CHAPTER X.

OPINIONS OF JUDGE ADVOCATES GENERAL.

W. ARABIN.

J. BECKET.

M. COULTHURST.

R. C. FERGUSON.

R. GRANT.

G. GREY.

C. MORGAN.

No. 1.-Charges for Courts Martial.

"It is well known by everybody that, in the case of charges brought before a Court Martial, they are not bound to the technical formalities which prevail in other courts of law; but there is this essential principle in every charge before any court that can exist in the civilized world, that the charge should be sufficiently specific to enable the person to know what he is to answer, and to enable the Court to know what they are called to enquire into."

No. 2.-Charges may be altered.

"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, but it may be framed, and altered in such way, as the officer, who is to order the trial, may think best, both in regard to the substance as in other respects."

No. 3.-In a Charge for scandalous, and unbecoming Behaviour, the facts should be specified.

"His Majesty has commanded me at the same time to point out the irregularity of bringing before a Court Martial, and putting an officer upon his trial for a vague charge of ungentlemanlike conduct, unaccompanied with a designation of the offence to which that predicament is meant to be applied; and I am further commanded to express His Majesty's surprise that the Court Martial should have pursued the like irregular course, finding the defendant guilty generally of ungentlemanlike behaviour, declaring his crime to be in contempt of a special Article of War, which has for its object the removal from the service of officers who are convicted of scandalous, and infamous behaviour, and thereby affixing a most serious imputation upon the prisoner's character, without attending to an express provision contained in the same Article of War, which enjoins that in every charge against an officer for scandalous, and unbecoming behaviour, the fact, or facts, whereon the same is grounded, shall be clearly specified."

No. 4.-Specification of date of commission of Crime. "I cannot agree with the Court in the sentence they have given by acquitting the prisoner. The evidence

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appears to me fully sufficient to convict, independently of the prisoner pleading guilty to the first part of the charge, and if the Court have formed their opinion upon any supposed variation between the time laid in the charge, and the time proved by the witnesses, I think with much deference to them that they have been mistaken. Suppose a man indicted for burglary, and that burglary stated in the indictment to have been committed on the night of the 25th December, the indictment would be fully supported if it were proved to have been committed any time before daylight on the 26th December."

No. 5.-Trial for Unnatural Crime.*

"In such cases the sentence need not be published in General Orders; and the President may forbid the attendance of persons unconnected with the trial.”

* Vide" CRIMINAL OFFENCES."

No. 6.-Confession, or Evidence, of former Desertion.

"In answer to your question whether after a prisoner has been found guilty of desertion, his confession of a former desertion, for which he had never been tried, could be received in evidence against him? I have to observe that must in all cases depend upon the particular circumstances under which the confession was made.

"It may be right to add that no description of evidence of a former desertion for which a prisoner had not been tried could be legally received by the Court, unless the prisoner had had previous notice specifying the time, and

place of the desertion intended to be given in evidence against him, after he shall have been found guilty of the specific offence on which he shall be on trial.

No. 7.-Forfeiture of Pay, Beer Money, &c. Pay to be stopped for day of absence, and day of return.

"Under the 46th Clause of the Mutiny Act and 52d Article of War, the soldier absenting himself without leave is liable to forfeit his pay for every day on which he has been so absent, and that the day on which he absents himself, and the day on which he returns, are equally to be considered days for that purpose, although the absence may not in either case amount to an entire day."

No. 8.-Punishment may be awarded, in addition to stoppage of pay, by Commanding Officer.

"The 46th Clause of the Mutiny Act, which empowers Commanding Officers to direct the soldier's pay to be stopped for absence without leave, only protects him from any additional punishment for his said offence, viz. "absence without leave," If, therefore, a soldier, in the cause of such absence, or on his return, commits some other military offence, which by the usage and custom of the service a Commanding Officer may of his own authority punish, he is not precluded from doing so, provided the punishment awarded is in accordance with such usage.

No. 9.-Absence, less than one week, not to be noticed in Record of Service.

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Although the soldier is not entitled to reckon