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when the punishment due to the specific crime under trial is ascertained.
The sole authority enabling the court, in all cases, to inquire into general character is the general order of the army perpetuated in the paragraph of the general regulations above given; the mutiny act is, in this respect, altogether silent; character, except as appearing from previous convictions, is not in any way even indirectly referred to in it; the regulation of the army must, therefore, be absolutely conclusive as to the insufficiency of general character to aggravate punishment, since its obvious and unequivocal meaning cannot be impeached by a particular construction of a clause in the mutiny act or by the adaptation of legal reasoning
Reference is frequently made at the judge advocate general's office to the “new criminal acts” in illustration of this section of the mutiny act. These acts fix the maximum of punishment, both as to nature and quantity, for certain specified offences, and the judge, within these limits, in his discretion deals with the convicted criminal. Hence, by analogy, it was argued, that punishment disproportionate to the offence committed,” may be awarded by courts martial in consequence of previous convictions ; and that by the terms of the twenty-first section of the mutiny act—“ greater or other punishment”—nothing more is intended than that the court must confine itself in its sentence to the particular species or description of punishment, which may be awarded for the offence of which the prisoner may have been found guilty."
But it should be observed, that in criminal courts the inveterate convict cannot be visited by punishment exceeding “ the maximum considered” (declared by the statute) “ due to the specific crime under trial.”
The judge may mitigate the punishment due to the specific offence of which the offender may have been found guilty, but he cannot exceed this maximum, however heinous the offence or obdurate the culprit. The spirit of the recent statutes, independently of the repeal of capital punishments, does not appear to be to aggravate the punishment of old offenders, but rather to mitigate the punishment of those whose offences may not have been accompanied by acts of aggravated violence. If then a criminal judge cannot exceed “the maximum” of punishment attached by the statute to the offence under trial, on what grounds can it be desirable, that courts martial shall be empowered to award punishment greater than “the maximum due to the specific crime under trial ?”
Moreover, the sentence of the criminal court is complete and efficacious when enunciated by the criminal judge; the criminal judge, therefore, has very properly power to discriminate between novices in crime and old offenders, and may award punishment less than the maximum.
The sentence of a court martial is not perfect or efficient until confirmed by the approving authority; it can only be carried into effect wholly or on the order of such superior authority. This authority then has ample and complete power to discriminate in cases of good or bad character, and may carry into execution any punishment less than the maximum.
Mercy may be extended by the crown to the criminal or military offender; but this prerogative is distinct from the mitigating power of the judge or the approving authority.
This mitigating power, in the approving authority, is a circumstance affecting the asserted analogy between criminal and military courts, and must proportionally weaken or destroy the weight of any argument built on it.
Sir Charles Napier, in his pre-eminently soldier-like work on military law, has well remarked, “ That the endeavour to amalgamate the social and military laws is an attempt to conjugate incongruities.”I Certainly, the attempt to control the proceedings of courts martial by the practice of civil courts, appears highly incongruous ; and to elucidate the “ customs of war,” by civil usages, scarcely less
Inasmuch as rules of evidence are, or ought to be, so many self-evident propositions or axioms tending to elicit truth, to preserve uniformity, and to the exclusion of extraneous matter, they may with advantage be referred to on the decision of any doubtful question by courts martial, but there is little else, it is believed, which can be advantageously borrowed from civil courts of judicature.
The court having found a verdict of guilty, or having again closed after disposing of such proceedings as may have arisen on enquiries as to other desertions, previous convictions or general character, proceeds to pass sentence. It is to be observed that on a finding of guilt,
(1) Page 29.
pronounced, in certain cases &
there is sometimes no room for farther delibera- guilt being tion, since the punishments to be applied to prescribed particular offences are in many cases specially arredo enjoined. The act of the court in passing sentence, in such a case is therefore ministerial rather than judicatory. Under these circumstances, it will be the duty of the officiating judge advocate,' and more particularly when the court is assembled in furtherance of the hundred and second article of war for the cognizance of civil crime, to point out the law which bears on the question.
Notwithstanding the conflicting opinions, Each member the prevailing custom of the army is, that for punishment, each member should give his opinion as to the nature and degree of punishment though he may have voted for an acquittal. The majority, in every case, binds the minority'; the opinion of the majority is the opinion of the court. As a court martial acts in the twofold capacity of judge and jury, it seems consistent with reason and justice, that, having performed the duty of jurors in recording a verdict, they should proceed in the character of judges, acting independent of their individual votes as adequate to the jurors, to award punishment equal and adequate found by the to that degree of guilt, of which the prisoner has, by the court, been adjudged and declared guilty.
181. (2) The author having felt it neceseary to notice some variance of opinion between major Vans Kennedy and hijnself, is happy in this case to be enabled to refer to that officer (page 172) in corroboration of the opinion which lie entertains on this important subject, and which he had recorded in the above terms before he had seen major Vans Kennedy's work. This author has the candour to state, that his view on this subject differs from the general practice of the Indian army; but he may be assured, so far as nearly thirty years' experience may authorize the assertion, that it is in unison with the ordinary practice of the british army.
In cases not discretional, it necessarily and inevitably follows that the punishment is in accordance with the finding of the court, and cannot be alleviated by the individual opinion of a member as to the guilt or innocence of the prisoner. Members swear that they will administer justice, according to the articles of war; now these articles appoint fixed penalties on conviction of stated crimes and, on conviction of other crimes, render the offender liable to certain punishments. Conviction takes place from the opinion of the majority, and cannot, without a gross violation of consistency, be rendered nugatory or contravened by a subsequent act of the minority. On an interlocutory decision, as to the admission or rejection of evidence, as well might the minority, which voted for rejection, discard from their minds, or decline to be influenced by, the testimony, admitted, according to their individual judgment, irregularly.
Mr. Tytler and captain Hough are of opinion, that those members who have voted for an acquittal are to vote on the question of punishment, in order to render it as mild as possible. If the punishment is to be guided by the individual votes of members, it is strange that it did not occur to these gentlemen, that it would be a violation of justice, and of the oaths of
(1) Tytler, p. 318 ; Houglı, p. 958. (From an anxiety not to mislead as to the opinion held by any writer referred to in this work, the reader's attention is directed to the following extract from Hough's Improved Articles of War-after quoting the above four lines, the author proceeds“ Captain Hough's words are all “ members must vote some punishment, if only one lash, for as a “ majority find the prisoner guilty, the act of the majority decides “ as to some punishment, and the minority can by their award “ decrease the quantum; were they left out they would increase it ;'” and he then goes on to say “ Captain Hough never intended nor does his language imply such a notion ; that an officer was to vote a less punishment than his sense of duty required."]