210 CHAPTER XIII. Assembly of officers for the court. ASSEMBLY OF THE COURT AND INCIDENTS ON ASSEMBLING; Accommodation of whom a challenge may be allowed. of the court. 490. THE officers appointed to serve on the court martial (1) assemble according to order, [§427] together with any others who may have been directed to be "in waiting" in order to prevent delay in the event of any officer failing to attend, or to replace any officer in respect The officiating judge advocate takes care [§466] that accommodation for the court and parties to the trial has been provided at the time named for the assembly of the court; [§523] and the Queen's Regulations require that "all offiOfficial books, &c. cial books and orders having reference to courts martial are to be laid before every court when sitting." (2) The provost marshal, his deputy, or orderly non-commissioned officers detailed for this duty, are previously placed under the orders of the officiating judge advocate for summoning witnesses, giving notice to the members of time of meeting, and generally for giving such attendance as may be required. Upon the trial of an officer it is usual for an orderly officer to be in attendance on the court during its sitting. If there is no provost marshal guard, a guard or sentries, as may be necessary, are furnished, and receive orders from the judge advocate. on table. The number of being present, 491. The presence of the requisite number of officers [§14, 526] having been ascertained, the president, who must in all cases be a combatant officer, [§ 15] takes his seat (1) This and the following chapters more particularly refer to trials of prisoners by general courts martial; but the form of procedure in all courts martial is essentially the same, and, where not obvious, attention is drawn to the necessary modifications on trials of appeal from regimental courts of enquiry, and in the procedure of minor courts. (2) Q.R.742. See Q.R.284, 285, and before § 462. they take their seats according to rank, except when promoted over a member is the president. at the head of the table, and the judge advocate calls over the names of the members, who "take their seats according to rank," (3) alternately to the right and left, officers of the regimental staff, or of the civil departments, sitting and voting by seniority, according to their relative rank. (4) If the promotion of a member makes a change in his relative position during the progress of the trial, he takes his seat and votes according to his rank, unless he becomes senior to the president. In that case, the officer who has been appointed and sworn as president continues to perform the duties, and complies with the article of war [A.W.162] as to taking the votes of the court, beginning by that of the youngest member, notwithstanding a member has become senior to himself. After any preliminary business has been disposed of, the court is proclaimed open The court opens. [§454] by the provost marshal, sometimes by an officer or by an orderly serjeant who is in attendance. The prisoner is brought in under escort, and the prosecutor and witnesses appear in court, but all persons withdraw from time to time when it is cleared by order of the president, for deliberation or upon any incidental discussion. Place of the and parties to judge advocate the trial. Arrangements adopted at the court martial. 492. The seat and table of the judge advocate is at the right of the president. (5) When requisite, accommodation was usually afforded for the prosecutor, on the left, and for the prisoner or his friend, opposite to the president. At the court martial upon Lt. Colonel Crawley in 1863, a different arrangement was adopted. The judge advocate's table was placed at the right of the president, and the members sat along the two longer sides of the table as usual; but the prosecutor's table was placed to the right of the table, and Prosecutor. that for the prisoner (6) and his "friends" opposite, on the Prisoner. left of the room. The witnesses, after being sworn, instead witness. of remaining near the president, went to the foot of the table opposite to him. Accommodation was provided for reporters for the press behind the witness, and the court Reporters. when necessary, withdrew to an adjoining room instead of Withdrawing clearing the court." As these arrangements were made 66 (3) A.W.162. (4) R.W.111. (5) Q.R.771g. (6) The prisoner is allowed a seat, always in the case of an officer, and in other cases when from his illness, or room for court. WARRANTS and General court martial. District or garrison court martial. Regimental or detachment court martial. Matter of enquiry brought before the court. after a conference of the commander in chief and the secretary of state for war, and were found to be very convenient, they may serve as a precedent in any case where similar arrangements may be desirable. 493. When the court is assembled by virtue of a special warrant under the sign manual, it is read by the judge advocate general or his deputy. At other trials by general courts martial the order for the assembling of the court is read, and also the warrants of the president and judge advocate, as now required by the regulations; (7) and in these warrants the authority under which they are issued, either a warrant under the sign manual, or the warrant of a commander in chief duly authorized to delegate such authority, is invariably referred to. In the case of a district or garrison court martial, the order assembling the court and appointing the president is read, and it is moreover necessary in those cases where the court is assembled by any officers other than those authorized under the sign manual, and where the existence of a sufficient warrant cannot be presumed as a matter of course, that it be made appear, in some shape or other, that the officer convening it has been duly authorized :—a notification to that effect may be made in public orders, or the warrant, or a copy, may be laid before the court. Officers commanding