such offences are in their nature several (172). Even where several commit a joint act, which act, however, is not of itself illegal, but becomes so merely by reason of some circumstances applicable to each individual severally and not jointly, they must be indicted separately (173). But principals in the first and second degree, and accessories before and after the fact, may all be joined in the same indictment; or the principals may be indicted first, and the accessories after the conviction of the principals" (174).

37.-Joinder of several Offences in one Indictment.

"A deft. ought not to be charged with different felonies (175) in different counts of an indictment; as, for instance, a murder in one count and a burglary in another, or a burglary in the house of A., in one count, and a distinct burglary in the house of B. in another, or a larceny of the goods of A. in one count, and a distinct larceny of the goods of B., at a different time in another. If there should happen to be two felonies charged in one indictment, the prosecutor would be put to his election on which charge he would proceed. However, although a prosecutor cannot thus charge a defendant with different felonies in different counts (176), yet he may charge the same felony in different

ways

(172) Because such perjury, or such seditious or blasphemous words do not apply in terms equally to all parties. In high treason each party has not a right to be tried separately. The offences being separate each prisoner has a separate right of challenge, and it has been usual on that account, to try such individuals alone.-(See Rookwood's Case. Howell's St. Tr. vol. xiii, p. 139.)

(175) "Thus, several partners cannot be indicted jointly for exercising their trade without having served an apprenticeship." Nor could a King's and Hon. E. I. Co.'s soldier (or native soldier) be joined in the same charges, for they are triable by separate Arts. of War.

(174) Archbold's Crim. Plea. p. 29.

(175) “In an indictment for high treason, there may be different counts, each charging the defendant with different species of treason against the king and his govt. such as conspiring the king's death, levying war, adhering to the king's enemies, within stat. 25, Ed. III. stat. 5. c. 2, and the conspiracies to levy war within stat. 36 Geo. III., c. 7, sec. i; but you cannot join counts for treasons against the king and his govt. and treason relating to the coin or the like, because the judgments are different." In a case of mutiny it has been so charged:-1st. "For having conspired with, &c., and having been present at one or more mutinous meetings, &c., whereat it was determined and an unlawful oath administered to murder their officers, and subvert the legal authorities of the state:"-2d." For having been present at such mutinous meetings," &c.—(See G. O. C. C., 13th May 1816, p. 77.)

(176) "Indictments for misdemeanors, (see note 131, ante,) may contain several counts for different offences, provided the judgment upon each be the same." In military crimes the punishments are generally discretionary: such as corporal punishment, or imprisonment, &c; with regard to officers cashiering, dismissal, &c., loss of rank and pay, &c. In some cases, the penalty is fixed, as for breaking an arrest, by cashiering. It would be very troublesome and answer no good purpose, were the mil. judicial proceedings so formal and strict in such cases, as in the courts of law. Therefore an officer is frequently charged with disrespect to or disobedience of his comg. officer, and a second count charges him with breaking bis arrest. If the first fact be proved he may be reprimanded; but for the second fact he must be cashiered: here would

ways in several counts, in order to meet the facts of the case; as, for instance, if there be a doubt whether the goods stolen, or the house in which a burglary or larceny was committed, be the goods or house of A. or of B., they may be stated in one count as the goods or house of A., and in another as the goods or house of B. The commencement of a second or subsequent count is in form thus: 'And further that,' &c., so proceeding to state the offence" (177). 38.-Limitation of Time within which a Charge can be preferred.

The 71st sec. of the M. A., 4th Geo. IV., cap. 81, which limits the time, in ordinary cases, to three, extends the period to five years, under certain circumstances (178). This limitation must be understood to refer to those crimes and offences only, which are described in and are punishable by the M. A. and Arts. of War, together with those offences provided for by, though not described in, the 2d art. of the xxist sec. of the Arts., except by the words "all crimes not capital and all disorders and neglects, to the prejudice of good order and military discipline." But in exhibiting a charge against any one "accused of any crimes which are punishable by the known laws of the land, of wilful murder, theft, robbery, rape, or of having used vio lence," &c., reference must be had to the limitation of time directed by the act by which the crime, &c. is punishable. This will be found under their proper heads, at the 4th art. of the xxist sec. of the Arts. of War.

39.-Form of Charges preferred against an Officer.-(See also Nos. 23 to 38 ante, both inclusive).

estab.

A. B. (insert Christian names and surname)—(rank) in the regt. of (cav., engrs., art., inf., or dept., &c.), on the (Bengal, Madras, Bombay, &c.) placed in arrest, by order of H. E. the Com. in chief, on the complaint of C. D. (insert name, rank, &c. as above), upon the following charges, viz.;

1st Charge. That A. B., &c. of &c. on the 3d day of May, in the year of our Lord 182. - at estab., (insert place, &c.), on the did (here insert all the facts and particulars), of, to, or towards, &c. the said C. D. (insert as above).

