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could not; but that, the parties might maintain actions against him.
No proceedings in open court can take place Prisoner, except in the presence of the prisoner : he is occasionally attended by the provost marshal ; at other times, by an escort or guard, or by a always present commissioned officer, as his rank or the nature of the charge may dictate. The custom of all english courts of judicature prescribes, that the prisoner, having pleaded, has a right to demand that, during the trial, he may be without irons, unfettered, and free from bonds or shackles of any kind, unless there be danger of escape or rescue ;' but the court has no control over the prisoner, except during his continuance in court; when the court adjourns, the provost marshal, or garrison or regimental authority, resumes the entire authority and superintendence.?
Accommodation is usually afforded for any Accommodation friend or legal adviser of the prisoner, the benefit of whose assistance he may desire during the trial. Though the parties only are permitted to Counsel not address the court, it being an admitted maxim court, but on all courts martial that counsel are not to prisoner. interfere in the proceedings, or to offer the slightest remark, much less to plead or argue ; yet a prisoner is not precluded the advantage of the presence and advice of any military or private friend, or debarred from retaining a professional adviser, if he thinks it advisable to employ one.
Courts martial are then, more than ever, particularly guarded in adhericg to the custom which obtains of resisting every at
must always be examined on oath.
Form of oath
tempt to address them on the part of any but the parties to the trial; a lawyer is not recognised by a court martial, though his presence is tolerated as a friend of the prisoner, to assist him by advice in preparing questions for witnesses, in taking notes, and in shaping
his defence. Interpreter An interpreter may be sworn at any period
of the proceedings, if required by either party, or judged necessary by the court. The mutiny act requires that he must be duly sworn before being examined ; but there is no form of oath prescribed; the following may answer the purpose: I, A. B., do swear that I will, to the best of my ability, faithfully and truly interpret and translate in all cases, in which I shall be required so to do, touching the matter now before the court. So help me God.
In India there is a regular establishment of interpreters, whose appointments depend upon their ability to pass a prescribed examination. In the colonies courts, martial have been recommended to call upon the regular interpreters before the civil courts when their services were available. A member of the court is not disqualified from that circumstance; on the contrary, where assistance of an interpreter is required during the deliberation of the court with closed doors, not an unfrequent occurrence when there were foreign regiments in our service, a member should obviously be preferred. A proper attention to the appearance of fairness would
suggest the impropriety of receiving the interJudge Advocate pretation of the judge advocate, and absolutely
may be either regularly detailed for the duty
or a member,
(1) Mut. Act, Sec. 14.-For exceptions, see Quakers, &c.
but not the
preclude that of the actual prosecutor, or any or prosecutor. other interested party.'
The greatest caution should be exercised to the court ensure faithful translation, and to guard against all due care misconception of the true meaning of any ex- translation pression, either from the incompetence, or from the possible bias of the person employed to interpret. The interpreter should render the very words as closely as possible, and not run the risk of obscuring the proper force of an expression by attempting to give the corresponding idiom, as the court may call upon him to explain any part of his translation, or refer to a second interpreter, if they should entertain any doubt, or be desirous of further information. A party to the trial is at liberty to request the presence and assistance of a private interpreter, The court alone and may urge upon the court the propriety of cases as they
to ensure a true and just
(1) Remarks by lieutenant-general sir Thomas McMahon, commander in chief at Bombay, on a general court martial, held at Karrack, on the 6th April, 1841:
“ An attentive perusal of the proceedings in this case has impressed me with the full conviction of the correctness of the finding on both charges, and of the justice of the sentence; and I regret to observe, that no point of extenuation presents itself, by which I could have considered myself justified in withholding my confirmation from the award of the court, had not a material, and what has been previously deemed, a vitiating illegality occurred in the proceedings, by the officiating judge advocate, by whom the prosecution was wholly conducted, having also been allowed to perform the duty of interpreter, in the examination of several witnesses, both on the prosecution and defence. The illegality of that proceeding was first noticed and animadverted on by general the late marquis of Hastings, (then earl Moira,) when commander in chief in India, and the sentiments of that eminent ornament of the british army, who was deeply versed in every branch of military jurisprudence, form a part of the military code of this presidency, sec. 20, art. 108, p. 143, wherein the practice now adverted to is, without reservation or qualification, declared to be contrary to the principles of justice; and in a subsequent case which occured in this army, the proceedings were on the same grounds set aside by the then commander in chief, in the year 1816. With these precedents therefore before me, I cannot give effect to the present sentence, passed under the invalidating circumstances before referred to. Ensign has thus narrowly escaped the loss of his commission, and I trust that the lamentable position to which his acts of insobriety had reduced him, will ensure a lasting reformation in his conduct."
the due admi. nistration of justice.
hearing his version of the precise meaning of evidence, or any illustration on his part of a phrase which will admit of a second construction being put upon it; and the court; under
all the circumstances of the particular case with a view to before them, would decide on an application
of this nature, neither allowing unnecesary interruption on the one hand, nor obstructing the accurate investigation of justice on the other.
The punctual attendance of witnesses being essential to the due administration of justice, the law has provided certain modes by which to
compel their attendance. All witnesses not mat attending attending courts martial, when duly summoned
by the judge advocate or person officiating as such, are liable to attachment in the court of king's bench in London or Dublin : the court of sessions, &c., in Scotland; or courts of law in the Colonies or elsewhere respectively, in like manner as if such witnesses had neglected to attend on a trial in any proceeding in that court." In former mutiny acts, the clause ran in any criminal proceeding, but in the first mutiny acts, in the present form, (in 1829) the word criminal was omitted : it may be inferred that this is still the intention of the act, since the penalties incurred by neglecting to attend courts martial, are such as arise from neglecting to attend a trial in any proceeding, and, consequently, in a criminal one. It is well known that, in criminal proceedings, the demands of public justice supersede every consideration of private inconvenience, and witnesses are bound unconditionally to attend the trial upon which they may be summoned.? (1) Mut. Act, Sec. 15.
(2) 2 Hawk. 620.
must attend unconditionally
They cannot lawfully refuse attendance on the ground of not having received or been tendered their expenses, except where the process is served in one of the parts of the United Kingdom for the appearance of the witness in another of the parts;? it therefore follows, that in all cases (saving the exception just stated,) witnesses failing to attend courts martial, being duly summoned, though their expenses be not tendered, are liable to attachment.
No form of summons is set forth, but it should Summons, obviously state the time and place precisely of not essential, the assembling of the court, and might command the witness to lay aside all pretences and excuses and appear at the trial, on pain of the penalties declared in the mutiny act. The summons is by whom served by the provost master general on courts martial, attended by the judge advocate general, and, in other cases, by the provost marshals, their deputies, or non-commissioned officers appointed for the duty. If the witness has in to produce his possession any writings which are thought necessary to the trial, a special clause must be inserted, called by lawyers a duces tecum, commanding him to bring them with him. When the writings are in possession of the adverse party, notice should be given to produce them; and if after proof of a reasonable notice they are refused, secondary evidence of the contents will be admitted. A witness served with this summons is obliged to attend; and though it will be a question for the consideration of the court, whether he ought to be compelled to produce the (1) 1 Phil. 12.
(2) 45 Geo. 3, c. 92. (3) Phil. 18.