when forming part of the same force, &c. As to the rank of the officer who may convene a gen. ct.-mar., see Notes 14 and 15, Chap. I, p. 6. For the rank of the officer usually appointed president of a gen. ct.mar., see No. 41, Chap. I, p. 45, and note 181. It is to be remarked, that the words "officer comg. in chief, or gov., &c." mean the comg. officer of the troops, &c. then present in the executive command. For the rank of the officers usually appointed members of a gen. ct.-mar., see No. 42, Chap. I, p. 46, and notes 183 to 187, both inclusive.

2. As to Native General Courts-martial.] With respect to native gen. cts.-mar,, see No. 43, Chap. I, p. 48, and notes 188, 189, and

190.

For the number of officers to be members of a gen. ct.-mar. held in any place out of the Co.'s territories, &c. see the next art.

General Court-martial in Sumatra, Prince of Wales' Island, &c. ART. 2.] A gen. ct.-mar. held in any place out of our dominions, or of the territories under the govt. of the said Co., may consist of any number of commisd, officers not less than seven; except on Sumatra, or at Prince of Wales' Island, or at Singapore, where a gen. ct.-mar. may consist of any number of commisd. officers not less than five; unless any ct.-mar. shall be holden under and by virtue of sec. xx. of the act of the 4th Geo. IV, cap. 81, authorizing genls. or other officers comg. stations or detachmts., in any place out of our dominions, or of the possessions or territories under the govt, of the said Co., or of the territories of those states in alliance with the said Co., in which the said Co.'s forces are permanently stationed, to summon, and cause to assemble cts.-mar. in certain cases, in which cases such cts.-mar. may consist of not less than three officers at the least; and the president shall not be under the degree of a field officer, unless where a field officer cannot be had; nor shall in any case whatever, be the officer comg. in chief, or gov. of the garrison where the offender shall be tried, nor under the degree of a capt.—(See also sec. xvi, art. 2, Ann. Arts. of War.)

1. Explanation.] As to the rank of the officers who may convene à gen. ct.-mar., see notes 14 and 15, Chap. 1, p. 6. The first part of this art. is founded upon the 2d clause of sec. xix. of the M. A., and by sec. xx, M.-A., it is further enacted," that it shall be lawful for any genl. or other officer comg. any station, or comg. any detachment, brigade, division, or distinct party, belonging to any army of the said Co., which may at any time be serving in any place, out of H. M.'s dominions, or of the possessions or territories which are or may be under the govt. of the said Co., or of the territories of those states in alliance with the said Co., in which the said Co.'s forces are permanently stationed, upon complaint made to him of any crime or crimes, offence or offences, done or committed, against the property or person of any inhabitant of or resident in any such place (2), by any non-com. officer,

(2) See scc. ix, Arts. of War, p. 219. ↑

officer, or soldier, or other person, serving with or belonging to the Co.'s army, being under the immediate command of any such gen. or other officer, to summon and cause to assemble gen. cts.-mar., which shall consist of not less than three officers, at the least, for the purpose of trying any such person or persons accused or suspected of having committed any such crime or crimes, or offence or offences as aforesaid, notwithstanding such gen. or other officer shall not have received any warrant or warrants, empowering such gen. or other officers to summon or assemble cts.-mar.; and every such ct.-mar. shall have power to try any such person or persons so accused or suspected as aforesaid, and to adjudge any such person or persons to suffer any such punishments as shall be prescribed for any crime or crimes, offence or offences, with which any such person or persons shall be charged before such cts.-mar.: provided always, that no sentence of any such ct.-mar. shall be executed, until the gen. comg. in chief the army in the field, of which the division, brigade, detachment, or party, to which any person so tried, convicted, and adjudged to suffer punishment, shall belong, shall have approved and confirmed the same:" The words marked in italics in the above sec. of the M. A., point out those words which are omitted in the art. in question, and shew what are the "certain cases" under which three officers may compose a gen. ct.-mar. (See note 181, Chap. I, p. 45, as to the president not being the officer comg. in chief, or gov., &c.

2. As to Native General Courts-martial.] By regn. 2, 1809, of the Bengal govt., passed 24th Feb. 1809, it is declared that, "with a view to uniformity in the law martial of the govt. of the native troops, the following rules are enacted by the G. G. in C."

II. "Whenever a detachment of the Bengal native troops may be on foreign service, or at Prince of Wales' island, Fort Malacca, or any other part of the British possessions beyond sea, the Com. in chief of the forces in Bengal shall have power to issue his warrant to the officer comg. in chief where such detachment is stationed or serving, authorizing him to convene native gen. cts.-mar. as occasion may require. The Com. in chief may also delegate by his warrant to such comg. officer, either absolutely or under such restriction as he shall think fit, the power of confirming or directing the revision of the sentence of cts.-mar."

