protected from publication. Their finding is, in fact, advice and information confidentially given to the Crown or General Officer, in furtherance of the exercise of a public duty upon the result of such inquiry.

2

11. The extraordinary circumstances under which the Chelsea Inquiry was held in 1856, obliged the Ministers to depart from their original intention of having that conducted as a confidential inquiry. Having submitted the Military efficiency of the General Officers in the Crimea to the decision of two gentlemen

"That never set a squadron in the field,

Nor the division of a battle knew,"

and laid their ex parte statements before Parliament without the knowledge of those Officers to whom blame was imputed, public inquiry then became inevitable- an exceptional proceeding, which has not however varied the rule, viz., that these are confidential inquiries.3

12. Accepting the "analogy drawn" by Lord Chelmsford "between Courts of Inquiry and Grand Juries as perfectly correct,' "4 it is clear that there is and should be no trial of an accused person, nor has such (if any) person a locus standi before the Court, either to interfere in the proceedings, or to be present throughout, or to note down, if permitted to be present, the statements made for the use and information of the Crown either for or against him. All public servants, Civil or Military, no doubt are bound by the law of obedience to attend, if called upon to do so, where a Court of Inquiry may be summoned to meet. Being there, they speak not as sworn witnesses, but as persons offering such information as each in his discretion sees fit to tender; for the Court has no power to swear or to punish them as witnesses for contumacy or silence. Such information as may be thus collected is, for convenience, arranged in the

1 Report of Board of General Officers, printed by command, 1856.

2 Contrast Lord Palmerston's Speeches on 21st and 28th Feb., in 140 H. B. (3), pp. 1052, 1480.

The Case of Naval Courts of Inquiry, discussed in April 1863, 170 H. D. (3), pp. 381-395. 170 H. D. (3), p. 395.

5 See C. M. Rep. qu. 4276-7, and Ch. Bar. Kelly's Judgment in Dawkins F. Rokeby, 8 L. R. (Q. B.) p. 266.

same form as that used by a Court-martial;' each member signing the Report, which is sent to the Convening Authority through the President.

13. The ultimate use which is to be made of information thus obtained involves very different considerations. Before any one is prejudiced by the result it would appear desirable, if not demanded by Justice, that the substance of the charge be communicated, and an opportunity of explanation be afforded to him; while, on the other hand, to disclose-as in a late case was done all the proceedings of the Court to the offending Officer is to violate the fundamental condition of secrecy under which the servants of the Crown were induced to record their opinions either as members or as informants of the Court. In this matter the Crown or Executive Officer, having formed a Court and invited information, is bound to withhold the Record from publication; for a disclosure too frequently exposes those entitled to this protection to a merciless persecution from the offending Officer whose conduct has been under investigation.*

3

14. Whether these Courts should be recognized by the Mutiny Act or Articles of War, and, if recognized, have extended powers given to them, is a question which Mr. Tytler raised in his Essay upon Military Law.'5 Since then a Secretary at War has desired that their proceedings should be judicial, and their investigations carried on under the sanction of an oath. With the exception of what will be mentioned in the concluding portion of this Chapter, nothing has been done;" nor is anything so much needed as definite instructions as to the method in which these extra-judicial inquiries should be conducted by the Court, and as to the rules by which Ministers

1 L. R. par. 786, post.

2170 H. D. (3) p. 389.

* Beatson v. Skene, 5 H. and N. p. 838; and Vol. I. p. 189.

In Dickson's Case, an Attorney and shorthand writer were admitted to attend the Inquiry, and a flood of litigation overwhelmed all the servants of the Crown, from the Secretary of State down to the Colonel of the Regiment. (Dickson v. Wilton, 1 Fost. and Fin. p. 419; Same v. Combermere, 3 ib. p. 527). In Dawkins' Case, the same thing happened, and with the same result. Dawkins v. Rokeby, 4 ib. p. 806. Same v. Pawlett, 9 B. and S. p. 768; still pending.

Page 348. • Case, and Law Officers' Reports in 1803, Vol. I.

pp. 541-550.

7 As to Naval Courts of Inquiry under the Merchant Shipping Act, 17 & 18 Vic. c. 104, sec. 260-269.

as Privy Councillors should be guided in using the information thus afforded to them.1

II. As to Courts of Inquiry under Statutory Authority.2

15. In entering upon the second division of the subject, it may be convenient to enumerate the several Courts, Boards, or Committees of Inquiry that are authorized to be assembled under Articles of War or Statute with reference to Military Law or Procedure.

1st. Under the Articles of War, one or other of these may be assembled to inquire, and then

(a) To report on Wounded Officers.

(b) To report on Discharged Soldiers.

(c) To report on a Soldier's Bodily Injuries.
(d) To report on a Soldier's Desertion.

(e) To report on a Soldier's Claims.

These generally relate to the Regular Army; but when other Forces are subject to the Mutiny Act, these provisions of the Articles of War would in some measure be applicable to them.

