declaration of His Majesty to that effect; of war to the men under his command, whereas the articles of war have neither been read by him, nor any other person by his order, during that period, to the prejudice of the service." The court found the prisoner guilty of the first charge, but acquitted him on the second, third, and fourth; with respect to the fifth charge, the court was of opinion, "that the prisoner was not guilty to the extent laid in the said charge, inasmuch as the prisoner was thereby charged with signing a false certificate on each monthly return, during the time he commanded the regiment, from June, 1806, to the present period; and it appearing from the evidence, that in some of the months during that time, he did not sign such false certificates, the court did, therefore, acquit him of the said fifth charge; but was of opinion, that the prisoner was reprehensible for his inadvertency and want of proper caution, in not examining every certificate previously to his signing it, which it was his duty so to have done." His majesty was pleased to approve and confirm the sentence of the court martial upon the first, second, third, and fourth charges, but not to confirm the finding of the court upon the fifth charge," as it appeared to have proceeded upon the erroneous supposition that a court martial are bound to find a general verdict of guilt or acquittal upon the whole of every charge; and as the court have expressed their opinion, that the prisoner was guilty of a part of the fifth charge, they might, in conformity to that opinion, have found him guilty of that part of it, and have acquitted him of the remainder, instead of but must acquit or convict on each part. acquittal, acquitting him generally of the whole." Not only may the accused be guilty to a certain extent, but facts may be proved, and the imputation grounded thereon thrown out; or, no criminality may be imputed by the court; the prisoner must, however be unequivocally acquitted or convicted of every part of each of the several charges of which he stands accused.3 There are several forms in which a prisoner Form of may be acquitted, and it is so much the custom to attach some epithet to an acquittal which is intended to be clearly and decidedly satisfactory, that the mere withholding it is, in fact, a negative censure. The phrases, honorably; most honorably; fully; most fully; are often used by courts martial; and when the charge bears on the honor of the accused, or where the charges are satisfactorily disproved, it is, in fact, adverting to the prevailing custom, but justice to adopt them. Courts martial sometimes acquit, the charge not charge not having been proved, which is still less objectionable satisfactory than a bare acquittal; the degree of censure involved in it being reflected and regulated by the nature of the charge. It is questionable whether such an acquittal ought to be recorded. In the literal sense, no better reason could be given for an acquittal than the charge not being proved; such must, in fact, be the grounds of every acquittal; but as its expression, being unusual, is calculated to confirm the imputation propagated by the charge, the inuendo conveyed by it appears unjustifiable, and may (1) G. O. 26th January, 1808; see also G. O. No. 379, 3rd charge; and G. O. No. 394, 1st charge. (2) G. O. No. 416, and G. O. No. 424, 4th charge. proved, an form. Motive of acquittal and opinion of prisoner. be more injurious to the prisoner than a qualified verdict of guilt; particularly in cases affecting the honor and respectability of an officer. Such ambiguous sentence ought the more to be avoided, since it is not in the power of the accused, by any representation or exertion, to procure the rehearing of the case by a court martial. The court is bound to administer justice according to the evidence (the actual evidence) in the matter before it; the point in issue is to be proved by the party who asserts the affirmative; it is not competent to a court martial to frame a verdict on the absence of evidence or the want of proof, though it may obviously and necessarily result from it. Under such circumstances, the acquittal ought to depend on that just and reasonable aphorism in english law: Innocence is to be presumed till the contrary is proved. The judgment in this, as in every case, should be couched in language free from ambiguity and exposure to malevolent interpretation. Courts martial have sometimes, in acquitting a prisoner, entered at some length into the motives of such acquittal,' or given an opinion generally of the conduct of the accused. It would obviously be incorrect to acquit an officer honorably of a charge not affecting his honor, as it would be illegal, and contrary to every principle of equity, to find a greater degree of remark on the guilt than charged. It is competent to a court martial to remark on the conduct of a prosecutor, as connected with the charges, or arising in Colonel Keating. the course of the proceedings.3 In the case of Court may conduct of Prosecutor. Case of Lieut. lieutenant colonel Keating, where the court martial animadverted on the personal ill-will and animosity of the prosecutor, captain Frye, and the frivolous and vexatious nature of the charges, the general officer who confirmed the sentence characterized the remarks of the court as "judicious and appropriate;" and, on the proceedings being submitted to the king, his majesty's sentiments thereon were made known by the general order of the 14th February, 1809, wherein it is said: "His majesty considers that the finding and sentence of the court, as approved and confirmed by major general Jones, were fully warranted by the circumstances which appeared upon the trial, and are strictly conformable to the justice of the case. His majesty has been pleased to notice and confirm in a more especial manner, the appropriate censure passed by the court martial upon the motives which fully appear on the face of the proceedings to have marked the conduct of the prosecutor." Captain Wathen. Courts martial, in acquitting, have sometimes remarked, in very strong terms of disapprobation, on the conduct of the prosecutor, and in reprehension of occurrences, prejudicial to discipline, which have appeared on their minutes: in a recent case, captain Wathen, of the 15th Case of hussars, was tried on six charges, preferred at the instance of his commanding officer, lieutenant colonel lord Brudenell; he was honorably acquitted of each and all the charges. The court proceeded: "Bearing in mind the whole process and tendency of this trial, the court cannot refrain from animadverting on the pecu(1) G. O. No. 180. liar and extraordinary measures which have been resorted to by the prosecutor. Whatever may have been his motives for instituting charges of so serious a nature against captain Wathen (and they cannot ascribe them solely to a wish to uphold the honour and interests of the army), his conduct has been reprehensible in advancing such various and weighty assertions to be submitted before a public tribunal, without some sure grounds of establishing the facts. It appears in the recorded minutes of these proccedings, that a junior officer was listened to, and non-commissioned officers and soldiers examined with the view of finding out from them, how in particular instances the officers had executed their respective duties; a practice in every respect most dangerous to the discipline and the subordination of the corps, and highly detrimental to that harmony and good feeling which ought to exist between officers. Another practice has been introduced into the 15th hussars, which calls imperatively for the notice and animadversion of the court,-the system of having the conversations of officers taken down in the orderly room without their knowledge, a practice which cannot be considered otherwise than revolting to every proper and honourable feeling of a gentleman, and as being certain to create disunion and to be most injurious to his majesty's service." His majesty was pleased to approve and confirm the finding of the court. The general order proceeded: "Although it would appear, upon an attentive perusal of the whole of the proceedings, that some parts of the evidence might |
