Killed and wounded.

and organized.

in such regiments, if not from some respectable physician liv ing within the bound of the same, that he is unable to perform military duty on account of bodily infirmity, the nature of which infirmity is to be described in said certificate; and the commanding officer of the company may, on the back of such certificate, discharge the non-commissioned officer or private named therein, from performing military duty, for such a term of time as he shall judge reasonable, not exceeding one year; which certificate, if approved and countersigned by the commanding officer of the regiment, or battalion, to which the disabled non-commissioned officer or private belongs, shall entitle him to exemption from military duty for the time specified. And any non-commissioned officer or private, having obtained a certificate as aforesaid, and who may be refused a discharge, or an approval of a discharge as aforesaid, may apply to the commanding officer of the brigade for a further examination of his case, and if, on such examination, the commanding officer of the brigade shall be well satisfied that the bodily infirmity of such non-commissioned officer or private is such that he ought to be discharged, he is hereby authorized to discharge him from military duty for such time as he shall judge reasonable, not exceeding one year, which being certified by the commanding officer of the brigade on the back of the certificate, shall discharge the non-commissioned officer or private from military duty, for the time specified by the commanding officer of the brigade.

SECT. 30. Be it further enacted, That if any officer, noncommissioned officer or private shall be killed, or die of wounds received when on any military duty required by this act, his widow, child, or children, shall receive from the General Court such relief as shall be just and reasonable. And if any officer, non-commissioned officer, or private, shall be wounded, or otherwise disabled when on such duty, he shall receive from the General Court just and reasonable relief.

SECT. 31. Be it further enacted, That the commander in Courts-martial chief shall appoint general courts martial for the trial of all how appointed officers above the rank of captain; and the major generals or commanding officers of divisions, each within his own division, shall appoint division courts martial for the trial of captains and officers under that rank; and whenever a court martial is ordered, the officer ordering it shall appoint the president and marshal of the same; and if it be a general court martial, orders shall be issued to such divisions as, in the opinion of the commander in chief, may most conveniently furnish the members thereof; if it be a division court martial, orders shall be issued to such brigades, regiments, battalions or companies, within the division, as in the opinion of the major-general or commanding officer of the division, may most conveniently furnish the members thereof. The president of a general court martial shall in no case be under the rank of brigadier-general, and the president of a division court martial, shall in no case be under the rank of lieutenant-colonel commandant. And whenever the commanding officer of a division, brigade, regiment, or battalion, shall be ordered to furnish any officer or

officers, as member or members, supernumerary, or supernume raries of a court martial, such officer or officers shall be regularly detailed from the roster of the division, brigade, regiment, or battalion, by the commanding officers thereof, respectively, forthwith, after having received orders therefor as aforesaid: Provided however, That in case of inability, sickness, or absence of any officer, whose turn it would be to serve on a court martial, the detailing officer shall certify such circumstance to the officer who ordered the court martial, and detail the officer next in rotation. And the officers, ordered to be detailed to serve on courts martial, shall be detailed in the following manner. Major-generals, by the commander in chief, or his or ders, from the general roster; brigadier-generals, by the commanding officers of divisions, from the division roster; lieutenant-colonels and majors, by the commanding officers of brigades, from the brigade roster; and captains and subalterns, by the commanding officers of regiments or battalions, from the regimental or battalion rosters, as the case may be. All courts martial shall be constituted of a president, a judge-advocate, twelve members,* and a marshal. And the officer appointing a court martial, may, at his discretion, order a number of offi- [Alteredcers, not exceeding six,* to be detailed as supernumeraries, 1821 ch. 92.] in addition to the twelve intended to serve as members, to attend the court at the organization thereof; and in case there should be any vacancy or vacancies, the judge advocate shall fill such vacancy or vacancies, from the supernumeraries, beginning with the highest in grade, and proceeding in regular rotation. All officers on a court martial shall take rank by

1815 ch. 124:

seniority of commission, without regard to corps.. Before any Members to Be court martial shall proceed to the trial of any officer, the judge- sworn. advocate shall administer to the president and each of the members, singly, the following oath :

You, A. B. do swear, that without partiality, favour, affection, prejudice, or hope of reward, you will well and truly try Oath. the cause now before you, between this Commonwealth and the person [or persons, if more than one is accused in the same complaint] to be tried; and you do further swear, that you will not divulge the sentence of this court martial, until it shall be approved or disapproved of, and that you will not, on any account, at any time whatever, discover the vote or opinion of any member, unless required to give evidence thereof, as a witness, by a court of justice, in a due course of law. So help you God.