III. "A native gen. ct.-mar. shall not consist of fewer than nine native commissd. officers, subadars, or jemadars, unless such ct.-mar. be holden by virtue of a warrant from the Com. in chief, in the situations and under the circumstances mentioned in the preceding section. In cases of gen. cts.-marl. so holden, where the number of nine officers cannot, in the judgment of the officer comg. the same, be conveniently assembled, any number of native commissd. officers, subadars, or jemadars, not less than five, shall be competent to form such gen. cts.-mar. for the trial of native officers or soldiers belonging to such detachments. But no sentence of death shall be passed by such cts.-mar., unless twothirds

2 B

thirds of the members, or four, where the ct. consists of five, shall concur therein (3).

Members of Courts-Martial are to take the same Rank at their Sittings as they hold in the Army. Exception.

ART. 3. (4) The membs. both of gen. and regtl. cts.-mar. shall, when belonging to different corps, take the same rank which they hold in the army; but when cts.-mar. shall be composed of officers of one corps, they shall take their ranks according to the dates of the commissions by which they are mustered in the said corps.

1. Explanation.] This is a repetition of art. 1, sec. xiii. of the Arts. of War. (See the explanation of the above, which equally refers to this article.)

Judge Adv. is to inform and prosecute.

ART. 4. The Judge Adv.gen., or his dep., shall prosecute in our name; and at all gen. cts.-mar., before any proceedings be had before them, administer to each member the following oaths:

The Judge Advocate shall prosecute in our Name.] "The rubric or marginal notice of the art. bears, that the Judge Adv. is to inform and prosecute;' but in the body of the art. itself, there is nothing said with respect to the first of these duties; the only matter expressly enacted being, that he shall prosecute in the name of the sovereign, and administer to the members of the court the oath as therein prescribed. Hence it might perhaps be argued, that the word inform, used in the margin, did not imply a separate duty from that of prosecuting; but was used here as synonymous with the words accuse or、 indict, and as so taken, was included in the duty of prosecuting. Established usage (5) must here, however, be called in, to clear up an ambiguity

(4) Sec. xvi, art. 7, Ann. Arts. of War.

(5) As no gen. ct.-mar. can be assembled without the sanction of the com, in chief, or by some officer to whom such authority is delegated by the M. A. (see note 14, Chap. I, p. 6), it is clear that the Judge Adv.gen. (or his dep.), cannot, of his own motion, originate any proceeding before any et.-mar., in his capacity of Judge Adv.gen. Mr. Samuel (see p. 619 of his work) seems to be of a contrary opinion, but Mr. Tytler, who not only was a lawyer, but who was formerly Judge Adv. of North-Britain, is decidedly against him. But even the information ex officio of the Att.gen. is limited. "The information er officio, is a formal written suggestion of an offence committed, filed by the King's Att.gen. (or, in the vacancy of that office, by the Sol.gen.) in the Court of King's Bench, without the intervention of a grand jury,"

"It lies for misdemeanors only, and not for treasons, felonies, or misprision of treason; for wherever any capital offence is charged, or an offence so highly penal as misprision of treason, the law of England requires that the accusation should be warranted by the oath of 12 men, before the defendant he put to answer it. The usual objects of informations ex officio are properly such enormous misdemeanors, as peculiarly tend to disturb or endanger the King's government, or molest or affront him in the regular discharge of his roval functions; such, for instance, as seditious or blasphemous

ambiguity of expression; and on that authority we are warranted to say, that the sense annexed here to the word inform, implies a distinct duty of the Judge Adv., viz. that of instructing or counselling the court, not only in matters of essential and necessary form, with which he must be presumed to be from practice most thoroughly acquainted; but in explaining to them such points of law as may occur in the course of their proceedings, and with respect to which the Arts. of War and M. A. may be silent. For it is to be observed, that in all matters touching the trial of crimes by cts.-mar., wherever the mil. law is silent, the rules of the common law of the land, to the benefit of which all British subjects are entitled, for the protection of life and liberty, must of necessity be resorted to; and every material deviation from these rules, unless warranted by some express enactment of the mil. code, is, in fact, a punishable offence in the members of a cts.-mar., who may be indicted for the same in the King's ordinary courts. Hence

blasphemous libels or words; seditious riots not amounting to high treason; libels upon the King's ministers, the judges, or other high officers, reflecting upon their conduct in the execution of their official duties; obstructing such officers in the execution of their duties; obstructing the King's officers in the collection, &c. of the revenue; against officers themselves for bribery, or for other corrupt or oppressive conduct, and the like.”—(Archbold's Crim. Plead., p. 37.)

