that as we have seen, and as mentioned by Hawkins'-there is no other appeal against the Finding and Sentence of these Courts, if acting within the limits of their Jurisdiction. The decision of the Confirming Authority is final; and, if wrong, irretrievable, other than as petition-not of right, but for mercy-to the person of the Sovereign (acting not through his Judges, but his political Ministers) may secure relief. The duty of the Confirming Officer is, therefore, one of supreme importance in the Administration of Justice by Court-martial under the Military Code. 3. The Officer who has to discharge this duty ought to be thoroughly independent of the Members of the Court, and he is usually the Military Hierarch by whom the Court (whose proceedings are under review) has been originally convened. Thus in the General Court summoned by the Crown or General in Chief Command, the Confirming Officer is the Sovereign or Commander-in-Chief: in the District the General who convened the Court is the Confirming Officer; and in the Regimental Court the Colonel of the Regiment is the Convening and also the Confirming Officer. Each, therefore, reviews the proceedings of his own Court; and, to assist him in this duty, he may obtain, either directly or through Superior Authority, the responsible advice of the Judge Advocate General upon the whole "Record," as sent up for confirmation. 4. Formerly, in doubtful cases, of Capital or Penal Sentences, to aid the Confirming Officers, and to free them from all personal responsibility, the practice of the Crown was to refer the Record of the proceedings to the decision of the Twelve Judges. This was done by Order of the Privy Council," communicated to the Lord Chief Justice by one of the Secre taries of State; and their opinion collectively (or individually if 1 Vol. ii. Bk. 2, Chap. iv. sec. 11. Chap. VII par. 1, ante. * In American practice there is no appeal after revision. 1854, Cushing, Vol vi. Attorney-General's Opinions, p. 369. 3 4 Ad. Op. 262; and see this course suggested as the only remedy open upon the exercise of summary power of fine or imprisonment by one of the Hupenor Courts. Ex parte Fernandez, 10 C. B. (N. §.) 25. Sir D. Ryder's Report of Sept. 1737, Vol. I. p. 515. Vol. xiv. Well. Supp. Desp. p. 57". See Sir James Eyre's Letter of July, 1796, Vol L p. 561 they differed) was transmitted to the Crown through the same channel. Such was the practice till the close1 of the last century, and as early in this Capital Punishments at home were seldom inflicted by Court-martial Sentences, the necessity for this advice became less urgent, though, unquestionably, the use of it added a great security to the Administration of Criminal Justice by Courts-martial. In the present day the Secretary of State would refer the Record to the Law Officers for Report, and the confirmation would then probably be construed to be an Act of State; so that a Nolle prosequi could be entered by the Attorney-General, should a Criminal Prosecution be thereafter instituted against the Confirming Officer. 5. In the administration of the ordinary Criminal Law, the presiding Judge may quash the Indictment, or after the trial for felony, and before recording the verdict, may point out to the Jury objections against it, as being inconsistent with, or contrary to the evidence. When recorded the Judgment may be arrested for faults apparent on or dehors the record; or a Writ of Error (by leave of the Crown) may be prosecuted to a higher Court, for substantial errors or mistakes (e.g. conviction for one, and punishment for another crime), the Court having the power to adjust the punishment or discharge the prisoners. In analogy to these powers used for the protection of the ordinary Criminal, the Confirming Officer in Military Procedure has the whole record of the Court-martial submitted for his examination. Before approving the sentence, he must satisfy himself that no error exists on these essential points, viz. : 1st. (a.) The Legal Constitution and (b) the Jurisdiction of the Court in respect to (c) the Prisoner, or the (d) Crime for which he is sentenced." 'Captain Coffin's Case was referred in 1790. See Vol. ii. M'Ar., p. 291. 2 This was done in March 1866, when a Sentence of Capital Punishment was awarded by a Court-martial against a Prisoner. 3 Rex v. "King v. Bourne, 7 Adol. and Ell. p. 66; Holloway v. the Queen, 17 Q. B. R. 327. 7 Chap. VII. par. 26–30. 2ndly. (e) The sufficiency of the proceedings in regard to the Charge and the Evidence (admitted or rejected) in support thereof, and the agreement of the Finding with the Charge. (f) To the Sentence and those provisions of the Statute Law which justify the punishment (if any) awarded against the Prisoner. 6. The original intention of interposing the authority of the Crown, as Confirming Officer before a Court-martial Sentence was carried into execution, was assuredly one of mercy. Military tribunals were (then, at any rate, if not now) prone to severity, and hence the attribute of mercy was secured to the criminal. The Reports of the Law Officers to George II., printed elsewhere,' show clearly this to have been their view. "Though it is provided that the Sentence of any General Court-martial shall not be put in execution until report be made of the whole proceedings to His Majesty or the General Commanding-in-Chief and his directions are signified thereupon: yet we conceive that was only intended to give His Majesty an opportunity of extending His Royal Mercy by Pardon or Reprieve." And again: "According to the principles of the Law of England, the King personally never gives judgment, especially of punishment; for mercy is his proper act.”3 Looking at it from a Soldier's point of view, "It is a glorious thing," said the late Sir John Macdonald, when AdjutantGeneral, "that the lowest individual in our ranks knows that his case will arrive at the Fountain Head; and that if injustice has been done him, it is perfectly sure to be looked into at Head Quarters," adding, in confirmation of this assertion, that "the Duke of Wellington constantly takes the Queen's pleasure about remitting certain portions of the punishment of Private Soldiers."4 7. I. For the discharge of this duty the Confirming Officer, as a check upon the Court, has to satisfy himself on those Vol. I. pp. 510–520. 