Gambar halaman
PDF
ePub

er latitude has always been given in the procuring witnesses mate-
or the defence, than those, though material, for the prosecution

proceeding in that ct., while those who do attend shall be privileged from arrest during their necessary attendance in such cts., and in going to and returning from the same."

[ocr errors]

on

CHAPTER II.

day of

Section 1.-DIVINE Worship.

- Form of Summonses by the Judge Advocate General, or Departy
idge Advocate General, to a Witness, either for the Prosecution or
e Prisoner.

For the Prosecutor's Witness.
ir:“A gen. ct.-mar. being appointed to be held at

, at

o'clock in the morning, for the trial of B., of the regt., upon charges preferred against him by C.D. - in the said regt.; and the said C. D. having represented that r testimony will be material in support of the said charges

. I am esire you, and you are hereby summoned to give your attendance he said ct.-mar., in order to your being examined as a witness !). You will please to acknowledge the receipt of this letter of mons. Signed) E, F., Judge Adv.gen., or Dep. Judge Adv.gen. (212)

182,

- day of 182_,

which

-- The Mode of obtaining the Attendance of Witnesses in a civil

Capacity If the witnesses should be persons in a civil capacity, who are not ect to mil. authority, nor bound to obey its citations, it is custo y for the party who requires their evidence, to resort to the aid d civil power, through the medium of the Judge Adv., who, upon ying to the proper magistrate (213), and setting forth the nearsof the case, obtain a subpæna, or summons, compelling the attene of the necessary witnesses, under the usual penalty" 214. The th sec. of the M. A. (Ann. M. A., 1824, sec. xxvii). declares

all witnesses so duly summoned, as aforesaid, who shall d on such cts, shall be liable to be attached in the cts. of Law, complaint made to such Judge or ct. (215), in like manner as i witnesses had neglected to attend on a trial in any criminal (216)

Divine Service to be frequented. Penalty of absenting, and of

irreverent Behaviour at. Art. 1.) All officers and soldiers not having just impediment (1), shall diligently frequent divine service (2); such as wilfully absent themselves, or, being present, behave indecently or irreverently (3), shall, if comd. officers, be brought before a court-martial (4), there to be publicly and severely reprimanded by the president; if non. com. officers or soldiers, every person so offending shall, for his first offence, forfeit six annas (5), to be deducted out of his next pay; for his second offence, he shall not only forfeit six annas, but be laid in irons for 12 hours; and for every like offence, shall suffer and pay in like manner: money so

forfeited shall be applied to the use of the sick soldiers of the troop or company to which the offender belongs.

1. Explanation.] “In consequence of the operation of the act for allowing the mutual interchange of the British and Irish Militias, H, R. H. the Com. in chief is pleased to direct, that the comg. officers of regts

, shall be particularly attentive, that no soldier professing the Roman Catholic Religion, shall be subject to any punishment for not attending the Divine worship of the Church of England, and that every such soldier shall be at full liberty to attend the worship of Almighty God, according to the forms prescribed by his religion (6), when military duty does not interfere."-(G.O.H.G., 5th July, 1811). Not only should the behaviour of officers and soldiers be orderly and

it

correct of his expenses from the party who requires his attendance. The refusing to attend is a contempt of court, punishable by fine and imprisonment. (1) Being sick, or on duty, &c. (2) “ And sermon, in places appointed for the assembling of the regt., troop, or 69. to which they belong;" inserted in the annual Arts. of War. The officers and soldiers of a regt. are assembled together in their side-arms at the church parade, from whence they are marched to church in regular order, the band playing, &c. They return from church in the same order and are regularly dismissed. (3) Laughing, making a noise, or talking loud to each other, or the like. (4) Gen. ct.-mar. in the case of an officer. (5) 12d. in the Ann. Arts. of War.

(6) Roman Catholics attend divine worship, and are marched to the place where their service is performed, under the command of an officer.

proceeding d) Col. Quentin's printed Trial, p. 85. 1) For the prisoner's witnesses the following; "and the said A. B. 1905presented that your testimony will be material towards his defence, I am

you,"&c.

