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writings in his possession, yet he ought to be ready to produce them, if ordered by the court ; and in case of disobedience without sufficient cause, will be liable to an attachment :' or a military man would be subject to arrest and subsequent trial by a court martial.
The summons should be served personally on the witness, particularly if not subject to military law, and in reasonable time before the day of trial, that he may suffer the less inconvenience from his attendance on the court.? Notice to a witness in London, at two in the afternoon, requiring him to attend the sittings in Westminster in the course of the same evening, has been held too short. If the witness, whose attendance is required, be a married woman, it will be necessary to summons her personally, the service upon her husband is not held sufficient. * A witness must attend in court himself, pursuant to his subpena ; it is no excuse for his non-attendance that he employed a person to watch the proceedings of the court, who neglected to give him notice in due time. Military witnesses, if officers, are occasionally summoned by letter from the judge advocate ; if soldiers, the judge advocate addresses a letter to their commanding officer, to direct their attendance. When a court martial is put in orders, it is often added, that “all witnesses will attend ;” a failure, therefore, in this respect, would necessarily incur the penalties attaching to disobedience of orders, and may be visited by arrest and trial. Soldiers who are confined or imprisoned in military cus(1) Phil. 474. (2) 1 IV. 4.
(4) IV. (5) Rex. v. Fenn. 3, D. P. C. 547.
expenses of witnesses.
tody, or under military control, may be produced as witnesses ; as also soldiers or civilians in the civil confinement. Any judge of the court of Writs of Habeas Westminster may award a writ of habeas corpus, prisoners for for bringing up prisoners for trial or examination examination. before courts martial, in like manner as they award such writs to bring persons detained in gaol before magistrates or courts of record ;' and such writs of habeas corpus may be awarded, whether the prisoner, to be brought up, be detained on a civil or criminal process.?
Officers, when witnesses for the prosecution, Travelling are entitled to travelling expenses and a daily allowance ; when for the defence, they are required to submit their claims to allowances for special consideration ;3 non-commissioned officers or soldiers in either case receive the usual marching money.
However expedient and reasonable it may be, No express that civilians attending to give evidence in fur- the expenses of therance of public justice, should be compensated for unavoidable expenses incurred; and poor persons also, for their loss of time ; yet there is no power in a court martial to judge of the propriety of their receiving expenses, nor are they in point of law entitled to any compensation ; being obliged, as before observed, to attend and give evidence unconditionally. The secretary at claims tenterwar, however, has recently entertained claims on Mars the part of civilians, both for the prosecution and defence; and, on the certificate of the officiating judge advocate, as to the time employed in attending the court, usually allows the expenses, or a (1) 43 Geo. 4, c. 140. (2) 2 M. & S. 582, Tidd.
(3) See Appendix, No. 9.
Witnesses privileged from arrest.
Parties not privileged.
sum in lieu of them, to the witnesses for the prosecution, and sometimes for the defence."
All witnesses duly summoned by the judge advocate, or the person officiating as such, or by the president of courts martial other than general, are privileged from arrest during their necessary attendance on, and in going to and returning from, courts martial, in like manner as witnesses attending any of his majesty's courts of law are privileged, and if unduly arrested, it is imperative on the court out of which the writ or process issued by which such witness was arrested, to discharge him. A reasonable time is allowed to the witness for going and returning, and in making this allowance the court are disposed to be liberal.3
In the ordinary courts of law, parties to a suit, as well as witnesses, are protected by courts of justice eundo, morando, et redeundo; nor is it necessary that a witness should have been served with a subpæna, if, upon application to him, he consented to attend without one. But these rules do not apply to proceedings before courts martial ; the terms of the statute, by which protection is afforded, being all witnesses duly summoned ; parties to the trial, therefore, are not
(1) By the 7th Geo. 4, c. 46, s. 22, it is provided that the court, before which any person shall be prosecuted or tried for any felony, may in all cases order payment of the expenses of prosecutions, and may also order an allowance to persons attending on recognizance, where no bill may be preferred. The following section provides for the payment of expenses on the prosecution of certain misdemeanors; and the 27th section, for the payment of expenses on prosecutions in the admiralty court. These enactments, therefore, so far as the attendance of a witness is concerned, tend to confirm the previous well established principle, that, in criminal cases, witnesses must unconditionally attend, since the question of expenses becomes a subsequent consideration for the court. It were to be wished that the principle had been extended to witnesses attending courts martial, especially to witnesses not military. (2) Mut. Act, Sec. 15.
