they may require further instructions, then, as the trial has not been completed, further evidence may be adduced (63).

No. III. The last subject for consideration is, the mode of proceeding on a trial before a gen. ct.-mar., having previously considered that before a regtl. (64) ct.-mar., and the appeal (65) from a regtl. to a gen. ct..mar. (66).

Proceedings of an European (or native) gen. ct.-mar., held at on the day of- in the year of our Lord 182-, by virtue of a warrant, under the hand and seal of H. E. the Com. in chief (67), bearing date the day of —, 182—, for the trial of Private

of regt., and of all such prisoners as may be duly brought before it.

at the

The court assembled this day at o'clock (68) in the forenoon, barracks, in Ft. Wm., in obedience to G. O. of yesterprivate in the regt. (69).

day's date, for the trial of

(63) On the trial of Serjt. Ginger, 34th regt., tried at the Cape of Good Hope, 17th May, 1802, the resolution of the court declared, that the proceedings of the regtl, ct. -mar. were invalid, inasmuch as the appellant had been reduced without any sufficient authority, and therefore rested their proceedings. The court re-assembled on the 19th May, when a letter from the Com. in chief (Lieut.-gen. F. Dundas) was read, desiring the court not to proceed in the investigation of the appeal, until the court had, in the first instance, reported to him the particulars which had occasioned the degradation of the serjt.; after which, Col. D. was sworn, and made a statement upon oath, of the circumstances which induced him to reduce Serjt. G. from serjt. maj, to serjt.- (M'Arthur, vol. i, p. 361.)

(64) See No. I, p. 927.

(65) See No. II, p. 937.

(66) With respect to a genl. regil. ct.-mar., see No. I, p. 393, et seq., the mode of procedure is similar to other genl, cts.-mar.

(67) Or of the officer duly authorized to assemble a genl. ct.-mar.

(68) The court cannot assemble before six a. m., or sit after four p. m.-[See art 7, sec xiv, p. 376.)

(69) If there are two soldiers to be tried, one for mutiny and another for desertion, for instance, they must be separately tried; but two soldiers may be tried for mutiny together, if connected with the same mutiny.-(See note 47, p. 649.)

(70) The president not being the officer comg. in chief, or governor, where the offender shall be tried, nor under the degree of a field officer.-(See art. 1, sec. xiv, p. 367.) He may be a brevet major.

(71) If for the trial of a commissd. officer, must consist of 13; if for the trial of a

non

1. Court duly assembled, and Prisoner brought into Court.] The court having duly assembled, and the president and members being all present, as well as the Judge Adv.gen. (73), prosecutor, prisoner, witnesses, and interpreter, the prisoner is called into court by name, and placed opposite to the president. The Judge Adv.gen. gives the president the warrant, appointing him president.

2. Read General and Station Orders and Warrants of President and Judge Advocate General.] The above papers are read in the following order:

1st. Read G. O., directing the assembling of the gen. ct.-mar., for the trial (record as read).

2d. Read G. O., appointing Col. A. to be president of the gen. ct.mar. (record as read).

3d. Read G. O., directing the following officers to be members of the gen. ct.-mar., to be furnished from the regts. named in the order (record as read).

4th. Read Presidency (or Station) Orders, in obedience to G. O., directing the appointment of the officers from the different named regts. (record as read).

5th. Read Station Orders, directing the attendance of Lieut. Q. as the interpreter, in obedience to G. O. (record as read).

6th. Read G. O., directing Maj. P., Judge Adv.gen., to conduct the trial (record as read) (74).

7th. Read the warrant of the Com. in chief, appointing Col. A. to be president of the gen. ct.-mar. (record as read).

8th. Read the warrant of Maj. P., the Judge Adv.gen. (75) (record as read).

3. Jurisdiction of the Court.] The court, not having jurisdiction to try for capital crimes, for instance, except the case fall within the letter of the 4th art. sec. xxi of the Arts. of War, if it should

appear that the

non-commissd. officer or private, of nine members. (See art. 1, sec. xiv, p. 367. See the exception, art. 2, sec. xiv, p. 368.) If for the trial of a field officer, no member must be under the degree of a capt.-(See art. 7, sec. xiv, p. 376.) (72) Or Dep. Judge Adv.gen. or officiating Dep. Judge Ady.gen.

(73) The Judge Adv.-gen. reads over the names of the president and members, who take their seats to the right and left of the president, according to the dates of their commissions in the army, and the Judge Adv.-gen. seats himself opposite to the president.

