"The duty of a Judge-Advocate can only be collected from the statutes which relate to naval courts-martial, and the constant practice since the first of these, which is supposed to be the 13th of Chas. 2. It is undoubtedly his duty that the proofs on the part of the Crown and the prisoner should be properly laid before the Court; and where the point is doubtful, he should incline on the part of the prisoner."

Answer to Question 2. "I think that the courtmartial, as soon as it is assembled, may appoint a Judge-Advocate; and as the Act says it must be done by the Court, a majority should concur in the appointment. It might not be improper, however, to have this further explained by a new Act.”

When the Judge-Advocate conducts a prosecution on the part of the Crown, or when no prosecutor is present, it is his duty to collect the evidences, and obtain from them a due knowledge of the facts of the case, so as to enable him to bring the same before the Court in a clear and legal shape. Having done this to the best of his ability, it is incumbent upon him, both in a legal and moral point of view, to see that every extenuating circumstance that can be adduced by the prisoner is also properly brought to the notice of the Court.* There can at least there ought to be-no vindictive feeling mixed up with these prosecutions: they are supposed to be instituted solely with a view of maintaining the honour and interests of * Queen's Regulations, chap. vii. art. 9., page 79.

the public service: the end sought after is justice, justice to the Crown and to the accused; the efforts of the Judge-Advocate should therefore be directed to furnishing every particular bearing on the matter in issue, so that the Court may be enabled to return a verdict founded on right to all the parties concerned. In his position as prosecutor, he must be considered as assistant to the Court, or in the ancient character of assessor to the Court, though not as separate from, or independent of, the Court, in the now absolute character in which the term prosecutor is sometimes understood. The Court is competent to call and interrogate such witnesses as they may think fit, on any point during the prosecution or defence, although the Judge-Advocate may not choose to examine them. The duty of the Judge-Advocate, in the management of the prosecution, cannot affect the authority of the Court in this respect.

The Judge-Advocate is authorised to give his opinion on all matters of legal doubt which may arise in the course of the trial; but he should be careful not to bias the votes of the members by expressing himself satisfied of the guilt or innocence of the prisoner. He may, if called upon to do so, say that such and such evidence is, in a legal point of view, sufficient, or not sufficient, to warrant a conviction; but the issue lies with the Court: to attempt to lead them to any particular verdict would evidently be an injustice to the parties concerned in the trial.

No person should be furnished, on any account whatever, with a copy of the sentence, or any part of the minutes of proceedings: applications to this effect could only be entertained at the Admiralty. But if certificates as to character be placed before the Court, the party producing them may be allowed to have the original documents returned to him on furnishing copies to be attested by the president.

139

CHAP. XVII.

ON THE SENTENCE AND PUNISHMENT.

Mode of Proceeding when all the Evidence has been heard. - Cases in which the Court have no discretionary Power as to Punishment. Commissioned Officers cannot be reduced to a lower Rank. - Case of Lieutenant Franklin, R. M. When the Charges are proved, Prisoner cannot be acquitted. Officers dismissed cannot receive Half-Pay by Direction of the Court. Sentence to express of what the Party accused has been found guilty. Court to be confined to the Investigation of the Subject Matter of the Charge, and to that only. Court-Martial has no Power to dispose of the Bodies of Criminals after Execution. — The Punishments awarded must be in conformity with the Usage of the Service. Court-Martial cannot legally sentence a Prisoner to be imprisoned "and kept to hard Labour," or "to be kept in solitary Confinement," or to be "transported.”—Persons sentenced to Imprisonment to be confined in the Gaol of the County where the CourtMartial is held. Court to state the Grounds whereon they recommend a Prisoner to Mercy. In Sentence of Death, the Article of War on which the Judgment is founded to be stated. Minority may vote on the Question of Punishment. When the Charges are declared to be frivolous and ill-founded.

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THE proceedings of the Court when all the evidence, &c. for and against the prisoner has been heard, are thus clearly laid down in the Queen's Regulations (chap. viii. pp. 80 and 81.):

"When the evidence is closed, the accused person

shall be removed, and by-standers shall withdraw; the Court shall then consider the matter in evidence before it, and the Judge-Advocate, or person acting as such, by the direction of the Court, shall draw up such questions as shall be agreed upon, whereon to form a determination in regard to the innocence or guilt of the person upon trial. If the party be found guilty of a breach of any of the articles of war established by law, the Court shall consider and determine on the punishment proper to be inflicted in conformity therewith. The JudgeAdvocate, or person acting as such, shall draw up the sentence accordingly, being careful to specify therein the charge, or substance of it; and the same shall be signed by every member of the Court, by way of attestation, notwithstanding any dif ference of opinion there may have been among the members.

"In taking the opinion of the Court upon all questions, the junior officer shall vote first, and then the other officers in order up to the president; and should the members of the Court disagree upon any question, or on a division the votes should be equal, the point in question shall receive the construction most favourable to the prisoner.*

"After the sentence shall have been drawn up and signed, all persons shall be re-admitted; and

* Whenever it may be necessary to obtain the opinion of the Court on any question, the prosecutor, prisoner, and audience should be directed to withdraw until the Court shall have come to a decision.