tion. Instead of a penalty applicable to all persons who refuse to attend and give evidence, recoverable in any of His Majesty's Courts at Westminster, power is given to the Court to punish "any person in the fleet, called to give evidence," who refuses to do so or prevaricates or behaves with contempt, by imprisonment not exceeding one month in the last case, and three months in the two first.

The evidence being concluded, the prisoner was allowed to address the Court, but was not, as a rule, allowed anyone to assist him, though Courts seem to have granted this privilege in particular cases where the prisoner was suffering from some disability of sight, hearing, or what not. In other cases, if the prisoner desired to have the assistance of any person, such person came into Court as one of the audience, and from his place there made such suggestions to the accused as were possible. It seems to have been doubted whether the accused could be allowed to put in a written defence, but this Was soon settled in his favour, and has been the rule ever since. His defence seems to have come after the conclusion of his evidence, not before, as is the case to-day.

The defence being finished, the Court proceeded to consider its finding. The means of doing so seem to have been devised in order to give the greatest possible opportunity for obstruction. First a question was proposed; any member could object to it, and thereupon a division was taken as to whether it should be put. If carried in the affirmative, the question was voted on and the decision became the decision of the Court. All the necessary questions having been put and decided, the sentence was drawn up, and the wording of it in an important case often led to many divisions. The sentence was in the form of a finding of facts, or when definite charges were made, as in cases of important Courts Martial, a finding on each charge, a decision as to which Article of War the accused "fell under " and a decision as to what penalty should be inflicted.

Having now described, as well as I can, the procedure of Naval Courts Martial in the eighteenth century, I think the most convenient way of dealing with the gradual development of the practice will be to take the different persons and subjects concerned, and trace their history.

1

First, then, the prisoner, and what specially concerns him. After Drake's trial of Burrough and the officers and men of the Golden Lion I am not aware that there ever was a Court Martial without a prisoner actually present. But it is worth noticing, in this connection, that there are in the old records numbers of cases in which a

Court Martial to inquire into the loss or capture of a ship, and to try the officers and men for their conduct on the occasion, the captain who had been killed in action, or died since, is solemnly acquitted, and there are many of these cases in which all the officers and men were not present.

Compared with the present-day practice, little or nothing was done to protect the prisoner. To give him notice "timely before trial" of the charge or accusation seems to have been considered all that was necessary. As I have already pointed out, he had no right to anyone to assist him, and even when he did receive help in the manner I have indicated, the person giving him assistance was not officially recognised.

By degrees, however, no doubt as the practice of the Civil Courts relaxed in favour of the prisoner, the Courts, on request being made to them, allowed some person to be near the prisoner to help him, but the Courts evidently jealously preserved their right to decide whether or not the prisoner should have any help at all.

The possible existence of such a person was officially recognised for the first time in the regulations of 1879, where reference is made to "the prisoner's friend or adviser should there be one," but no right to have such assistance was conferred on the prisoner till 1883, when a new Court Martial chapter was issued and embodied in the revised edition of the King's Regulations and Admiralty Instructions issued in 1884. By them it was officially recognised for the first time that a prisoner was to have ample opportunity to prepare his defence, and of consulting his friend or legal adviser, and for having a person to assist during the trial, whether officer, legal adviser, or any other person approved by the Court, the right of the Court to have a say in the matter being still preserved.

The words "approved by the Court" disappeared in 1899, and a man is now free to have anyone he likes to assist him without regard to the Court's views as to his desirability.

Then, as to the charge, as has already been stated, this might be anything from an ordinary letter to a sworn information, or a formal charge. But by degrees the "innovations of law-forms " to which the Admirals and Captains objected so strongly in 1745 gradually crept in, and the charges become in all cases more definite till in 1879 it is laid down that the prosecutor is required to describe the offence in the very words of the Act, to the great advantage of everyone concerned.

Next as to the witnesses, there is, of course, not much scope for

change in this respect, though gradually the rules of evidence accepted in the Civil Courts seem to have been more strictly applied in Courts Martial.

The reading of the witness's deposition before he gave his evidence had ceased at the beginning of the nineteenth century. In 1806 the Court was given power to recall any witness as often as it thinks proper, and to call any witness though not desired by the accuser or accused, "it being the duty of the Court to obtain the fullest insight they possibly can into the matter before them "-evidently a recognition of the position of the Court as an inquiring as well as judicial body.

The Court seem to have used this power as a means of completing the case for the prosecution, but as the view that a Court Martial was a judicial body only gained ground owing to the greater use made of the power of summoning Courts of Inquiry, it seemed desirable to limit this power. Accordingly, in 1844 the words were added, " but no such witnesses are to be examined as to any new

facts."

