49.-Duties of an Interpreter before the Assembly of a General Courtmartial Having been furnished, by the Judge Adv., with a copy of the charges, he should prepare a correct translation of them, in order that the members of the ct.-mar., and the witness, to whom the charges are to be read and explained, may comprehend clearly their full import and meaning. He should likewise endeavour to ascertain if there are any witnesses, in swearing whom any particular form of oath may be esteemed, by their particular sect or cast, as more binding than the ordinary one in use. 50.-The Assembly of a General Court-martial. The station appointed for the assembly of the gen. ct.-mar. is directed in G. O. The time and place are usually notified in Statn. O., and" in order to provide suitable accommodation for the assembling of gen. cts.-mar. at the several stations of the army, it is directed that the regimental mess rooms of corps shall be considered available for that purpose, at the direction of the officer comg. the station where the ct. may be directed to assemble" (207). The usual hour is 10, A. M., and cannot be before six, A. M., " except in cases which require an immediate example" (208). 51-Postponement of the Assembly of the General Court-martial. It sometimes happens that the assembly of the ct. is rendered unnecessary, in consequence of the acknowledgement of the offence and the application of the party to be allowed to retire from the service (209); and if the Com. in chief permits this indulgence, or the charges are withdrawn, from any other cause, due notice should be given, immediately, to the president and members of the ct., the prisoner, prosecutor, witnesses, and all persons concerned, that the assembly of the ct. is postponed, or that the ct. will not be assembled; in order, in the latter case, that all the parties may the sooner return to their regts., &c. A postponement of the trial is sometimes requisite in consequence of the absence of a material witness. More indulgence is usually given to the prisoner than to the prosecutor in such cases. So, on the trial of Col. Quentin, in answer to Col. Palmer (the prosecutor), the Judge Adv.gen. observed, "I do not know of any instance of the ct. being adjourned to an indefinite period, for the attendance of a witness, whose attendance they could not compel. Another circumstance is, that it is a witness on the part of the prosecution; and that this prosecution, as all military prosecutions are, is in the name of the crown; and I take it not only on precedent, but in common justice, a (207) G. O. G. G. C., Ft. Wm. 14th Dec. 1822. (208) Art. 7, sec. xiv., Arts. of War. (209) G. O. G. G. C., 10th June, 1816. greater greater latitude has always been given in the procuring witnesses material for the defence, than those, though material, for the prosecution" (210). 52.-Form of Summonses by the Judge Advocate General, or Deputy Judge Advocate General, to a Witness, either for the Prosecution or the Prisoner. For the Prosecutor's Witness. Sir:-A gen. ct.-mar. being appointed to be held at the day of A. B., of the on at o'clock in the morning, for the trial of regt., upon charges preferred against him by C. D., in the said regt.; and the said C. D. having represented that your testimony will be material in support of the said charges, I am to desire you, and you are hereby summoned to give your attendance at the said ct.-mar., in order to your being examined as a witness (211). You will please to acknowledge the receipt of this letter of summons. (Signed) E. F., Judge Adv.gen., or Dep. Judge Adv.gen. (212) day of 182-. 53.-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 subject to mil. authority, nor bound to obey its citations, it is customary for the party who requires their evidence, to resort to the aid of the civil power, through the medium of the Judge Adv., who, upon applying to the proper magistrate (213), and setting forth the necessity of the case, obtain a subpœna, or summons, compelling the attendance of the necessary witnesses, under the usual penalty" 214). The xxviith sec. of the M. A. (Ann. M. A., 1824, sec. xxviii). declares, "that all witnesses so duly summoned, as aforesaid, who shall not attend on such cts., shall be liable to be attached in the cts. of law, upon complaint made to such Judge or ct. (215), in like manner as if such witnesses had neglected to attend on a trial in any criminal (216) proceeding (210) Col. Quentin's printed Trial, p. 35. (211) For the prisoner's witnesses the following; "and the said A. B. having represented that your testimony will be material towards his defence, I am to desire you," &c. (212) McArthur, vol. ii. p. 359 (213) The police magistrates of Calcutta, &c., for instance, for the attendance of a person within the limits of their jurisdiction. And in other cases an application to the Zillah (district) judge and magistrates. (214) Tytler, p. 303. (215) Supreme courts of Calcutta, Madras and Bombay, and Recorder's court, at Prince of Wales's Island, &c. (216) No witness can refuse to attend in any criminal case, as the prosecution is, on the part of, or in the name of the king, and their expenses are usually paid by the county or crown, as the cases may be. In civil cases a witness can demand a promise of 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." CHAPTER II. SECTION 1.DIVINE WORSHIP. 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: which 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 of has expenses from the party who requires his attendance. is a contempt of court, punishable by fine and imprisonment. (1) Being sick, or on duty, &c. correct The refusing to attend (2) And sermon, in places appointed for the assembling of the regt., troop, or co. 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. (5 124. 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. 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. 1 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 (9) Russell on Crimes and Misdrs., vol. i., p. 400. War. 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.) 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, riz:-1st. "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. 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. 1. Explanation.] By the stat., 19 Geo. II., c. 21., which repeals all former ones, every labourer, sailor, or soldier profanely cursing and swearing shall forfeit 1s.; every other person under the degree of a gent., 2s.; 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 (10) The art. does not provide for the case. by |