leaflet 84
                 RECORDS OF COURTS MARTIAL: ARMY

Almost all records relating to army courts martial have been
generated by the Office of the Judge Advocate General. From the
establishment of a standing army at the ReStoration in 1660, he was
the legal officer entrusted by the Crown with the administration of
military law, but the existence of a special officer to conduct
courts martial can be traced back at least to the reign of
Elizabeth I. The duties of the Judge Advocate of the Army, or the
Judge Advocate General as he soon came to be known, were to prepare
the case for the prosecution, arrange for the summoning of courts
martial and administer the oath to witnesses. Originally he was
expected to attend all courts martial at home, but this duty was
gradually taken over by deputies known as judges advocate.
Following the holding of a court martial, its findings were
tranSmitted to the Judge Advocate General, who recorded them and
was then responsible for laying the proceedings of general courts
martial before the Sovereign with submissions as to their legality.
The Sovereign personally confirmed, mitigated or commuted the
sentence of the court.  In the century between 1706 and 1806 the
Judge Advocate General continued to make submissions as to
legality, but the proceedings were transmitted through the
Secretary at War to the Sovereign for his confirmation of sentence.
In 1806 the office of Judge Advocate General was raised to Privy
Council status and thus, having personal access to the Sovereign,
the holder of the office was able to make his submissions as to
legality without the intervention of the Secretary at War. It was
the Commander in Chief, however, who received the Sovereign's
confirmation of sentence.

From 1806 the Judge Advocate General was a political appointee and
changed with each administration. The holder shared with the
Secretary of State for War the responsibility of answering for the
army in Parliament. Doubt about the propriety of a holder of
judicial office being a political appointee led in 1893 to the
office being removed from the political sphere. Between 1893 and
1905 the office was held jointly with the Presidency of the
Probate, Divorce and Admiralty Division. In 1905 it became a paid
appointment for a person of suitable legal attainment, subject to
the orders of the Secretary of State for War. The Judge Advocate
General acted in courts martial of Royal Air Force personnel from
1918, in which cases he advised the Secretary of State for Air. In
1948 the prosecuting functions of the Office passed to the new
Directorates of Legal Services in the War Office and Air Ministry.
The Judge Advocate General retained his judicial functions but was
placed under the Lord Chancellor instead of the Secretaries of
State for War and Air. Since 1682 the appointment of Judges
Advocate General has been by letters patent, and until 1893 the
holder of the office was usually a member of parliament. Since 1769
the office has always been held by a lawyer.

COURTS MARTIAL

Until 1689 military law rested on the prerogative of the Crown. The
king authorised the drawing up of articles of war each time an army
was raised and these remained in force only until the army was
disbanded. Following the establishment of a standing army in 1660,
the first Mutiny Act of 1689, though dealing only with the offences
of mutiny and desertion, made these offences statutory and to a
limited extent prescribed the requirements of courts martial to try
offenders. The 1689 Act was the first in a series of mutiny acts,
re-enacted from year to year. These acts did not apply in overseas
territories and the articles of war were only applicable on active
service. In 1712 the Mutiny Act was revised and courts martial
empowered to try soldiers for misbehaviour or neglect of duty and
award sentences of corporal punishment. In addition the Crown was
given statutory power to make articles of war and hold courts
martial anywhere abroad, both in war and peace, and in 1718 the
Mutiny Act was extended to cover offences abroad.

The Judge Advocate General's Office has produced records of four
different types of court martial: general court martial, field
general court martial, general regimental court martial and
district or garrison court martial. With the exception of the
general regimental court martial, these different types of courts
martial continue to be held.