(74 These orders are inserted according to the dates, and are transmitted to the Judge Adv.-gen. by the Adjt.-gen. and Brig.-major. If new members are appointed in consequence of any being ill, or from any other cause, these and any other subsidiary orders are read, as above, in the proper order of dates. The orders are preserved by the Judge Adv.-gen., and are not entered at full length, but only the substance and general tenor.

(75) If a Dep. Judge Adv.-gen. and the prisoner belong to a regt. not situate within his division, a special warrant is made out.

the gen. ct.-mar. had not cognizance of the crime laid in the charges, with reference to the local circumstances therein mentioned, such as that the crime is charged to have been committed at some place known to be at or within the distance of 120 miles from Fort Wm., Fort St. Geo., or Bombay (76); here the court, not having jurisdiction, they would adjourn, and report the case for the information of the Com. in chief.

Suppose, again, it appeared, that the charges had reference to a transaction which took place at a period of time, going back beyond the limitation prescribed in such cases by the M. A. (77), or that there was not the legal number of members (78); then, in this, as in the other case, the court would have to decide the question, as to their jurisdiction (79). (See No. 79, p. 906; Chap. XXIII.)

4. Swear the President.] The Judge Advocate informs the prisoner, that as the president is named in the warrant, he cannot object to him (80); he accordingly administers the oath to him. (See the Oath, No. 2, p. 372.)

5. Challenges of the Members of the Court by the Prisoner.] The Judge Adv.gen. now desires the prisoner to pay attention while he reads over the names of the members, and that if he has any objection or cause (81) of challenge against any one of them, to state the same after he has heard each name read over, previous to their being sworn (82).

(76) See art. 4, sec. xxi, p. 690.

(77) See No. xvi, p. 19. In such a case consult No. 2, p. 469.

(78) See art. 1, p. 367, and art 2, sec. xiv, p. 368.

The

(79) It is not probable that such a case should occur, but I state the above to show, that cts.-mar. have an undoubted right to examine into their jurisdiction.— (See Tytler, p. 243.) This is consonant to the principle which obtains in courts of justice.

(80) Sir J. Murray's Trial, p. 1. There may be a legal objection to the president, as that he was the officer comg. of the troops (see art. 1, sec. xiv, p. 367); if such an objection be made, and it be proved to the court that such is the case, they would adjourn and report to the Com. in chief (see Sir C. Morgan's note, Tytler, p. 220); but they cannot decide upon the question. Nor can the president retire from the court. The court is not legally constituted without the presence of its president.

(81) The legitimate causes of challenge are, that the member had been a member of a previous Court of Inquiry held to investigate the case, that he had been a member of the regtl. et.-mar. from which the appellant appeals. That he had been heard to express a previous opinion as to the prisoner's guilt; or that from age, deafness, or other infirmity, he is incompetent to discharge the duties of a member.

It is no valid cause that he belongs to the prisoner's regt. or to his company; but if he were the prosecutor, or was summoned as a witness by the prisoner, to give evidence on the trial, such would be a proper cause of challenge. But if he was merely to speak as to his character, as he can, while sitting as member, be sworn to speak to this fact, and resume his seat, this objection would be over-ruled.

(82) In courts of justice, jurors are challenged as they come to the book, i. c. about to be sworn. If, however, after the court have been sworn, a bonâ fide and legal cause of objection should occur to the prisoner, of which he had no previous knowledge, or means of becoming acquainted with, it would seem hat the may be asked by the court

The names are then read over, and the Judge Adv.gen. records the objection made to each member. The members not objected to, should be sworn, if there be a sufficient number to constitute a legal court, but not otherwise, as if the court had to adjourn, in consequence of an insufficiency of members, it would be useless to do so; after which the court is cleared, unless the member objected to express a wish to withdraw, and it be allowed by the court.

6. Court closed to consider of the Prisoner's Challenges.] The court is now closed, and the court take into their consideration the validity of the challenges. The member or members challenged must not retire (83). Delicacy will induce the court not to require their opinion, which, indeed, ought not to be given.

A member may admit the cause to be valid, as that he was a member of the regtl. ct.-mar., and request leave to withdraw (84), which is usually complied with, unless it reduces the court below the legal number, or the court suspect the prisoner's objection to be captious.

The circumstance of the probable duration of the trial; the difficulty of replacing the member challenged, as affecting the interests of the service, are, of course, to be taken into consideration (85).

