13. The Proceedings read over to the Court.

A court of inquiry should, if necessary, have their proceedings read over by the Judge Adv., or Dep. Judge Adv.-gen., and take the whole matter into consideration.

14.-Finding, or Opinion as to the Report to be made to the Commander in Chief.

The junior member is to give his opinion first, as is the practice at cts.-mar.(94). It must depend upon the instructions they receive from hd.-qrs., whether they are to give their opinion in general terms; "that there are grounds for the assembly of a gen. ct.-mar., or not ;" or whether they are to say that there are grounds for proceeding on certain articles of charges rejecting the rest, but no grounds as to others(95). It appears to be clear, that by a general opinion, “ that there are grounds for a ct.-mar.;" the court of inquiry may still think that with respect to some part of the charges there are no sufficient grounds, and consequently it becomes necessary to specify to what extent they intend to apply those terms, for though the Com. in chief will have the proceedings laid before him, still if an opinion is to be given, their appears to be a necessity for it being expressed in such terms as may satisfy him and enable him to judge upon what, if any of the charges the accused shall be tried; for the charges to be ultimately framed would necessarily exclude such matter of accusation, to support which there is not sufficient evidence. The court should not pronounce any opinion as to the guilt of the accused, because according to the spirit of the English law every one is presumed to be innocent, till the contrary is established by the oaths of competent and credible witnesses. The giving an opinion in the above qualified manner may assist the Com. in chief, and can, in no way, prejudice the accused, because the opinion ought not to be made public, and the members of the court are precluded from sitting as members on the gen. ct.-mar. if it should be assembled (96); the necessity for which the Com. in chief is to judge of.

15.

(94) Art. 5, sec. xiv., Art. of War. A majority will determine the question. (95) “ It is said that a grand jury cannot find a true bill as to part, and no bill as to the other part, of an indictment, for they ought to find the whole or nothing. Thus, if upon an indictment for libel they find as to the words a true bill, but whether maliciously we know not, the finding is void. But this has reference only to the same count in the indictment; for it is clear that they may find a true bill as to one count, and no bill as to another. They cannot, however, find the bill conditionally, as for instance, if the messuage be in the possession of the king then a true bill.' Upon an indictment for murder against A. and B., they cannot find a true bill as to A., and as to B., manslaughter only; for if it were murder in A., it could not be merely manslaughter in B. But they might find true bill as to A., and no bill as to B.; or they might find one or both of them guilty of manslaughter. Upon an indictment for murder, however, the jury cannot find true bill but in self-defence; for the offence charged is a felony, the offence found is not.”—(Archbold's Crim. Plead., p. 34.) (96) Tytler, p. 223.

15.-Prevarication of Witnesses to be noticed.

It is particularly necessary that the court should notice any prevarication of the witnesses (97), or any thing particular in the mode of giving their evidence; these circumstances are best known to the court themselves, and may be of such a nature as to throw doubt as to the expediency of ordering such witnesses to be examined on oath, or even as to the assembly of a gen. ct.-mar. at all.

16.-The Proceedings are transmitted to the Judge Advocate General. The proceedings having been fairly copied out, from day to day, are signed by the president of the court of inquiry, as well as by the Judge Adv. or Dep. Judge Adv. Gen. as the case may be; the Judge Adv. Gen. laying them before the Com. in chief, or, if conducted by a Dy, he transmits them to the Judge Adv. Gen. for the same purpose. The original proceedings signed by the president and Judge Adv. are to be transmitted to the Judge Adv.-Gen.'s office. The party accused cannot demand a copy of the proceedings, nor is the president or any of the members answerable for the opinion they may have given on such court of inquiry (98).

17.-The Court of Inquiry is terminated.

The Com. in chief having approved of the proceedings the court of inquiry is dissolved in gen. ors. and all the parties concerned are directed to return to their duty.

