A witness examined with this view must be restricted to a general opinion, which he cannot be permitted to support by reference to particular parts of the conduct of the prisoner. It will be for the accused, either to submit to the imputation cast on his general character; to meet it by conflicting testimony; or to cross-examine the witnesses on the grounds they have had for coming to the conclusion.*

Courts Martial do not adhere literally to the rule in Courts of Civil Judicature, which requires, that evidence as to the character of the accused, should bear analogy, and have reference to the nature of the charge in issue.†* *Simmons. † Phillipps.

FINDING.

When the Prosecutor, and Prisoner have laid their respective cases before the Court, the trial is finished, and the parties, and witnesses are ordered to withdraw. The Court being closed, the Judge Advocate (or President of Courts Martial, which have not a Judge Advocate,) proceeds to take the opinions of the members on the evidence in the matter before them, by putting this question to each individual, commencing with the junior member:-" From the evidence given for and against the Prisoner, and from what he has said in his defence, are you of opinion that he is guilty, or not guilty, of the charge preferred against him?"

When the charge consists of several counts they are put consecutively.

If the Court, after having duly considered every circumstance of the case, are of opinion that the Prisoner is not guilty of the charge preferred against him, he is then for ever quit, and discharged from the accusation. But the manner, in which this acquittal is expressed at Courts Martial, varies very considerably, and may be divided into eight distinct formulæ.

A Court has been known to find "that the charge is not proved, and therefore acquit the Prisoner ;" an acquittal which must always leave his innocence very questionable, as it shews that the Court themselves were not convinced that he was really innocent. It is, however, very doubtful whether such an acquittal ought ever to be recorded. Or the Court may simply acquit him, which is still not alto

gether satisfactory, on account of Courts Martial having been in the habit of using a stronger formula. But the other six formulæ are all of them expressive of the Court being satisfied that the Prisoner is not only innocent of the specific charges preferred against him, but likewise of all impropriety of conduct in any circumstance connected with them; as they may acquit him either" Fully;" or "Most fully;" or "Honorably;" or "Most honorably;" or" Fully and honorably;" or "Most fully and most honorably." The word honorably ought never to be used except in acquitting a prisoner of charges in which his honor was implicated. For there are many offences that an officer may unfortunately commit, which, although to the prejudice of military discipline, affect not in the slightest degree either his honor, or his character as a gentleman. It is therefore perfectly unnecessary, and even improper, for a court to acquit a prisoner, either expressly, or by imputation of a higher degree of guilt than that of which he was accused.

On acquitting the Prisoner it is competent for the Court to declare their opinion on the conduct of the Prosecutor, and on the nature of the charge; a measure which a Court Martial ought generally to adopt, when the conduct of the prosecutor is deserving of censure, as it is not only a satisfaction due to the Prisoner, but may often prevent the necessity of another trial. Courts Martial may therefore declare the charge to be "Frivolous;" " Vexatious;" Unwarranted;" "Unfounded;" or "Malicious;" and that the Prosecutor, in preferring it, was actuated by

private pique and resentment, and not by any motives for the good of the public service. They may also give their opinion on any incidental circumstances, though they do not form part of the charge, which have arisen in the course of the trial, implicating the conduct of the Prosecutor, or Prisoner, or even of a third person. But this right ought to be exercised with the soundest discretion, and Courts Martial ought never to avail themselves of it in order to make improper, or irrelevant remarks. Courts Martial may also observe upon, and censure any inconsistencies, or prevarication, of which a witness may be guilty. In justice, however, this power ought to be used with regard to military persons only, who, if the Court have expressed an erroneous opinion, can obtain immediate redress by applying to the General Commanding in Chief. But per

sons in a civil capacity may, without being aware of such a censure having been passed, find their character materially injured; and even if they were aware of it, they could obtain no redress, except by an inconvenient, and expensive process at law. There can be no doubt but that, as the Court would in such a case assume powers, which were not legally vested in it, every individual member would be liable to an action for defamation on the part of persons so censured.*

* Kennedy.