declared "That no Sentence of Death be put in execution till an account be given to himself, in pursuance of the directions. to that purpose in the 52nd Article of War, and his pleasure declared thereupon." Such a limitation was expedient then, whatever it may be now; for-testing the matter by the early Court-martial Records-many lives have been spared by the intervention of a Superior Authority between the Court and the Prisoner. "A measure," wrote Tytler, "of high expediency and good policy, which has often been exercised to the most beneficial ends."

2

76. It has been already shown that the Marshal's Court held a peculiar Jurisdiction and discharged Judicial functions without being fettered either by forms or liability to have its decisions overruled by other Courts.3 It may also be noticed that other analogous Jurisdictions "empowered to proceed by methods unknown to the Common Law, having no need for Indictment or formal Judgment,' "4 exist for disciplinary purposes, and that these Courts are not interfered with by the Superior Courts so long as they act within the limits of their own Jurisdiction. Having absolute power to hear and determine the offence,' their method of procedure (if accordant with their Charters or practice) will not be set aside for error because not accordant with that of the ordinary Courts of Common Law. However, at this, rather than at a later stage, it is (I apprehend) open to the Prisoner, excepting against the proceedings of the Court-martial, to make application to the Queen's Bench for a Writ either of Prohibition, of Habeas Corpus, or of Certiorari, to bring the matter in review before the Common Law Courts. For a Prohibition, the two principal grounds have been already stated; but, in addition to these, others were urged, though without success, in Grant v. Gould, to this effect:-1. That, contrary to the rules of the Common Law, evidence that ought to have been rejected was received, and that evidence which

1 Vol. I. p. 503.

2 P. 339 (ed. 1810).

Groenvelt v. Burwell; 1 Lord Ray, p. 469.

5 Censors of the College of Physicians and University Courts.

3

Chap. II. pár. 12.

Chap. I. par. 33.

s2 H. B. p. 106.

Kemp v. Neville, 10 C. B. (N.S.), p. 549.

ought to have been received was rejected by the Court 2. That the Prisoner was not, before his trial specifially charged with the offence of which the Court found him "Guilty." Not admitting that a Court-martial was bound in all cases to adopt all the distinctions in the Law of Evidence that have been established in the Common Law Courts, or that the Queen's Bench should interfere for error which might be the subject of review or appeal, Lord Loughborough refused to grant a Prohibition. It would," said the learned Judge, and his words were quoted with approval in 1833, by Lord Denman," be extremely absurd to expect the same precision in a charge brought before a Court-martial, as is required to support a conviction by a Justice of the Peace.”

77. In Rex v. Suddis, an attempt was made to induce the Queen's Bench to assume the functions of a Court of Error and reverse the decision of a Court-martial, upon two objections. The application was there made for a Writ of Habeas Corpus to discharge a Prisoner sentenced by a Courtmartial, exercising Civil Jurisdiction in Gibraltar, to transportation-1st, that the offence would not, according to the Law of England, bear such a punishment; and, 2ndly, That it did not appear that the Prisoner had been charged with the offence for which he was convicted. It was not, however, denied that the Court-martial had jurisdiction over, and a discretionary power to punish the party convicted, according to his degree of guilt, and therefore, the Court refused to interfere. "It was properly admitted," said Mr. Justice Grose, "that the Court had authority to try the offender and inflict punishment according to the nature and degree of the offence as regulated by the Law of the land. . . . We do not sit as a Court of Error. It is enough that we find such a Sentence pronounced by a Court of Competent Jurisdiction, to inquire into the offence, and with power to inflict such a punishment. As to the rest, we must, therefore, presume "omnia rite acta."

Re Poe, 5 B. and Adol. p. 688.

