The Modern Court Martial*

In 1689 the first Mutiny Act recognised the legality of the British military courts and gave parliamentary approval to the exercise of their jurisdiction. The opinion of most army officers was that the civil legal process had little in common with the enforcement of military discipline. They infinitely preferred the Regimental to the General courts-martial because of its ease of assembly, the informality of its conduct, and the conclusiveness of its decisions. Regimental courts were convened by commanding officers and were usually composed of a captain and four lieutenants; their proceedings were brief, and their sentences were implemented immediately. British courts martial were formalized under the reign of Charles II with the appointment of the first Judge Advocate General in 1666. Military tribunals occurred in England under the reign of Edward I as early as 1279 but the courts martial were granted greater recognition, authority and jurisdiction by Parliament with the passage of the Mutiny Act in 1689. In the United States the Judge Advocate General's corps was founded in 1775 by the Continental Congress at the request of George Washington.

A General Court Martial was conducted with greater formality than other types of military tribunals and were mainly used for the trial of capital offenses. The General Court Martial could only be convened by an army commander and it consisted of 13 officers (however, as few as two officers could convene a "field" court martial during a period of war or declaration of martial law). The members of the jury (who also acted as judges), the Deputy Judge Advocate (prosecutor) and the witnesses were sworn, and a "transcript" was made of the evidence. Although referred to as a "transcript", by today's standards, it was really a handwritten summary. After the verdict and sentence were rendered the trial transcript was submitted by the Deputy Judge Advocate to the sovereign or more commonly to the Commander-in-Chief of the Army or Navy who had the power to reverse or modify the verdict or sentence. A copy of each trial summary was sent to the Judge Advocate General in London to confirm that the procedures at trial were proper.  Prisoners could appeal, and officers often did, to the Board of General Officers which could make recommendations to the King to reverse or modify a particular verdict.

The Deputy Judge Advocate fulfilled a somewhat anomalous function at courts martial. He acted as prosecuting counsel, he determined points of law, and he assisted the prisoner to present his defence (it was extremely rare for a prisoner to have an attorney). At the end of the trial the Deputy Judge Advocate delivered a judicial summing-up and then retired with the members of the court while they were considering their findings. Gradually, however, the conduct of the proceedings at a General courts martial started to be modelled more closely on those of a civil criminal trial. The authority of military courts had derived from the successive Mutiny Acts passed between 1689 and 1878; subsequently, the principal provisions of the Mutiny Acts were replaced by the Army Act of 1881, which has been renewed annually ever since.

When recreating a general court martial, we prepare a script based upon the War Office summaries and then assign roles to various reenactors while trying to use members of units that actually participated in the original trial. Often we allow the public to render the verdict and then the tribunal will impose a sentence if necessary.  Punishment in the British Army and Navy were extremely harsh and if you were not sentenced to hang or firing squad, a sentence of 500 to 1000 lashes was not uncommon even for relatively minor offenses such as theft. As severe as the sentences were, pardons were occasionally granted by the Commander in Chief or even the King.  In some cases, appeals could be brought before a Board of General Officers or petitioned to the King. 

 *Excerpts taken from Stephen Stratford's "British Military and Criminal History in the Period 1900 to 1999". 

Excelsior!  

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