regiments and detachments are empowered to assemble regimental and detachment courts martial without other authority than the articles of war. 494. When not specified in the order for the assembly of the court or in the president's warrant (which, it may be observed, [§ 273] is no longer the practice), it is proper at this stage of the proceedings to read either the charge signed by the convening officer himself, or "by order" by an officer of the head quarter, brigade or regimental staff, according as it may be a general, district, or regimental court martial; or the authority for a prisoner being tried on the charges preferred against him; or for the court entering on any other enquiry, as the case may be, and the court (7) See Form, Q.R. App. No. 4. [§ 273]. The custom of reading or laying before the court the warrant (or a certified copy) giving authority for the convening, had for the most part fallen into disuse before the new form of warrant omitted the words which seem to have originally contemplated this formality. thus has formally brought before it the matter touching which they are about to swear that they will duly administer justice. 495. After reading the orders for the assembly of the court and the trial of the prisoner, and the warrants of the president and judge advocate, when they are appointed by warrant, and not in orders, the names of the president and the other officers appointed to serve on the trial are read over in the hearing of the prisoner, each officer answering to his name. The president at all (8) courts martial then asks the prisoner, (9) or if several are tried together asks each one separately, Do you object to be tried by me as president or by any of the officers, whose names you have heard read over? 496. A prisoner cannot challenge the court generally: until sworn in, it is not competent to decide upon questions in the nature of pleas in bar of trial. Nor can a prisoner challenge the whole of the members collectively, but he has a legal right to object to every individual member composing the court. The prisoner also may object to the composition of the court, [§ 18-29, 304] for defect in rank, or otherwise. 497. Should the prisoner object to the president, the objection to him is made, and, together with the evidence, recorded on the proceedings, in the same manner as on the challenge of any other member. (10) It cannot however in like manner be disposed of by the court, except when it is disallowed by two-thirds at least of the other officers appointed to form the court. When a larger minority than one-third desire to refer it, or when the objection appears well founded, it is referred to the decision of the authority by whom the president was appointed, the court separating (8) See question by president. Q.R. App. No. 4. (9) Qualified challenges, both by the prisoner and by the judge advocate or prosecutor on the part of the crown, were formerly allowed. As the mutiny act now expressly provides for the exercise of the right of challenge by the prisoner, and does not mention challenges on the part of the crown, it is a question how far these last may be admissible. With respect to challenges on an appeal from a regimental court of enquiry, there is not the same difficulty, as the provisions of the mutiny act (10) There is no order for the presi- of any other decided by for that purpose. (1) No steps are taken with respect to a challenge of any other officer, so long as an objection to the president has not been disposed of. If the prisoner objects to any officer other than the president, the objection is decided by the president and the other officers appointed to form the court. When their votes are equally divided, the decision is given in favour of the challenge being allowed. Where a prisoner challenges more than one officer, he is more officers are required to state his objections to each of them separately, Course adopted when two or challenged. The place of officers who are set aside, supplied by other officers, who are subject to challenge. Challenges peremptory unknown, the and in the order of their rank, and the objections are considered one by one, and the decision made known before entering upon another. (2) 498. When the whole of the objections have been gone through by the court, the officers, in respect of whom challenges may have been allowed, are replaced at once from the officers in waiting. When no officers have been put in orders for this purpose or an insufficient number, further proceedings must be suspended until officers are obtained to make up the number of which the court may have been originally composed. Should any inconvenience attend the supplying of the vacancies, if the legal minimum still remain, it rests with the superior authority to dispense with the swearing in of the additional number. [§14, 526] 499. Should a fresh president be appointed he is of course subject to challenge, as are also the officers who may supply the place of those in respect of whom objections may have been allowed by the court: (3) the judge advocate, as before observed, [§465] is in no case challengeable. 500. Peremptory challenges, or challenges " without showing of any cause," are not known to courts martial; (1) A.W.152. These provisions apply to every description of court martial, and were first inserted in the mutiny act of 1847, which fixed what had gradually become the prevailing practice of the service. (2) There is no express regulation on this subject, but the form appended by the writer to former editions of this work has been embodied in the new issue of the Queen's Regulations, which may therefore be taken to sanction the course here suggested. When several officers are challenged, the above had been the general practice.-It appears to be calculated to obviate inconveniences in every case, and some expedient of the kind must necessarily be resorted to, in the event of every member being challenged, an incident which has occurred, and on more than one occa sion. (3) A.W.152. |