The revision is really an amendment of the Record upon error suggested by the Supreme Legal Authority of the Court.1 3 12. Whenever, therefore, the Record is satisfactory to the Confirming Officer, his duty is, in his own handwriting,2 first, to "confirm" the Finding and Sentence, or such one or other or part of either as he deems to be legal and just, (whether he "approves" not being material to the validity of the Sentence or Punishment of the Prisoner), and, secondly, to give directions for carrying the latter into execution. Confirmation is therefore equivalent to Final Judgment upon proceedings otherwise interlocutory, and which thus become an estoppel against the prisoner. 13. Before dealing with the Execution, something remains to be written upon the "Sentence;" for the Crown may directly (or indirectly through the General) take one of three courses:1st. Pardon the Offender, or, 2nd. Mitigate the Punishment, or 3rd. Carry the full Sentence into effect-subjects that will be taken into consideration in the order in which they are thus presented. 14. But, as preliminary thereto, it must be noticed that the Sentence of a Court-martial involves no "forfeiture" of Civil Rights in like manner as Conviction or Attainder by a Common Law Tribunal for felony or treason would formerly have done. The Court of the Constable or Marshal wrought no such forfeiture or corruption of blood according to Lord Coke's authority; for neither were the offences chargeable against the Prisoner cognizable at Common Law, nor was his trial according to the course of it by Indictment and Verdict of twelve Men." Where, therefore, an Offender had been convicted of a Common Law Offence by a Court-martial exercising Civil Jurisdiction This error may arise from insufficient punishment-at least General Officers often suggest revision with the view that the Court should inflict higher punishment. See a pencil note of the Duke of Wellington on Court-martial Record in Belgium, 14th June 1815, Vol. xiv. Supp. Desp. 558, and Lord Hastings' minute in 1820 (Hough, 1825), p. 100. Coffin v. Wilbur, ante. 3 Nash v. the Queen, 4 B. and S. 943; the Queen v. Guthrie, 1 L. R. (C. C. R.); Hutton v. Blaine, ante. 4 1 Inst. 13a and 391a; 4 Inst. p. 125. s Vol. i. Hale, P. C. cap. 27, p. 351; and 2 Haw. P. C. p. 11. abroad, it was held that no forfeiture (other than any which the Mutiny Act might inflict) was entailed upon him.1 15. I. The Pardon to a Military Offender is not given with the same form or solemn authentication as in Civil cases. If the Crown should think fit (at the instance of the Commander-in-Chief') to pardon and to restore such a Person to his Military Status or Pay, it would be competently done by Royal Sign-Manual Warrant or by a notification in the 'London Gazette,' or if need be by recommissioning or reinstating him.3 Pardon, however, does not, ipso facto, restore the Offender to Office or Pay, or indeed to Her Majesty's Service, if dismissed therefrom-but only remits the Punishment and consequences of the Sentence, with a claim more or less just, to be restored to Rank or Pay.5 Should the Pardon have been granted to remit the consequences of a Judgment, which as unjust or erroneous never should have been passed, then, the Prisoner meriting a Pardon,' should also be restored to his place and pay.8 16. II. The mitigation (other than by simple remission of a part) of the Punishment, must be done under Statutory Authority. George I., as already mentioned, was in the practice of remitting "Capital," and of substituting "Corporal" Punishment, but he was advised "that all Judgments that can legally be executed must be the Judgments of the Courts-martial," and that although "he might reprieve or pardon the offender by remitting the whole or any part of the Judgment, yet that he could not change the Sentence of Death into any other Corporal Punishment, because though a mitigation in favour of the 2 Bk. F, Bk. E, p. 481; G, p. 40. The Duke of Wellington repeatedly pardoned offenders in consequence of the gallantry displayed in action by their Regiment. G. O. 30th Sept. 1810; 27th July 1811; 22nd Jan. 1812; 30th Jan. 1813. * In America the Sentence of Suspension does not deprive of Pay and Emoluments. 1853, Cushing, Vol. vi. Attorney-General's Opinions, p. 203. * 2 Haw. P. C. Bk. 2, c. 57, sec. 54; G, p. 312. 2 H. P. C. Bk. 2. c. 50, sec. 18. 7 Case of Pardons, 6 Co. Rep. 14a. Prisoner, yet it was a new and different Judgment which the law did not admit of." Hence a power of substituting one for another Punishment was inserted, and is found in the Mutiny Act.2 3 17. But though this power was given in a section drawn by Lord Hardwicke, he appears to have been strongly opposed to its expediency. In his view "the change would be attended rather with inconvenience than advantage to His Majesty's Service." It would, he feared, "make Courts-martial less careful and circumspect in their Judgments when they knew there was an opportunity to change the Punishment in the nature of an appeal from their Sentence." "This might prove mischievous, since it was impossible that His Majesty should have the same degree of evidence before him as they who examined the Witnesses vivâ voce in open court." "The Court itself was not confined to give Judgment of death in all cases, but Death or such other Punishment as it shall inflict." Surely, therefore, "it will seem a little odd that where the Court, who had all the Witnesses and proofs before them, and had power to give Judgment of death, or for a lesser punishment, at their election, have upon the whole matter given Judgment of death, there should be another resort, not for mercy only (which is a proper power, essential and appropriate to the Royal Person) but for a new Judgment, without any opportunity of examining or hearing the same evidence." These words, though written one hundred and fifty years since, contain counsel not unworthy of the attention of those who have to exercise a power of which Lord Hardwicke thus deprecated the use. 18. III. The Sentence of Death awarded by a Military* Court can only be put in execution with the express sanction of the Crown here or of the Civil Governor in a Colony,5 and in strict accordance with the Law. It "must be pursuant of and warranted by the Judgment: otherwise," wrote Hawkins, "it 1 Lords Hardwicke and Talbot, Vol. I. p. 510. * Secs. 16, 20, 24 and 25. 