Lastly, reference may be made to the prosecutor and Judge Advocate. It is curious that it should be necessary to deal with them together, but for two centuries at least their functions were so mixed up that to treat them separately would involve an immense amount of repetition. The exceptional case in which an outside prosecutor was allowed has been mentioned already.

The Judge Advocate was originally a person appointed either by the Admiralty or the Commander-in-Chief of a fleet. It appears that, at one time, there was a Judge Advocate in each fleet of which the Commander-in-Chief held a Court Martial Commission. He went to sea, and, according to an establishment of cabins set out in Mr. Tanner's introduction to his catalogue of the Pepysian manuscripts, he had one of the "two backhead cabins on the Quarterdeck," of a first or second rate, allotted to him. But in time the only Judge Advocate was the one appointed by the Admiralty. On February 2, 1652-3, the Admiralty Committee ordered "that there be one Advocate appointed to attend the Fleet, and that there be allowed him 8s. by the day." 1

The Judge Advocate so appointed seems soon to have assumed, after the manner of those days, the right to perform his duties by deputy, though he usually appeared in person in important cases, and occasionally both he and his deputy were present. He ap1 R.O.S.P. Dom. I, 35, fol. 11.

pointed deputies in most of the principal naval ports, and these gentlemen are described as persons "bred to the law" and officiated at the lesser Courts Martial held in naval ports, and no practical difficulty seems to have arisen in their cases.

But in the fleet matters were different. In the absence of the Judge Advocate and his deputy the Court was by statute empowered to appoint someone in his place. Observe it was the Court who had to appoint, and the Court did not come into existence until it was actually assembled. But certain duties as to the collection of evidence, informing the prisoner and so on, had to be performed by the Judge Advocate before the trial began. Accordingly the practice crept in of the officer who was going to be President appointing someone Deputy Judge Advocate. This was quite illegal, and sometimes led to trouble. Delafons gives an instance of a case in which he was appointed Deputy Judge Advocate by the Commanderin-Chief in the West Indies in 1766. Previous to the assembling of the Court, he took the depositions on oath in accordance with the regulations, and they were referred to, but not read in Court, when the President, Sir John Lindsay, "expressed a strong sense of the impropriety of such conduct which he reprobated in very forcible language." 1 Notwithstanding the forcible language, however, the practice seems to have continued, but it was not until 1860 that any statutory power was conferred on the officer who was to be the President of the Court to appoint any person to officiate as Judge Advocate at the trial.

The duty of the Judge Advocate to act as prosecutor disappeared very gradually. In the editions of both McArthur's and Delafons' books of Courts Martial published after the revision of the regulations in 1806, the Judge Advocate is said to be the prosecutor, though the obligation to take the depositions does not appear in these regulations. In the 1824 edition of the regulations it is laid down that if no prosecutor is present the Judge Advocate "shall conduct the proceedings on the part of the public." This provision did not disappear for a long time. In the 1884 edition it is at last provided that the Judge Advocate is not to act as prosecutor; the captain or executive officer of the offender's ship is to act in that capacity, but if for any reason this is impossible, the Court and Judge Advocate must ask such questions as will bring the case before the Court in the fullest manner. Now the convening authority has in all cases to appoint a prosecutor, if the captain or executive officer 1 Delafons' Naval Courts Martial, p. 158.

cannot act, and the Judge Advocate's right of asking questions is now really confined to elucidating points which are not clear.

In another direction fresh duties were imposed upon the Judge Advocate. He had originally to take minutes of the proceedings. Only in the great Court Martial does the evidence appear in the records in the form of question and answer. But in 1844 it was provided that he should take down in writing the evidence of each witness, and read the same in his hearing to the Court when requested to do so; his responsibility, notwithstanding the recent introduction of shorthand writers, remains the same.

The modern procedure of a Naval Court Martial was appropriate enough for a Court of Inquiry, but was not really suitable for a Court of Criminal Jurisdiction. At a time when, in the Criminal Courts of the country, the wrong spelling of a name or the misdescription of an Article, so strict were the rules of pleading, was sufficient to upset an indictment, naval Courts Martial were little more than a Court of Inquiry in which the decision as to what offence had been committed was the last act of the Court, except the sentence. This has in course of time been completely changed, and in all essentials the procedure of a Court Martial differs little from that of an ordinary Criminal Court. Indeed, in some respects it is more favourable to the accused. He is now entitled, from the moment when his trial is decided on, not merely to the assistance of the officer of his division, if he be a rating, but in every case to the opinion of the Judge Advocate on any question of law arising.