cannot, with propriety, be called for; otherwise there seems to be no objection to requiring it. "EDWARD LAW. "J. JERVIS. "July 7. 1801." When the court-martial adjudge a person to suffer death, the article of war on which their judgment is founded should be stated in the sentence.* If the charges are found to be proved by a bare majority, the minority are not to be precluded from voting on the question of punishment. This rule is highly favourable to the prisoner, for, of course, those members who consider that the charges have not been proved, will do all in their power to mitigate the penalty attached to the offence which the majority declare him to be guilty of. When charges are preferred against a person without any foundation, the Court may, in its discretion, pronounce them to be cruel, malicious, vexatious, frivolous, or ill formed, according to the circumstances of the case. The term cruel, however, could not, with propriety, be used on the acquittal of an officer who has been tried on charges exhibited against him by his inferior. Innumerable instances might be cited where courts-martial have thus marked their disapprobation of a prosecutor's conduct in preferring * Vide Appendix I. charges when not a tittle of good evidence has been adduced to support them, or when the prisoner has so clearly refuted them as to leave no doubt of his entire innocence; or when it is apparent that the prosecutor has been influenced by unworthy motives in bringing the charges. With either of the above words appended to it, tending, as they do, to remove the prejudice with which society is too apt to look upon men who have been accused of great offences, the sentence becomes the more valuable to the person acquitted, and may, in some degree, serve as a recompense for the. trouble and anxiety he has undergone in clearing himself from a false accusation. It was determined in the Court of Common Pleas, November 12. 1806, before Sir James Mansfield, C. J., in an action for libel brought by Captain Jekyll, of the 43rd regiment, against Sir John Moore, the president of a court-martial, that he was not liable to an action for a libel for having delivered a sentence and declaration to the JudgeAdvocate to the following effect, on certain charges, the said Captain Jekyll had preferred against Colonel Richard Stewart of the same regiment, namely, "That he, the said Colonel Richard Stewart, is not guilty of either charges, and the Court do most fully and most honourably acquit him. The Court cannot pass without observation the malicious and groundless accusations that have been produced by Captain Jekyll against an officer, whose character has, during a long period of service, been so irre proachable as Colonel Stewart's; and the Court do unanimously declare that the conduct of Captain Jekyll, in endeavouring to falsely calumniate the character of his commanding officer, is most highly injurious to the good of the service." Sir James Mansfield said: "In order to enable the Court to decide upon the charges submitted by the King, they must hear all the evidence, as well on the part of the prosecution as of the defence, and after hearing both sides are to declare their opinion whether there be any grounds for the charges. If it appear that the charges are absolutely without foundation, is the president of the Court to remain perfectly silent on the conduct of the prosecutor? Or can it be any offence for him to state that the charge is groundless and malicious? It seems to me, that the words complained of in this case form part of the judgment of acquittal, and consequently no action can be maintained upon it."* The causes for which the sentence of a courtmartial may be brought under review of a superior judicature are the same which, in the civil courts of England, authorise either the granting of a new trial, or an arrest of judgment; that is to say, if the sentence or verdict shall have been manifestly without, or contrary to, evidence; or if it shall have been contrary to, or unauthorised by law; if the penal award be beyond measure exorbitant or severe; if the jury or judges have been corrupted, &c. But in all such cases, as the * M'Arthur, vol. ii. p. 206. presump tion is strongly in favour of the judgment, the superior court will not entertain the appeal, or authorise any review of the proceedings unless on the most pregnant or positive grounds for supposing that the merits have not been fairly discussed, and that the decision is not agreeable to the justice and truth of the case.* 3 Black. Comm. 386. edit. 1800. CHAP. XVIII. EXECUTION OF THE SENTENCE. Execution of the Sentence. - Commander-in-Chief may peruse the Minutes. - Not authorized to pardon Offenders sentenced to Punishment by Court Martial: nor to remit Sentences: but may suspend the Execution thereof for a time.Sentence of Death passed in the Narrow Seas.In Squadrons detached from the Commander-in-Chief. In cases of Mutiny. -Pardon granted by Her Majesty on certain Conditions. THE usual mode of executing the sentence of death is by hanging the party so sentenced by the neck at the yard-arm of such of Her Majesty's ships as the Lords Commissioners of the Admiralty, or the commander-in-chief of the fleet, shall direct. No particular time or ship is specified in the sentence, in case an emergency of the public service should render it inconvenient to carry out the same on the day or at the place specified. The safety of those who are to direct the execution of the sentence of death, as well as the anxious attention which the country will demand from the officer having authority over the life of a fellowsubject, demands that in all cases the commanderin-chief should carefully peruse the minutes of the court-martial, and satisfy himself that there are no |