'Lords Hardwicke and Talbot (then L. O.), 1727, Vol. I. p. 510. 'Lord Hardwicke (then Sir P. Yorke), Vol. I. p. 514. Question 2470, Report on Army Expenditure, p. 850. points which have received our consideration in the last Chapter.1 It is needless, therefore, to do more than refer the reader to what has been already written elsewhere. 8. II. In the second inquiry, (e) as to the Finding, the object which must be kept in view is to ascertain whether the Prisoner has had a fair trial upon the merits. Looking at the Record for this purpose, first, as the case was presented against the Prisoner, that the charge has been plain and explicit, the statements of the Prosecutor truthful,2 the evidence of the Witnesses full and impartial; and, secondly, as presented on behalf of the Prisoner, that all the evidence which he was entitled to from the adverse and other Witnesses has been given, and his Defence has been fairly heard and considered by the Court. Accepting the Record as sufficient on these points, then the evidence must be sufficient to support-and each "Finding" must be consistent with-each charge. "If Justices of the Peace," wrote Hawkins, "on an indictment of trespass, arraign a man for felony, and condemn him to be executed, the Justices" are guilty of felony.3 The Finding, therefore, must not be of a more serious offence than that alleged in the charge.* 9. It may also be noticed that, should any recommendations or observations be made by the Court, these should not be embodied in their Finding, still less in their Sentence, but be placed, as a separate Memo., at the foot or end of their Record, or in a letter, addressed to the Confirming Officer, that the proceedings may be confirmed, without thereby adopting these extra Judicial memoranda. 10. III. (ƒ) The "Sentence" must be compared with the Finding and with the Statute Law, to ascertain whether the 1 Pars. 24-32. 2 Rex v. Hartel, 7 Car. and Pay. 774. Where the Court had examined a Prisoner on trial, the proceedings were held to be void. L. O. to Adm. 22nd Oct. 1850. 3 The Officers who execute their Sentence would not be guilty, for the Justice had a Jurisdiction over the offence; their proceedings were irregular and erroneous only, but not void. Vol. I. H. P. C.; Book 1, Ch. x. sec. 6; Hutton r. Blaine, 2 Serj. and Rawle, 75. 4 Vol. II. Haw. P. C. Book 2, Ch. 47, sec. 3-9. 5 Vol. v. Well. Desp. pp. 248, 261; 7 ib. p. 112. Punishment as to its extent or nature be consistent with the Finding and within the limits or express terms1 prescribed by the Mutiny Act with regard to the Regular Army, and by the Militia and Volunteer Acts with regard to the Auxiliary Forces; for as the powers of these Courts over life or limb are purely Statutory (which term extends to the Articles of War so far as they are intra vires), the Punishments must be strictly consistent with these enactments,2 or the Sentence will be void. 4 11. Now, if not sufficient on these points, the Confirming Authority, having no power to alter the "Record," may transmit it to the President, that the Members of the Court, on reassembling, may, if they see fit, revise their Finding or Sentence upon those points to which the Confirming Officer has directed their attention. They can neither recall evidence nor alter the Record as originally transmitted; but they must supplement it by adding, first, the order for revision, and then a revised-or an adherence to their original-Finding or Sentence. In this manner informalities or irregularities apparent on the Record may be amended, and the Court may, on a review of the Evidence, return another "Finding," or of the Law, another "Sentence;" but no inherent defect-as want of Jurisdiction, for instance-can be cured by revision. In American practice the presence of the Prisoner is needed, but, as in this country he is not present during the first, there is no reason why he should be so during the second deliberation. For instance, "cashiered" or "dismissed," as the Mutiny Act prescribes. The former implies an "incapacity for future service." Hough (1825), pp. 124 and 347. Vol. I. Ad. Op. 232; Vol. II. ib. 175. Where a Summary Punishment was added to the Sentence- i. e., for misbehaviour before the Court-the whole sentence was illegal. Chap. IX. par. 39, note. 3 If their "Finding" was against manifest evidence, or their sentence for fourteen instead of seven years' transportation, the Commanding Officer could ask for their revision. Rex v. Kenworthy, 1 B. and Cr. 711; Rex v. Ellis, 5 B. and Cr. 395. Where a "Record" came up with erasures and interlineations on essential matters, the Judge Advocate General (Grant) advised that the Court should be assembled to make a correct transcript of their minutes (sending up the original "Record" annexed), and this procedure would not amount to "Revision" under the Mutiny Act. 5th Feb. 1831. 5 Benét, p. 170. |