manner as his order, as already noticed, for affembling the court. The members being to the right and left of the prefident, according to feniority, and the judge-advocate facing him at the bottom of the table, the prefident is to cause the party accused to be brought into court, attended by the provost-marshal; all the witneffes, as well in fupport of the charge, as in the prisoner's defence, and every other person who shall choose, being admitted, the judge-advocate, standing up, reads audibly the order for affembling the court, and likewise the order or warrant of his own appointment; he then calls over the names of the prefident and members who have arranged themselves alternately on the right and left hand of the prefident, and adminifters to the refpective members the oath prefcribed.

The judge-advocate then reads the letter of accufation, or charge against the prifoner, and he is required to plead guilty or not guilty. If he ftands mute or pleads guilty, fentence paffes in courfe; if he pleads in bar, as a former trial for, or pardon of, the fame offence, or that the court is not competent to take cognizance of it, he may have the benefit of such plea; and if, as is most generally the cafe, he pleads not guilty, the witneffes are ordered to leave the court and the trial proceeds. If the prisoner is a foreigner, he may have the aid of an interpreter, and fo may any witness or any member of the courtmartial. Trials may be put off on affidavits of the abfence of a material witness, but this is purely in the difcretion of the court. A trial may also be put off, on an affidavit, either on the part of the profecutor or of the prisoner, ftating that printed pamphlets or papers have been published and circulated, without the procurement or knowledge of the party applying, whereby the public mind has been prejudiced.

The witneffes being fworn, it is the practice of courtsmartial for the profecutor to put all proper questions to them; or the prefident of the court may, in the first instance, defire them to relate what they know refpecting the charge against the prifoner and afterwards the members, with the approbation of the prefident, put fuch interrogatories as they may think proper and neceffary, for inveftigating the truth.

Although the mutiny act does not authorife military courtsmartial to inflict a fummary punishment for perjury, yet there is no doubt that offenders, fubject to military authority, may be proceeded against by indictment, or punished by the fentence of a general court-martial, to be affembled for that purpose. But all perfons, who commit, or fuborn another to commit wilful perjury, in any evidence or examination at a courtmartial,

Dd4

martial, may be profecuted in the court of King's Bench, by information or indictment. fetting forth only the offence charged upon fuch perfon, without mentioning the commiffion for holding the court-martial, or the particular matter tried, or to be tried before fuch court.

The court, having gone through the examination of all the witnesses in fupport of the charge, and allowed the prisoner to crofs-question them feverally, he is then put on his defence; which, if already prepared, he is allowed to read to the court, or he may dictate it to the judge-advocate, in order to its infertion in the minutes. But should the trial be of importance, and a variety of circumftances have been brought forward, upon which the prifoner was unprepared, he may, upon foliciting the court, be indulged with an adjournment until a fubfequent day, for the purpose of the better preparing himself for his defence, and the examination of witneffes in fupport of what he may have occafion to affirm. The prifoner may fubmit his defence to the court, either verbally or in writing; and a profecutor has no right to reply. The prifoner having made his defence, the witnefles in fupport of it are to be feparately called into court, fworn and examined, the prifoner first of all afking them fuch questions as he may deem proper or material; whether to invalidate the profecutor's evidence, or to eftablifh his general character and good behaviour. And he is allowed to produce written documents, either in his exculpation, or as to character and good behaviour. The examination of the prifoner's witneffes is conducted in a fimilar manner to that of the evidence for the profecution. When the prifoner's interrogatories are ended, the members of the court, or judge-advocate, may put fuch queftions as appear to them proper for difcloling truth. The profecutor is generally allowed to cross-examine the witneffes upon the points adduced by the prifoner, but he is by no means to introduce new or extraneous matter; and, after that, the prifoner may again put any additional interrogatories to his witneffes; and the prifoner having clofed his evidence, and having nothing further to offer in his defence, the court is cleared, that the members may proceed to deliberate on the judgment to be pro'nounced.

The proceedings at military courts-martial differ in fome degree from thofe of naval. 1. The profecutor addreffes the court in explanation of the charges, and details what he intends to prove. 2. His witneffes are adduced, who are fworn, examined by the profecutor or court, and afterward crofs-examined. 3. The prifoner makes his defence, in which he anfwers the profecutor's addrefs, comments on his evidence,

and enters into a detail of the exculpatory evidence he means to bring forward. 4. As this evidence may prove stronger or weaker than the prifoner expected, he is allowed to address the court a fecond time, when the defence is clofed. And, 5. The profecutor is allowed to reply; and fometimes, by fpecial permiffion of the court, he may explain by evidence fome collateral circumstances omitted.

JUDGMENT. The court being cleared, the members proceed to deliberate on the queftion guilty or not guilty; and if guilty, to pronounce that judgment which the articles of war, or laws of the land, have annexed to the crime or offence. In difcrimi nating the degrees of guilt with which a prifoner ftands charged, it frequently happens at courts-martial, that he may appear not guilty of the identical crime laid to his charge, but of an offence of less magnitude, though of the fame fpecies or nature, and nearly connected with it. In this cafe, it is cuftomary for the court to acquit him of the greater, and finding him guilty of the offence of inferior magnitude, to inflict a correfponding punishment. Although there may appear ftrong fufpicions of a prifoner's guilt of fome other crime or offence, not fet forth in the charge, yet, in acquitting him of the one he is tried for, the court cannot legally find him guilty of any diftinct offence. Neither can a prifoner be found guilty of what may be an ex poft fallo offence, or misdemeanour; that is, one committed after he had been confined, or even indulged as a prifoner at large: but in all such cases he may be ordered into confinement, and brought to a new trial, for the distinct crime or offence appearing againft him. In this place it may be proper to remark, that if a prifoner be tried for a crime, faid to have been committed on a particular day of the month; and in the courfe of trial, it is proved to have happened on a day different from what the indictment or accufation fets forth, it is incumbent on the court-martial to acquit him; and he is not liable to be tried a fecond time for the fame offence.

