CHAPTER VIII.

POWERS OF COURTS OF LAW IN RELATION TO
COURTS-MARTIAL AND OFFICERS.

Introductory.

officers

done with

1. The members of courts-martial and officers in the exercise Courtsof individual authority are, like the inferior civil courts and martial and magistrates, amenable to the superior civil courts for injury amenable caused to any person by acts done either without jurisdiction, or in for acts excess of jurisdiction; although there is not, in the ordinary sense out or in of the word, any appeal from the decision of a court-martial or excess of from the order of an officer. Such injuries will equally be inquired jurisdicinto whether they affect the person, property, or character of the individual injured; and whether the individual injured is a civilian or is subject to military law.

tion.

2. There is, however, this material exception in the case of a Exceptions person subject to military law, that if the injury affects only his in case of injuries military position or character, a court of law will not interfere. affecting He has agreed to subject himself to military law in those respects, only and must take the consequences. Thus, the dismissal of an position. military officer from the service, the deprivation of rank, or the reduction or deprivation of military pay, will not be remedied by a court of law (a).

without

3. The jurisdiction of a tribunal may be limited by conditions Meaning of as to its constitution, or as to the persons whom or the offences acting which it is competent to try, or by other conditions which the jurisdiclaw makes essential to the validity of its proceedings and judgments. tion. If the tribunal fails to observe these essential conditions, it acts without jurisdiction. An individual officer acts without jurisdiction if he exceeds the limits of the authority conferred on him, whether by Act of Parliament, the custom of the service, or lawful delegation from a superior officer.

without

4. Thus a court-martial will act without jurisdiction if it is not Illustraproperly constituted; for instance, if the number of members is tions of below the legal minimum, or if all the members of a general court- acting martial have not held commissions for the three years preceding juristicthe day of assembling the court, or if the president is not of the tion. proper rank, or has not been properly appointed. For the above reason it is directed by the Rules of Procedure that a courtmartial, before acting, shall ascertain that it is properly constituted, a provision which, as will be seen, is required for the protection of the members themselves (b).

5. An officer who without due authority confirms the fading Further and sentence of a court-martial, and a commanding officer who illustra punishes a warrant officer, will also act without jurisdiction. tions. Again, a court-martial or officer dealing with a person who is not amenable to military law, as if he were so amenable, will act without jurisdiction (c). So, too, if a court-martial convicts the

(a) See Poe's case, below, para. 12; Mansergh's case, below, paras. 18-20; and Roberts' case, below, paras. 21, 22; and Re Tufnell, p. 124, note (a).

(b) See Rule 22.

(c) See Comyn v. Sabine, and other cases, below, paras. 52, seq.

Ch. VIII. accused of an offence which is not an offence under the Army Act or (save as provided by s. 56 of the Army Act) of an offence with which he was not charged, the court acts without jurisdiction. Where the offence is not properly charged, the accused may be held not to have been charged with the offence at all; but the proceedings of military courts will not be scrutinised with the same strictness as those of inferior civil courts.

Result of

acting with out jurisdiction.

Excess jurisdic

tion.

Modes of interposition of

courts of law.

Definition

of the writ of prohibition.

When pro

6. The result of acting without jurisdiction is that the act is void, and each member of the court-martial, or the officer who so acted, is liable to an action for damages.

7. The consequences of exceeding the bounds of jurisdiction are the same as those of acting without jurisdiction. For instance, when a court having power to award two years' imprisonment, sentenced the accused to fifteen years' imprisonment, the sentence being in excess of that which the court was authorised to pass, was held to be void, and the members of the court were held liable to an action for damages (a). Other cases of this class arise where jurisdiction is exercised with cruelty or oppression amounting to an abuse of it. A power to award summary punishment or imprisonment does not justify a court or officer in causing the punishment to be inflicted in a barbarous manner, or with circumstances of undue severity; and in such cases, though there is a jurisdiction, yet the excuse for the act of the court or officer, which would otherwise exist by reason of the jurisdiction, is taken away by reason of the excess in the mode of exercising it (b).

8. The proceedings by which the courts of law supervise the acts of courts-martial and of officers may be criminal or civil. Criminal proceedings take the form of an indictment for assault, false imprisonment, manslaughter, or even murder. Civil proceedings may either be preventive, i.e., to restrain the commission or continuance of an injury; or remedial, ie., to afford a remedy for injury actually suffered. Broadly speaking, the civil jurisdiction of the courts of law is exercised as against the tribunal of a courtmartial by writs of prohibition or certiorari; and as against individual officers by actions for damages. A writ of habeas corpus also may be directed to any officer, governor of a prison, or other, who has in his custody any person alleged to be improperly detained under colour of military law. The writs of prohibition, certiorari, and habeas corpus will be first discussed, then the subject of actions for damages, and lastly, that of liability to criminal proceedings.

(i.) Writ of Prohibition.

