mediately report the same, through the stationed staff or brigade major, to the officer comg. the station, and having prepared a statement (74), should transmit it to that officer as soon as possible, accompanied with a list of witnesses, whose names he should obtain from the party making the complaint.-(See note 78.)

2.-The Complaint requiring further Investigation.

The next proceeding is clearly defined by G. O. C. C. 8th Feb. 1902. "The frequent assembling of gen. cts.-mar. being productive of much inconvenience to the public service (75), the Com. in chief directs that when a charge shall be preferred against an European or native, the sen. officer on the spot shall order a full investigation to be made into the grounds of the complaint, the result of which, accompanied by his own report, and a list of the witnesses who have been examined, is to be forwarded to the gen. officer comg. in the district (76)." "In the event of the gen. officer comg. in the district not being satisfied that there are sufficient grounds to bring the person accused to trial, or that the inquiry has not been carried to the extent which the circumstances of the case admitted, he will thereupon direct such further investigation (77) to be made as he may deem necessary; and if, on consideration of the whole of the proceedings, he shall be convinced that the charges are frivolous or ill-founded, he will thereupon order the prisoner to be enlarged, and report the whole proceedings to head-qrs." (78)

3.

(74) "When it is intended that a charge should be preferred against any person, a specific statement should be made thereof, through the staff department (the Adj.Gen., Brig. Maj., or other officer), to the officer in com., in order that he may give directions relative to the charge, as well as what other steps he may think proper to be taken. It is not to be supposed, that a charge, drawn up by those who may prefer it, is to go of course, in that state, to trial; but it may be formed and altered in such way, as the officer who is to order the trial may think best, both in regard to the substance as in other respects."- Sir C. Morgan's note; Tytler, p. 205. And • although charges have been preferred against an individual by the comg. officer of a regt, and the same having been approved by the comg. officer of the district, an entry may have been made in the regt. orderly-books belonging to the garrison, ordering a e-mar. to sit for the purpose of trying the accused person, the whole may be rescinded by the district gen., or any other person duly delegated.”—(Sir C. Morgan's note; Tytler, p. 217.)

(75) "Several instances having occurred, of officers sent home by comrs-in-chief on foreign stations, with articles of accusation pending against them, but not duly investigated; H. R. H. the Duke of York, conceiving the discipline of the army and the interest of H. M.'s service to be thereby materially affected, was of opinion that this practice, except in cases of the most urgent necessity, ought to be avoided; because, though it might relieve the comr. on the spot from some embarrassments, the mesure seldom failed to transfer them to head-quarters with increased difficulties.”– G. O. H. G., 1st Feb. 1804,-(See M'Arthur, vol. i, p. 432.)

(76) See note 74, last part.

(77) See G. O. C. C., 1st Feb. 1821, note 80.

(78)

3.-Court of Inquiry directed to be assembled.

Whenever a court of inquiry is directed to be assembled (79), particular instructions in writing should be drawn out for the information of the court, that their attention may be confined to the examination of such points only, as are contained in those instructions; or be extended to a general investigation of all matters that may be brought before them, as the case may seem to require, in the judgment of the officer under whose authority the court is assembled. They should be instructed whether they are to give an opinion as to there being grounds or not for a ct.-mar., or to state their opinion upon each point separately, that the com. in chief may be able to form his judgment (80). It is singular that neither the M. A. or Arts. of War should give any directions for the mode of proceeding by courts of inquiry, while the crown is acknowledged to possess the right to appoint them, and, of course, to delegate that authority to others.-(See the case of Home v. Lord Bentinck, p. 434.)

4.-The Number and Rank of Officers to compose a Court of Inquiry.

Three officers are sufficient to compose a court of inquiry, their rank should be the same as that of members of cts-mar. assembled to investigate any charge. A president and two other officers are therefore usually appointed in gen. ors. to form the court (81).

5.

(78) In the case of an officer, on report of the circumstances of the nature of the complaint, &c., to the com.-in-chief, H. E. would order a court of inquiry to be assembled, or adopt such other measures, by directing the party to be placed in arrest, and charges to be preferred against him, as he might deem proper. It is directed by G. O. C. C., 19th Nov. 1781, that, "whenever any officer is put under arrest, and has been reported to the Com.-in-chief, he is on no account to be released from such arrest without H. E.'s previous approbation, signified to the comg. officer of the brig. station or detachment of the army to which the officer may belong."—(See Henley's Bengal Mil. Reg. p. 536.)

