The proceedings of a court-martial are not to be delayed by the abfence or death of any of its members, when a fufficient number remains to compofe the court; which is required to fit from day to day (Sundays excepted) until the fentence is given. And no member can absent himself from the court, during the whole course of the trial, upon pain of being cashiered; except in cafes of fickness, or other extraordinary and indifpenfable occafion, to be judged of by the court: but as no general court-martial can confift of less than thirteen officers, unless it is held in Africa, or New South Wales, it is ufual to appoint more than the required number, to guard against the death or illness of any one of them.

The members are sworn, pursuant to the form prescribed in the act, to adminifter juftice according to the articles and orders established, without partiality, favour, or affection; and, if any cafe fhall arife, which is not particularly mentioned in the faid articles and orders, to adminifter juftice according to their confciences, to the best of their understanding, and to the custom of the navy in the like cafes. In order that the minds of the younger members may not be influenced by the opinion of their feniors, the youngest member votes firft, proceeding upwards in order to the prefident, who votes last; and the determination of the court is fettled according to the majority of voices. But, fhould there be an equal number of votes on each fide, and the feveral members of the court, upon reconfidering the point at iffue, adhere to the first opinion, the queftion remains undecided.

At all courts-martial, it is cuftomary to have, if poflible, the number of members odd, or unequal; but it may happen, by the death or fickness of a member, originally making the number of a court-martial unequal, that it might be reduced to even or equal numbers, and that there might be an equality of votes. In fimilar predicaments, it is the ufage of army courtsmartial to allow the prefident to have a double or cafting vote, where the court is equally divided..

By the act 22d Geo. II. no member of any court-martial, after the trial commenced, could go on fhore, or leave the fhip, in which the court fhould firft affemble, until fentence was. given; but it was found that this restraint and confinement had been attended with great inconvenience, and prejudice to the health of the members, and it was fo feverelly felt by those who fat on admiral Keppel's long trial, that they reprefented the hardship to the lords of the admiralty. And foon after, the "claufe of the act alluded to was repealed, and all the members are now at liberty to retire upon every adjournment.

Military courts-martial once affembled, remain in existence.

till they are diffolved by the fame authority by which they are held or conftituted; and although the members may have terminated the whole bufinefs brought before them at any trial, and pronounced fentence therein, yet they are not at liberty to return to their ordinary duty, or leave the place where the court is affembled, without fpecial leave from the commander in chief, until he fignify that the court is finally diffolved. This distinction is neceflary in military courts-martial; as the fentence may be ordered to be revifed, or the members may be directed to intimate publicly, in court, to the perfon tried, his majefty's pleasure, or that of the commander in chief.

It is to be regretted that a difference of opinion has often arifen, and ftill prevails among naval and military men, with refpect to the extent of the authority, with which commanding officers in the navy are invefted, for punishing foldiers of every description, according to the rules and articles eftablished for the difcipline of his majesty's fhips of war; or for trying officers or foldiers of the land forces, by naval courts-martial, for any offences committed while ferving on board king's fhips.

The privileges of parliament do not protect a member, belonging to the army or navy, from being amenable to a courtmartial for offences committed in his naval or military capacity; but previous to the arreft of any member, in order to try him for a military crime, it is ufual to give notice to the house to which he belongs, with a requeft, for the fake of public juftice, that the house will allow his being put under arrest for trial.

In the navy, as well as in the army, officers fufpended, who, in that interval, commit any offence fpecified in the articles of war, are fubject to be tried by courts-martial.

It has been the ufage to afford captains in the navy the means of justification, by granting them a public inquiry into their conduct, when fuperfeded or divefted of the command of their ships for fuppofed mifconduct; but this is merely of grace, not of right, and, however harth the inftances may occafionally appear, there may often be abundant reafons for withholding fuch an inquiry, however ardently defired.

Several inftances having recently occurred in the military service of officers fent home, by commanders in chief on foreign stations, with articles of accufation against them, but not duly investigated, the duke of York, conceiving the difcipline of the army, and the intereft of the fervice to be materially affected, was of opinion that this practice, except in cafes of the most urgent neceffity, ought to be avoided: because, though it might relieve the commander on the fpot from fome embarṛafiments,

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the measure feldom failed to transfer them to head-quarters with increased difficulties. And his royal highness judged it further expedient to exprefs in general orders of the 1st of February 1804, his difapprobation of the erroneous opinion which had prevailed in the army, that an officer who has been put under arrest, had a right, as it is termed, to demand a courtmartial upon himself, and to perfift in confidering himself as ftill under the restraint of fuch arreft, although exprefsly releafed by the fuperior officer who impofed it; whereas, in fact, a fuperior officer is invefted with a difcretionary power of liberating, as well as of arrefting, and of requiring the officer fo liberated, to return to his duty as before; nor can an officer infift upon a trial, unlefs on a charge preferred against him. It by no means follows, however, that an oflicer, conceiving himfelf to have been wrongfully put in arreft, or otherwife aggrieved, is without remedy. A complaint is afterwards open to him, if preferred in a proper manner, for which provifion is made by a fpecial article of war.

Military and naval courts-martial are fubje& to the controu and jurifdiction of the fupreme courts of king's bench and common pleas; and the members are liable to punishment, for any wanton abufe of power, or illegal proceedings.

