the president. If convened in any of the places above excepted, where, from the dispersion of force, that number could hardly ever be assembled at any one place, it must consist of not less than five commissioned officers. In no case ought the officer, by whose authority the court is convened, to sit as president; nor must the president be under the degree of a field-officer, unless no officer of that rank is present; nor, in any case whatever, under the degree of a captain. Officers of the land and marine forces may be associated as members of the same court-martial, when the same rules are observed as if the court was composed of officers of the land forces only. The same holds in regard to the officers of the King's and Company's service in India, with this difference, that on the trial of any officer or soldier of the King's service, the provisions of the Mutiny Act must be observed; while on the trial of members of the Company's troops, recourse must be had to the provisions of the act passed in the 4th of George IV., for the punishment of mutiny and desertion in that service. This rule does not hold in regard to the militia; officers of the regular army being precluded from sitting as members of courts held for the trial of militia-men, and the officers of the latter being, in like manner, disqualified from sitting on those for the trial of officers and soldiers of the regular army. One invariable order of precedence is observed in these courts: the president sits at the head of the table, the senior member (in rank) on his right hand, the next on his left, and so on in succession. The president and each member of the court are individually sworn to " truly try and determine according to the evidence," and to administer justice according to the articles of war and the Mutiny Act, "without partiality, favour, or affection;" and if any doubt shall arise, "then, according to his conscience, the best of his understanding, and the custom of war in like cases." Each member is further sworn not to divulge the vote of any other member, unless called upon to do so "in a due course of law."

By the 14th section of the act, courts-martial are empowered to administer an oath to every person who shall be examined by them respecting the matters submitted to their decision. The form of the oath is: "The evidence you shall give before this court shall be the truth, the whole truth, and nothing but the truth. So help you God." And all witnesses duly summoned, not attending such courts, or refusing to be sworn, or to give evidence, or to answer questions put to them by the court, are liable to attachment in the principal courts in London, Dublin, or Edinburgh, or in the King's dominions abroad, in the same manner as they would be if they had neglected to attend on a trial in any of those courts. The same freedom from arrest is also extended to the persons giving evidence before courts-martial, which is allowed to witnesses in the civil courts.

The jurisdiction of a General Court-martial, with respect both to persons and offences, is of a very extensive nature; there being scarcely any crime, committed by a military person, not cognizable by them. The Mutiny Act regards, as subject to such jurisdiction, every person, "who is or shall be commissioned, or in pay as an officer, or inlisted or in pay as a noncommissioned officer or soldier." Under this description, it seems officers on half pay are now included, though previously to 1786 they were exempt from such liability. Foreign troops in the king's pay, and those in the service of the company, while in the United Kingdom, and until their arrival in India, are also expressly included by the act. The militia, as well as all yeomanry and volunteer corps, are expressly exempted from its operation, except in cases, where, by any other acts for regulating those forces, the provisions of the mutiny act are specifically made applicable to them. It has been doubted, whether officers and soldiers retired from the service are amenable to courts-martial for offences committed during the time they were in the service, the terms of the mutiny act appearing to confine its application to those actually in commission or in pay. The better opinion, however, seems to be that they are so liable, if brought to trial within three years, the period within which all offences under the act must be prosecuted, dating from their commission. The case of Lord George Sackville is in point; that nobleman not having been brought to trial until three months after he had been deprived of his commission by the king. Indeed the question was referred to the judges, who declared " they saw no grounds to dispute the legality of the jurisdiction of a court-martial in those circumstances." There is a difficulty in the case of members of parliament. It is however confined only to the arrest, the usual preliminary to bringing an officer to trial before a court-martial. It has been contended, that as they can only be arrested for treason, felony, or breaches of the peace, they are not liable to military arrest, except for offences coming under one of those descriptions. The privilege extends no further; for of their liability to all the penalties of the military law while in commission there can be no question. When a member of the house of commons has been convicted by a court martial, " of scandalous and disgraceful conduct," the house usually consults its own dignity, by expelling the offender, as was done in the case of Colonel J. F. Cawthorne, in 1796, by a majority of 108 to 12. Attempts were made in 1644 and 1749 to exempt the members of both houses from military jurisdiction, but it has long been settled, on the grounds of public justice and expediency, that so long as they continue to hold offices of rank and trust in the army, they shall be subject to its discipline. Besides the classes who act in a strictly military capacity, certain civilians, connected with the ordnance and commissariat departments, are, under peculiar circumstances, brought within the scope of the act; and it may be laid down as a general rule, that all followers of the army abroad, whether sutlers or others, are subject to military law, and liable to be tried and punished by military

courts.