(79) Sir C. Morgan, late Judge-Adv.-Gen., in a note to Tytler (see p. 161), expresses an opinion, that courts of inquiry may be held after any lapse of time.

(80) G. O. C. C., 1st Feb. 1821. "The Com.-in-chief has had before him the proceedings of a court of inquiry on charges against Capt. B. After the exhibition of evidence to several of the charges, the prosecution of the larger portion was abandoned by the officer who had preferred them, and the investigation of the remaining charges, though witnesses were in attendance, was, in consequence, relinquished by the court of inquiry, as if they were personal questions between the accuser and the accused. The imputations against Capt. B. were under examination, by orders from head-quarters; and though the person who originated them withdrew from co-operating with the Judge-Adv., the court should have continued their inquiry into the whole of the challenged conduct of Capt. B."

(81) Five officers are sometimes apointed, M'Arth nr, vol. i, p. 116. In the year 1757, three gen. officers were formed into a court of inquiry, to inquire into the failure of an expedition sent to the coast of France. Tytler, p. 399.

5.—Preliminary Measures, previous to the Assembly of a Court of Inquiry, by the Judge Advocate, or Deputy Judge Advocate-General. The Judge Adv. or Dep. Judge Adv. Gen., as the case may be, conducts the proceedings, and should summons such persons (whether the generals or other officers employed on an expedition, or other persons acquainted with the circumstances of the case to be investigated), as are necessary to give information touching the subject to be inquired into, or shall be desired by the party whose conduct is to be investigated (82). He should, having consulted with the president, acquaint the accusing and the accused party, with the place (83) and time (84) of the assembly of the court, and inquire of him if he has any witnesses to bring forward, and to summon them in the usual form (85), unless the accused prefer doing so himself.

6.—An Interpreter to attend the Court if required.

If any of the witnesses are natives of India, or foreigners, an interpreter is to be directed to attend. (See Interpreter, No. 49.)

7-The Accused should attend.

The order directing the assembly of the court usually requires the attendance of the accused, and he must attend, but such attendance does not preclude him from the right of declining to answer any questions, or to make any statement, which may, in his opinion, prove prejudicial to him in the course of any ulterior inquiry into his conduct (86). A gen. ct.-mar. has expressed their regret that the prisoner had not been present or heard before the court of inquiry that was held to investigate his conduct (87). The accused, by being present at the court of inquiry learns, in a great measure, the extent of the evidence against him, and is enabled to impugn the credit of the witnesses if they afterwards, on oath, materially differ from the evidence they gave before (88).

8. Whether the Court is to be open or closed. Whether the court is to be with closed or open doors must depend upon the orders given by the authority directing its assembly. At a special

($2) So directed in the warrant for the assembly of a court of inquiry in 1757. Tytler, p. 401.

(83) As the regt. mess-rooms of corps are directed to be considered available for the assembly of gen. cts.-mar., at the direction of the officer commanding the station, I presume a court of inquiry would be held in the same places. See G.O.G.G. in C., 14th Dec. 1822.

(84) The 7th art. of the 14th sec. directs, "That no proceedings shall be held, except between the hours of six in the morning, and four in the afternoon."

(85) See form at No. 52.

(36) See G. O. H. G., 3d July 1809, at the 18th art. of the 14th sec. (87) G. O. H. G., 30th April 1812.

(58) See note 91.

special court of inquiry, held at Meerut in 1815, strangers were excluded, the subject of inquiry being of a delicate nature. Nothing regarding their proceedings has ever been made public. The inquiry held on the Cintra Convention was ordered to be in open court, and such is the usual practice. There should be no publication of the proceedings.

9.-The President, Members, and Witnesses, are not sworn.

Though the president, members and witnesses are not sworn, (89) still the members of the court should not make known their opinion or that of any other member (90), as to the nature of the evidence brought forward before the court of inquiry, since such opinion might prejudice the accused should a ct.-mar. be assembled. The witnesses should be cautioned in giving their evidence(91), and to speak to facts only which are within their knowledge; since upon their evidence the com. in chief is to form an opinion whether or not a ct. mar. shall be assembled. If the witnesses were examined on oath and a gen. ct. mar. was afterwards assembled, it would amount to a second trial, which is contrary to the 16th sec. of the M. A., except in cases of soldiers' appealing from the sentence of a regtl. ct.-mar. (see 10, art. 2); but a court of inquiry, or grand jury, are not in the nature of appeals they are only to ascertain whether or not there are grounds for a trial.

