pleaded by the prisoner was inadmissible, as he should have preferred death rather than to have entered the service of the enemy." Since, by the revised opinion, it appears that the evidence justified conviction, it is difficult to imagine, whatever might have been the ulterior award, how the court could have acquitted the prisoner of the act of desertion. The court ought surely to have found the prisoner guilty, but might have omitted to award punishment, if they considered the circumstances to amount to compulsion, pro timore mortis.

CHAPTER XI.

Judgment of the Court, &c.

FINDING.

roceedings

THE next stage of the proceedings of the court martial, (the defence having finally closed and Deliberation. the court being cleared,) is the deliberation, with a view to the finding and sentence. A fair copy of the record of the proceedings is gene- read over. rally read over; indeed, where fair copies are made, it appears but right that the members should have an opportunity of ascertaining that the copy, to which their judgment is annexed, is a correct report of the proceedings. In intricate cases, and where the proceedings are voluminous, the judge advocate is usually prepared with such notes or index to the evidence as may assist the court in their reference to the record when deliberating.

evidencc.

Perfect impartiality ought most clearly to be the desired object of the court collectively, and Weighing of each individual composing it. There should be no wish for the guilty to escape, or for the innocent to suffer. Neither false pity, nor undue severity, should influence their judgment. Deliberate caution and patient investigation should equally be the aim of each member, and characterize the judgment of the whole. That which Locke has said on the conduct of the understanding, may be beneficially

Witness may
be recalled by
Court for par-
ticular question.

Opinion;

applied when weighing evidence in a court of justice: “We should keep a perfect indifferency for all opinions; not wish any of them true, or try to make them appear so; but, being indifferent, receive and embrace them according as evidence, and that alone, gives the attestation of truth. He that, by an indifferency for all but truth, suffers not his assent to go farther than his evidence, nor beyond it, will learn to examine, and examine fairly, instead of presuming." It may be observed, that the duty of the acting judge advocate, at this stage of the proceedings, being simply to act as registrar of the court, and to advise on legal points when his opinion may be demanded, he necessarily abstains from making any remark, by which his judgment, as to the guilt or innocence of the prisoner, may be ascertained.

Though the prosecution and defence be closed, and the court cleared for final deliberation, it is still competent to a court martial, as to a jury, (by whom it is often practised,) to recall a witness for the purpose of putting any particular question deemed essential: the parties must necessarily be present.1

Sufficient time having been given for deliberation, and it is presumed that, in most cases, each member will desire to review the proof which has been laid before the court on either side, and to consider its bearing as affecting the charge, the president' (the judge advocate formerly performed this duty) puts some such question as the following, to each individual member according to seniority, beginning with (1) See Examination of Witnesses, chap. xiii. (2) 94 Art. War.

the youngest': From the evidence in the matter now before you, are you of opinion that the prisoner is guilty or not guilty of the charge alleged against him? When the charge consists of several counts, they are put consecutively, and where more than one prisoner is arraigned on the same charge, each must necessarily be particularized, and the question repeated with respect to each. The judge advocate usually notes the opinion of each member as he delivers it; but whether this memorandum is to be reserved (according to the advice of Mr. Tytler) or destroyed, when the aggregate opinion is recorded, must be left to the decision of each individual judge advocate. The judge advocate swears not to disclose or discover the vote or opinion of any particular member, unless required to give evidence thereof by a court of justice or court martial; he would, therefore, voluntarily and needlessly incur a great responsibility by unnecessarily retaining possession of a memorandum, the loss of which (except it be made in cipher) might fully reveal the vote and opinion of each member at a glance. Nor can it well accord with the spirit of the oath, to do that unnecessarily, which may lead, in the ordinary course of events, as in case of death, to an exposure of that which it has been the object of

an oath to render secret.

be expressed as unanimo is.

It is scarcely necessary to observe, that as the Opinion not to concealment of the opinion of each particular member is provided for by an oath, specially framed for the purpose, it would be highly

What majority
is necessary
on passing
judgment
of death.

Votes equally divided, prisoner is entitled to an acquittal;

reprehensible to make public the opinion of all by recording that the finding was the result of unanimity.

Except to pass sentence of death, where nine of thirteen or two thirds of the members present must concur,' the court passes judgment by the majority of voices; and should the court (which usually consists, when sworn in, of an uneven number of members,) be reduced, by death or sickness, to an even number, and their votes be equally divided as to the finding, the prevailing custom of the army is, that the prisoner should have the benefit of an acquittal. Paribus sententiis reus absolvitur, is a maxim of roman law, acted on by courts martial.

This view of the subject derives additional force from the rule as to regimental courts martial, an actual "majority of votes" being prescribed by the authority whence its origin is derived, as essential to the "award" of punish

(1) 6 Sec. Mut. Act. In the year 1762, major Colin Campbell, of the 100th regiment, was tried by a general court martial at Martinique, for the wilful murder of captain M'Kaarg, of that regiment. The sentence of the court was as follows: "The court, on due consideration of the whole matter before them, are of opinion that major Colin Campbell is guilty of the crime laid to his charge; but there not being a majority of voices sufficient to punish with death, as required by the articles of war, the court doth adjudge the said major commandant Colin Campbell to be cashiered for the same, and it is the further opinion of the court, he is incapable of serving his majesty in any military employment whatever." In the present day this sentence could not be maintained. On a charge for murder, the sentence must "be in conformity to the common and statute law." (102 Art. War.) The finding of guilt on a charge of murder, by a minority, would amount to a virtual acquittal; but a verdict of manslaughter being found by a majority under two thirds, transportation or imprisonment might be awarded. (See Murder and Manslaughter.-Index.) In addition to the charge of murder, were a separate count or a direct imputation introduced, charging scandalous, infamous conduct, unbecoming the character of an officer and a gentleman, then, but not otherwise, might the court, on a finding of guilt by a bare majority, and not a majority of two thirds, award cashiering. The expression of an opinion by the court of incapacity to serve, would, on this charge, in the present day, be inadmissible.-See Incapacity. -Index.