66

aggravation of the crime for which he shall be under trial." Besides this substitution, it is provided further that the court shall, in no case, award to him (the prisoner) any greater or other punishment or punishments than may by this act, and by the articles of war, be awarded for the offence for which he shall so have been found guilty; the words in italics being substituted in 1834 for "be under trial." The question necessarily arises, What is the effect of these alterations? It never appeared to the author that the terms of the mutiny act, or the abstract justice of the case, justified an aggravation of punishment as to quantum, on proof of previous convictions, but that the previous character or conduct of the prisoner might reasonably influence the court as to the nature. If imprisonment repeatedly fail in producing a salutary result it might be right to try the effect of corporal punishment; but still the amount should, he imagined, be proportioned to the offence on which the soldier may have been charged and convicted. The guilt of the priso

is decided before the admission of the evidence in question; if, therefore, each individual member were to permit previous convictions to weigh as to the quantum of punishment, he would, in effect, award a punishment for that, of which the prisoner had not been found guilty; if, however, the evidence of previous convictions be allowed to weigh as to the nature of punishment, nothing can be more reasonable or tend more decidedly to the good of the service. A late judge advocate general gave a decided opinion, that the legislature intended to

X

Effect of the

alterntions in

the law.

Upon opinion to them.

given previous

authorize severe punishment disproportioned to the offence committed, where previous bad character was notorious and proved against a soldier;1 hence previous convictions have been received by many, as involving aggravation of punishment, both as to kind and to amount. Whether the alteration of the terms of the mutiny act were intended to alter the law, or whether it will have the effect of modifying the opinions of those who considered that courts martial might have inflicted punishment greater in amount, and disproportioned to the im

(1) Extract from a letter addressed to major general Ross by the judge advocate general, dated 26th May, 1830. "In answer to your observations on the twenty-fourth article of war, viz. that as, upon the trial of any soldier for any offence whatever, previous convictions may be given in evidence against him, and that, therefore, he might receive a severe punishment disproportionate to the offence committed, I have only to observe, that admitting the force of your remark, it was purposely intended by the legislature to afford the means of meting out comparatively severe punishment, where previous bad character was notorious and proved against a soldier, and that this principle has been taken from the recently improved acts of criminal law, where, after a conviction for the particular offence, although of a minor description, it is permitted to give evidence afterwards of previously repeated offences, in order the more accurately to assign the proper degree of punishment."

It has been provided, by the acts for the improvement of the criminal law, (7 & 8 Geo. 4, c. 28), that offenders guilty of subsequent felony, not punishable with death, shall be liable to a more exemplary punishment, in the discretion of the judge, than on the first conviction; the penalty in one case being transportation for seven years, or imprisonment, solitary or otherwise, not exceeding two years, with public or private whipping, once, twice or thrice; and, in the other case, transportation for a term not less than seven years, or imprisonment, &c., not exceeding four years. The judge is thus armed with power to punish atrocious criminals, to rid the country of irreclaimable offenders, and to mitigate the sentence when justified by circumstances. The mitigation of punishment has always, in certain cases, rested with the judge, but this power, as affects military offenders, has hitherto, with great advantage to the service, vested in the officer ordering the court martial, or in his majesty. The duty of a court martial being, therefore, far less difficult than it otherwise would be, the court having only to proportion the punishment to the finding; yet, authorized by the custom of the service, subsequently to invite the particular attention of the approving officer to any favourable features in the case. The same reasoning, which gives the judge the power of affixing the penalty, should confirm to the approving officer alone, the power of mitigating the punishment; the judge and the superior officer have each to order the execution of the sentence.

mediate offence, in consequence of proof of former convictions, it is not at present1 possible to ascertain.

regulations.