(3) Phil. 6.
necessary to a court of justice.
viour of mem.
protected, nor are witnesses who may attend without a summons.
No reproachful words are to be used to wit- Treatment of nesses or prisoner, and the president is responsible prisoner. that every person attending the court is treated with proper respect.'
The president is charged with the maintenance The president of proper order, and, not so much from his the decorum individual rank, as in virtue of presiding over a court of justice, and thereby exercising the power vested in it, is called on to repress impropriety of conduct or language on the part of every person present at its proceedings.
The articles of war enjoin the members to Decent behabehave with decency; and in the case of their bers. using intemperate words, require the president to direct the same to be taken down in writing and reported to the officer ordering the court martial to assemble.
Courts martial are empowered,” at their dis- Contempts, cretion, to punish for menacing words or gestures made use of in their presence, or for disorder or riot amounting to a disturbance of their proceedings. It may be remarked that the contempts thus subjected to a summary punishment are those only of an aggravated and self-evident when direct, nature, which being committed in the presence of mari, composed the court, do not need to be substantiated by any other evidence, and not being dependent on any constructive interpretation of the law, do not require more protracted investigation. Courts martial have acted on this power, even without
(1) 94 Art. War.
(2) 93 Art. War. (3) The following order, quoted from Hough on Courts Martial, (1825,) p. 455, explains a case in the East India company's service,
giving the offender an opportunity of offering any excuse in mitigation, or have accepted an apology where the contrition of an offender justified this course, and their authority was sufficiently vindicated by his voluntary submission : at other times, charges have been preferred by the court or by direction of the confirming or other superior authority, whose notice had been drawn to the circumstances either by a special report or by
their appearing in the record of the proceedings. Contempts A regimental court martial may punish sumBearts martial. marily, for menacing signs, words, gestures,
disturbances, or riots, by soldiers ; but, from
20th July, 1791. “ Remarks by a General Court Martial.
“The court determined that the paper read in open court by Mr. P. (the prosecutor) is an insult of the grossest kind on the proceedings of this court, replete with misrepresentation, and a reflection on the dignity of courts martial, and that, after the repeated reprimands Mr. P. has already received from the court, and experiencing their Jenity to so great a degree as he has done, by several instances of his conduct being hitherto overlooked ; they find themselves under the indispensable necessity of ordering him into arrest for his contumelious, disrespectful conduct. The court are further of opinion, that Mr. P.'s delivering into the court the written paper, which he called a protest, saying he had nothing now to offer in reply, and retiring immediately, instead of making his reply as was expected, and for which leave was granted by the court, at his own request, is a serious aggravation of the offence that preceded it, and is a menace, which seems intended by him to bias their judgment in passing sentence on Mr. M. Taking those matters, together with the intemperate and contemptuous conduct of Mr. P. throughout the whole of this trial, into their most serious and solemn contemplation; and feeling the necessity of discouraging, in the most exemplary manner, all sorts of intemperance and contempt towards the only tribunal that exists for the preservation of discipline in the army, (general courts martial,) they pronounce Mr. P. surgeon of the 5th European battalion, guilty of a breach of the 13th Art. Sec. xii. of the Arts. of War,” (similar to the 23rd Art. xvi. Sec. of the Articles of War of the time, and of the 93rd Art. of the present day,) "and they sentence him, and he is hereby sentenced, to be suspended from his rank, pay, and allowances in the honorable company's service, for the term of six months.”