members under that rank, and indeed a majority of the members are above the rank of the officer tried. With respect to the trial of noncom. officers and soldiers, the rank of the members will depend upon the nature of the case to be investigated. Where life is at stake, as in a case of murder, &c., more experienced officers would be required than in the ordinary cases of mutiny, desertion, &c. Of course, where practicable, if any proper cause of challenge could be anticipated, the objection would be removed by not appointing such officer a member. The members should be of age; they should not be beyond 70 years of age, deaf or blind, or labouring under any illness that may prevent their constant attendance-such would be valid objections in any ct. of justice.

It is usual to appoint the president and some of the members (field officers) in G. O.; the rest are directed to be furnished in certain proportions by the corps at and near the station where the party is to be tried, as may be most consistent with the convenience of the public service. The officers furnished by corps are taken by a roster; but the comg. officer may, in particular cases, make a selection, if he finds it expedient to do so (187). It is directed by G. O. C. C., 6th July, 1802, that all drummers, fifers, and soldiers of every description, professing the Christian religion, whether born in Europe or in India, and without reference to their parentage, be tried by European com. officers. (Henley's Bengal Mil. Regs. p. 536.)

43.-Native General Courts-martial.

They generally consist of the same number of native com. officers (Subadars and Jemadars) as the European gen. cts.-mar. (188); but Reg. ii., 1809, (Bengal Govt.) passed 24th Feb. 1809, directs, "that whenever a detachmt. of Bengal N. T. may be on foreign service, or at Pr. of Wales's Island, Ft. Marlborough, Malacca, or any other part of the British possessions beyond sea, a native gen. ct.-mar. shall not consist of fewer than nine native com. officers. But in cases where the number of nine officers cannot, in the judgment of the officer convening the same(189), be conveniently assembled, any number of native com. officers not less than five shall be competent to form such gen. cts.-mar." (190).

44.

(187) According to M. A., sec. xxix., King's and Co.'s officers may sit in conjunction, and the xxxviith sec. admits of a gen. ct.-mar. being wholly composed of king's officers, on the trial of Co.'s officers, &c., where Co.'s officers cannot conveniently be had to compose the whole or part of the court: the same to be specified in the warrant for holding the court. See also note 194.

(188) See No. 42.

(189) Henley's Bengal Mil. Regs., p. 533.

(190) On the trial of officers, N. C. O., and sepoys belonging to the local corps or provincial bats., the native officers of the regular native infantry are associated with them. The highest native com. officer is a Subadar major. It may be a question, whether on the trial of a moosulman half the members should not be moosulmans, and so with respect to Hindoos, half Hindoos. (See Blackstone, vol. iv., p. 352, aliens.)

44.-General Regimental Courts-martial.

They are only held in H. M.'s Service-(See sec. xiv. art. 10.)

45.-Detachment Courts-martial.

Warrant officers are, by the 13th art. of the 14th sec. of the Arts. of War. directed to be tried by a detachmt. ct.-mar., in all cases where the offence may not require investigation before a gen. ct.-mar; and it is provided, by the 14th art., that they shall not in any case consist of less than five comd. officers, of whom not more than two shall be taken from the corps in which the warrant officer to be tried is serving; and that the president shall not be under the degree of a field officer, and not more than two of the other members shall be under the degree of a capt. Neither the comg. officer, or gov. of the garrison, should be the president (191) or member of such court. As the cases which may come under their investigation are not very difficult, and are usually of short duration, it is not usual to appoint more than five members. -(See concluding part of No. 46, relative to Gar. Cts.-mar.)

46.-Regimental, &c. Courts-martial.

The 10th art. of the 14th sec. of the Arts. of War directs the assembly of regimental ct.-mar. "for inquiring into such disputes or criminal matters as may come before them" (192). The 11th art. directs that "no regimental ct. mar. shall consist of less than five officers (excepting in cases where that number cannot be conveniently assembled, when three may be sufficient.") The president should not be the comg. officer or govr. of the garrison (193). The 16th art. directs that the president shall not be under the rank of a lieut., having served not less than eight years as a comd. officer. A capt. is usually appointed the president, and the members may be lieuts. or ensns., as may be most convenient-they should have been some time in the service. The cases which are submitted to their investigation are not very intricate, or of any length of duration. It is not usual to appoint more than five officers (194).--(See the concluding part of No. 42, relative to drummers,

(191) See note 181.