McArthur, vol. ii. p. 359

The police magistrates of Calcutta, &c., for instance, for the attendance de within the limits of their jurisdiction. And in other cases an application to lah (district) judge and magistrates,

Tytler, p. 303. Supreme courts of Calcutta, Madras and Bombay, and Recorder's court. e of Wales's Island, &c. witness can refuse to attend in any criminal case, as the prosecution is che name of the king, and their expenses are usually paid by the

may be. In civil cases a witness can demand a promise

correct while in the church, but even while in the church-yard, “and all affrays in a church or church-yard are esteemed very heinous offences, as being indignities to Him to whose service those places are consecrated. Therefore mere quarrelsome words, which are neither an affray nor an offence in any other place, are penal here. For it is enacted by Stat. 5 & 6 Edw. VI. c. 4. that if any person shall, by words only, quarrel, chide, or brawl, in a church or church-yard, the ordinary shall suspend him, if a layman, ab ingressu ecclesiæ, and if a clerk in orders, from the ministration of his office during pleasure. And, if any person in such church or church-yard proceeds to smite or lay violent hands upon another, he shall be excommunicated ipso facto; or if he strikes him with a weapon, or draws any weapon with intent to strike, he shall besides excommunication (being convicted by a jury) have one of his ears cut off: or, having no ears, be branded with the letter F in his cheek. Two persons may be guilty of an affray" (7). “ By the stat. I car I., c. 1. no person shall assemble out of their own parishes, for any sport whatsoever upon this day; nor in their parishes, shall use any bull or bear bating, interludes, plays, or other unlawful exercises or pastimes ; on pain that every offender shall pay 3s. 4d. to the poor. This statute does not prohibit, but rather implicitly allows any innocent recreation or amusement within the respective parishes, even on the Lord's Day, after Divine Service is over" (8). “And some acts are criminal, which would be commendable if done in another place; as arrests by virtue of legal process.”

“Several statutes have been passed for the purpose of preventing disturbances in places of worship belonging to the established church, and also in those belonging to congregations of Protestant Dissenters and Roman Catholics" (9).

The misbehaviour alluded to in this art. is not likely to be of frequent occurrence, the comg. officer and the officers of the regt. being present to give an immediate check to any improper conduct, and would of course not allow the service to be interrupted by the continuance of the party in the place of Divine Worship ; but would, if necessary, cause his removal therefrom. The next thing to be considered is the notice to be taken of any such misbehaviour.

2. Procedure.] If an officer should so misbehave himself, it would appear to be sufficient for his comg. officer to notice such conduct by a reprimand, either privately or in the presence of the officers of the regt. assembled for that purpose, or to report the circumstance to the officer comg. the station ; who might either privately reprimand the party, or in the presence of the officers of the station, or adopt any other course he might think the case to require. The assembly of a gen. ct. mar. for the purpose of giving a reprimand, would be attended with much inconvenience to the public service, as the case

would, (7) Blackstone, Com., vol. iv., p. 145.

(8) Blackstone, vol. iv., p. 63. See also Suttling, art. 1, sec. viii., Ann. Arts, of War.

(9) Russell on Crimes and Misdrs., vol. i., p. 400.

11.

)

Sec. II. Art. 1. Swearing or Cursing. 57 would, according to the practice of the service, be reported, through the regular channels, to the Com. in chief. Were a gen. mar. sitting at the station it would be another question, and as there would be many witnesses of any such misconduct, there could be no difficulty in proving the fact ; but unless it were a very aggravated case even such a measure would not be necessary. Where, however, such misconduct is repeated (10), a reprimand would lose its force, and it might become necessary to exhibit charges, which do not appear to be required, by the practice of the army, in ordinary cases. The case inserted below is the only one I have met with that applies to this art. With respect to the case of N.C.O. or soldiers, the assembly of a regtal. ct. mart. is necessary, because there is a penalty to be enforced which the comg officer would not be authorized to enforce by his own authority, for stoppages are not allowed to be made from a soldier's pay in such a manner.—(See art. 3, sec. xi. Arts. of War.)

comg. the station; who might either privately reprimand the

Sec. II. Art. 1. Divine Worship.