1. GENERAL COURT MARTIAL: this was the army's highest tribunal. It
was the only court to have jurisdiction over commissioned officers,
and in addition dealt with the most serious cases involving non-
commissioned officers and other ranks. It could be convened only by
a warrant from the Crown or by specially appointed deputies such as
the Commander in Chief, the Chief Governor of Ireland, colonial
governors general or the commanders of overseas stations. A judge
advocate had to be present at every trial and the court had to
consist of not less than thirteen commissioned officers at home and
not less than five overseas. Details of the court martial had to be
submitted to the Judge Advocate General's Office to ensure that the
findings and sentence were legal. Once this was done, the sentence
was subject to confirmation, mitigation, remission or commutation
by the Sovereign or by the deputy who issued the warrant. In
particular any decision by a court martial overseas to cashier or
dismiss from the service a commissioned officer was subject to the
Sovereign's personal confirmation.

2. FIELD COURT MARTIAL:    in time of war, most cases arising
overseas were dealt with by this type of court martial, which was
smaller and simpler to convene. It could consist of as few as three
officers, though where possible the court president had to be at
least a major. A judge advocate could be appointed but rarely was.
The court could impose any sentence open to a general court
martial, but if it was the death penalty, then the decision had to
be unanimous. The sentence had then to be confirmed by the proper
authority, which for capital offences was the area commander in
chief.

3. GENERAL REGIMENTAL COURT MARTIAL: this was more limited than a
general court martial in its jurisdiction. It could not try any
commissioned officer, or any charge carrying the death penalty,
such as mutiny, desertion or sleeping on post. It was abolished in
1829 and replaced by the district court martial.

4. DISTRICT OR GARRISON COURT MARTIAL: its jurisdiction was similar
to that of the general regimental court martial which it replaced.
It required a minimum of seven officers at home and five overseas.
It could be convened by the senior officer of a unit or depot but
at the discretion of the general officer commanding, who could also
reserve convening to himself. The court president had to be of a
rank not lower than captain and could not be the commanding officer
of the accused. The court could consist entirely of officers from
one regiment. In general, serious crimes were not tried by district
courts martial, which could not pass sentences of death,
transportation or floggings of more than 150 lashes, or in a later
period, imprisonment for more than two years. All sentences had to
be confirmed by the general officer commanding and details
submitted to the Judge Advocate General.

Other ranks charged with lesser offences could be tried by a
regimental court martial, whose jurisdiction was even more limited
than that of the district court martial. Provided that the regiment
kept a permanent record of the proceedings, details did not have to
be sent to the Judge Advocate General's Office and are therefore
not among its holdings. For the twentieth century information is
often found about regimental courts martial in war diaries (see
Information Leaflets 6 and 7).

Prior to 1951, soldiers had no right of appeal against either the
verdict or sentence of a court martial, though the confirming
officer could and frequently did, reduce the sentence. During the
First World War, for instance, of all the death sentences passed by
general courts martial, only about ten per cent were in fact
confirmed.


TRACING INDIVIDUAL CASES

OFFICERS
To trace the courts martial of commissioned officers is relatively
straightforward, since they could be tried only by general court
martial. WO 93/lB is an index to trials of officers, 1806-1904.
There are three main types of record relating to individual trials
papers, proceedings and registers. Papers were compiled at the time
of the court martial and are arranged in date order (WO 71/121-
343). They cover the period 1688 to 1850, but papers for trials
between 1850 and 1914 (with a single exceptiOn for 1879) were
destroyed by bombing in 1940.  Papers for some special cases,
mainly senior officers, are listed individually, 1780-1824 (WO
71/99-120), and so are special returns for Ireland, 1800-1820 (WO
71/252-264).

When the papers reached the Judge Advocate General's Office, the
contents were entered into volumes of proceedings. These were kept
in two series depending on whether the sentence was confirmed at
home by the Sovereign or abroad by a colonial governor or overseas
commander (WO 71/13-33, 34-64, 65-98 and continued in WO 91). Until
the mid nineteenth century, the proceedings report the trials in
detail, but later volumes give only the charges, findings and
sentence in the form in which they were submitted to the Sovereign.
They also contain copies of warrants for the holding of courts
martial and of correspondence concerning the confirmation of
sentenceS Registers of warrants are to be found in WO 28 among
Headquarters records and not among those of the Judge Advocate
General's Office. The Commander in Chief's submissions as to
sentence are in WO 209.