(192) A regimental ct.-mar. may take cognizance of all offences committed by N. C. O., and soldiers, which do not require the assembly of a gen. ct.-mar. Though they could not try for mutiny or desertion, they might try for disorderly conduct, or for absence without leave; and, generally, for all those offences which are described as punishable by the "sentence of a gen. or reg. ct.-mar."-(See letter hd. qrs. Calcutta, 22d Oct. 1813, at art. 10, sec. xiv., Arts. of War.)

(193) See note 181 ante.

(194) The gen, regn., dated H. G., 1st Nov, 1804, direct the attendance of young officers at all regimental cts.-mar., for at least three months, before they are permitted to be members of such courts. The G. O. C. C., 13th Oct. 1806, direct it to be considered a standing order, that no officer shall be employed as the superintending officer of a native regimental ct. -mar. who shall not have been two years with a carps; and the practice obtains, in the guards, of not allowing officers to be members under two years doing duty.—(Henley's Bengal Mil. Regns., p. 143.)

E

drummers, &c. professing the Christian religion.) The 12th art. 14th sec. Arts. of War, directs the assembly of a ct.-mar. composed of officers from different regts., when there may not be a sufficient number of officers of the corps to which the person to be tried shall belong, or whenever it may be judged to be most conducive to the good of the service; and every officer comg. a regt. or battn., composed of any number of companies from different regts., may assemble a ct.mar.-(See more at 12th art. 14th sec.)

47.-Station or Line Bazar Courts-martial, for the Recovery of Small Debts.

Courts of the above description are held at every station, where there is a mil. cantonment, every month (195); their duty is to investigate into the justice of any complaints made by persons attached to the bazars of the station or regts., as well as by merchants residing within the limits of the mil. cantonment against any person subject to mil. discipline, orders, or regs. (196). The following G. O., by the Bengal govt., will explain the extent of the sum of which such courts have cognizance: "The most noble the Gov.gen. in counc. is pleased to direct, that the rule contained in sec. xxii. reg. 20, 1810 (197), as published to the army in G. O., dated the 15th Jan., 1811, be considered applicable to corps and detachmts. of the Bengal army, stationed or serving beyond British territories, subject to the following modification. The limitation of claims cognizable under that sec. to sums not exceeeding in amount 200 rs. shall be held applicable to corps or detachmts. of the Bengal army stationed or serving beyond the British territory; but claims of the nature described in that sec. shall be cognizable, whatever may be the amount; provided, however, that whenever the sum shall exceed 200 rs. and a Dep. Judge Adv.gen. shall be present at the station, or with the detachmt., he shall superintend the proceedings, in the event of the parties in the suit being natives" (198).

"The courts assembled under the authority of this regn. are in all other cases to be superintended, if practicable, by an experienced officer, not under the rank of capt. in the army."-(G. O. G. G. in C., Ft. Wm., Aug. 16th, 1822.)

These courts are composed of five or eight officers, as most convenient; and they are taken according to a roster, from the officers at the station. An interpreter is directed to attend, and the witnesses

are sworn.

48.

(195) Directed to be held on some convenient day before the issue of pay.—(Hen ley's Bengal Mil. Regs., p. 638.)

(196) See M. A., sec. lvii., ante.

(197) See Henley's Bengal Mil. Regns., p. 638.

(198) This does not now apply to European officers, N. C. O., and soldiers other Europeans, but to natives only. In the former case provision is made b the M. A., sec. lvii. (See p. 14 ante)·

48.-Duties of the Judge Advocate-General, or Deputy Judge Advocate-General, before the Assembly of a General Court-martial.

"It is the peculiar province of the the Judge Adv. to summon every person whose testimony is in any shape necessary to the prosecution or defence. The Comr. in chief directs, that in all cases where a ct. of inquiry has been held, the proceedings shall be submitted to the Judge Adv. previously to a gen. ct.-mar. being ordered to assemble; and the Judge Adv. is held responsible that all the witnesses whose names appear in the proceedings of the ct. of inquiry, and whose evidence is necessary to the trial, shall be duly summoned" (199). If there has been no previous ct. of inquiry, then, "being furnished with the arts. of accusation or charge on which he is to prosecute, must, from the information of the accuser, instruct himself in all the circumstances of the case, and by what evidence the whole particulars are to be proved against the prisoner (200). Of these it is proper that he should prepare in writing a short analysis (201) or plan, for his own regn. in the conduct of the trial and examination of the witnesses."