2d Charge. And further, that the said A. B. then and there (179) did (insert any additional facts and circumstances) to the furtherof, to, or towards, &c. the said C. D. And so with respect to any further charges. Though accused of the breach of any particular article, the same should not be inserted in the charges. -(Tytler,p.216.)--All which

or

be distinct judgments (sentences), but the inferior merges in the higher judgment. You may fail to prove one, but prove the other fact, and it is obvious, that two trials would be incompatible with the convenience of the army; and hence arises a necessary difference in the mode of procedure.

(177) Archbold's Crim. Plea., p. 31.

(178) See No. xvi. ante.

(179) Unless relating to some other time or place, in which case state the particular time and place.

or any part of such conduct, being prejudicial to good order and mil. discipline, and in breach of the Arts. of War; or any other words, such as scandalous, infamous, disgraceful, derogatory to the character of, subversive of discipline, &c. &c.

By order of H. E. the Com. in chief.
E. F., Adj. gen. of the Army.

day of month of 182-.

N. B. If the charges were signed by another officer, the words "on charges preferred by me," would follow the word “arrest.” But it appears more advisable that the charges should be drawn out by those accustomed to such forms, and the proper person appears to be the Judge Adv.gen. of the army, under instructions from hd. qrs. (180). 40.-Form of Charges preferred against Non-commissioned Officers or Soldiers.

A. B. (as above) private, &c. in the (or Capt. C.'s comp. of the regt. (as above) placed in confinement by order of the comg. officer, on the complaint of C. D, (as above), upon the following charges, viz. (charges as in No. 39). Conclusion as in No. 39.

General Observations.-With regard to native troops, a corresponding change must take place, substituting the terms subadar, jemadar, havildar, naik, sepoy, &c.

There ought to be no material difference in drawing up charges for regimental cts.-mar.; they ought to be as clearly framed.

41-Rank of the President of a General Court-martial.

It is directed by the 1st art. of the 14th sec. of the Arts. of War, that the president of a gen. ct.-mar., held under the presidencies of Ft. Wm., Ft. St. Geo., and Bombay respectively, shall not be under the degree of a field officer. The 2d art. directs, that "in any place out of our dominions, or of the territories under the govt. of the said Co." (Sumatra, Prince of Wales's Island, or Singapore), where a field officer cannot be had, the president shall not be under the degree of a capt. In both arts. it is provided that the president shall not be the "officer comg. in chief, or Govr. (181) of the garrison where the offen

der

(180) See No. 23 to 38 both inclusive, for the several particulars relative to framing charges.

“(181) At a gen. ct.-mar, assembled at Edinburgh, in 1795, the president, Col. Hugh Montgomerie was objected to, because he was the Lieut.govr. of Edinburgh castle, it was over-ruled, as the Earl of Eglinton was the Gour. It being replied to the objection, that all disqualifying clauses must be strictly interpreted."—(Tytler, P-139.) It is not stated whether the Govr. was then present, or in the execution of his office. If a Govr. is absent, the Lieut.govr. would become the Govr. for the time being. The object of the legislature is to prevent any person in the executive command of the garrison being the president. The words "Govr. for the time being,” are frequently introduced to provide for cases of death, &c. Thus in the M. A., sec. IV., "to authorize and empower the Govr.gen. in council, and Govr. in council for the time being." And in art. 21, sec. xii., Arts. of War, "compel the Govr. or Comg. officer

der shall be tried." Therefore a maj. may, according to the Arts. of War, be the president of any gen. ct.-mar. The custom of the service, however, has induced the usual practice of appointing a president of superior rank to that of maj. where the party accused is an officer of of superior rank. Thus, on the trial of Lieut.gen. Whitelocke, Gen. Sir W. Meadows was president; on the trial of Lieut.gen. Sir J. Murray, Gen. Sir A. Clarke was president; on the trial of Col. Quentin, Gen. Vyse was president; and on the trial of Lieut.col. Johnson Lieut.gen. Keppel was president. On the above occasions, not only the rank but the importance of the cases of the parties tried seemed to require superior rank in the president; and in questions relating to the conduct of an expedition, or other mil. operations upon an extended scale, the experience of officers of superior rank becomes necessary. These circumstances are usually taken into consideration in the appointment of a president, and indeed an officer of superior rank to a maj. is frequently appointed president of a gen. ct.-mar. for the trial of a private soldier. Circumstances must govern the appointment, and if the conduct of a comg. officer were arraigned, it would be advisable, if practicable, to appoint, as president, an officer who had himself held a similar command, and such, indeed, is the practice of the service.