7. The Court re-opened, and the Decision of the Court declared with respect to the Challenges.] The court having taken into their consideration the causes of challenge, now desire the Judge Adv. to inform the prisoner, that the court are of opinion that the challenges are not valid, and that the members objected to will accordingly be sworn; or if they have decided that the cause of challenge is valid, the prisoner is informed thereof, and the court direct the member to withdraw, and record the fact on their proceedings, and then

8. The Members of the Court, and, lastly, the Judge Advocate are sworn.] The members of the court, standing up, have the oath (86) duly administered

to state his objection. Suppose it be, that the member had been heard to say, that he believed the prisoner was guilty-(See note, 178, p. 443.). In such case, the objection should be entertained: but no other cause of objection, not having legal grounds, should be entertained.-(See Tytler, p. 231) Those members not objected to may be sworn, if there be a sufficient number to form a court. The Judge Adv.gen. or pro. secutor has also the right of challenge, after the prisoner.

(83) See note 80, last part.

(84) Suppose it were on the trial of an officer and there were only 13 members present-13 are required to constitute a legal court by art. 1, sec. xiv, see p. 367, if one member be objected to and were to retire, there would remain only 12, which would not be a court legally constituted for any purpose: for the court though not sworn, for an obvious reason, are still obliged to do certain acts before they are sworn. They are sworn to try the cause submitted to their consideration as to the prisoner's guilt or innocence. In courts of justice, triers are appointed by the court when a juror is challenged, but then the jurors are not, like the members of a ct.-mar., judges also. (85) There is a delicacy in allowing the member to withdraw, if it can, consistently with duty, be sanctioned; but I am aware that the principle must be governed by a consideration of public duty, to which all other feelings and considerations must give way.

(86) See No. 2, p. 372.

ministered by the Judge Adv.gen, to as many as can hold the book with their right hand; the president next swears the Judge Adv.gen. (See p. 374, for Oath.)

9. The Charges read to the Prisoner.] The Judge Adv.gen. now reads the charges of accusation to the prisoner, after which-Q. Do you understand the charges? How say you, are you guilty, or not guilty, of the charges which you have just heard read to you? (Record this being done, and the prisoner's answer.)

10. Prisoner's pleading to the Charge (87).]' It is usual to encourage the plea of Not Guilty, and as this is the universal practice of the judges of the land, it is a humane custom which cts.-mar. can have no difficulty in always adopting.

If the prisoner pleads guilty, still he should be advised to withdraw his plea, and plead not guilty, and put himself upon the general issue. And though he should plead guilty, evidence should be taken (88).

The court should examine evidence; for otherwise, as has been observed, How can the crown, or the officer, authorized to confirm a sentence, have any ground for extending mercy (89) ?"

If the prisoner obstinately persist in pleading guilty, the court must record it, and nothing would remain but to pass sentence; but— 11. If the Prisoner stand mute, and refuse to plead, whether it proceed from Insanity or from Obstinacy.] If any doubt suggests itself to the

court

(87) The prisoner must have his irons taken off before pleading. “ Although till that period (arraignment) he may have been in close imprisonment, and even in irons, he must appear there unfettered, and without bonds of any kind; unless (as the ancient law and custom authorize) when there is danger of escape or rescue.' Hawk. P. C.(Tytler, p. 220.).

"

In the case of George Fletcher, tried for High Treason, July 16, 20 Geo. II, A. D. 1746. The prisoner desired his fetters might be taken off whilst he was on his trial, which the court granted; but after his conviction, the court gave the jailer directions to iron him again, and take an especial care of his prisoner, for that he was convicted of High Treason.—(Howell's State Trials, vol. xviii, p. 358.)

But, where necessary, he must be well guarded. On the trial of Lawrence, Earl of Ferrers, for murder (April, 33 Geo. II, A. D. 1760), the Earl was brought to the bar by the Dep.gov. of the Tower, having the axe carried before him by the gentleman jailer, who stood with it on the left hand of the prisoner, with the edge turned from him. (Howell's St. Tr., vol. xix, p. 892.)

It is usual to give the prisoner a chair, if unwell; indisposition is the only case in which the indulgence is granted.

The prisoner is allowed counsel, and any friend or clerk to assist him in taking down the evidence. But the counsel or other person must not be allowed to speak. -(See case 1, p. 646.)

*(88) ** In every case, in which a person pleads guilty, it is the duty of the ct.-mar., notwithstanding, to receive, and to report in their proceedings, such evidence as may afford a full knowledge of the circumstances, it being essential that the facts and particulars should be known to those whose duty it is to report on the case, or who have discretion in carrying the sentence into effect."—(Printed genl. regns. and orders, Adjt. genl.'s office, H. G., 1st. Jan, 1822, p. 202.)

(89) Sir C. Morgan's note to Tytler, p. 237.