SENTENCE. The members having deliberated on the evi dence produced for and against the prifoner, and taken into mature confideration the palliating circumftances, either offered in his defence, or that have arifen in the investigation of facts; the judge-advocate ftates the question refpecting the prifoner's guilt, and which at naval courts-martial is put to each member feparately, beginning with the junior, and ending with the prefident, and is ufually couched in the following words: "Are you of opinion, that the charge against the prifoner is proved or not proved?" Or thus, " Is he guilty or not guilty of the crime laid to his charge ?" Should the majority

of

of members be of opinion that the charge is proved, thofe members confequently, are to affign the punishment to be inflicted.

At general courts-martial in the army, it is neceffary, in judgment of death, that nine members out of thirteen; or if the number is greater, that two thirds, should concur. The affent of two thirds, in every capital sentence, is likewise requifite in courts-martial, held in Africa or in New South Wales, confift ing of a leffer number than thirteen.

Although the members of a naval court-martial may not be unanimous in their determinations upon the matters before them, yet as the fentence drawn up receives its force and validity from the judgment of the majority, all the members prefent ought to fign fuch fentence, and which is always counterfigned by the judge-advocate. At army courts-martial, the prefident alone figns the fentence, which is alfo counterfigned by the judge-advocate, who is directed by the mutiny act, fect. 22, to tranfmit the original proceedings and fentence to the judge-advocate-general in London, or, if held in Ireland, to the judge-advocate in Dublin; to the end that all perfons entitled may be enabled to obtain copies. Provifions equally beneficial are made for parties out of Great Britain, but in Europe, but no fuch privilege is referved for the navy. It is proper at all trials, that the judge-advocate, or his deputy, or the perfon empowered to officiate for him, should carefully preferve the original minutes of the proceedings, as recorded by him during the courfe of any trial; and he should also keep in his poffeffion diftinct notes of the opinions and votes of the feveral members, on deliberating upon the articles of accufation, and pronouncing judgment; in order that he may be fully prepared to answer any questions or difcuflions that may be afterwards moved in parliament, or in the ordinary courts of law, relative to the trial, in the event of his being called upon to give evidence.

ACQUITTAL. When accufations are made and not substan. tiated by proofs, courts fometimes declare their judgments of acquittal, in terms which convey cenfure on the profecutor, by pronouncing the charges malicious, vexatious, and without any foundation.

- PUNISHMENTS. In feveral cafes, both in the army and navy, the punishment is not discretionary, but sentence of death must be pronounced; in many others, however, the penalty is left to the difcretion of the court, and fometimes punishments of dif ferent degrees of rigour are inflicted. When the court has determined, or the law has fixed the penalty, the judge-advocate draws up the fentence; the prifoner and audience are admitted;

and

and judgment is pronounced in open court. Neither the naval nor military articles prescribe the mode of inflicting the punishment of death. It is ufual in the navy to adjudge an admiral, or officer of rank, to be shot for a capital offence. There are some inftances of fentences dooming captains and lieutenants to be fhot, and others ordering them to be hanged. In the army it is the general practice to adjudge officers or foldiers found guilty of capital offences, to be fhot; but for deferting to the enemy, or for theft, a foldier is ufually hanged, as the moft ignominious mode of punishment.

In cafes where no ftatute orders fentence of death, it is in the power of courts both naval and military, to inflict, according to the nature and degree of the offences, various fentences from the highest order to the loweft: namely, corporal punishment from twelve to one thousand lashes on the bare back, with a cat-o'-nine-tails; running the gauntlet; degradation of rank, and being ignominioufly towed from a fhip to the fhore, with a halter round the offender's neck; degradation of rank, and to ferve on board any fhip in a fubordinate fituation, or as a common feaman; imprisonment; difmiffal from his majesty's fervice, and for ever rendered incapable of ferving in any military or civil capacity; difmiffal without expreffing incapacity of ferving again; difmiffal from the fhip to which the offender (if an officer) belonged, sometimes with the addition of being degraded, and put on the bottom of the lift of officers in which he ranks ; the mulet of pay; suspension of rank and pay for a limited time; fevere or moderate reprimand and admonition, which are the lowest fhades of punishment. In the navy there are very few inftances of commiffioned officers being degraded in rank, and reduced by the sentence of a court-martial to serve in inferior fituations; but warrant officers have repeatedly not only been degraded and reduced to ferve in fubordinate fituations, but also adjudged to receive corporal punishment. The naval lift of punishments includes thofe of keel-hauling, ducking, maft-heading, and feizing the offender by his arms and legs to the fhrouds, and there leaving him for hours, as is vulgarly called like a fpread eagle.

Of imprisonment. It may be neceffary to obferve, that by statute, no perfon convicted of any offence can be imprisoned for a longer term than two years, by the fentence of any naval courtmartial. Prior to this act, which was 22 Geo. II. courts-martial have adjudged perfons to be imprifoned for ten or fifteen years, and fometimes even for life.

The gauntlope, pronounced gauntlet, is a military punishment for felony, or fome other heinous offence, known to moft nations in Europe. In the mayy, it is ufually inflicted on incorrigible

delinquents,