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but a Court Martial may adopt any,
A peer of parliament must be sworn.
Oaths, by whom administered,
truth ; but they may adopt any form which is authorized by the custom of the country of the witness, or which he may declare to be binding on his conscience. A recent statute' enacts that every person shall be bound by an oath, pro
vided the same shall have been administered in and false swear- such form and with such ceremonies as he may less punishable, declare to be binding, and in case of wilful false
swearing, shall be punished in the same manner as if it had been administered with the form most commonly adopted.
Peers are sworn as other witnesses; nor does their privilege of giving judgment on honor, and not on oath, apply when assisting as members of a court martial.
The persons by whom the oaths shall be to the court, administered to the court, are specified in the to witnesses, mutiny act and articles of war : witnesses are
usually sworn by the judge advocate at general,
and by the president at other, courts martial : by a priest. but if the opinion or prejudice of a witness
should render it expedient, the oath may (in open court) be administered by the priest of his sect, as is the usual custom with natives of India. It may be observed that a jew, who wears his hat in the synagogue, should be made to wear it whilst being sworn: upon the same principle," soldiers, who remain covered in the presence of
the court, invariably uncover whilst taking the Subterfuges of oath. Jews regard no oath as obligatory unless witnesses.
their head is covered, nor is their folly, to borrow the language of a recent treatise,' a single shade
(1) 1 & 2 Vict. c. 77. 14th Aug. 1838.
(2) The custom of taking off the right glove no doubt originated in the reverential feeling for the religious act, which is implied by the solemn appeal to God.
(3) Tyler, p. 47.
more degrading than the subterfuges by which too many of our own countrymen attempt to deceive both themselves and justice: it is notorious, for example, not only at the Old Bailey, (though that court has given the name to this particular species of fraud,) but elsewhere, that many a witness, if he can but escape observation and kiss his thumb instead of the book, will pledge himself to any falsehood without apprehension of incurring the guilt of perjury; another shift resorted to by the dishonest is to say nothing, but when the oath is recited in the second person, to kiss the book and so fancy they have escaped the responsibility. In parts of Wales, the oath is not considered binding unless three fingers are laid on the book; in the metropolis when irish roman catholics are sworn, the magistrates often compel them to cross themselves in addition to kissing the book stamped with the cross.
The decent solemnity which is customary at the manner in courts martial is very different from the unim- is adminstered, pressive and irreverent manner of administering unimportant. oaths too often observable in civil courts ; nor is this favorable contrast unnoticed by the learned author before referred to,' by whom also it is most judiciously remarked, that as the manner in which a thing is done has often a far greater influence upon the generality of mankind than the real character of the thing itself, the mode of administering an oath becomes a subject of very great importance.
(1) Tyler, p. 81, 89.
Of the Trial and its Incidents.
The officers who are to compose the court martial assemble according to order,' and any preliminary business having been disposed of, the court is proclaimed open? by the provost martial, sometimes by an officer or by an orderly sergeant who is in attendance.
The prisoner, prosecutor, and witnesses, then appear in court, which is cleared by order of the president,
for deliberation or upon any incidental discusmay forbid the sion.
It is competent to a court martial to during the trial. forbid the publication of a report of the trial
during its continuance, and a breach of this order may be prosecuted as a contempt of court, in the queen’s superior courts.
The proceedings of all courts martial are reunder the super- duced to writing by the officiating judge advo
cate on general, and by the president or a member under his superintendence, on other courts martial. Not only is the evidence taken down, and the judgment recorded, but every incidental transaction is noted on the face of the proceedings. In the case of the secession of a member, (1) See page 172.
(2) See page 175. (3) Lieut.-Gen. Whitelock's trial, p. 7. Lieut.-Col. Johnstone's trial, p. 3. Col. Quintin's trial, p. 349.
(4) See page 179.
or the absence of the prosecutor, prisoner, or a witness under examination, it is noted on the face of this record, and the cause, when susceptible of proof, is shewn by evidence ; if arising from illness, by the evidence of a medical officer ; or, if the subject of inquiry be a civilian, by other medical practioner.
The president' is held strictly responsible that the proceedings are written in a clear and legible hand, without erasures or interlineations; the and are care. pages of the minutes are to be numbered, and the sheets (when more than one) are to be stitched together, and made up separately upon each new trial. The record itself, usually termed the proceedings, is authenticated, at the close, by the signature of the president, and is also countersigned by the judge advocate ; and having been submitted to the confirming authority, and finally disposed of, is transmitted, and carefully preserved in the office of the judge advocate general in London, of the secretary of the admiralty, or the several judge advocates general in India, as may be specially directed by the act under the provisions of which the court may have been assembled.?
The names of the members are registered in the members the proceedings according to seniority, and the names, regiment of each is invariably to be annexed to his name, and, if on the staff, his rank and situation are to be distinctly stated."
The president takes his seat at the head of and take their the table, and the judge advocate calls over the
answer to their
(1) Gen. Reg. p. 247.
(2) Id. p. 244. (3) See Transmission of Proceedings. Index. (4) Circular. Horse Guards, 6th April, 1831.
and parties to the trial.
names of the members, who take their seats ac
cording to rank, alternately to the right and left. Judge Advocate The judge advocate's writing table is usually
placed on the right of the president; when requisite, accommodation is also afforded for the prosecutor, on the left, and for the prisoner or
his friend, opposite to the president. Order and war- The order for the assembling of, the court is rants read.
generally read; the warrants of the president and judge advocate invariably and necessarily so; and, where the court is convened by a general or other officer in command, by virtue of a warrant under the sign manual, or a warrant from a commander of the forces empowered to delegate such authority, these warrants are
sometimes and perhaps ought always to be read.' Charge read. It is proper also, at this stage of the proceed
ings, though not always observed, to read the charge, if not embodied in the president's warrant, as it formally brings before the court the
matter on which they are about to swear expressCourt, takin ly that they will duly administer justice. Courts charge, adjourns martial objecting” to a charge or the terms of it,
before the arraignment of the prisoner, must adjourn, and through the president report the proceeding to the officer by whom the court may have been convened.
Qualified challenges may be made either on the part of the crown by the judge advocate, or by the prisoner. The proper time for raising an objection to a member is subsequent to the reading of the warrants and previous to the
(1) The warrant under the sign manual, in its terminating graph declares : “ And for executing the several powers, matters and things herein expressed, these shall be to you as to the said general courts martial, and all others whom it may concern, a sufficient warrant and authority.” See Appendix, No. 1.
(2) See pages 161-163,
Challenge of members.