18.-Revision of the Proceedings of Court of Inquiry if necessary. If the inquiry has not been carried to the extent directed, the proceedings would be returned for the purpose of a more full investigation, in accordance with G. O. Com. in chief, 8th Feb. 1802 (99), for if the inquiry is only partial the intention of the court's assembly would be defeated, and the party might be tried upon charges, to support which it might turn out there was not sufficient evidence, though the 16th section of the M. A. directs, that "no sentence given by any ct.-mar., and signed by the president thereof, shall be liable to be revised more than once:" still the proceedings of a court of inquiry are of a distinct nature, and whether they shall be sent back more than once must depend upon the pleasure of the authority directing its assembly; the custom of war in like cases for the M. A. and Arts. of War are silent upon the subject (100).

(97) G.O.C C., 8th Feb. 1802.-(See No. 2, ante.)

19.

(98) Home v. Lord Bentinck. 2 Broderip and Bingham's Rep. 130, at art. 18, sec. xiv., Art. of War.

(99) See No. 2, ante.

(100) Though a grand jury is charged by the judge as to the nature of the cases to be submitted to their investigation, still, if they have any doubts, or any questions to ask, to assist their judgment, they return with their foreman into court: for instance,

suppose

19.-Proceedings of the Court of Inquiry not demandable as a Matter of Right.

It has been decided by the court of Exchequer-Chamber that the report of a court of inquiry to the Com. in chief is a confidential communication, made by order of the crown, and could not be called for by an individual, as the production of it might be highly injurious to thepublic service (101).

20.-A Court-martial not demandable as a matter of right.

If there appear to be grounds, in the opinion of the Com. in chief, for the assembly of a ct.-mar. he will of course direct one to be assembled; but the party accused cannot demand one as a matter of right, (102), but the Com. in chief may accede to the measure, if he thinks proper, at the request of the party, otherwise he must rest satisfied with the decision, and return to his duty.

21.-Preliminaries before the Assembly of a General Court-martial. It having been previously ascertained that the offence is cognizable before, and that the party is amenable to a gen. ct.-mar. (103), as well as that the transaction took place within the time limited by the M. A. (104), and the Com. in chief having decided that a gen. ct.-mar. shall be assembled, the next thing to be considered is :—

22.-Whether there is to be a public or private Prosecutor. The fourth article of the 14th section enacts" that the Judge Adv.Gen., or his deputy, shall prosecute in our name" and therefore he is the prosecutor for the crown. In the case of Col. Quentin the Judge Adv.-Gen. (105) said "it has always been the practice, since I have been in office, and with my predecessors (unless there was some reason why it could not be so managed) that somebody should be appointed prosecutor" (106). The inconvenience of there not being a private prosecutor was felt in the case of Lt. gen. Whitelocke. Neither the Dep. Adj.-Gen. or his dep. are military men, and, therefore, it becomes necessary, in many cases, to appoint an officer, acquainted with the whole of the case, either to be the prosecutor or to be a joint prosecutor with the Judge Adv. In cases relating to the conduct of an expedition, or other mil. operations some person conversant with mil. affairs should be appointed either to conduct or assist in conducting

the

suppose they found a true bill as to one and no bill as to another count on the same indictment, and did not know whether they were to return true bill, or no bill, they would tell the judge their difficulty, and retire to reconsider the case.

(101) See note 98 ante.

(102) G. O. H. G. 1st. Feb. 1804. at art. 20, sec. 14, Art. of War.

(103) See notes 2 and 3, ante, and M. A., sec. 2, ante.

(104) See M. A., sec. 71, ante. (106) Printed trial, p. 34.

(105) Rt. Hon. C. M. Sutton.

the prosecution; but in ordinary cases the necessity does not exist (107), and in a much less degree in India than in England, as the Judge Adv. and Dep. Judge Advs.-Gen. are mil, men. The Judge Adv.Gen. on the trial of Col. Quentin remarked "it will be obvious to every mil. man, that there can be no duty so inconvenient to the Judge Adv. Gen., as the duty of making a reply. He is to report to the crown ; it is therefore desirable that he should not become a party, by advocating any particular side; otherwise there would be very great doubt as to the correctness of the report he should make" (108). Whether the prosecution shall be conducted by the Judge Adv.-Gen. or Dep. Judge Adv.-Gen. or by a private prosecutor (109) must be determined upon by the Com. in chief. In the latter case the officer would, of course, consult with the Judge Adv. and arrange the mode of proceeding beforehand. If he should be a joint prosecutor he would act in the same

manner.