2ndly. (ƒ) Under the Regimental Debts Act, for the collection of the assets, &c., of a deceased Officer or Soldier on Service. 3rdly. (9) Under the Volunteer Act, 1863, to report on matters submitted by the Convening Authority.

1st. Under the Articles of War.

16. Courts or Boards of Inquiry are not referred to in the Mutiny Act; but, since the year 1829, the Articles of War have directed the assembly of these Tribunals for the several specific purposes which I have previously enumerated. As no alteration in the Law has been made with regard to two of the Boards then established, it may be convenient to treat of them without further preface.

17. (a) Upon referring to Article 88 of 1830, which is identical with Article 165 in the Appendix, it will be seen that,

As to the oath of a Secretary of State, see Vol. II. p. 730.

2 Whether the finding of these Courts may be given in Evidence was discussed in the American Cases of Wilson v. John, 2 Bain Rep. 215; Fox v. Wood, 1 Rawle Rep. 146.

"for the purpose of securing a provision for life to any Officer wounded before the Enemy, the Secretary of State may convene a Military Medical Board of not more than five nor less than three Medical Officers, to inspect and report upon the state of the Officer's wound. The Article supposes the Board to be cognizant of "the Rules and Regulations for granting Pensions to Wounded Officers," inasmuch as the "Declaration" (which each member is to make in the presence of the Wounded Officer) requires him impartially to inquire into and give his opinion. on the case according to the true spirit and meaning thereof. They, like the Judges of a Court-martial, are sworn to secrecy, and their Report goes through the Director-General of the Army Medical Department to the War Office, for official use.

18. (b) Upon referring to the 87th Article of 1830, which is the same as Article 166, it will be seen that "to secure to the deserving Soldier when discharged " a provision proportioned to the length and nature of his service, and to enable the Chelsea Commissioners to carry out "the Rules and Regulations for Pensioning Soldiers," "the services, conduct, character, and cause, of the discharge" of every Soldier are to be ascertained before a Regular Board, to be held for the purpose of verifying and recording all these necessary particulars. The Board is to consist of three Officers; the second in Command being the President, and the two next Senior Officers on the spot being members. Every Military person who may be summoned by the President is to attend and give to the Board such information as he possesses on the subject of the Inquiry. The duty of the Board is "restricted to the faithful and impartial record of the Soldier's services and conduct at the close of his Military career," and they are to be governed in the discharge of it by the Pension Regulations (which are to be produced before the Board), and by the "Declaration" (which each Member is to make in the presence of the Soldier whose case is under inquiry) upon honour duly and impartially to inquire into the matters brought before them; and, in doubt, "according to my conscience, the best of my understanding, and the custom of the Service in like cases."

19. (c) The interests of the Officer and Soldier having been thus protected by Lord Hardinge, by whom these arrangements

were initiated, he-not unmindful of public interests, nor ignorant of the frauds that were then, as now, not unfrequently practised against them-directed an inquiry by Court-martial (but which is now to be otherwise conducted), to detect malingering or self-inflicted injuries. On turning to the 82nd Article1 in the Appendix, it will be seen that whenever a Soldier, either on or off duty, shall become maimed, mutilated, or injured (except by wounds in action), he shall be forthwith brought before a Court of Inquiry.

20. The manner in which this Court is to be formed is not prescribed; but the purpose of it is to report their opinion whether the maiming, mutilating, or injuring was occasioned by design. If they report it as occasioned by the designed and wilful act of the Soldier (or by any other person at his instance) to render himself unfit for Service, then he is forthwith to be brought to trial before a General or District Court upon the charge of disgraceful conduct; and the proceedings of the Court of Inquiry are to be sent up (through some circumlocution) to the Chelsea Commissioners for their guidance upon the Soldier's ultimate discharge and application for Pension.

21. (d) Another inquiry was originated by Lord Hardinge in the Articles of 1829, which is now directed to be carried out under 167th of the present Code. The Article as originally framed, and as it continued till the year 1857, authorized an inquiry which-not being made on oath-was of little value other than as a Regimental Record of a Soldier's absence or Desertion. In the latter year, however, the Article was so altered as to supply in some degree what the Duke of Wellington3 thought so essential, viz., evidence recorded of a fact which should be judicially accepted, though the Witnesses did not appear before the Prisoner at his trial.

22. Upon reference to the Article, it will be seen that, after a

In 1830 this Art. was 41, and in 1840 it was 40. In 1847 it was 82, and so continued till 1858, when a Court of Inquiry was substituted for a Court-martial in the preliminary investigation.

2 It was 89 in that year, 82 in 1830, 147 in 1857, when the Art. was essentially altered in its effect by amendment; then 171 in 1860, and 167 in 1869, when the inquiry was to be made after twenty-one days' absence, and not after two months', as theretofore. 3 Chap. IX. par. 52, ante.