(CuAP ect while in the church, but even while in the church-yard, “and ffrays in a church or church-yard are esteemed very heinous offeras being indignities to Him to whose service those places are consed. Therefore mere quarrelsome words, which are neither an af. nor an offence in any other place, are penal here. For it is enacty Stat. 5 & 6 Edw. VI. c. 4. that if any person shall, by words

quarrel, chide, or brawl, in a church or church-yard, the ordinary suspend him, if a layman, ab ingressu ecclesia, and if a clerk in or

from the ministration of his office during pleasure. And, if any on in such church or church-yard proceeds to smite or lay ridest s upon another, he shall be excommunicated ipso facto; or if be s him with a weapon, or draws any weapon with intent to strike, all besides excommunication (being convicted by a jury) have one

Case 1.) G.O.H.G., 24th April 1813. At a gen. ct.-mar., Lieut. J. M., of the 63d regt., was arraigned upon the undermentioned charges, viz :-Ist. “ For conduct highly disgraceful and unbecoming the character of an officer and a gent., in appearing at the church parade of the regt. on Sunday, the 27th of Sept. 1812, in a state of intoxication."

2d" For conduct highly disgraceful and unbecoming the character
of an officer, in being drunk, when for the duty of orderly subaltern of
the day, on Sunday the 27th Sept. 1812, having been named in regl.
ors. for the said duty the day before.”
FINDING-Guilty. SENTENCE-To be cashiered.
Approved and confirmed by H. R. H. the P.R. By command.

(Signed) H. CALVERT, Adj. gen.

1. no person

3 cars cut off: or, having no ears, be branded with the letter F in Freek. Two persons may be guilty of an affray" (7). "By the stat. I., C.

shall assemble out of their own parishes, for port whatsoever upon this day; nor in their parishes

, shall use ull or bear bating, interludes, plays, or other unlawful exercises or nes; on pain that every offender shall pay 3s. 4d. to the poor. statute does not prohibit, but rather implicitly allows any indorecreation or amusement within the respective parishes

, even on

"And some acts ord's Day, after Divine Service is over(8). iminal, which would be commendable if done in another place; ests by virtue of legal process." everal statutes have been passed for the purpose of preventing

Penalty of Swearing or Cursing. Art. 2.] Whatsoever officer, non-com. officer, or soldier, shall use any unlawful oath or execration, shall incur the penalties expressed in

the first art.

bances in places of worship belonging to the established church so in those belonging to congregations of Protestant Dissentieri oman Catholics" (9). è misbehaviour alluded to in this art. is not likely to be of fie occurrence, the comg. officer and the officers of the regt

. being it to give an immediate check to any improper conduct

, and of course not allow the service to be interrupted by the continof the party in the place of Divine Worship;

but would

, if neces cause his removal therefrom. The next thing to be considered notice to be taken of any such misbehaviour.

Procedure.} If an officer should so misbehave himsell, it would to be sufficient for his comg, officer to notice such conduct by mand, either privately or in the presence of the officers of the sembled for that purpose, or to report the circumstance to the

1. Explanation.] By the stat., 19 Geo. II., c. 21., which repeals all former ones, every labourer, sailor, or soldier profanely cursing and stoearing shall forfeit ls.; every other person under the degree of a gent., 25.; and every gent. or person of superior rank, 5s. to the poor of the parish ; and, on a second conviction, double ; and, for every subsequent offence, treble the sum first forfeited; with all charges of conviction ; and in default of payment shall be sent to the House of Correction for 10 days. Any justice of the peace may convict upon his own hearing, or the testimony of one witness ; and any constable or peace officer, upon his own hearing, may secure any offender and carry him before a justice, and there convict him. (11) Besides this punishment for taking God's name in vain in common discourse, it is enacted

by (10) The art. does not provide for the case. (11) Blackstone, Com., vol. iv., p. 59.

or in the presence of the officers of the station, or adopt any surse he might think the case to require. The assembly orá mar. for the purpose of giving a reprimand

, would be atwith much inconvenience to the public service, as the car

would, kstone, Com., vol. iv., p. 145.

iv., p. 63. See also Suttling, art. I, sec. vii., Ann, Arts, of

yssell on Crimes and Misdrs., vol. i, p. 100.

by stat. 3 Jac. I., c. 21, that if in any stage play, interlude, or shew, the name of the Holy Trinity, or any of the persons therein, be jestingly or profanely used, the offender shall forfeit £10.; one moiety to the king, and the other to the informer.” (12)

Penalty of speaking against any Article of the Christian Faith. Art. 3.) Whatsoever officer, non-com. officer, or soldier, shall presume to speak against any known art. of the Christian faith, shall be (13) liable to be punished by the civil magistrate according to law.