But there are cases in which the Court of King's Bench would quash the same, though they generally put the defendant to demur; or the Att. gen. may enter a nolle prosequi. Now, in the first place, in what a situation would a Judge Adv.-gen. or Dep. Judge Adv.-gen. stand, if a gen. ct.-mar. could quash the charges exhibited by him against any individual; or in what a situation would that individual stand, if a Judge Adv.-gen. or Dep. Judge Adv.-gen. could so exhibit charges against him! In the next place, there are no mil. offences of the nature of those above described, so that, in fact, the information of a Judge Adv.-gen., &c. would be nugatory in the cases of murder, mutiny, or desertion, the former of which is punished capitally, and the latter liable to be so punished; in either of which cases they would be, as has been above shewn, taken out of the rule. And lastly, neither the M. A. or Arts. of War give any such authority to the Judge Adv.-gen. or Dep. Judge Adv.-gen.

Any information conveyed to a gen. ct. -mar. by the Judge Adv.-gen., &c. being in the nature of instructions, &c. from the Com. in chief, &c. is, I conceive, included in the term," shall prosecute in our name."

The Judge Adv.-gen. or his Dep., as the article directs, "shall prosecute in our name;" and here he may be aptly said to stand in the same situation as the Att.-gen. who prosecutes in the name of the King. It has been before shewn (see No. 22, Chap. I, page 30.) that where there is a private prosecutor, qualified for the task, he frequently becomes the prosecutor, the Judge Adv.-gen. conducting the proceedings. This also is the case with the King's Att.-gen., who does not in person conduct all prosecutions on the part of the crown; but they may be conducted by the Att.-gens. of the Counties Palatine, and Grand Sessions for the Counties in Wales (Lancaster, Durham, Chester, Montgomery, Flint and Denbigh, Brecon, Glamorgan, Radnor, Cardigan, Pembroke, Carmarthen, Anglesea, Carnarvon, and Merioneth), if committed in any of those places; or by one of the King's counsel, &c. The King's Att.gen. files the information ex officio, but the King's Sol.-gen., &c. may conduct the trial.

Hence arises the absolute necessity for some member of the court being versant in the general doctrines of the law, in as far as they relate to the trial of crimes and the weighing of evidence: and the person to whom the court is naturally to look for information of this kind, is the Judge Adv., who is either by profession a lawyer, or whose duty, if he is not professionally such, is to instruct himself in the common law and practice of the ordinary courts in the trial of crimes." (6)

2. The oaths taken by the President, Members, Judge Advocate General, &c., and Interpreter, at a General Court Martial on the trial of E. I. Co.'s European Officers and Soldiers, H. M.'s ditto, and the Native Officers and Soldiers.]

Oaths to be administered to Members of all European General Courts

Martial in H. E. I. Co.'s Service.

No. 1. (7) " You shall well and truly try and determine, according to your evidence, in the matter now before you. So help you God." "I. A. B. (Here repeat your christian, surname, and rank) do swear, that I will duly administer justice, according to the rules and articles for the better government of the officers and soldiers in the service of the said United Company of Merchants of England trading to the EastIndies, and according to an Act of Parliament now in force, for the punishment of mutiny and desertion of officers and soldiers in the service of the said United Company, without partiality, favour, or affection; and if any doubt shall arise, which is not explained by the said articles or Act of Parliament, then according to my conscience, the best of my understanding, and the custom of war in the like cases (8): And I do further swear, That I will not divulge the sentence of the court, until it shall be approved of by the General or Commander-in-chief, or the person or persons (9) by whose warrant or authority the court-martial is held; neither will I upon any account, at any time whatsoever, disclose or discover the vote or opinion of any particular (10) member of the court-martial, unless required

(6) Tytler, p. 350.

to

(7) The oath is taken upon the Holy Evangelists, (see M. A. xxvii, which has the same words as the art.), by holding the book with the right hand. The president is sworn first, and then the members, &c.-(See Chap. XXIV.)

(8) This means a general and received custom.

(9) The word persons alludes to the confirmation of the proceedings of gen. cts.mar., by the Gov. gen. in C. or Govs. in Council, in cases tried under sec. ii, M. A. (See M. A. sec. iv, note 21, Chap. I, p. 7.)

(10) As the object is to prevent the consequences that might result from the disclosure of the vote or opinion of any particular member; any member by disclosing his own vote or opinion, would bring himself within the intent and meaning of the art. Suppose, for instance, a prisoner be found guilty by fourteen members, one member find him not guilty; this one member declaring that he alone gave a vote in his favour would shew who were in the majority against him. Though the Judge Adv.gen.