139 CHAP. XVII. ON THE SENTENCE AND PUNISHMENT. Mode of Proceeding when all the Evidence has been heard. Cases in which the Court have no discretionary Power as to Punishment. Commissioned Officers cannot be reduced to a lower Rank. - Case of Lieutenant Franklin, R. M. When the Charges are proved, Prisoner cannot be acquitted. Officers dismissed cannot receive Half-Pay by Direction of the Court. Sentence to express of what the Party accused has been found guilty. Court to be confined to the Investigation of the Subject Matter of the Charge, and to that only. Court-Martial has no Power to dispose of the Bodies of Criminals after Execution. — The Punishments awarded must be in conformity with the Usage of the Service. Court-Martial cannot legally sentence a Prisoner to be imprisoned "and kept to hard Labour," or "to be kept in solitary Confinement," or to be "transported.”—Persons sentenced to Imprisonment to be confined in the Gaol of the County where the CourtMartial is held. Court to state the Grounds whereon they recommend a Prisoner to Mercy. In Sentence of Death, the Article of War on which the Judgment is founded to be stated. - Minority may vote on the Question of Punishment. When the Charges are declared to be frivolous and ill-founded. THE proceedings of the Court when all the evidence, &c. for and against the prisoner has been heard, are thus clearly laid down in the Queen's Regulations (chap. viii. pp. 80 and 81.):— "When the evidence is closed, the accused person shall be removed, and by-standers shall withdraw; the Court shall then consider the matter in evidence before it, and the Judge-Advocate, or person acting as such, by the direction of the Court, shall draw up such questions as shall be agreed upon, whereon to form a determination in regard to the innocence or guilt of the person upon trial. If the party be found guilty of a breach of any of the articles of war established by law, the Court shall consider and determine on the punishment proper to be inflicted in conformity therewith. The JudgeAdvocate, or person acting as such, shall draw up the sentence accordingly, being careful to specify therein the charge, or substance of it; and the same shall be signed by every member of the Court, by way of attestation, notwithstanding any difference of opinion there may have been among the members. "In taking the opinion of the Court upon all questions, the junior officer shall vote first, and then the other officers in order up to the president; and should the members of the Court disagree upon any question, or on a division the votes should be equal, the point in question shall receive the construction. most favourable to the prisoner.* "After the sentence shall have been drawn up and signed, all persons shall be re-admitted; and *Whenever it may be necessary to obtain the opinion of the Court on any question, the prosecutor, prisoner, and audience should be directed to withdraw until the Court shall have come to a decision. the party accused being also present, the JudgeAdvocate, or person acting as such, shall, by direction of the Court, pronounce the same." To some of the offences mentioned in the articles of war, there are specific punishments annexed, which the court-martial have no authority to mitigate. Since the passing of the Act 10 & 11 Vict. cap. 59., the cases in which they are required to pass sentence of death are limited to murder, and buggery or sodomy. When the offence has not been made capital by the common law, or by act of parliament, the court-martial could not legally adjudge a person to suffer death for such offence. Persons declared to be guilty of a breach of those articles to which a specific punishment is annexed in the Act 22 Geo. 2. cap. 33. must be sentenced in exact conformity with the provisions of that Act; the slightest variation would be fatal, and render the sentence void. In the undermentioned cases the Court have no discretionary power either to mitigate or extend that part of the punishment which is printed in italics : ART. 7. Not sending to the Court of Admiralty all papers found on board prize-ships. ART. 8. Taking money, or other effects, out of any prize, before the same shall be adjudged lawful prize in some Admiralty Court. "To forfeit and lose his share of the capture," and suffer such further punishment, &c. "To forfeit and lose his share of the capture," and suffer such further punishment, &c. On the 6th of June, 1806, Captain John A. Norway, of His Majesty's ship "Tromp," was tried by court-martial at Plymouth, on charges exhibited against him by the carpenter of that ship, for converting the king's stores to his private purposes, and for making false musters; the Court declared the former charge not proved, and the latter proved, and thereupon adjudged Captain Norway to be "dismissed from His Majesty's service." The 31st article of war enacts, that every officer or other person in the fleet who shall knowingly make or sign a false muster, or muster-book, or who shall command, counsel, or procure the making or signing thereof, or who shall aid or abet any other person in the making or signing thereof, shall, upon proof of any such offence being made before a court-martial, "be cashiered and rendered incapable of further employment in His Majesty's naval service." It will be observed that this article leaves no discretionary power in the court-martial, as to the punishment to be awarded to persons guilty of the offences specified. If the charge of false musters should be proved, the Court have no alternativethey must sentence the offender to be “cashiered and rendered incapable of further employment in Her Majesty's naval service." The sentence passed on Captain Norway was laid before His Majesty's attorney and solicitor-general, who were of opinion, that as it was not in conformity with the Act of Parliament, it could not legally be carried into execution. A court-martial has no power to sentence an officer to be reduced from a superior to an inferior rank, when such reduction involves the necessity of issuing a new commission or warrant to the party |