1. Explanation.] “ This species of offence, against God and religion, is that of blasphemy against the Almighty, by denying his being or providence ; or by contumelious reproaches of our Saviour Christ. Whither also may be referred all profane scoffing at the Holy Scripture, or exposing it to contempt and ridicule. These are offences punishable at common law by fine and imprisonment, or other infamous corporal punishment: for Christianity is part of the laws of England" (14). Therefore those guilty of any such conduct are liable to the penalties denounced.

Penalty of profaning Churches, or offering Violence to Ministers.

Art. 4.] Whatsoever officer, non-com. officer, or soldier, shall profane any place dedicated to divine worship, or shall offer violence to a chaplain of the army, or to any other minister of God's Word, shall be liable to such punishment as by a gen. ct.-mar. shall be awarded.

1. Profaning places of Divine Worship.] Profaning places of divine worship may be committed in various ways; such as defacing the walls, or drawing figures upon them, or doing any wilful injury to the pews, seats, forms, books, &c., belonging to any part of the church or place in which Divine service is performed; and defacing the tombstones, or committing any wilful injury to the graves, or walls, &c., surrounding the sacred ground, are all of them acts of profanation ; though those which are committed immediately in the body of the church, &c., are of a more heinous nature. By stat. 1, Geo. I, st. 2, c. 5, sec. iv., “ if any persons unlawfully, riotously, and tumultuously, assembled together, to the disturbance of the public peace, shall unlawfully and with force demolish or pull down, or begin to demolish or pull down, any church or chapel, or any building for religious worship, certified and registered (according to the 1st. W. and M., sess. I, c. 18), then every such demolishing, &c., shall be adjudged felony without benefit of clergy, and the offenders therein shall suffer death, &c. Principals in the second degree are within this statute” (15).

2. Offering Violence to Chaplains.] The offering, even, violence to a chaplain is a punishable offence. The stat. 52. Geo. III., c. 155,

enacts, (12) Blackstone, Com., vol. iv. p. 60.

(13) “ Delivered over to the civil magistrate, to be proceeded against according to law,” in the Ann. Arts. of War, (14) Blackstone, Com., vol. iv. p. 59.

(15) Russell on Crimes and Misdrs., vol. i. p. 356.

[ocr errors]

II.) Sec. II. Art. 4. Violence to Chaplains.

59 enacts, “ that if any person or persons shall in any way disturb, molest, or misuse any preacher, teacher, or person officiating at such religious meetings; such person or persons so offending shall, upon conviction of the said offence at the gen. or qt. sessions, suffer the pain and penalty of £40." (16). But the striking a clergyman whether in the execution of his office or otherwise is punishable in a more severe man

ner.

“ There is also one species of battery, more atrocious and penal than the rest, which is the beating of a clerk in orders, or clergyman ; on account of the respect and reverence due to his sacred character, as the minister and ambassador of peace. Accordingly it is enacted by the statute called articuli cleri, 9 Edw. II., c. 3, that if any person lay violent hands upon a clerk, the amends for the peace broken shall be before the king ; that is, by indictment in the king's cts. So that upon the whole it appears, that a person guilty of such brutal behaviour to a clergymai, is subject to three kinds of prosecution, all of which

may be pursued for one and the same offence : an indictment for the breach of the king's peace by such assault and battery ; a civil action for special damage sustained by the party injured ; and a suit in the ecclesiastical ct.”—(Blackstone, vol. iv, p. 217).