And the president shall administer to the judge-advocate the following oath :

You, A. B. do swear, that you will faithfully and impartially Judge-advo discharge your duties as judge-advocate on this occasion, as well cate's oath. to the Commonwealth, as to the accused, and that you will not, on any account, at any time whatever, divulge the vote or opinion of any member of this court martial, unless required to give evidence thereof, as a witness, by a court of justice, in a due course of law. So help you God.

All persons shall be holden to appear and give evidence be

as in other

alty.

Witnesses hol- fore any court martial, when thereto summoned by the judge. den to appear advocate, or a justice of the peace, under the same penalties courts on pen- for neglects, as are by law provided against witnesses who neglect to appear when summoned to give evidence in criminal prosecutions. All witnesses shall be sworn or affirmed by the judge-advocate before they give their evidence to the court, and the form of the oath or affirmation to a witness shall be as follows:

Their oath.

In case of challenges

Trials, how conducted.

Boards of officers and courts of inquiry, how instituted

You, A. B. do swear (or affirm, as the case may be) that the evidence you shall give, in the cause now in hearing, shall be the truth, the whole truth, and nothing but the truth. So help you God. (or, this you do under the pains and penalties of perjury, in case the witness shall affirm.)

When any member of a court martial is challenged, either on the part of the government or the accused, the cause of challenge must be stated in writing, of which the court, after due deliberation, shall determine the relevancy or validity, and decide accordingly. And no challenge to more than one member at a time shall be received by the court. On questions of challenge, the member objected to shall not vote, but the president may vote with the members, that the number of votes may remain twelve. And in no case shall a challenge be acted upon, until the president, and judge-advocate, and the intended members are sworn. All trials by courts martial shall be carried on in the day time, and when the votes are called for, on a question, the judge-advocate shall begin with the youngest in commission, and proceed regularly to the eldest. And at all courts martial, unless two thirds of the members agree that the accused is guilty, the judge-advocate shall record his acquittal; but if two thirds, or more, pronounce the accused to be guilty, the court shall sentence him either to be reprimanded in orders, or removed from office; and if any officer be sentenced to be removed from office, the court shall adjudge him to be disqualified for, and incapable of holding any military office under this Commonwealth, either for life or term of years, according to the aggravation of his offence; which sentence, either of reprimand in orders, or removal from office, if approved, shall remain in full force; but the judgment of disqualification may be reversed by the commander in chief, with advice of council. And all courts martial are hereby authorized to preserve order during their session; and if any person or persons, in presence of a court martial, shall behave in a disorderly manner, or make any tumult in, or disturb a court martial, and shall not, upon command of the marshal thereof, desist therefrom, it shall be lawful for the court martial to confine such disorderly person or persons for a time not exceeding eight hours.

SECT. 32. Be it further enacted, That the commander in chief may call boards of officers, whenever in his opinion they may be necessary, for settling military questions, or for other and organized. purposes relative to good order and discipline. And the Commander in chief, or the major-generals, or commanding officers

of divisions, each within his own division, may order courts of inquiry, to examine into the nature of any transaction, or any accusation or imputation against any officer, when made by an inferior. Provided however, That courts of inquiry on all officers above the rank of captain are to be ordered by the commander in chief; and courts of inquiry on captains and other officers under that rank are to be ordered by the major-generals or commanding officers of divisions. And courts of inquiry shall always consist of three officers, with the judge-advocate of the division in which they are holden, or some other suitable person, in case of his inability to attend, or any legal impediment to his acting; all of whom shall be sworn. These courts shall have the same power to summon witnesses as courts martial, and to examine them on oath, but they shall not give their opinions on the merits of the case, unless they are specially required so to do. The parties shall also be permitted to cross-examine and interrogate the witnesses, so as fairly to investigate the circumstances in question. The proceedings of a court of inquiry are to be authenticated by the signatures of the president and judge-advocate, and are to be transmitted by the judge-advocate, under seal, to the officer who appointed the court. The To be sworn. judge-advocate shall administer to each of the officers composing a court of inquiry the following oath:

You, A. B. do swear that you will well and truly examine Oath. and inquire into the matter now before you, without partiality, favour, affection, prejudice, or hope of reward. So help you God.

