that what he was doing was contrary to the laws of God and man. If he had sufficient reason to observe these distinctions, and possessed the knowledge referred to, he must be held answerable for the consequences of those acts: these are questions which the court-martial must decide.

"If a man in his sound memory commits a capital offence, and, before arraignment for it, he becomes mad, he ought not to be arraigned for it; because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried; for how can he make his defence? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced; and if, after judgment, he becomes of nonsane memory, execution shall be stayed; 'for peradventure,' says the humanity of the English law, 'had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution.'"*

* 4 Black. Comm., 24.

CHAP. XVI.

APPOINTMENT AND DUTIES OF THE OFFICIATING

JUDGE-ADVOCATE.

-

Appointment and Duties of Officiating Judge-Advocate. Opinion of Judge Bathurst thereon. -Duty when conducting a Prosecution.

Matters of legal Doubt.
Sentence to be taken.

May give his Opinion on all
Not to allow Copies of the

In the absence of the Judge-Advocate and his deputy, the Court is authorised to appoint some person to officiate in that capacity. When the commander-in-chief has no objection, his secretary is generally selected for this duty. It would certainly be better, if the appointment of the officiating Judge-Advocate were vested in the officer who orders the court-martial to assemble, such appointment to be subject to the subsequent approval of the Court. This would remove the anomaly which at present exists in the fact of his being required to perform several duties connected with that office, before he is furnished with a warrant for so doing, besides which, the commander-in-chief, or officer, ordering a court-martial, being deeply interested in the legality of the proceedings, it appears but right, as he cannot be there himself to advise the Court, that he should be allowed to

appoint a person in whose ability and discretion he has confidence. It is not only necessary that the Judge-Advocate should possess an intimate knowledge of the rules and regulations of the naval service, but that he should understand the ordinary forms observed in criminal trials *, the observance of which at courts-martial would, in many cases, have prevented the strictures that have from time to time been passed upon the proceedings of these tribunals.

The duties of a Naval Judge-Advocate are,

1. To give at least twenty-four hours' notice to the prisoner of a court-martial being ordered to assemble for his trial; at the same time to supply him with a copy of the charges on which he is to be tried, and a list of witnesses intended to be called to support those charges; also to call upon him for the names of the persons whom he intends to examine in his defence.†

2. To give notice to the prosecutor of a courtmartial being ordered to assemble.

3. To summon the witnesses required for the prosecution and defence.

4. To advise the Court on the proper forms to

* The author begs leave to call the attention of his brother officers and others to "Archbold's Pleading and Evidence in Criminal Cases," a work without a careful study of which no one should take upon himself the responsible duties of a JudgeAdvocate at Courts-Martial held on foreign stations.

† The President, prior to the Court being sworn, should ascertain that the Judge-Advocate has complied with these regulations.

be observed; and to give his opinion on all matters of legal doubt which may arise in the course of the trial.

5. To administer the prescribed oaths to the members of the Court and the witnesses.

6. To take minutes of the proceedings of the Court.

7. To put questions to the witnesses tending to lead the Court to a knowledge of the facts of the matter in issue.

8. To conduct prosecutions instituted on the part of the Crown, or when no prosecutor is present.

up

9. To collect the votes of the members, and draw the sentence under the direction of the Court. 10. To prepare a fair copy of the minutes of proceedings, and transmit the same to the Admiralty.

The following questions were submitted to Judge Bathurst, relating to the duties of a Naval JudgeAdvocate:

Question 1. "What is properly the office of a Judge-Advocate? The Act 22 Geo. 2. says, he is to swear the Court and the evidence; and the general printed instructions, under the head of Courts-Martial, direct him to take minutes of the proceedings of the Court, to advise them of the proper forms, and to deliver his opinion on any doubts or difficulties that may arise in the course of the trial. But I should be glad to know whether he is prosecutor for the Crown; and if so, whether

he can with propriety advise the prisoner, and assist him in his defence ?"

Question 2. "By the Act of Parliament of the 22 Geo. 2., a court-martial is authorised, in the absence of the Judge-Advocate of the fleet and his deputy, to appoint a person to execute the office of Judge-Advocate; but as it cannot properly become a court-martial till the members are sworn by a Judge-Advocate, how and when is such a person to be appointed?

"It appears highly reasonable that he should be appointed some time before the Court assembles, as there ought to be some time to give the prisoner notice of his trial to summon the evidence, &c., which are supposed to be part of the JudgeAdvocate's duty. Has not the president, therefore, authority, as soon as he receives an order to assemble a court-martial, to grant a warrant to some person to execute the office? If not objected to by the majority of the members, he will of course become the officiating Judge-Advocate, agreeably to the Act. And can it be a legal court-martial if the person officiating as Judge-Advocate be appointed by warrant from the commander-in-chief of the squadron instead of the president ?"

Judge Bathurst answered the above questions as follows:

Answer to Question 1. "The answer to these queries suppose the fact contained in them to be accurately stated, as well as the clauses of the different Acts of Parliament which are alluded to.