3. Charges.] See Forms, Nos. 39 and 40, Chap. I. That A. B. did, on , at ---, profane the place dedicated to Divine worship, (state the particulars and acts). Or, that A. B. did, on at offer violence to C. D., a chaplain of the army, &c., the same being in breach of the Arts. of War.

4. Evidence.] Nos. I and 2, as at Chap. III. sec. ii. art. l. 3. Prove the place to be dedicated to Divine worship. 4. Prove the acts of profanation ; or, prove C. D. to be a chaplain, and prove the offer of violence to him by A. B. One witness would be sufficient.

5. Punishment.] Discretionary.-(See punishment at the end of Chap. XXIV., and Case 1).

CASE 1.] G. 0. C. C. 27th Nov. 1820. At an European gen. ct.mar. Capt. A. B_H. Cs. En. regt. was arraigned upon the following charges, viz.

“Captain B-H. Cs. En. regt. is accused by me, of scandalous and infamous conduct, in the following instances:

lst “In having violently entered my private sleeping apartments at Chowringhee, although the doors were locked and bolted, for security against intrusion (I having retired to my family, being an invalid), and thereby alarming my family, by forcibly breaking open bolts, locks, &c. on the afternoon of the 9th instant. 2d. “ For conduct highly disgraceful, infamous, and unbecoming the character of an officer and a gentleman, in shamefully abusing, and violently assaulting, and beating brutally, and afterwards kicking when on the floor, the Rev.Mr.H. (without one single word of communication)

on

(16) Russell, on Crimes and Misdrs., vol. i, p. 405.

Sec. II. Arts. 3, 4. Speaking aguinst Religion, &c. [Cuar.
tat. 3 Jac. I., c. 21, that if in any stage play, interlude, or shew, the
e of the Holy Trinity, or any of the persons therein, be jestingly
rofanely used, the offender shall forfeit £10.; one moiety to the
; and the other to the informer." (12)

Penalty of speaking against any Art icle of the Christian Faith.
rt. 3.) Whatsoever officer, non.com. officer, or soldier, shall pre-
: to speak against any known art. of the Christian faith, shall be
liable to be punished by the civil magistrate according to law.
Explanation.) This species of offence, against God and religion.
at of blasphemy against the Almighty, by denying his being or
idence; or by contumelious reproaches of our Saviour Christ.
ther also may be referred all profane scoffing at the Holy Scripture,
posing it to contempt and ridicule. These are offences punishable
mmon law by fine and imprisonment, or other infamous corporal
hment: for Christianity is part of the laws of England" (14.
efore those guilty of any such conduct are liable to the
ties denounced.

enalty of profaning Churches, or offering Violence to Ministers. it. 4.) Whatsoever officer, non-com. officer, or soldier, shall prany place dedicated to divine worship, or shall offer violence to a zin of the army, or to any other minister of God's Word, shall ble to such punishment as by a gen. ct.-mar. shall be awarded. Profaning places of Divine Worship.] Profaning places of divine ip may be committed in various ways; such as defacing the or drawing figures upon them, or doing any wilful injury to the seats, forms, books, &c., belonging to any part of the church or in which Divine service is performed; and defacing the tomb> or committing any wilful injury to the graves, or walls

, &c,
nding the sacred ground, are all of them acts of profanation;
I those which are committed immediately in the body of the

1, &c., are of a more heinous nature. By stat. 1, Geo. I, st. 2.
ec. iv., " if any persons unlawfully, riotously

, and tumultuously, pled together, to the disturbance of the public peace, shall uny and with force demolish or pull down, or begin to demolish down, any church or chapel, or any building for religious wor. ertified and registered (according to the Ist. W. and M. sess. I, then every such demolishing, &c., shall be adjudged felony t benefit of clergy, and the offenders therein shall suffer death rincipals in the second degree are within this statute(15). fering Violence to Chaplains.) The offering

, eren, violence to a

ő is a punishable offence. The stat. 52. Geo. III

, c. lái,

enacts
Blackstone, Com., vol. iv. p.60.
Delivered over to the civil magistrate, to be proceeded against according to
Arts, of War.

(14) Blackstone, Com., vol. ir. p. 59.
and Misdrs., vol. i. p. 356.

« SebelumnyaLanjutkan »