9. The writ of prohibition issues out of the High Court of Justice to any inferior court, when such inferior court concerns itself with any matter not within its jurisdiction, or when it transgresses the bounds prescribed to it by law. The writ forbids the inferior court to proceed further in the matter, or to exceed the bounds of its jurisdiction; and if want of jurisdiction in the inferior court be once shown, any person aggrieved by the usurpation of jurisdiction is entitled to the writ as a matter of right.

10. The writ will not be granted for irregularity in the proceedhibition will ings or wrong decision of the merits: nor when it can be of no use, as, for example, after a sentence has been carried into execu

issue.

(a) Frye v. Ogle, below, para. 41.

(b) The question whether an officer is liable to an action for ordering an arrest or prosecution maliciously and without probable cause, will be considered separately. See below, paras. 67-74.

tion; nor will it issue on the ground that the facts which establish Ch. VIII. a military offence disclose at the same time a greater offence (e.g., high treason) cognisable by the civil courts (a).

Gould, 1792.

11. Applications for a prohibition to restrain courts-martial Grant v. have hitherto been few, and uniformly unsuccessful. The earliest reported case is that of Grant v. Gould (b). In 1792 Serjeant Grant of the 74th Regiment was tried by court-martial on a charge of having persuaded two drummers of the Coldstream Guards to desert, and enlist in the service of the East India Company. He was convicted and sentenced to be reduced to the ranks, and to receive one thousand lashes. Grant moved for a prohibition to prevent the execution of this sentence on the ground that he was not a soldier and therefore not liable to be tried by court-martial, that evidence was improperly admitted and rejected, and that he was convicted of an offence not specifically charged. The court, being of opinion that at most an error in the proceedings had been made, refused the writ. At the same time, Lord Loughborough, in delivering the opinion of the court, affirmed the general principle that "Naval Courts-Martial, Military Courts Martial, Courts of Admiralty, Courts of Prize, are all liable "to the controlling authority which the courts of Westminster "Hall have from time to time exercised for the purpose of pre"venting them from exceeding the jurisdiction given to them."

66

12. The case of Lieutenant Poe (c), which occurred in 1832, is Poe's case, the authority for the proposition that a prohibition will not issue 1832. after sentence confirmed and executed. Lieutenant Poe, being a passenger on board the ship Cæsar on her way to England, was accused of stealing a 5l. note and certain articles of wearing apparel from his servant's trunks, which were kept in his (Poe's) cabin. On investigation of the charge by the captain of the ship and other officers on board, Lieutenant Poe was expelled by the officers and passengers on board from their table and society during the remainder of the voyage. Lieutenant Poe never took any measures to vindicate his honour, and was consequently tried for conduct to the prejudice of good order and military discipline, found guilty, and sentenced to be dismissed the service. The sentence was confirmed by the King and carried into execution; and an application on behalf of Lieutenant Poe that a prohibition might issue "to the Judge-Martial and Advocate-General of his Majesty's forces" to restrain the execution of the sentence was refused, Chief Justice Denman observing that even supposing the case of Grant v. Gould to furnish some argument that a writ of this nature might be directed to him (the Judge-Advocate) before execution of the sentence, still it was impossible to discover what he could be required to abstain from after execution.

13. The later case of Serjeant M'Carthy shows that a pro- M'Carthy's hibition will not issue merely because the evidence given in case, 1866. support of a military charge discloses a higher civil offence. In 1866 Serjeant M'Carthy (d) was tried by a general court-martial on a charge of "coming to the knowledge of an intended mutiny, and not revealing such knowledge to his superior officers." The evidence

(a) As to the general law, see the exhaustive opinion of the Judges in Mayor of London v. Cox, L. R., 2 H. L., 229, and the cases there cited. The right to a writ of prohibition has frequently been considered with reference to the Ecclesiastical Courts, and it is clear that the courts of law will not entertain questions of their practice, so long as they do not exceed their jurisdiction.

(b) 2 H. Blackstone's Reports, 69. McArthur on Courts-Martial, 4th edition,

i. 120.

(c) Re Poe, 5 Barn. and Adol., 681.

(d) 14 W. R. (Ir.), 918.

Ch. VIII given implicated him in the Fenian conspiracy, and showed endeavours on his part to induce soldiers to become members of that conspiracy, and various other acts amounting to overt acts of treason. After the close of the prosecution the court-martial was adjourned in order to permit the prisoner to apply to the Court of Queen's Bench (Ireland) for a writ of prohibition on the ground that the evidence establishing the military offence disclosed also that the prisoner was guilty of treason, in which case a court-martial would have no jurisdiction. The court held that the military offence does not merge in the greater offence, and declined to accede to the application.

No example of issue of

14. Although the writ of prohibition has never actually been prohibition issued to a court-martial, there seems no doubt that it might issue in a proper case; as, for example, if a court-martial were proceeding to try a person not subject to military law, or had passed a sentence which they had no power whatever to pass.

to a courtmartial.

To officer.

Dis

15. The question whether a writ of prohibition would issue to an officer exercising individual authority does not seem ever to have been raised.

