questioned as to his desire to challenge." swearing of the court. The judge advocate then Prisoner peremptory disposed of; Peremptory challenges, or challenges without Challenges cause assigned, are not known to courts martial; unknown, the prisoner must assign his reason, with a statement of facts, by which to render valid the exception. Should any challenge of a member how take place, the cause of exception being detailed and a reply or explanation offered, if the case be susceptible of such, all which is entered on the minutes of the court, as other parts of the proceedings, the president directs that the court be cleared, when it proceeds to deliberate and decide on the assigned cause of exception. The mem Q Cnrt previous to swearing, has a deliberative power. Challenge of ber objected against receives the president's permission to withdraw on the clearing of the court; or for the want of a decisive custom in this respect retains his seat, but without voting on the question: it may be more desirable that the officer challenged should retire during the deliberation, as it would promote freedom of discussion; but it must be confessed that the contrary practice is frequently followed. The mutiny act declares that, in all trials by courts martial, every member assisting at such trial, before any proceedings be had thereon, shall take certain oaths; but previous thereto a court once assembled has nevertheless a deliberative power, and is perfectly competent' to dispose of an exception made to any member, except the president. The president of a general court martial, being appointed by warrant, either directly or by delegated authority from her majesty; and his presence being essential to the court, and that alone, which, in dependence on the warrant, gives it life; any objection to him, though made at the same period of the proceedings, and in the same manner as on the challenge of any member, cannot be disposed of by the court, but must be referred for decision to the authority which issued the warrant for its assembling, the court separating for that purpose. Assistant surgeon T. Hunter, of the 2nd or Queen's Royal Regiment, was tried by a general court martial held at Poonah on the (1) It must, however, decide on the assertion of the individual challenging, of the officer challenged, and of the witnesses adduced; since there is no authority to receive evidence on oath, before the administration of the prescribed oath to the members. 66 20th August, 1835, and, being found guilty of the charges preferred against him, was sentenced to be dismissed the service, but was restored to his duty by general sir H. Fane, who disapproved the court martial in the following terms :-" His excellency the commander-in-chief cannot approve the proceedings of this court martial. He deems that the prisoner's objection to the partiality of the president of the court ought to have been attended to, and especially when the president declined to deny the expressions alleged to have been previously used by him, with reference to the prisoner1; expressions which, if justly charged, undoubtedly gave to the prisoner a fair ground to plead his fear of the existence of prejudice on the part of the president." not challenge able." The judge advocate or his deputy cannot, on Judge advocate any grounds, be challenged; but it has always been held that the officiating judge advocate should not (if it can possibly be avoided) blend the character of witness for the prosecution with that of judge advocate, as the union of these two characters gives upon the face of the proceedings the appearance of a preponderating and unfair influence against a prisoner on his trial. Challenges at Although it has become the almost in- inferior courts. variable practice at district courts martial, it is (1) The prisoner was a half-caste, and objected to the president, who was also the lieutenant colonel of his regiment, on the plea that he had heard a rumour that the colonel had said, on his joining, that he would allow no black blood in the regiment, and would get rid of him. He put it to the colonel's honor whether he had said so. He replied, if the prisoner wanted to bring that forward, he must produce the persons who had told him so; but whether he had said so or not signified little, as it was not a valid objection. The court was then sworn. Cause of challenge, defect in rank, defect from inexperience, prejudice or malice; far from universal' to proffer the challenge, as it is termed, to the prisoner before a regimental court martial; but if he offer such cause of challenge against any officer detailed for his trial, as to render him ineligible as a member, it must necessarily be entertained by the court; or its proceedings may be so vitiated, as to invalidate its sentence. Challenges to particular jurors, or to the pole, as they are termed, have been reduced by lawyers to four heads: propter honoris respectum ; propter defectum; propter affectum; and prop ter delictum. No question, connected with the first class, can arise for consideration by a court martial; it would be difficult to imagine a case to be classed under the fourth; it is possible, however improbable, that challenges may arise, depending on the second class; as if, by inadvertence, an officer, under the degree of captain, were about to take the oaths and proceed to the trial of a field officer; or, if a young officer were nominated a member of a court martial, without having previously attended the proceedings of such courts. The most frequently occurring causes of challenge, or rather the least infrequent, (challenges seldom happening,) attach to the third class; they arise or depend on suspicion of prejudice or malice. It is unnecessary, were it even possible, to enter with minuteness on 3 (1) The highest authority, when asked the question as to the right of challenge at regimental courts martial, did not hesitate to state that he was "not aware of any regulation which deprives a soldier tried before a regimental court martial of that benefit of challenge to which he is entitled before any other description of court martial." (2) See the opinion of the judge advocate general, pages 222-223. (3) See Gen. Reg. p. 243. jurors; this subject. The grounds of challenge are necessarily the same in all courts, but depend entirely on the facts of the particular case and the view the court may take of them. Each cause of prejudice must vary in complexion and degree, and can only be decided by the opinion of the members of the court martial, in whose breast it is to distinguish that degree of prejudice or malice which may render the exception to a particular member conclusive. Accord-allenge of ing to Blackstone, "Juries may be challenged propter affectum, for suspicion of bias, or partiality. This may be either a principal challenge or to the favor. A principal challenge is such, where the cause assigned carries with it, primá facie,. evident marks of suspicion, either of malice or favour; as, that a juror is of kin to either party within the ninth degree; that he has an interest in the cause; that there is an action depending between him and the party; that he has taken money for his verdict; that he has formerly been a juror in the same cause; that he is the party's master, servant, counsellor, steward, or attorney, or of the same society or corporation with him all these are principal causes of challenge, which, if true, cannot be overruled; for jurors must be omni exceptione majores." Now, the greater part of these causes of principal challenge may arise on courts martial, and it cannot be questioned, that it is equally necessary as on juries, that members of a court martial should be omni exceptione majores. Still, however, it must be borne in mind, that there is not an equal facility of replacing a member of a court martial and a juror in an ordi (1) 3 Commentaries, 362. may apply in Courts Martial; most cases on |