Marquis of evinced by a ment. The practice is also supported by the opinion of the opinion of the late general the marquis of Hastings, it being evident from the following order of his lordship, issued when commander in chief in India, that he considered an actual majority necessary to justify a finding of guilt On promulgating the result of the court martial on captain J. S. of the 20th regiment of native infantry, his lordship detailed the finding and part of the proceedings of the court martial: the court found captain J. S. guilty of so much of the second charge for which he had been arraigned, as charged him with not having withdrawn his letters after the commander in chief had, upon a careful inquiry into the circumstances, ordered that such should be done; but was of opinion, that in so doing, captain S. was influenced solely by an honorable and anxious desire to be placed in a situation to clear his character from the injurious reports which had been circulated to his prejudice; and there being an equality of votes on the question, as to whether any punishment shall be awarded or otherwise, and the acting judge advocate general having, when called upon by the court, declared his opinion that a majority of voices is absolutely requisite to pronounce an award, the court suspended their proceedings, and adjourned until the pleasure of the most noble the commander in chief was obtained. His lordship remarked at some length on the subject of the trial, and commenced by observing: "The want of a sentence renders the protracted and laborious assiduity (1) 7) Art. War of guilt must be the act of a majority. of the court altogether fruitless, since there is nothing on which the commander in chief has to exercise his judgment, in confirmation or disapproval. It is difficult to comprehend by what process of reasoning any member of the court could satisfy himself, that when a military transgression has been pronounced, as established that a decision by evidence, no penal award should follow the finding; yet, as the decision of guilty (if it were not unanimous) must have been the act of a majority, some member at least has maintained that incongruity." After commenting on the conduct of captain S. and the matter appearing on the proceedings, (not necessary here to advert to,) the order ends by these words: "the proceedings of the general court martial must be considered as having fallen to the ground: so that captain S. is to return forthwith to his duty." Ancient plan of withdrawing Members above thirteen, To meet the difficulty which might arise from an equal division of votes, it was formerly occasionally practised, that on the closing of the court for final deliberation, such of the junior members retired as might reduce the court to thirteen; and sometimes, where, to guard against contingencies, it has been thought proper to swear in members exceeding thirteen, notice has been given to the prisoner, at the time of swearing, that they would be withdrawn. This occurred on a court martial which took place at (1) Hough's Prac. of Cts. Mar. p. 192. It is not difficult to perceive the origin of the incongruity observed by his lordship. A majority of the court found that captain J. S. had not withdrawn the letters when ordered; but they were equally divided as to whether the facts found amounted to "a military transgression," as assumed by his lordship, or whether captain S. was justified by circumstances in not withdrawing his letters. His Majesty. Exeter, in 1806, on quarter-master Heady, of the 3rd dragoon guards; and the following remark was made thereon, in the order which promulgated the sentence: "His majesty condemned by having observed, on the face of the proceedings, an entry made on the 28th October, viz., 'of public notice to the parties concerned, that the court consisting of fifteen members, when the opinions of the members are collected, the junior officers will not vote!!' has been pleased to command that the court martial may be informed, that they do not appear to have been sufficiently instructed in the practice of courts martial, it being proper, on every account, that every member who is sworn on a court martial, and who has not been prevented from attending, should give his opinion, (each party, the prosecutor and prisoner, having a right to such opinion) and his majesty has therefore been pleased to command that his pleasure should be declared, that the vote of no officer who is sworn on a court martial ought to be dispensed with, merely on account of the number of members exceeding thirteen." On questions reserved for the consideration of the judges, a majority only can decide, and if the judges should be equally divided in opinion, no decision takes place. Mr. M'Arthur, influenced, no doubt, by this custom, has given it as his opinion: "That should there be an equal number of votes on each side, and the several members of the court, upon reconsidering the point at issue, adhere to the first opinion, the (1) G. O. 20th December, 1806. (2) Rex. v. Cullan, Russ and Ry. 157. If the Judges divided in are equally opinion, no place. opinion as to Courts Martial, objection against. Opinion of Mr. judge advocate Ryder, founded on the rule in case of a jury. Mr. Tytler considers the President entitled to a double vote, such is the case only as to questions of evidence or interlocutory decisions; question remains undecided." Were this the case, the prisoner might, as elsewhere observed, be liable to be tried a second time, not having been acquitted or convicted; but the advantage which may possibly arise from the opportunity afforded of punishing the guilty, would be infinitely overbalanced by the disrepute in which courts martial may be brought by the public exposure of their fallibility to the soldiery, and the doubt which would be thrown on the justice of their proceedings. Mr. judge advocate Ryder gave his opinion2 most distinctly against the president having a casting vote, and "that if a court martial is reduced to an even number, for instance fourteen, and seven find the prisoner guilty, and seven not guilty, the court cannot proceed to any sentence, but that their sittings must continue till there is a majority, one way or the other. Such a case is not provided for by the mutiny act, and can therefore only be decided by a reference to principles of common law." Mr. Tytler states, that, should the court be equally divided in opinion, "the president must, in that case, be allowed a double voice:"3 it has been before observed, that this is in effect the case, so far as the decision of questions respecting the admission or rejection of evidence, and other similar points, may extend; it arises from the necessity of arriving at such a conclusion as may permit the progress of the trial; and, so far, courts martial may shelter themselves under (2) Dated 19th Nov. 1808. 3` Page 140. (1) 1 M'Arthur, 170. the custom obtaining in civil courts, as judges have absolute power, which they invariably apply, to admit or reject evidence.1 and is justified by referenco to common law courts; Morgan opposes refers to the practice at the Horse Guards. Sir Charles Morgan observed, on the remark Sir Charles of Mr. Tytler: "I know not upon what autho- opinion, and rity it is stated, that, when the court, by the illness of one of its members, or any other unforeseen circumstance, is reduced to an even number, and the court shall be equally divided in opinion upon any point, the president is to exercise a double vote; I have ever understood the law to be otherwise; and I have to add, that the practice at the Horse Guards does not countenance the position." It does not positively appear by this remark of sir Charles Morgan, what the effect of an equality of votes at the Horse Guards may have been; but, as it was never heard that a trial had taken place there, which pronounced no decision, it must be assumed that an equality of votes is held to produce an acquittal. It is not necessary to find a general verdict of guilt or acquittal upon the whole of each charge or count. Lieutenant colonel Broughton, of the 1st West-India regiment, was arraigned before a general court martial, in August, 1807, on five charges, the fifth being "for unofficerlike conduct, in making a false certificate on each monthly return, during the time he commanded the regiment, from June, 1806, to the present period, viz. that he had read the articles (1) Any evidence assumed to be improperly admitted or rejected by a court martial, or any interlocutory decision may, by the prisoner, be brought under the special consideration of his majesty, or the officer authorized to confirm the sentence; as questionable evidence, admitted by a judge, is brought to the consideration of the judges. U Finding may be part of charge, special on each |