10.

(89) I was myself interpreter to a special court of inquiry, on which the whole court and witnesses (natives) were directed to be sworn, and were sworn accordingly. (90) Such is required by the 4th art. of the 14th sec. of the Arts. of War, in the case of a ct. mar.; and, upon the same principles of justice and expediency, it should be extended to courts of inquiry. The foreman of a grand jury takes the following oath: "You, &c. shall diligently inquire, and true presentment make, of all such matters and things as shall be given you in charge: the king's counsel, your fellows', and your own, you shall keep secret: you shall present no one for envy, hatred, or malice; neither shall you leave any one unpresented for fear, favour, or affection, gain, reward, or hope thereof; but you shall present all things truly as they come to your knowledge, according to the best of your understanding: so help you God.” The oath of the rest of the grand jury is: "The same oath your foreman hath taken on his part, you, and every of you, shall truly observe and keep on your part: so help you God."-(Crown Circuit Com., p. 539.) The circumstance of the grand jury and witnesses being sworn, does not affect the expediency of the swearing to secrecy. (91) "The Com. in chief has perceived with much dissatisfaction a total difference between the depositions of native officers and soldiers before a court of inquiry, and the evidence subsequently given by the same witnesses on oath at a gen. ct.-mar. This behaviour deserves the severest censure, and hereafter, when it shall be found necessary to assemble a court of inquiry, the Com. in chief directs, that it be clearly and fully explained to all native witnesses, that if there shall be found any material difference between the evidence they shall have given at a court of inquiry and that which they shall give on oath before a gen. ct.-mar., unless some satisfactory reason for such a difference be assigned, the Com. in chief will punish such unwarrantable prevarication in the severest manner.”—G.O. C. C., 8th Feb. 1802.-(See Henley's Bengal Mil. Reg., p. 540).

10.-Witnesses on both sides are examined separately.

The witnesses on both sides are examined, and separately, vivâ voce. The expediency of the measure is very obvious, as it is only by comparing the evidence on both sides that a court can come to any just conclusion (92). The case with the grand jury is not a parallel one. There the witnesses on the part of the crown alone are examined, but then as they are examined on oath more reliance is to be placed in their evidence, for though the evidence given on a court of inquiry may be true, it may not be the whole truth; therefore to supply this defect, it becomes necessary to hear the evidence of all persons capable of affording any information (93), with the view to a full investigation of the case; and thus, in many instances, the necessity of assembling a ct.-mar. may be avoided, and the consequent publication of the proceedings to the army. The facts arising out of an investigation before a court of inquiry are not published, unless a ct.-mar. ensues, or the party accused be removed from the situation on which some misconduct is satisfactorily ascertained to have taken place.

11.-The Examination of Evidence.

As the object of the inquiry is to ascertain how far there may be grounds for a ct.-mar., it is important that no fact should be concealed; and therefore the witnesses should be examined, as before any other court, in the regular order of examination in chief, cross-examination, re-examination, and examination by the court; and the accused should be allowed to put any questions he may think proper, which he would be allowed to put if tried before a gen. ct.-mar.

12.-The Accused may make a Statement of his Case or not, at his Option.

It is optional with the accused to make a statement or not as he shall judge proper; but he should be asked if he has any thing to offer; if he declines to say any thing there is an end to the investigation, and the court is to be closed against strangers for the purpose of considering the whole of the proceedings.

13.

(92) "The grand jury may require the same evidence, written and parole, as may be necessary to support the indictment at the trial. They are not, however, usually very strict as to documentary evidence; they often admit copies, where the originals alone are evidence; and sometimes even evidence by parole of a matter which should be proved by written evidence. But as they may insist on the same strictness of proof as must be observed at the trial, it may be prudent in all cases to be provided, at the time the bill is preferred, with the same evidence with which you intend afterwards to support the indictment. It must be observed, however, that it is no objection that witnesses are called and examined at the trial, whose names are not on the back of the indictment.”—(Archbold's Crim. Plead., p. 33.)

(93) See note 80.