office, and with my predecessors, unless there was some reason why it could not be so managed, that somebody should be appointed Prosecutor."

No. 35.-Prosecutor may reply to Defence.

"The Prosecutor is allowed by argument to reply, but not to bring evidence, unless new matter has been brought forward in the defence.-Vide "PROSECUTOR."

No. 36.-A Soldier, refusing to take a punishment awarded, cannot be ordered to undergo it, in addition to the punishment inflicted for such refusal.

Question.

"A soldier is ordered by his commanding officer to be placed in the defaulter-room for a certain period for some irregularity-he refuses to go. The commanding officer orders him to be put in the black hole 48 hours for so refusing. Can he afterwards be ordered to undergo the confinement to the defaulterroom as first awarded ?"

Answer.

"The commanding officer would not be justified in committing the soldier to confinement in the defaulter room, after he had suffered the severer punishment of imprisonment in the black hole, expressly awarded him in consequence of his refusing to be placed in the defaulter-room."

No. 37.-Officers, empowered to order the assembly of Courts Martial, are not permitted to commute Punishment.

"In my communication I stated the opinion, which I had been led to adopt in pursuance of a rule which ap

peared to have been acted on in this office, with respect to the powers of General Officers in command, to commute a sentence of punishment, awarded by a Court Martial, for another species of punishment, with the consent of the party; I now think it proper to acquaint your lordship, with reference to the above communication, that entertaining doubt as to the legality of this practice, and considering the question of very extensive importance, as it affected the powers, and possibly the practice of General Officers in command on various stations, I concluded to take the opinion of the Law Officers of the Crown upon the subject.

Having now received their Report, I have to state for your lordship's information, that the most extended discretion given by the crown in any case, as to punishments to be actually suffered under sentence of Courts Martial, is contained in the King's Warrant, issued to General Officers commanding bodies of King's Troops, who by a Warrant issued to them, are empowered by His Majesty in terms to suspend, mitigate, or remit the Sentence of a Court Martial; but even officers holding these Warrants, have no power to alter the species of punishment adjudged in any case.

I am of opinion therefore, that there is no authority to commute a corporal punishment, to that of solitary confinement, nor indeed any species of punishment for one of a different description."

No. 38.-Period in Hospital to be reckoned part of Sentence.

"If a soldier be sentenced to imprisonment, and be on

account of sickness removed to an hospital, before the time of his imprisonment had expired, the period passed by him in hospital must be reckoned part of his sentence, the punishment is consecutive, and cannot legally be divided. If a man recovers before the sentence awarded expires, he may be legally returned to the cells."

No. 39.-Acts of Drunkenness do not constitute disgraceful conduct.

"With respect to these proceedings I would observe, that acts of drunkenness, however often repeated, do not constitute disgraceful conduct, within the intent, and meaning of the 9th Clause of the Mutiny Act; and therefore the Court were not warranted in recommending the prisoner to be discharged with ignominy from the service.

No. 40.-Votes, or Opinions of Members noted by Judge Advocate.

"I rather differ from Mr. Tytler with respect to its being absolutely incumbent on a Judge Advocate to retain written minutes of the particular vote, or opinions, of each individual member. Concerning the expediency of the measure, every Judge Advocate will judge for himself; under some particular circumstances it may perhaps be desirable. There is one inconvenience, which may result from it; in the event of a Judge Advocate's death, or other circumstance, which may give access to his private papers, those minutes may be made public.”

CHAPTER XI.

CRIMINAL OFFENCES.

By Article 102 of Rules and Articles of War, General Courts Martial are empowered to try, and sentence to punishment, any officer or soldier (serving in Gibraltar, the territories of the East India Company, or in any place beyond the seas, where there is no civil judicature in force) who may be guilty of any "offence, which if committed in England would be capital, or other felony; or of having used violence, or committed any offence against the persons, or property of any of our subjects, or of any others entitled to our protection."

It is therefore incumbent on all officers to make themselves acquainted with the Common and Statute Law of England, to enable them, as members of Courts Martial, to adjudicate on any of the crimes specified in the abovementioned Article of War.

The Legal Works mentioned in the Introduction should be consulted, if they can be procured, especially pending a trial for any criminal offence; but, in the absence of these Authorities, the following notes will assist in refreshing the memory of those officers who have perused the

M

original publications; and may perhaps induce others, who have not yet done so, to study Criminal Jurisprudence, which, from the nature of the present compilation, can be but very briefly adverted to in this work.

The following extracts have been principally taken from "Archbold's Summary of the Law relative to Pleading and Evidence in criminal cases," 7th edition, a work whose value is stamped by the very great demand made for it by legal Practitioners.

INDICTMENT.

An Indictment is the specification of a crime of which a person stands accused, and against which he is called to defend himself before a competent tribunal.*

An Indictment lies against all persons who actually commit, or who procure, or assist in the commission of crimes, or who knowingly harbour an offender; for each, in contemplation of law, is guilty, and liable to punishment according to the part which he takes in the perpetration of the offence.

A Principal in the first degree is one who is the actor, or actual perpetrator of the fact.

Principals in the second degree are those who are present, aiding, and abetting at the commission of the Presence, in this case, is either actual, or construcIt is not necessary that the party should be actually * Tytler.

fact.

tive.

Archbold.