4 As to a Naval Court, Chap. III. par. 14. 6 3 Vol. I. pp. 513, 514. 5 Art. 123 of 1872. • Bk. I. c. 10, sec. 10. The N. D. Act, Secs. 52 and 53, prescribes the methods of punishment. CHAP. X. Literal Execution of Sentence obligatory. 171 is without authority, and consequently if the Sheriff behead a man where it is no part of the Sentence to cut off the head, he is guilty of felony." The Law of England never fails to protect any one; for the life, limb, and liberty of the Criminal, and even his corpse after death,1 so far as he is entitled thereto, are as much within the care of the Law as those of the innocent. 19. The place of imprisonment is fixed by proper authority under the 139th Article of War, and must be such as the Law justifies. The removal of the Criminal whence he ought, to another part in the same prison where he ought not to be confined, may be an act of trespass against him. "There is no doubt," said the late Baron Alderson, "that if a gaoler chooses by force or threats of force to compel a Prisoner to move from one part of a prison to another (not the proper place of custody), that is properly the subject of an action of trespass, just as much as the putting an additional fetter upon the Prisoner, which by Law he is not entitled to do."2 In Allen's case, his removal from the Fort of Agra (where his life would have been sacrificed) to England, was the occasion of his immediate release, though the Sentence was imprisonment for Manslaughter,3 justly imposed for a crime charged against him as Murder. 20. Imprisonment is "custodia, non pœna;" therefore, under that Sentence compulsory hard labour could not be inflicted," nor could the Prisoner be subjected to the punishment of solitary confinement unless sentenced to it. Penal Servitude is now used in lieu of the punishment of Transportation, and bears the severest form of imprisonment which the Law sanctions. But as these punishments differ little, if at all, from those of the same nature or character which are inflicted by Civil Tribunals, I should be passing beyond the scope of this Work, if I entered upon them, as matters peculiar to the Administration of Justice by Courts-martial. The Mutiny Act Thus the twelve Judges (to whom the question was referred), advised that the Crown had no power to carry out the sentence of hanging a dead body in chains. Vol. I. Ad. Op. p. 496 (3rd August 1797). * Cobbett v. Grey, 4 Exch. Cas. p. 743. 3 Ell. and Ell. p. 339. Com. Dig. Imprisonment (Z). 28 & 29 Vic. c. 126, sec. 19; Queen v. Baker, 7 Adol. and Ell. p. 517. 67 Will. IV. & 1 Vic. c. 90, sec. 5. Bullock e. Dadds, 2 B. and Ald. p. 260; 20 & 21 Vic. c. 3. 1 gives a discretion as to the selection of Prisons, which is generally exercised by sending those who are to rejoin the Service to Military and others to Civil Prisons. Where censure is conveyed by the Sentence as punishment it may be increased by the Confirming Officer ordering the sentence to be read at the head of every Regiment in the Command.2 21. It has been already noticed3 that the Court has the seizin of the whole case, and that the conduct of all the parties appearing before them in the controversy is subject to such strictures as they may see fit to make. Those members of the Service whose conduct has been thus unfavourably adverted to, may be dealt with, under the disciplinary powers of the Crown, by reprimand, removal from the Service, or by substantive proceedings being instituted against them. 22. And as the Court may animadvert upon others, so may their misconduct be brought under the direct notice of the Crown by the Confirming Officer. Thus, in the case of acquittal, where the Court refused to take the measures suggested by the Duke for the revision of their Sentence, he refused his confirmation, and sent their Proceedings home to the Commander-in-Chief for censure. "The decision of the Court seems so unaccountable and so little calculated to enforce the Rules of this Army and General Rules of the Service, which were the evident objects of this trial, that he has determined to bring the conduct of the members under the Commander-inChief's notice by the transmission of the Proceedings to England, with his observations with reference to them."4 23. Responsibility for the discipline of the Army rests not with the Officers who are the members of Courts-martial (an assumption of self-government which would render the Army supreme), but with the Crown and the General Officer appointed by the Crown to command it. Hence the Duke of Wellington in the Peninsula, and Sir Charles Napier in India,5 refused to accept these decisions or recommendations to uphold As to these, see Vol. I. p. 405. 3 Chap. VIII. par. 61, ante. 2 Oliver v. Bentinck, 3 Taunt. Rep. 459. Vol. vii. Gur. Desp., pp. 197-180; Vol. viii. pp. 53, 306. 5 Pp. 35, 111. |