21 East. Rep. p. 310.

1 Ex parte Fernandez, 10 C. B. (N.S.) 37; Ex parto Storey, 8 Exch. Ca. 195,

P. 315.

78. An application, at the instance of an Officer tried in India and cashiered under a Court-martial Sentence, was made in 18611 to the Queen's Bench, for a Certiorari to bring up (in order to quash) the record of his conviction by Court-martial, but without success. Admitting, if Jurisdiction had been assumed by a Court-martial over a Civilian, that the Queen's Bench should interfere, it was very doubtful whether that Court" should do so, unless the Civil rights"-as of life, liberty, or property-" were involved, or where the sentence affected only the Military status of the applicant." "We cannot," said Mr. Justice Crompton, "grant a Certiorari, unless we see for what purpose the record is sought to be brought before us. Here the object is only to quash it; i.e., if the Court should appear to have exceeded its Jurisdiction." As the Sentence had been passed and confirmed in India upwards of three years previously to the application being made, the Court unanimously refused to interfere: "nothing but the Military status of the applicant was affected by the decision of the Court-martial; and therefore, in the exercise of their discretion," the Writ was refused.

79. No case appears to have arisen where the maxim “Consensus tollit errorem" has come under consideration of the Courts as applicable to Court-martial proceedings. In relation to the Criminal Jurisdiction of these Courts, as affecting life or limb, it can have no application whatever, and but little when a Soldier, acting without advice, waives or consents to any irregularity which, if insisted upon, might have freed him from peril. Other cases, however, may arise, as in the trial of Officers, when their conduct as such is under review, and their status only under adjudication, where the Prisoner (if competent) would gladly consent to accept the decision of the Court, reduced by accident (as a Jury may be) below the legal quorum. Under such circumstances, there seems to be no reason why here, as in America,3 consent should not avail

Re Mansergh, 1 B. and S. p. 405.

2 On Sir James Murray's case the prosecutor's statement was (with consent) accepted as evidence. Hough, 782.

3 Waiver and consent to admit evidence given in the absence of the Prisoner and deposition of Witnesses taken abroad, 1824, Wirt, Vol. i. Attorney-General's

in a Military as in a Civil Court; for the pay and service of the Prisoner are matters within his legal competency to resign, without the adjudication of a legal tribunal.

Opinions, p. 706; Berrien, 1830, Vol. ii. Attorney-General's Opinions, p. 344. So also, as to absence of a Member of the Court, 1855: Cushing, Vol. vii. AttorneyGeneral's Opinions, p. 102.

1

Reg. v. Sullivan, 8 Ad. and Ell. ii. p. 831; Doe and Ashburnham'v. Michael, 16 Q. B. Rep. p. 620; Pryme v. Titchmarsh, 10 Mee. and Wels. p. 605; Andrews e. Elliott, 5 Ell. & Bl. 502.

M

CHAPTER X.

THE CONFIRMATION AND EXECUTION OF A COURT-MARTIAL SENTENCE.

1. WHATEVER measure of responsibility the Members of the Court may bear towards the Prisoner, for the execution of an illegal Sentence, there can be no doubt that an individual responsibility rests with the Officer confirming the Finding and ordering the Sentence to be carried into execution.1 "The sentence of a Court-martial," said Mr. Justice Platt of the American Bench,2 "is interlocutory, and inchoate till confirmed. It is not definitive, but merely in the nature of an inquest to inform the conscience of a Commanding Officer. He alone could not punish without the Judgment of a Court-martial, and it is equally clear that the Court could not punish without his order of confirmation. As well might a justification be set up under an execution issued upon an Interlocutory Judgment and Writ of Inquiry before a final Judgment." Hence the importance of all the incidents of the trial being recorded, "that every thing done may appear and be reviewed by a different tribunal-the General."3 It, therefore, behoves this Officer before he confirms the proceedings, to act with care at all times, and with the best possible advice in such cases as present any features of doubt or difficulty.

2. And this is the more important from the circumstance

1 Haw. P. C. Bk. 1, Ch. x. secs. 4-9.

Mills v. Martin, 19 John Rep. p. 30. This must be understood of a Military, and not a Naval Court.

Coffin v. Wilbur, 7 Pick Rep. 151, Chap. viii. p. 45. If the sentence be not confirmed, the prisoner is (in effect) acquitted. Hough (1825) 668. The Duke of Wellington in 1833 induced Earl Grey's Ministry to adopt the principle of Revision against that of Finality, 15 H. D. (3) 940.