MANUAL OF MILITARY LAW, 1884

[Published by WAR OFFICE, LONDON 1914 EDITION]

EXTRACT CHAPTER VII
OFFENCES PUNISHABLE BY ORDINARY LAW
Jurisdiction of Military Courts over Civil Offences:
2. In order to give military courts complete jurisdiction over soldiers, those
courts are authorized to try and punish soldiers for civil offences, namely,
offences which, if committed in England, are punishable by the law of
England.
They are not allowed to try the most serious offences—treason, murder,
manslaughter, treason-felony, or rape—if those offences can, with reasonable
convenience, by tried by a civil court. They are, therefore, prohibited from
trying any such offences if it is committed in the United Kingdom or if it is
committed anywhere else in the King’s dominions, except Gibraltar, within a
hundred miles from a place where the offender can be tried by a civil court,
unless indeed the offence is committed on active service.
Subject to the above exception, a military court can try all civil offences of a
soldier wherever committed.
Principles On Which Jurisdiction Should Be Exercised
3. But though this wide power of trial is given, it is not as a rule expedient to
exercise the power universally.
Where troops are stationed at places having no available civil courts under
British judges within a reasonable distance, or are stationed in a foreign
country, and the only law to which the troops are subject is that administered
by the military courts, it is necessary to try all offences committed by soldiers
by military courts.
But in the United Kingdom, in most parts of India, and in most of the
colonies, where there are regular civil courts close by, it is, as a general rule,
inexpedient to try a civil offence by a military court, more especially if the
offence is one which injured the property or person of a civilian, or if the civil
authorities intimate a desire to bring the case before a civil court.
This general rule is, however, subject to qualifications. The line dividing the
military from the civil offence may be narrow. The offence may have been
committed within the barracks or military lines. There may be doubt whether
the person affected by the offence is or is not a civilian. The soldier may be
one of a body of troops about to sail abroad. There may be reasons making
the prompt infliction of punishment expedient. In any such case it may be
desirable to try the offence by a military court.
There may be also considerations arising out of the importance of maintaining
discipline. If either offences of a particular kind or offences generally are rife
in a corps or at a station, it may be necessary, for the sake of discipline, to try
every offence, whether civil or military, by court martial, so that the
punishment may be prompt and the sentence exemplary.
The heinousness of an offence is also an element of consideration. A trifling
offence, such as would, if tried before a civil court, be properly punishable by
a small fine, may well be punished by the military court immediately,
especially if the case is one in which stoppages may be ordered to make good
damage occasioned by the offence. On the other hand, a more serious
offence, especially one which would ordinarily be tried by a jury, had better be
relegated to the civil courts. So should any case where intricate questions of
law are likely to arise, as, for instance, questions of obtaining goods or money
by false pretences from civilians.