The existing regulations appeared to the The existing author to be conclusive, and to decide the question that punishment ought not to be aggravated by previous convictions or general bad character: "for though, in all cases the maximum of punishment must not exceed what is considered due to the specific crime under trial, yet previous good conduct and irreproachable character may give the prisoner a fair claim to lenient consideration, as far as the ends of discipline and the established rules of the service will permit."3 This order accords with the long established practice and feeling of the army, and is equally merciful and well calculated to promote the best ends of discipline. It furnishes a practical

(1) [1835.]

(2) It may be highly expedient, and equally dictated by sound policy and abstract justice, to visit offences, when repeated, by a higher degree of punishment than on the first conviction; but those offences should be ascertained by the written law, and the degrees of punishment affixed. Upon this principle the french military code is, in a great degree, constructed; there are no less than twenty-seven degrees of desertion, with proportionate punishments allotted to each; several of these depend on the repetition of identical offence. And, with respect to the recent statutes, a certain rule is observed; on a trial for felony, previous convictions of felony may be given in evidence, but not a conviction of a minor offence or misdemeanor; nor can evidence as to character be brought to bear upon the amount of punishment. The saying of lord Camden is often quoted: "The discretion of a judge is the law of tyrants; in the best, it is oftentimes caprice; in the worst, it is every vice, folly, and passion to which human nature is liable." If this be in any degree true, as to the ordinary discretion in allotting punishment to crimes of which offenders may be convicted, how much more applicable must it be where judges are required to apportion punishment, without any fixed rules to assist them, to cases complicated by previous convictions and character. Sir Samuel Romilly, speaking of the discretionary power of judges, said: "If this discretion is to be continued, it should, at least, be put under some regulation, and general rules should be framed for the instruction of the judges."-If discretion is to attach to courts martial, surely general rules are equally necessary for the members of courts martial as for judges.

(3) Gen. Reg. p. 246.

paraphrase on the concluding paragraph of the twenty-first section of the mutiny act, which is couched in these terms: "The court shall in no case award to him" (the prisoner against whom previous convictions may have been given in evidence)" any greater or other punishment or punishments than may by this act and by the articles of war be awarded for the offence of which he shall so have been found guilty." That is "no greater or other punishment than by this act and by the articles of war may specially be appointed for crimes; or, in the absence of specific appointment, no degree of punishment. greater than the "maximum considered due to the specific crime under trial;" or than may be awarded for the specific offence of which the offender shall so have been found guilty-found guilty before, as the clause itself provides, the prisoner's previous convictions have been given in evidence.

As to the effect of evidence of general character, unsupported by that of former convictions, it may be observed, that previous to the introduction into the service of the punishments of imprisonment and solitary confinement, it was not the custom of courts martial to receive evidence as to general character, except when brought forward by the prisoner. A variety of punishments obviously rendered desirable an inquiry into general character, but it by no means followed, nor does it appear expedient or beneficial to the service, that bad character should induce a punishment disproportionate to the offence of which the prisoner has been convicted, and exceeding "the maximum considered due

to the specific crime under trial." It might be inexpedient to apply solitary confinement where imprisonment had not been tried; to send a soldier to a county gaol before the regimental or garrison places of confinement be proved ineffectual; or to award corporal punishment where the effect of less severe treatment had not been ascertained; still there appears no good reason why the award, whether imprisonment, solitary confinement, or corporal punishment, should be disproportioned to the specific crime under trial, and of which the prisoner is found guilty. Character may justly and advantageously determine the nature of punishment, which, if "irreproachable, may give a fair claim to lenient consideration;" but the power to mitigate the punishment “ due to the specific crime under trial" has, till very recently, been invariably considered to rest with the confirming authority. Courts martial have ever recom mended to mercy; and, when the punishment has not been discretionary, have sometimes embodied such recommendation in their sentence; but, so long as they are constituted as at present, and that the confirmation of a superior authority is requisite to give effect to the sentence, it is believed that no good can result from deviating from the old custom, and that the confirming authority is that best calculated to judge of mitigating circumstances—not of circumstances alleviating the degree of guilt or of violence with which an offence may have been committed, for this is essentially the province of the court, but of the circumstances which may give a claim to lenient consideration,