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CHAPTER IX.

Of the Court and Parties to the Trial.

Convening of
Courts Martial

in orders.

Previous to the assembling of a court martial, an order is issued specifying the description of court,' fixing the place and time of meeting, detailing the number and rank of officers to be furnished by each regiment, naming the president, also general officers, and frequently the field officers, who are for that duty. The order also directs that a return of the names and dates of commissions of the members be forwarded to the office of the adjutant-general, or other staff officer, for the information of the judge advocate general.

The president is appointed by warrant, which is either specific, for the trial of an individual ; or general, for the trial of such prisoners as may be brought before the court: the latter is the ordinary form.

Appointment of President,

(1) This and the succeeding chapters more particularly refer to general courts martial, as the form of procedure in all courts martial is essentially the same; where they are not obvious, attention is drawn to the necessary modifications required in the manner of conducting the proceedings of inferior courts.

(2) By G. 0. dated Simla, 230 June, 1838, his excellency the commander in chief, (sir H. Fane,) considering the practice which occasionally prevailed of mentioning in the order convening the court, the name of the individual to be arraigned, to be objectionable, is pleased to direct its discontinuance, and to direct that in future the order forming the court be framed generally for the trial of such prisoners as may be brought before it.-Asiatic Journal, vol. xxvii.

p. 304.

warrant.

Members are taken from a rollster kept by of members. each regiment, the tour of duty being from the eldest downwards, and the order of detail for general courts martial is eighth on the list of duties."

Occasionally, a warrant for the assembly of a Convention of general court martial has been issued under the sign manual, to the judge advocate general, naming the president, embodying the charge, and placing the provost marshal general, under the orders of the judge advocate, for giving notice to the president and members, and all others whom it may concern, when and where the court is to be held; for summoning witnesses, and giving his attendance generally when requisite. The warrant has also specified the names of the members,?

The officiating judge advocate takes care that accommodation accommodation for the court and parties to the trial has been provided at the time named for the assembly of the court. The provost marshal, his deputy or non-commissioned officer performing the duty, are previously placed under the orders of the officiating judge advocate for summoning witnesses, giving notice to the members of time of meeting, and generally for giving such attendance as may be required. If there be no provost marshal guard, a guard or sentries, as may be necessary, are furnished, and receive orders from the judge advocate.

No proceedings can take place but between Time of the hours of eight in the morning and four in the afternoon; and in the East Indies, between

of the court.

(1) Gen. Reg. p. 1. See page 43. (2) This precedent was recently followed in the case of the Canadian rebels, tried at Montreal in 1838 and 1839.

proceeding.

Court exists till dissolved;

six in the morning and four in the afternoon,
except in cases wbich require immediate example.

A court martial, once constituted by competent
authority, continues in existence till dissolved by
the same superior authority. If, when charged
to try a prisoner, it has proceeded with the
arraignment, it cannot be dissolved without pro-
ceeding to judgment; except in case of the death
or protracted illness of members, reducing it
below the legal number.? The illness of the
prisoner, if it promise to suspend the proceedings
of the court, to the serious prejudice of the
service, may also justify its dissolution, the
prisoner being thereby exposed to future trial.
Should the death of the prisoner put a stop to
the trial, the fact must be established by evidence,
and recorded prior to the final adjournment of

the court.
Adjournments. The court adjourns, from time to time, upon

the order of the president. The judge advocate
records, with precision, the time when the court
adjourns and assembles, that it may appear on

the face of the proceedings to have been held Adjournment during the appointed hours. On an adjournment,

sine die, the court is re-assembled by a general
order, or by notice to each member from the
officiating judge advocate. The members of a
court martial are not during adjournments,
ordinarily speaking, detailed for other duties.
When, from peculiar circumstances, it is probable
that a considerable time may elapse before the
sentence of a general court martial is made

1

sine die.

Liability of members to duty;

(1) Mut. Act, Sec. 15. 92 Art. War.
(2) Vide post, Courts reduced below the legal number.

(3) This happened on the trial of lieutenant-colonel Brereton, at
Bristol, in 1831.

special cases

known, the members are liable to return and do duty with their respective corps, at the discretion of the general commanding;' but such embark o officers are not permitted to embark with their regiments, nor are they competent to any other greaton general general duty, or to apply for leave of absence till or on leave. the proceedings of the court, of which they form a part, are finally disposed of. In case of any pressing necessity, calling for the service of officers so situated, a reference is made, if at home, through the adjutant general, or, if on foreign except in stations, to the general officer commanding, before they are permitted to go beyond the reach of a call for the re-assembling of the court.?

All deliberation of the court takes place with bdmitere closed doors : at other times, it is open to the public, military or otherwise, with such limitation as the capacity of the room or tent in which it is held, and the convenience of the court and parties before it, may dictate.

The parties before the court may claim the Parties may benefit of its aggregate opinion, on any disputed Court, in quesquestion of law or custom arising out of the pro- and custom. ceedings, and in the decision of which the parties may be interested.

The majority of votes decides all questions as Decision of to the admission or rejection of evidence, and on questions, other points involving law or custom ; and in such cases, (but not as to the finding of the court,) where the votes are equally divided, the custom of the service, and the necessity of the case, justifies the decision of the question on the side on which the president may vote.'

opinion of the

.

(1) Gen. Reg. p. 2. (2) Gen. Reg. p. 247.
(3) See further remarks, under the head Sentence.

Cases of difficulty.

of members of

The highest military authority cannot interfere with any of the proceedings of a court martial, much less dictate to it. If any point arise upon a question of law, or otherwise, respecting which the court requires advice or instruction, and which is not satisfactorily afforded by the officiating judge advocate, the court usually adjourns and, through the president, reports to the commander of the forces, or to the officer by whose authority the court was convened. The deputy judge advocate is sometimes instructed by such officer, to communicate with the judge advocate general, if the trial be held at home; or, if held abroad, to obtain the opinion of the attorney or

solicitor general, or law authorities, on the spot. Responsibility. The members of courts martial would do well to Courts Martial, recollect, that although no court is competent to

stay proceedings or revoke a sentence, they are collectively and individually responsible to the supreme courts of civil judicature, not only for any abuse of power, but for any illegal proceedings ;' that the house of commons has called for a copy of the record and censured their proceedings as illegal and unjust," and recently entertained a motion which, if carried, would have had the effect of fixing this imputation on a court martial ;3 and that it has on other occasions voted

(1) Lieutenant Frye, of the marines, in 1743, brought an action in the court of common pleas against sir Chaloner Ogle, the president of the naval court martial, which had convicted him of disobedience of orders, and sentenced him to fifteen years imprisonment. It appeared that lieutenant Frye had been fourteen months in confinement, and that he had been convicted on illegal evidence,-the depositions of illiterate persons reduced to writing several days before the trial ;he bad a verdict in his favor for £1000 damages. The judge moreover informed him, that he was still at liberty to bring his action against any of the members of the court martial.-1 M‘Arthur, 344.

(2) 1 M'Arthur, 226. (3) Mr. Brougham's motion, 1st Jnne, 1824, respecting the trial of the missionary Smith, at Demerara. The previous question was carried only by 193 to 146 votes.

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