23.-Charges may be altered before the Warrant is signed.

If there has been a previous court of inquiry held, the report made in consequence will enable the Com. in chief to give directions relative to framing the charges. If there has not been a court of inquiry held, then the Judge Adv. Gen. would ascertain from the statement of the party accusing, or by some other means, the nature of the accusation against the accused, and prepare the charges accordingly, for 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; it may be formed and altered in such a way, as the officer who is to order the trial may think best, both in regard to the substance as in other respects" (110) and " it is perfectly understood, that, till the K.'s warrant is signed, there is the power in the crown, or in the party who brings forward the prosecution, to alter those charges" (111). If a copy of the charges shall have been delivered to the prisoner, still they may be altered and others substituted instead, as the Judge Adv. Gen. observed on the trial of Lt. gen. Whitelocke, "I sent him word that it was possible, nay, probable, that some additions, or alterations, might be made in the charges already delivered"(112). If, however, any alterations

are

(107) Breaches of discipline-disobedience of orders, or the like cases. (10) See note 106. There can be no doubt that it would be improper in the Judge Adv. to become a party, but surely it would be very inconvenient to appoint a prosecutor in all cases.

(109) 1 recollect a case in which the officer to be tried belonged to the same regt. as the Judge Adv. (but junior to him), who requested the Com. in chief to appoint another officer to conduct the proceedings. There were some particular reasons amigued. There was a private prosecutor in this case. The belonging to the same regt.merely, could not be objected to, not even were the Judge Adv. a junior officer to the party tried; for this would not be an allowed challenge in the case of a member. (See Mc Arthur, vol. 1, p. 276). (110) Tytler, p. 205, Sir C. Morgan's note. (111) Whitelock's printed trial, p. 797. (112) See note 111.

are made, time must be given to the prisoner to prepare himself to answer such additional matter.

24.-Charges must, in Substance, possess the essential Requisites of an Indictment.

"The charge or charges on which a prisoner is to be tried before a ct.-mar., are, properly speaking, an indictment, and must in their substance possess all its essential requisites, though in' form the mil. judicial procedure is less fettered by peculiar and customary solemnities of expression than the civil."-(Tytler, p. 209.)

"An indictment (or charge) consists of three parts; the commencement, statement, and the conclusion" (113).

25.-The Commencement of the Indictment or Charge.

The commencement should set forth that A. B. of such a regt. or dept. placed in arrest or confinement by order of C.D.(114).

26.-The Statement of the Offence.

In this part of the indictment (or charge), all the ingredients of the offence with which the deft. (accused) is charged, the facts, circumstances, and intent constituting it, must be set forth with certainty and precision, without any repugnancy or inconsistency, and the deft. charged directly and positively with having committed it”(115).

27.— There must be a Certainty as to the Party indicted. "The accused must be described in the charge, by his Christian name and surname, and by his addition."

"The Christian name of the accused must be such as he obtained at baptism or confirmation, or both. It is said that a man can have but one Christian name; but this must be understood to mean merely that he cannot be named " John alias James," or the like, that is, that a second Christian name cannot be given to him after an alias dictus (116); but it is quite clear, that if a man has acquired two names at baptism, or one at baptism and another by confirmation, he may be indicted by both; and if these be misplaced, as if his name be Richard James, and he be named in the indictment James Richard, it is as much a misnomer, and as if other and different names were stated."

"The surname may be such as the accused has usually gone by or acknowledged; and if there be a doubt which one of two names is his real surname, the second may be added in the indictment after an alias dictus, thus, " Richard Wilson otherwise called Richard Layer.” "The additions required to be given to the accused are, the addition of their "estate, degree, or mystery," and also the addition of the

(113) Archbold's crim. plea., p. 2. (115) Archbold's crim. plea, p. 6.

(114) See No. 39.
(116) Otherwise called,