-
tinctly and readily legible as possible; for it is to be de-
livered, not by the writer, but his excited and anxious
client, or some equally embarrassed military friend.
In addition to assisting an (Beer at the trial, counsel
may be called upon to advise him beforehand, as to the
conduct of his defence, the validity of the charges, and the
evidence requisite on the part of the prisoner. Counsel
may also he required to advise a prisoner against whom
the court has decided, and who conceives himself entitled
successfully to impeach the legal validity of the proceed-
ings, whether the trial took place at home or abroad, Great
difficulties have to be contended with, in such cases, La-
the very nature of the present mode of administeringhar
dhi s on
tary justice, and its undoubted defects and
prisoners. Two recent decisions of the Court Qapeen's
Bench may be advantageously referred to by the student as
bringing the decisions of
showing the extreme difficulty of