to ascertain

of trial.

mander or other general officer employed, have been submitted to the investigation of a court of enquiry, a strict examination having been enjoined, and a report and opinion required. When facts, attaching to the conduct of indivi- when assembled duals, are submitted to the investigation of courts the expediency of enquiry, with a view to ascertain the expediency of a court martial, it would seem to accord with ordinary conceptions, as with justice, that the opinion, if any be required, should be confined to that particular point; especially if it express the necessity of trial, since the information may be ex parte, and must, from its nature, be inconclusive.

cannot refuse to

of Enquiry, but

questions, or to

proceedings.

Although an officer accused cannot refuse to An officer obey an order directing him to appear before a attend a Court court of enquiry, charged to enquire into his to answer conduct, yet he may object to take any part in take part in the proceedings, and has a right to decline answering any questions or making any statement which may, in his opinion, be prejudicial to him in the course of any ulterior enquiry into the affair. This is most clearly laid down in the general order promulgating the sentence of a court martial on assistant-surgeon Walsh, of the royals, who was tried in 1809, on six charges, and most honorably acquitted of each; the third being for disobedience of orders, in refusing to attend in the mess room of the royals, having been ordered to do so by his commanding officer, for the purpose of answering to a charge of having broken his arrest. "With regard to the third charge, his majesty was pleased to remark, that although the opinion of the court might be acquiesced in, yet it appeared that the prisoner was not free from all imputation of blame, for the

H

to be present at

a Court of Enquiry.

conduct upon which that charge was founded, inasmuch as it was the duty of assistant-surgeon Walsh to have obeyed the order of his superior officer, colonel Hay, as far as that order required his attendance before the court of enquiry, as the compliance with it would not (as the prisoner had erroneously conceived) have precluded him from the right of declining to answer any questions, or to make any statement, which might, in his opinion, have proved prejudicial to him in the course of any ulterior enquiry into his conduct."" It is a characteristic of all british jurisprudence, that the accused shall be protected from answering any questions which may tend to criminate Right of accused himself. It is said that the accused has no positive right to be present at an investigation, by a court of enquiry, into circumstances affecting his character; yet the regret of a court martial, (embodied in their judgment,) that the prisoner had not been present and heard before a court of enquiry, which had been ordered to investigate the circumstances which led to the charges before the court martial, has been (as part of the opinion) approved by his majesty. The accused, attending the investigation, may either avail himself of the opportunity to explain any particular act, or any part of his conduct, on which an imputation prejudicial to him may have arisen; or he may reserve his defence or exculpation, submitting a request for trial by a court martial. The attendance of the accused can scarcely fail to benefit him in the event of trial, as he will have ascertained, to a considerable extent, the substance and nature of the evidence to be brought against him; and any

2

(1) G. O. Horse Guards, 3d July, 1809.

(2) G. O. No. 238.

material discrepancy between the testimony of a witness before the court of enquiry and court martial may be employed to impeach his credibility.

The accused appearing before a court of enquiry has no right to insist on the attendance of counsel, nor is it usual to permit the presence of counsel in any case before courts of enquiry.

of Courts of

Courts of enquiry, deriving their existence Composition from the will of a superior, and not being regu- Enquiry. lated by any statute, or any order of her majesty, excepting that which may issue on a particular enquiry, may consist of any number of officers; three, five, or even two, have been associated on such duty: the rank of the members is also unfixed; it is usually equal, or superior, to that of the officer whose conduct or character may be implicated in the investigation. A court of enquiry, when assembled by order of her majesty or the commander in chief, is sometimes attended by a judge advocate, at other times not. It may be either open or close, depending in this, as in every particular of its constitution, on the will of the officer convoking it. The informations, Proceedings and, when required, the opinion of the court writing, collectively, at other times of each individual, is reduced to writing. The proceedings are ordinarily ordinarily signed by each member; yet this, each member. as other forms relating to courts of enquiry, is unsettled; the proceedings have occasionally been signed by the senior member, as president. On the court of enquiry which was held in 1832, to investigate the case of private Somerville, of the 2d dragoons, the proceedings were signed

(1) See court of enquiry relative to the evacuation of Portugal, 1808; a member, lord Moira, on this occasion, gave an argumentative and detailed opinion.

reduced to

signed by

Appointment, whether limited

as to time.

by each member, and this may serve as a safe precedent, as the court consisted of five members, three being general officers, one colonel and one lieutenant-colonel; and was attended by the judge advocate general.'

In the last edition of Mr. Tytler's Essay on Military Law, the following opinion of sir Charles Morgan, late judge advocate general, is annexed: "A charge cannot be sent to trial which has retrospect to a period of more than three years, (vide mutiny act,) but a court of enquiry may be ordered after a lapse of any period." If the power to order a court of enquiry, after the lapse of the period defined by the mutiny act, had, in the opinion of sir Charles Morgan, been confined to his majesty, no remark would have been offered on the subject. As it is the prerogative of the crown to dismiss officers from the service, without affording them any public opportunity of justifying their conduct, it must undoubtedly, in some sense, be considered a mark of royal favour, that an officer should have extended to him such opportunity, as a court of enquiry may yield, of exculpating himself from the charges brought against him, and of regaining the royal confidence, But the assumption of such power by any authority, subordinate to the crown, must be unjust and oppressive, if not illegal. The main object of a court of enquiry, ordered by authority less than supreme, is to enable an officer in command to arrive at a correct conclusion, as to the necessity of convening a court martial. Such pretext cannot possibly, under any circumstances, exist where the occurrence of the facts to be in

(1) G. O. No. 508.

quired into happened at a time beyond the retrospection of a court martial. The mutiny act limits enquiry by courts martial to acts committed three years previous to the date of warrant for trial, except in case of impediment to trial, and then to two years after the impediment shall have ceased. It is not to be presumed or imagined that any motive, but the honour of the army and the benefit of the service, can influence the crown to establish a court of enquiry under any circumstances, or after any period; but it is too true, that other motives may possibly actuate commanding officers, who, in their daily intercourse with the world at large, are brought in contact, and, by the usages of society, placed on a footing of equality with the same men, whom, on points of duty and on parade, they are called on to command and to control. The evidence, or rather information, before a court of enquiry may, as already observed, be entirely ex parte: at all events, the character of an officer is not protected, however invidious the attack, by the solemnity of an oath; nor can he, under any circumstances, after the time limited for a court martial by the mutiny act, obtain a hearing of his case by any tribunal competent to decide on it. Surely then, justice forbids investigation by a court of enquiry, which may countenance malicious accusations, or give rise to and foment prejudices, which it cannot allay, and of which it cannot pave the way for trial; and particularly, as the members who compose the court, if such it can be termed, are so limited in number, not subject to challenge, and irresponsible to any superior tribunal for the opinion they may give.