JUDGE ADVOCATE: The judge advocate may be faid to be the primum mobile of a court-martial, as not only impelling it to action, but as being the perfon on whom, in a great measure, depends that harmony of motion, fo neceflary to conftitute a regular court. He is impowered by the printed instruction to advise the court of the proper forms, when there fhall be occafion, and to deliver his opinion in any doubts or difficulties which may arife in the courfe of the trial. He examines the witneffes on oath, takes down their depofitions in writing, and makes minutes of the proceedings to which the court may refer. The act of parliament directs, that, in the abfence of the judge advocate, or his deputy, a court-martial has power and authority to appoint any períon to execute the office. And although it is ufual and neceffary for the prefident, some days before the trial, to appoint, by warrant, a person to officiate as judge advocate, in order that he may timely send to the party accufed an attested copy of the articles of charge, give him information of the time and place of trial, furnish him with a lift of the witneffes to be adduced against him, and require a fimilar lift from him; alfo, to fummon the witnefies, and all perfons concerned; yet the warrant ought to exprefs the appointment to be by the court, according to the conftruction of the ftatute; and a majority of the members, when the court is affembled, fhould concur in the appointment.

In military courts-martial, the judge advocate general, or fome perfon deputed by him, is impowered to profecute; and in all trials of offenders by general courts-martial he is to adminifter the oaths in the forms prefcribed. The judge advocate general is appointed by warrant, under the king's fign manual. The commander in chief on a foreign ftation, by virtue of the power and authority vefted in him by his majefty, appoints by warrant any eligible officer, deputy judge advocate." Though a judge advocate may be confidered in the light of a profecutor for the crown, it does not follow that he is to deny every reasonable afliftance to the prifoner, in his defence, either in point of law or of juftice. It is his duty, that the proof, both on the part of the crown and the prifoner, fhould be properly laid before the court; where any doubtful point may arife, he fhould incline on the part of the prifoner; and nothing should induce him to omit any circumstances, in the minutes of proceedings, that might have a tendency to palliate the charges exhibited. In the deliberations and debates of a court-martial, the judge advocate may offer his fentiments and opinion, if required; or, if he obferve any error in point of law, or doubts arife, he ought to offer his judgment on the point, for the information of the court; and he should communicate every matter or thing, which may conduce to a legal decifion of the points in question.

A deputy or officiating judge advocate in the navy, is paid by certificate, at the rate of four pounds for each trial, in conformity to the ftanding regulation of the admiralty, made in the year 1780. Although the trial may end in one day, it is ufual to infert in the certificate, ten days employed in fummoning witneffes, attending the trial, and tranfmitting a copy of the minutes, &c. Where trials have lafted longer, twelve days have been allowed, at the rate of eight fhillings per day. A deputy judge advocate in the army, is ufually allowed a conftant falary; and the officiating judge advocate has ten fhillings per day, for a given number of days, whether the trial laft fo long or not; but, if its duration exceed that number of days, he is paid at the rate mentioned until the trial is ended, befides an allowance for ftationary.

EVIDENCE. All perfons fubject to military law are bound by their duty to attend and give their teftimony at military courts martial, whenever fummoned for that purpose; and, fhould fome of the witneles be perfons in a civil capacity, and not bound to obey the citation of fuch a court-martial, their attendance may be enforced, by an application to the court of king's bench. But there is no act of parliament, compelling perfons in civil capacities to attend as witnefles at a naval

court-martial. Witneffes attending are privileged from arreft, and in the army, but not in the navy, it is ufual to make an allowance to fubalterns for their expences.

On important trials at naval courts-martial, it is customary for the judge-advocate to take preparatory affidavits from the witneffes in fupport of the charge, which he is to communicate to the commander in chief, and to the prefident of the courtmartial, but not to the feveral other members fummoned, until they are properly laid, in a judicial manner, before the court. Neither is it proper that copies of these affidavits should be delivered, or fhewn to the perfon accufed, previous to his trial. Should the trial laft longer than one day, it is his duty, at the close of each day, to prepare, a fair copy of the proceedings fo far as they go, and he continues fo to do, until the conclufion of the trial, when the whole fhould be diftinetly read over by him to the court, before the members proceed to deliberate on the fentence to be pronounced, and afterward approved by them. The prefident is the proper perfon to put all the interrogatories to the witneffes: and, fhould the prefident think proper to decline allowing the judge-advocate to put a queftion proposed by any of the junior members, it is the practice to clear the court, and it is to be determined by a majority of votes, whether the queftion fhould be put or not. The judge advocate as profecutor in behalf of the crown, and being fuppofed by law to be able to judge what are proper, has therefore a right to afk all fit questions.

OPENING THE COURT. When a naval court-martial is af fembled for trial, the judge-advocate, by direction of the prefident, reads with an audible voice, ftanding up, the order for affembling the court, and likewife the order or warrant of his own appointment. It then becomes his duty to adminifter to the refpective members the oath prescribed by act of parliament; and which is usually done by the prefident, and each member holding his right hand on the evangelifts, and, according to feniority, repeating his name, and the words of the oath audibly, after the judge-advocate. The fubftance of the oath is, duly to adminifter justice, according to the ftatute, without partiality; or in cafes where the act does not give direction, according to conscience and the ufage of the navy. And further not to difclose or discover the vote or opinion of any particular member of the court, unless thereunto required by act of parliament. A fimilar oath of fecrefy is alfo taken by the judge-advocate, or perfon officiating as fuch.

In the army it is ufual, at general courts-martial, for the judge-advocate to adminifter the oath as directed by the mutiny act and military articles, firft to the prefident alone, and afterVOL. II.

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