North American. [volume] (Swanton, Vt.) 1839-1841, 1839-11-27
EDITED by CANADIANS AMERICANS.

this custom, which has ever prevailed, so
Tar as the author can ascertain, ia the
British army, has recently been marked by
the concurrence Of General Lord Niscount
Combermefe. His Lofdshjp, in an order
dated: " Simta, l7Ih Sept. 1885," remark
ing on the proceedings OF general court
martial held at Denapore, on Lieutenant
T.. Rely, of His Majesty's 18Th Light In
iantry, says: a" 1t appears that, on the
courl assembling on the 9Th day, one Of
the members was taken i'll, and obliged To
withdraw. A sufficient number remaining,
the court proceeded in the hearing OF evil
dence for the defence; on The pext'day OF
assembling, the member who had with
drawn, was allowed to resume his seat.
This proceeding is so directly at variance
with the practice Of courts martial, and the
principles Of justice, that it may be held to
affect the legality Of the Judgment of the
court" His Lordship, after commenting
on the finding, commences his concluding
remarks by stating, that the irreguIarity
before observed, has rendered hug atoTy
the sentence of the court martial. 1t can
scarcely be necessary 10 remark, that The
occasional Withdrawing Of member for
any time, however limited must suspend
the examination Of witness. That
which is in itself unjust and irregular must
be so, if tolerated in any degree.
4thIy. AT the opening Of the court, on
Tuesday the 9TH inst. before entering upon
their defence, the prisoners respectfully
submitted protest, setting forth ceffaln
reasons why they should not enter upon
their defence. The Judge Advocate, alter
having read aloud few lines OF that do
cumenl, was interrupted by one or more Of
the members of the court, who declared
that the paper now alluded 10 was insult
ing in its terms, and, therefore, il was re-
leCled. The counsel for the prisoners res
pectully suggested that it should be en-
registered ; but the court peremptorily re-
fused to take any cognizaDce Of it yet,
that protest was couched in the most res
pectful language, and tended merely to put
the court upon its guard against proceeding
to peril, by their deliberations, the lives oI
twelve men over whom il was cOntended,
as we still humbly maintain, that tribunal
had no lurisd iction. An attested copy OF
the protest now referred 10 being herewith
annexed under the letter f., (D your Ex-
celiency will have an opportunity OF judg-
| ing Of its merits, and Of considering how
far the cour, authorized in refusing it a
| place on the record OF the trial.
5thly. On the same day, the prisoners,
before proceeding to adduce evidence in
their behalf, moved for the immediate dis
charge Of Louis Lesiege, otherwise called
Lesage dit Laviolette, on the ground tina,
no legal evidence having been adduced
against him, the eleven remaining prison
ers were, in law, entitled 10 the benefit ol
his testimony, which they alleged TO be
material TO them in their defence. The
motion (2) which was read, and appears
on record in the cause, was not granted
although the legality thereof was supported
by precedent SO precisely in point, tia
we deem it advisable to quote ii at fol
length: - etersdori's Abridgment, verbt
Martial Law and Courts Martial, 9, Stat
ford's case, ii. Il. 1901, K. b. east
S06:" " The mutneers OF the Bounty
were tried by a court martial, at Ports
mouth. There being no evidence agains
one of the persons accused, it was insisted
on the part of another Of them, that h'
had right TO examine The first on his be
half. The court, however, by the advice
of the Judge advocate, refused TO let hin
| DC cAutBlfiIu3 Saying 'ilC ~ dItlIC vi Iouit
martial had always been against it an
the prisoner was condemned TO death: bul
upon the sentence being reported TO III
King, execution was respited ill the opin
ion of the judges was taken, who all II
ported against the legality OF the sentence
on the ground Of the rejection Of legal eyI
dence and The party was afterwards dis
charged" The imperative justice {
e granting snch applications is SO eviIen
D that it would be idle in US 10 dwell on tn
subject suffice il to say, that the pTacic
, of courts OF law, founded on reason, hay
O ever been ready 10 grant motions OF thu
2 mature, in order that the prosecutor ma
: in no case be allowed to deprive pari
$ accused of his witnesses, BY indicting lhei
b conformity with him. The only reason o
!, fered by one OF The learned Judge advocate
$ in support of the decision of the cour
}, respecting this motion, was that there ar
l peaTed on record tie testimony Of one wi
+ ness, tending TO implicste Lesiege whit
I in S,aford's case, cited by the prisoners {
o a precedent, no evidence has been adduce
: against the individual whose discharge hs
$ been demanded. But, il is indispulSb'
5 that, in a matter of this nature, where ii
q evidence OF two crediiable witnesses is 7,
: required to convict the accused, the MAXI
u IN 1t.o~.ft,. u. Al