239

sworn or having made affirmation, refuse to give evidence, or to answer all such questions as the "court may legally demand of them, or prevaricate "in giving their evidence, shall, upon certificate "thereof under the hand of the President of such "court-martial, be liable to be attached in the "Court of Queen's Bench in London or Dublin, "or the Court of Session, or Sheriff-depute or Stewarts-depute, or their respective substitutes, "within their several Shires and Stewartries, in Scot"land, or courts of law in the East or West Indies,

66

or in any of Her Majesty's colonies, garrisons, or "dominions in Europe or elsewhere, respectively, upon complaint made, in like manner as if such "witness after having been duly summoned and sub

poenaed had neglected to attend on a trial in any

proceeding in the court in which such complaint "is made, or had refused to be sworn, or on being

sworn had refused to give evidence, or to answer "all such questions as the court may legally demand, "or had prevaricated in giving evidence, or if the "court-martial shall think fit, in case any such person "belong to Her Majesty's navy, being called upon "to give evidence at any court-martial, shall refuse or neglect to attend to give his evidence upon oath "or affirmation, or shall prevaricate in his evidence, 66 or behave with contempt to the court, such court"martial may punish every such offender by impri"sonment not longer than three months, in case of "such refusal, neglect, or prevarication, nor longer "than one month in the case of such contempt; and every person not subject to this Act who may be SO

66

summoned to attend shall be allowed and paid his

Summons

for witness

documents.

"reasonable expenses, under the authority of the Admiralty, for such attendance."

If a witness have in his possession any deeds or to produce writings, which it is deemed necessary to produce at the trial, there should be a special clause inserted in the summons, commanding the witness to bring them with him: this process is of compulsory obligation on the witness to produce the deeds or writings required of him, which he has in his possession, and which he has no lawful or reasonable excuse for withholding; of the validity of which excuse, the court, and not the witness, is to judge. If a witness give false evidence, he is liable to the penalties of perjury under the following section of the Naval Discipline Act :

Penalty for persons

giving false evidence.

Expenses of witnesses.

:

"S. LVII. Every person who, upon any exami"nation upon oath or upon affirmation, before any "court-martial held in pursuance of this Act, shall wilfully and corruptly give false evidence, shall "be liable to the penalties of wilful and corrupt perjury.'

1

It is not lawful for a civilian to refuse obedience to the summons of the Judge-Advocate on the ground that his reasonable expenses have not been tendered to him; but on his attendance he will be entitled to his expenses under the following regulation :

"The payment of reasonable expenses of wit66 nesses who may not be subject to the Naval Discipline Act, summoned to give evidence at a courtmartial, is to be made by the Judge-Advocate, or

1 A charge of perjury against a civilian must be preferred in the ordinary criminal court.

person acting as such, who is to be repaid, under "the direction of the president, by the paymaster of "the flag-ship at the port where the court-mar"tial is assembled; and the Judge-Advocate is to

report to the Secretary of the Admiralty the par-"ticulars of all such payments, when the minutes of "the proceedings are forwarded, or as soon after as may be." 1

If any question should arise touching the amount of such expenses, the court will decide what is the reasonable allowance to be paid to the witness.

1 Queen's Reg. C. M. art. 26.

M

Sentence.

CHAPTER XII.

OF SENTENCE AND PUNISHMENT.

THE sentence ought always to be a subject of anxious deliberation amongst the members of a court-martial. It is incumbent upon the court, in awarding punishment, to pay due regard to previous character, as well as to weigh carefully every circumstance of mitigation in the conduct of the prisoner during the course of the transaction which constitutes the offence of which he is found guilty. The extreme measure of punishment applicable to each offence is calculated for extreme cases: if an offence be characterised by no circumstance of aggravation, the punishment ought to be very considerably modified. Such is the invariable practice of the judges in the ordinary criminal courts, and such is the evident intention of the legislature in entrusting a court-martial with discretionary powers of so extensive a nature.

The charge or charges upon which the offender has been found guilty,' as well as the punishment and every incident necessarily connected with it, must be distinctly specified in the sentence.

The greatest certainty and precision is required

1 See Queen's Reg. C. M. art. 18.

on this head for instance, in the case of a single charge against a prisoner, the nature of the offence, and the punishment applicable to it, may depend on the intent with which a court-martial may find the prisoner to have committed the act in question, or the offence and punishment may be different in consequence of a court-martial having found part only of the charge proved. In like manner where there are several charges, the offence and punishment referable to each will almost always be of a distinct character. It is therefore necessary that the sentence should state with particularity the finding of the court-martial on each charge, and each part of the charge, if it be divisible, or modified by the finding, as well as the punishment or punishments awarded respectively for the offence specified in each charge; for if the sentence does not disclose and distinguish with sufficient certainty a charge or charges that will support the finding and warrant the judgment, or if the punishment awarded or any part of it be not in due conformity with the provisions of the Naval Discipline Act, the sentence will be invalid, and the prisoner entitled to his discharge on application to the superior courts of law.2

The punishments that may be awarded for the different classes of offence have already been pointed out under their respective headings; it only now remains to notice some considerations of a general character.

1 See Campbell v. The Queen, in error, 11 Q. B. R. 799. 2 See ante, pp. 95, 96, 97.