16. Disobedience of a prohibition is a contempt of court, and as obedience of such punishable by fine and imprisonment at the discretion of the court which granted the writ.

prohibition.

Definition

of certio

rari.

(ii.) Writ of Certiorari.

17. Certiorari is a writ issuing (in most cases) out of the High of the writ Court of Justice to the judges or officers of inferior courts, and commanding them to certify and return the record of a matter, e.g., a conviction or order, depending before them, to the end that more sure and speedy justice may be done. If the conviction or order of the inferior court is found to be bad in law, it will be quashed by the High Court.

When certiorari will issue.

Mansergh's case, 1858.

His trial by courtmartial.

In ordinary cases the writ is issued on the application of the person aggrieved almost as a matter of course, unless he has by his conduct precluded himself from taking an objection (a). In the case of a court-martial sentence, the writ will issue only when the rights affected by the judgment of the court are civil rights, and the court is acting without jurisdiction: it will not issue when the rights affected are dependent on military status and military regulations (b).

In

18. Major Mansergh's case was as follows:-In January, 1858, Major (then Captain) Mansergh was on duty with his regiment, the 6th Foot, at Calcutta, under the command of Colonel Barnes. February, 1858, Brevet-Major Mansergh was gazetted to a majority in the 15th Foot, at that time stationed in England. Notice of this appointment was transmitted to India and notified in general and regimental orders in the usual way, after which notification Major Mansergh ceased, according to the rules of the army, to belong to the 6th Foot. The latter regiment was about to start on active service, when Colonel Barnes informed Major Mansergh of his promotion and desired him to hand over his company to another officer, which he did accordingly.

19. Subsequently Major Mansergh, conceiving that the notification of his appointment to the 15th Foot had been obtained by Colonel Barnes for the purpose of excluding him from active service, wrote

(a) R. v. Justices of Surrey, L. R., 5 Q. B. 467, and see on the general law Colonial Bank v. Willan, L. R., 5 P. Č. 417.

(b) Re Mansergh, 1 Best & Smith, 400; 30 L. J. (N.S.) Q. B. 296. Re Roberts, reported in " Times," 11th June, 1879.

a letter to the Colonel expressing that view in strong language. Ch. VIII. For this he was placed under arrest, and subsequently tried by court-martial on a charge of having addressed to his superior officer a letter containing highly offensive and insulting language, such conduct being grossly insubordinate, highly unbecoming a commissioned officer, and subversive of military discipline. Major Mansergh was found guilty and sentenced to be dismissed the army, and the proceedings having been confirmed, were sent to England and deposited with the Judge Advocate-General. Major Mansergh then applied to the Court of Queen's Bench for a rule calling on the Judge Advocate-General to show cause why certiorari should not issue to bring up, in order that it might be quashed, the record of his conviction; on the ground that after his promotion he ceased to be within the command of the Commander-in-Chief in India, and that consequently the court-martial had no jurisdiction to try him.

for certio

20. The Court refused the application-Chief Justice Cockburn Refusal of observing, "I quite agree that when the civil rights of a person in application military service are affected by the judgment of a military tribunal, rari. in pronouncing which the tribunal has either acted without jurisdiction or has exceeded its jurisdiction, this court ought to interfere to protect these civil rights, e.g., where the rights of life, liberty, or property are involved, although I do not know whether the latter case could occur. Here, however, there was nothing of the sort, the only matter involved was the military status of the applicant-a thing which depends entirely on the Crown, seeing that every person who enters into military service engages to be entirely at the will and pleasure of the Sovereign. Then there is this additional fact that these proceedings originated abroad in a country the tribunals of which are not subjected to our jurisdiction. It is contended that because we have the record of the proceedings in the country we have jurisdiction over it. Assuming that for a moment, yet when we look at the particular nature of the case before us, we see that the military status of the applicant alone is affected, and consequently if he had just cause of exception to the act of the tribunal by which he was sentenced, he might have appealed to the Queen to reconsider the matter with the advice of her Judge Advocate. For these reasons I am of opinion that in this case we have no jurisdiction to grant a certiorari; besides which, certiorari being a discretionary writ, we most certainly ought not in the exercise of our discretion to grant it if we had the jurisdiction." Three other judges concurred, and the application was refused.

21. A similar application in June, 1879, by Captain Francis Roberts's Roberts, of the 94th Regiment, was equally unsuccesful. Captain case, 1879. Roberts founded his application on the ground that the sentence of the court-martial dismissing him from the service was invalid, in that it simply sentenced him to be dismissed the service without stating the cause of dismissal. The charge against Captain Roberts appears to have been twofold:-(1) That he had been guilty of scandalous conduct unbecoming an officer and gentleman in having written and sent to certain persons statements wilfully false and malicious respecting Colonel Lord John Taylour, his commanding officer. (2) That he had been guilty of conduct prejudicial to good order and military discipline in writing the statements referred to, which were charged simply as false. An affidavit was filed by Mr. Roberts stating that since the sentence he had been occupied in various attempts to obtain a revision of the sentence.