N° 21.-Members vote as Jurors, and Judges N° 22.-Officers, who are not Members, may not remain in Court during the Finding, and Sentence 168 N° 36.-A Soldier, refusing to take a Punishment awarded, cannot be ordered to undergo it, in N° 38.-Period in Hospital to be reckoned part of Sentence 175 N° 39.-Acts of Drunkenness do not constitute Dis- CHAPTER I. MARTIAL, AND MILITARY LAW. Previous to entering into any of the subjects incidental to the proceedings of Courts Martial, &c., and adverting to the opinions of those authors (whose works may justly be considered authority for the guidance of the Army) relative to the crimes for which Officers and Soldiers are liable to be punished by the sentence of military tribunals, it may not be uninteresting briefly to trace the progress of Martial Law, from the first period in which it is mentioned with sufficient historical authenticity to be considered entitled to our notice. There can be no doubt that even the smallest body of men could not have been enrolled, and armed, either as temporary forces, or as professional soldiers, without being subjected to certain Laws and Regulations, not only with reference to their own immediate discipline, but also with a view to deter them from the perpetration of crimes, and offences towards the inhabitants of the countries in which they were quartered. The fountain of Martial, or Military Law, in England appears to have been the Court of Chivalry, or Marshal's Court, the judges of which were the Lord High Constable, B and the Earl Marshal. In the reign of William the Conquerer these officers presided in matters of honor and arms, and determined causes according to the Military Laws, and also in conformity to the Law of nations. The Sovereign, with the advice of the constable, marshal, and other officers, framed these Military Laws, which were promulgated to the Army. The jurisdiction of the Court of Chivalry was however declared, and limited by common law, and so jealously watched were these military tribunals, and so closely were the prescriptive rights of the British subject guarded from arbitrary, unconstitutional military penalties and punishments, that legal authorities even ventured to assert that martial law was "in truth and reality no law, but something indulged "in rather than allowed as law. The necessity of order "and discipline in an army being the only thing which "could give it countenance, and therefore it ought not to "be permitted in time of peace, when the King's Courts 66 are open for all persons to receive justice according to "the laws of the land." The Constable's and Marshal's Court exercised its authority, and inflicted punishments until the reign of Henry the 8th, when the Lord High Constable, Edward Duke of Buckingham being attainted, the office became forfeited to the crown. Marshal's Courts were held during the reigns of Henry the 8th, Elizabeth, and James the 1st, with the concurrence of the Judges of the Common Law. Although the Court of Chivalry has never by legal authority been actually abolished, yet it may be considered virtually to be aban |