"He

199, G. O. C. C., 8th Feb. 1802. (Henley's Bengal Mil. Regus., p. 538.) (200) By the examination of the witnesses for the prosecution before the court is assembled.

(201) This is necessary in certain cases, but not in all. In cases of mutiny or dezertion generally, there would not be any necessity to prepare a statement in writing; but in cases of capital crimes, murder, &c., it is highly important to prepare a statement in writing exhibiting the legal definition of the crime, (which may serve for another occasion), and then to open the facts of the case by an impartial statement; by this arrangement much of the time of the court will be saved, and such will very much assist the members in putting pertinent questions. In some cases it is necessary to produce before the court a plan of the house, &c. where a warder, &c. may have been committed—if practicable, the court might, with advantage, in intricate cases, view the premises in question before they met. In the case of the King v. Picton, for the infliction of torture on Louisa Calderon, at Trinidad, the exhibition of a coloured drawing, representing the sufferings of the girl under its infiction, was objected to as tending to create a feeling against the defendant in the minds of the jury.-(Howell's St. Tr., vol. xxx. p. 480.)

Copies of any orders required to be produced, signed by an officer in the Adj. gen.'s Dept., are sufficient; these and any other papers should be arranged before the court meets, and the prisoner should be instructed to make application in due time, to the above dept., for any papers he may require from it; and with respect to any other dept., the proper officer (the head of the dept.) should be addressed.

The Judge Adv. would, if there had been a previous court of inquiry, be furnished with a copy of the proceedings, as a document not to be used as evidence, but as one of reference to assist in the conduct of the trial. But the prisoner is not entitled to demand a copy of such proceedings.-(See note 98 ante.)

If there are any precedents relative to the case to be tried, memoranda of them should be made beforehand, that the court may have the benefit of them, without the Decessity of an adjournment for the purpose.

He is furnished with a warrant for the president, and a correct list of the comns. of the members of the court; and should there be any of the same date, then, with the dates of former comns. to determine the question as to seniority.

He ought, then, to give the earliest intimation (202) to the prisoner of the time and place appointed for his trial, and furnish him at the same time with a true copy of the charges that are to be exhibited against him, with the names and designations of the witnesses by whom they are to be supported (203); and likewise a correct detail of the members of the ct.-mar. He should at the same time require from the prisoner a list of those witnesses whom he wishes to be summoned. "The Judge Adv. ought then to summon the witnesses (204) for the prosecution, to give their attendance at the time and place appointed; and this either by a direct intimation from himself to each of those witnesses, or by an application to the comg. officers of the regts., or parties to which they belong, requesting that they may be warned to attend that duty. It is proper, likewise, that he should desire the prisoner to make a similar application, to enforce the attendance of the witnesses necessary for his defence. These measures ought to be taken as early as possible, that there may be sufficient time for the arrival of the witnesses who may be at a distance" (205). But the Judge Adv. should not endeavour to learn the Scope of the prisoner's defence. Sir C. Morgan (formerly Judge Adv.gen.) observes "I must confess I am decidedly of a different opinion from Mr. Tytler, with regard to the propriety or expediency of the Judge Adv., in his character of prosecutor having a personal conference with the person to be tried, and learning the scope of his defence. I have been careful that prisoners should experience liberal treatment, so that nothing be brought against them by surprise, but have ever declined, as far as might consist with the conduct of a gentleman, any personal conference, and have rather avoided than courted an anticipation of the prisoner's defence" (206).

If it be a native gen. ct.-mar., or an European gen, ct.-mar. where natives or any foreigners are to be examined as witnesses, a properly qualified interp. will be appointed, on application being made for that purpose, together with those persons who are required to administer the oaths to the witnesses.-(Brahmin's Moollahs).

49.

(202) A prisoner should have a reasonable time given him as a notice. In cases of high treason, 10 days' notice must be given, in other cases a less time is allowed. It must depend upon circumstances, and the nature of the case.

(203 But Sir C. Morgan observed, "I have never understood it to be the duty of a Judge Adv. in all cases, to furnish a prisoner, previous to the trial, with the names and designations of the witnesses, by whose testimony any act objected to him is expected to be proved, nor, on the other hand, do I consider that it is requisite for the prisoner to furnish the Judge Adv. with the names of any other witnesses than those whom he wishes to be officially summoned. I think such communication might possibly, in some instances, lead to inconvenience on either side.”—(Note to Tytler, p. 358.)

(204) See No. 52, p. 54.
(206) Note Tytler, p. 359.

(205) Tytler, pp. 358, 9.