After which the president shall administer to the judgeadvocate the following oath:

You, A. B. do swear, that you will impartially record the Judge-advoproceedings of the court, and the evidence to be given in the cate's oath. case in hearing. So help you God.

The judge-advocate shall administer to the witnesses the Witnesses to same oath or affirmation, as the case may be, as is prescribed be sworn. in the thirty-first section of this Act, to be administered to witnesses before a court martial. And as courts of inquiry, when not properly regulated, may be perverted to improper purposes, all other courts of inquiry than those above provided for are prohibited.

Duty of the

SECT. 33. Be it further enacted, That it shall be the duty of the judge-advocates to attend all general and division courts judge-advomartial, and all courts of inquiry, within the divisions in which cate. they are respectively commissioned, when thereto ordered. Provided nevertheless, That it shall be in the power of the commander in chief, or the major-generals, or commanding officers of divisions, to appoint a judge-advocate, pro tempore, to any particular court martial, or to any particular court of inquiry, appointed to be holden, in case of inability of the division judge-advocate, or in case of any legal impediment to his acting. And it shall further be the duty of each judge-advocate, or person officiating as such, at any court martial, impartially to state the evidence both for and against the officer or officers under trial; to take accurate minutes of the evidence, and of

Rules for the government

of the militia, when not in

actual service.

Unmilitary

the proceedings of the court, all of which, with the judgment of the court thereupon, authenticated by his signature, and that of the president of the court, with the papers used at the trial, or copies thereof, certified by him, he shall transmit under seal to the officer, whose duty it is to approve or disapprove of such judgment and proceedings; and all motions and objections to evidence, whether on the part of the Commonwealth or the accused, and the opinions of the judge-advocates on questions of law made at the trial, shall be given in writing; and the statement of the complainant, and the defence of the accused, shall be made in writing, in order that a full view of the trial may be had by the officer who ordered the court. And the original records of the proceedings and judgment of all general and division courts martial, after having received the approbation or disapprobation of the officer who appointed them, shall, as soon as opportunity of time and distance will admit, after such courts martial are dissolved, be deposited in the office of the secretary of State, where they shall be carefully kept and preserved; and the officer who appointed a court martial shall be entitled to receive, upon his demand, a copy of the original record from said office, certified by said secretary. And the party tried by any general or division court martial, upon request made at the office of the secretary of state, by himself, or any person authorized in his behalf, shall be entitled to a copy of the original record, certified as aforesaid, of the proceedings and judgment of the court martial which tried him, he paying reasonably therefor.

SECT. 34. Be it further enacted, That the following shall be the rules and articles by which the militia of this commonwealth shall be governed, when not in actual service.

Article 1. Every commissioned officer, who shall be guilty of any unmilitary conduct, or neglect of duty, disobedience of conduct, &c. orders, or who shall, when on duty, appear or behave himself in an unofficer-like manner, or who shall wilfully oppress or injure any under his command, or who shall at any time set on foot, or join in any combination to resist or evade the lawful orders of any commissioned officer, shall be liable to be tried by a court martial.

Article 2. If any officer shall in due course of law be convicted of any infamous crime, he shall be forthwith put in arrest, and deprived of all military command, until an opportunity shall be had for both houses of the Legislature to address the Governor for his removal.

Article 3. Every officer, to be tried by a court martial, shall be put in arrest, so as to be suspended from the exercise of his office, and shall have a copy of the charges exhibited against him, and notice of the time and place appointed for his trial, which copy and notice shall be given ten days at least before his trial is commenced.

Article 4. In case any officer, for the trial of whom a court martial is appointed, shall neglect to appear and make defence, or if appearing shall afterwards withdraw in contempt of the court, or being arraigned before a court martial, shall from obstinacy or deliberate design stand mute, or answer foreign to