42.-The Number and Rank of the Members to compose a General

Court-martial.

It is directed by the 1st art. of the 14th sec. of the Arts. of War, that under the presidencies of Ft. Wm., Ft. St. Geo., and Bombay, respectively, that a gen. ct.-mar. shall not consist of less than 13, on the trial of a com. officer; or less than nine com. officers, on the trial of non-com. officers and soldiers (182). But, by art. 2d, in places out of our dominions, or of the territories under the govt. of the Co., a gen. ct.-mar. may consist of seven; and at Sumatra, Prince of Wales Island, or at Singapore, of five; and, by virtue of the 20th sec. of the M. A. (4th Geo. IV. cap. 81.), three com. officers may, in certain cases, compose a gen. ct.-mar. The minimum is therefore fixed; but, as from the circumstances of death, or sickness, or owing to challenges, a gen. ct.-mar. might be obliged to adjourn, or even to discontinue their proceedings altogether from such causes, it is the practice to appoint either 15 or 17 members (including the president); so that where 13 only are required, two or four additional officers are added (183) to supply casualties; since, otherwise, a court might be reduced to 12 members,

officer to abandon," &c. Now such Govr. or Comg. officer would not be the person intended to be the president on a gen. ct.-mar., to try a person for such offence. At the Prince of Wales's Island, there is no Govr. but a Lieut.govr. Now, the act if taken strictly as to the word Gour. would allow such Lieut.govr. to be a president. The term Gour. means a person who governs.

(182) Nine officers are sufficient for the trial of warrant officers, the act only directs 13 in the case of commissioned officers.

(183) "It is proper that the number should be unequal, to avoid an equal division."-(Tytler, p. 135.)

members, and would be incompetent to continue the trial-for no new members could be added to supply the deficiency. And so with respect to a gen. ct.-mar. consisting of nine, seven, five, or three com. officers, additional members would be given, if practicable.

With respect to the rank of the members of a gen. ct.-mar., they must be com. officers, consequently an ensign may be a member; but the 7th art. of the 14th sec. of the Arts. of War directs that "no field officer shall be tried by any person under the degree of a captain." The 1st art. of the 14th sec. of the Arts. of War directs that "the president shall not be the officer comg. in chief, or govr. of the garrison, where the offender shall be tried," and consequently it would be an objection to a member (184). It would likewise be an objection to a member, that he had been on the ct. of inquiry which had been held on the party to be tried (185).-Previous to the trial of Lieut.gen. Sir J. Murray, in England, instructions had been sent out to the Duke of Wellington to assemble a gen. ct.-mar. on that officer, in the Peninsula. Lieut.gen. Cole (who was the intended president), and other officers, represented to the Duke the delicacy of the case of Lieut.gen. M. being investigated by a tribunal composed of officers who were all of them so much his juniors in the service. He was afterwards tried in England, and Gen. Sir A. Clarke was appointed the president of the gen. ct.-mar.: there would appear, however, to have been other reasons for not trying the lieut.gen. abroad. On the trial, the president and many of the members were senior to the lieut.gen., and no member was under the rank of a maj.gen. The case was an important one; and required that, for its investigation, the members of the court should possess considerable professional experience and ability, and have been themselves in situations of command (186).-In general, when circumstances admit of it, but few of the members are under the rank of a capt.; and upon the trial of a capt., it is not usual to appoint members

(184) See note 181. I recollect the case of a soldier tried for desertion objecting to his comg. officer as a member-the objection was allowed to be good. The officers of a corps cannot be objected to in general: but, few of the same regt. are put on the et-mar. It would not be an admitted objection to any member that he might gain promotion by the accused party, by being next in succession, forfeiting his commission by the issue of the trial. Mc Arthur, vol. i, p. 276. There is no principle laid down for gen. cts.-mar. with respect to limiting the number of officers to be taken from the prisoner's regt. The 14th art., xivth sec., Arts. of War, declares that on the trial of a warrant officer by a detachment ct.-mar., no more than two out of the fre members shall be of the corps to which the prisoner belongs-hence we may conclude that the intention of the legislature would apply to gen. cts.-mar.—(See also Bote 109.)

(185) Tytler, p. 346.

(186) See note to art. 21, sec. xiv., Arts. of War. And, on the trial of a cavalry, engineer, or artillery officer, relative to any failure as to their professional duties, it would be expedient, if practicable, to appoint many of the members from the particular branch of the service to which he belonged, as their experience and judgment would be of service on the trial.