made to him, as no officers, but those who are themselves of the Court, ought to be allowed to remain during the Finding, and Sentence of the Court."

No.23.-President cannot be objected to by Challenge. "The President of a Court Martial cannot be objected to by challenge, in the same manner as the members may be, he being named in the Order, or Warrant for the trial. If therefore any objection be urged against his appointment, care must be taken to have such objection clear and specific, the Court must then separate, and the objection must be referred for decision to the authority under which his name was inserted in the Order, or Warrant. Vide" PRESIDENT."

No. 24.-President not entitled to a casting vote. "I know not upon what authority it is stated (in Tytler's Essay on Military Law,) that when the Court, by the illness of one of its members, or any other unforeseen circumstance, is reduced to an even number, and the Court shall be equally divided in opinion upon any point, the President is to exercise a double vote; I have ever understood the law to be otherwise; and I have to add that the practice at the Horse Guards does not countenance that position."

Note.-Vide No. 12.-Every Member to give his Opinion.

No. 25.-Court Martial not to punish for Perjury. “I should by no means recommend it to a Court Martial

to punish by their own authority a person, even of a military description, for the crime of perjury committed at their bar, further than by confining him, in order to his being proceeded against according to law."

No. 26.-Previous convictions increase severity of punishment.

"In answer to your observations on the 24th Article of War, viz. that as, upon the trial of any soldier for any offence whatever, previous convictions may be given in evidence against him, and that therefore he might receive severe punishment disproportionate to the offence committed, I have only to observe that, admitting the force of your remark, it was purposely intended by the Legislature to afford the means of meeting out comparatively severe punishment, where previous bad charcter was notorious, and proved against a soldier; and this principle has been taken from the recently improved Acts of the Criminal Law, where, after a conviction for the particular offence, although of a minor description, it is permitted to give evidence afterwards of previously repeated offences, in order the more accurately to assign the proper degree of punishment."

No. 27.-Notice of previous convictions.

"It has uniformly been held at this office that according to the spirit of the Mutiny Act, and the Articles of War, such proof is indispensable; and on the other hand, that no proof of the sort should be admitted, nor any mention of previous delinquency be made until the

unbiassed judgment of the Court has pronounced the prisoner guilty of the offence, for which he is immediately under trial, and until the previous convictions are actually about to be put in evidence. From these premises, it follows that it was neither sufficient, nor regular in the case (referred to) that the fact of notice should stand on the testimony of the prisoner himself; still less on testimony given antecedently, not only to his conviction, but even to the commencement of his trial, and before a court not yet qualified to act as his judges."

No. 28.-Prisoner refusing to plead, or make defence.

"If the prisoner refuse to plead, it subjects him to the same procedure as standing mute; and if he declines making any defence, it is at his own risk, it cannot operate to impede the regular course of judgment."

No. 29.-Court may caution Prisoner.

"It is competent to a court to caution the prisoner as he proceeds, if they should think proper; and to state to him that, in their opinion, such a line of defence as he may be pursuing would probably not weigh with them, or operate in his favour; but to decide against hearing him state arguments which, notwithstanding such caution, he might persist in putting forward as grounds of justification, or extenuation, such arguments not being illegal in themselves, is going beyond what any Court would be warranted in doing."

No. 30. - Prisoner may

Prosecutor.

rejoin to reply of

"Some doubts have arisen as to a prisoner's having a right to rejoin to the reply of the prosecutor; this mistake however is probably grounded on the supposition of a case which rarely happens, of a prosecutor being permitted to introduce new evidence in reply, in which case the prisoner is entitled to be heard upon such new evidence; and the prosecutor will be, in return, to a reply to the same extent. If the prosecutor in his reply introduces perfectly new matter (which in strictness is irregular) without calling evidence, it is but fair, either that the Court should stop the prosecutor from going into such new matter, or if he is permitted to go on, to hear the prisoner afterwards in reply to such new matter. After this, and the parties are withdrawn, the Court proceeds to form an opinion, and adjudge a sentence."

No. 31.-Soldiers, breaking out of Prison, are to undergo remainder of Sentence.

"Soldiers, who break out of prison, when suffering the punishment awarded by the sentence of Courts Martial, are liable, if retaken, to undergo the unexpired period of their punishment of imprisonment."

"The time, during which offenders, who break prison, are absent, is not to be reckoned as part of the period of their imprisonment. They must be in actual custody during the time of their sentence."

No. 32.-Prisoner taken out of confinement, and

employed on any duty cannot be again confined, or punished.

"A prisoner, confined for any offence, if taken out of the guard-room, &c., and employed on any duty, cannot be again confined, or punished for the offence. It is lawful however to take him out of confinement to give evidence, after which he must be marched prisoner to the guardroom, &c."

No. 33.-Soldiers, undergoing imprisonment, cannot be removed as prisoners to another station.

"Soldiers, when undergoing imprisonment, cannot legally be marched to another station as prisoners under escort, as their liberation from confinement must be considered as a full remission of the punishment."

Note.-This Opinion does not apply to the Royal Marines, for by Clause 23 of the "Act for the Regulation of Her Majesty's Royal Marine Forces while on shore," it is enacted that the Lord High Admiral, or the Commissioners for executing the office of Lord High Admiral, by any order in writing made for that purpose, may change the place of confinement expressed in any sentence of a Court Martial to be held under the authority of the above mentioned Act, either previous to the commitment of the offender, or under any such sentence, or at any time during the period of his confinement, and so from time to time, as often as it shall be deemed requisite.

No. 34.-Prosecutor to be appointed.

"It has always been the practice since I have been in