Although the most scrupulous care is taken to preserve inviolate the rights of the subject, by excluding every pretence for bringing civilians within the scope of military jurisdiction, yet they are liable to incur the penalties prescribed for certain offences by the mutiny act. Thus persons persuading soldiers to desert, may be punished by such fine and imprisonment, as the court in which they are convicted of the offence may award. And persons assisting or concealing deserters "shall forfeit for every such offence the sum of 20l." Penalties are also enacted against all persons buying the arms, or any part of the clothing and equipment of soldiers; or who shall engage in any unlawful recruiting; or, not being authorized military agents, shall traffic in the sale and exchange of commissions. But these enactments so necessary to protect the

interests of the service, by no means entrench on the civil rights of the subject, for the penalties can be enforced or recovered only in the civil courts.

Every general court-martial is attended by an officer styled the judge advocate, who prosecutes in the name of the king. In that respect, his functions resemble those of the attorney general in the civil courts. He has however others of a very different and most important nature. Not only is it his duty to inform the court of the necessary forms to be observed in their proceedings, but he ought also to explain to them the common law upon all those points where the Mutiny Act and the articles of war are silent: as in such cases the rules of the Common Law must be resorted to, nothing less than a positive enactment being capable of superseding them. Thus, he is peculiarly called upon to assist them with his advice in all points regarding evidence, and the distinctions between principals and accessaries; for little notice being taken of these subjects in the Mutiny Act, the decisions of the civil courts must of course be followed. To advise however is all he can do, for the decision must in every case be made by the court. The judge advocate is also considered as the adviser of the prisoner, not that he is expected to assist him with the zeal of a counsel, with which his duty as a prosecutor would be utterly incompatible, but in seeing that no evidence illegal in its nature or form is urged against him, and that he is not debarred the means of making a full and fair defence. He also acts as the recorder of the court, taking down the whole of the evidence in writing, and, as nearly as may be, in the words of the witnesses. When the proceedings of the court are concluded, it is his duty to transmit an accurate detail of them, including the finding and sentence of the court, to the office of the judge advocate general in London. It is evident that the duties of this functionary must be often of a very difficult nature, and such as to require not only a general, but in many instances an accurate knowledge of the common law. At home, the judge advocate general is usually a lawyer of eminence; but, except in very important cases, his place is supplied by a deputy. On foreign service, this duty is discharged by a military officer, selected for his knowledge and intelligence. It should be observed, that when the court persists in its adoption of any course, against the advice of the judge advocate, the latter, though not entitled to enter his dissent in the form of a protest, is at liberty to engross upon the proceedings of the court the opinion delivered by him on the controverted point; and this as well for his own justification, as to bring the matter within the notice of the authorities, with whom it lies to confirm or remit the sentence.

Although the prisoner is allowed the assistance of counsel, yet by the practice of the courts, that assistance is very much restricted. The counsel may examine witnesses for the defence, and cross examine those for the prosecution, but he is not permitted to enter into any argument, or take objections to the proceedings of the court, though undoubtedly he may suggest them to his client. Still less is he permitted to address the court on the defence; and to so great a point is this jealousy of his interference carried, that though the court will allow a non-legal friend, particularly a military man, to read a defence for the prisoner, yet it will not grant that liberty to counsel. It would add to the high character which the military courts possess for strict impartiality, if these restrictions were removed. When we consider that men of very little or no education are often placed as prisoners, though perfectly innocent of the crimes laid to their charge, in situations which embarrass and perplex even men of cultivated understandings, it seems as cruel as it is needless to deprive them of the aid of those, who by their exercised skill in disrobing facts of appearances which do not belong to them, and dissevering them from others with which they have no essential connection, may often prevent that most deplorable of all the consequences of human fallibility, the condemnation and punishment of the innocent.1 We hope it is not yet too late to extend the benefit of the bill now pending for allowing the assistance of counsel to prisoners, to persons liable to trial by courts-martial.

When it is intended to bring an officer or soldier to trial before a general court-martial, the usual course is to place the individual, if an officer, under arrest, if a soldier, in confinement. An officer under arrest (unless it be close arrest, which prohibits him from quitting his room,) is permitted to

1 This opinion must be taken as the individual opinion of the writer.-Edit.