As well as volumes of proceedings, the Judge Advocate General's
Office compiled registers of courts martial, giving the name, rank,
regiment, place of trial, charge, finding and sentence. Those for
courts martial confirmed abroad are in WO 90 and those confirmed at
home are in WO 92. Records of field general courts martial date
only from the Boer War and are combined in registers with district
courts martial, 1900-1901 (WO 92). Later registers, 1909-1963, are
in WO 213.

OTHER RANKS
Non-commissioned officers and other ranks could be tried by general
regimental courts martial (before 1829) and district courts martial
(after 1829) as well as by general courts martial and consequently
cases are harder to trace than for commissioned officers. Only
registers, rather than full proceedings, were compiled in the Judge
Advocate General's Office for general regimental courts martial,
1812-1829 (WO 89) and district courts martial, 1829-1971 [sic] (WO
86).  With two exceptions each series covers trials confirmed both
at home and abroad. The exceptions are a single volume for the
London area, 1865-1875 (WO 87) and seven volumes covering district
courts martial in India, 1878-1945 (WO 88).

For general courts martial, the records are as described in
relation to officers. General courts martial confirmed at home
dealt with soldiers serving in the British Isles, including
Ireland, and overseas in non-British territories or small British
possessions. Those confirmed abroad dealt with soldiers serving in
British colonies. WO 93/lA is an index to general courts martial,
1806-1833.

OTHER SOURCES
In addition to the classes of records described above, which deal
more or less exclusively with courts martial, other classes of
Judge Advocate General's administrative papers can also provide
supplementary information. Original letters date from 1696 (WO 72),
office letter books from 1715 (WO 81), registers of letters
received from 1817 (WO 83) and charge books from 1857 (WO 84).
Deputation books record the appointments of deputy judges advocate,
1751-1910 (WO 85). The Courts Martial Committee was appointed in
1938 to look into the existing system of trial by court martial. It
sat for two years and WO 225 contains letters and papers sent to
the committee from both civilians and servicemen, as well as
minutes, memoranda and the final report.

Records relating to individual cases of court martial are closed
for 75 years from the date of the last entry in each piece.
However, purely summary records of a more recent date are open. WO
93/49 gives particulars of death sentences carried out between 1914
and 1918 and WO 93/40 gives particulars of death sentences carried
out between 1941 and 1953. Nominal rolls of courts martial of all
ranks of Australian and Canadian forces, 1915 - 1919, are in WO
93/42-45, and those of courts held in the POW camp at Changi,
Malaya, 1942-1944, are in WO 93/46-48.  Statistics of both army and
air force courts martial, 1914-1954, are in WO 93149-59.

A few records relating to courts martial can be found in classes
which did not emanate from the Judge Advocate General's Office; of
these, most form part of the correspondence of the Commander in
Chief (WO 3/541-568) and the Secretary at War (WO 4) . PRO Lists &
Indexes: LIII: ALPHABETICAL GUIDE TO WAR OFFICE AND OTHER MILITARY
RECORDS PRESERVED IN THE PUBLIC RECORD OFFICE has a considerable
number of entries relating to courts martial. Most relate to policy
and precedent and are to records created both in the Judge Advocate
General's Office and elsewhere.

FURTHER READING
C.M. Clode, MILITARY FORCES OF THE CROWN, 2 vols (1869).
J. Stuart-Smith, 'Military Law; its history, administration and
practice', LAW QUARTERLY REVIEW, LXXXV (1969), 478-504.
R.W. Bennet, 'Military Law in 1839', JOURNAL OF THE SOCIETY FOR
ARMY HISTORICAL RESEARCH, XLVIII (1970), 225-241

F.B. Wiener, CIVILIANS UNDER MILITARY JUSTICE (1967).

**************************************************************
C. CROWN COPYRIGHT, September 1989. This material may be freely
reproduced except for sale or advertising purposes
The records described in this leaflet may be seen only at the PRO,
Kew.
