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to be reduced to the rank of a private soldier. Such award by a court martial has been disapproved by the general commanding in chief.
It may be observed also that a court martial "Discharge is not competent to award positively that the recommended, offender be discharged with ignominy, but only to recommend that he be so discharged; by the and then it must seventy-seventh article such recommendation tion with the cannot, by a district court martial, be affixed forfeiture up to the sentence, except the forfeiture of all claim to pension form part thereof.
6 In cases in which a court martial awards the forfeiture of pension on discharge, the forfeiture of the additional pay should invariably form a part of the award and be specified in the sentence.” 1
Should the court see fit to recommend the Recommendaprisoner to mercy, such recommendation, when the punishment is discretionary, ought not to be embodied in the proceedings, but appended to be in centenar under the signature of the president, and either embodied
in proceedings, signed by him, or by each individual member desiring a favorable consideration of the prisoner's case;" or the recommendation may be conveyed in a letters from the president, and accompany the proceedings. In a general order, publishing the sentence of a court martial held at Exeter, 1814, on lieutenant Edward Hancox, of the 11th regiment of foot, the prince regent, adverting to the recommendation of the prisoner to mercy by the court, observed, “ the prevalence of such recommendations by courts martial, in the body
tion to mercy :
(1) Circular, Horse Guards, 31st July, 1838. (2) Sir C. Morgan's notes on Tytler. (3) G. 0. Nos. 523, 399.
(4) G. 0. No. 524.
of their proceedings, where the sentence is discretionary with the court, is not only irregular in itself, but most embarrassing to the sovereign, who is alone to judge whether the circumstances of a case, when considered with the general good of the service, can admit the exercise of mercy in the confirmation of a sentence.”l Where the punishment is not discretionary with the court, a recommendation to mercy may be inserted with the sentence;? if the motive which actuates the court be at all referred to, the allusion should be brief and incidental. Where the recommendation is not inserted with the sentence, the reasons which prompted the court to recommend the prisoner should be distinctly and fully set forth ; but the court should carefully avoid to point out to his majesty “any particular mode in which the prisoner may be deemed worthy the royal clemency."
when not discretionary, may be inserted with the sentence.
(1) G. O. No. 328. (2) G. O. Nos. 334, 340, 415, 423, 507, 525, 526, 531, 534.
(3) G. O. No. 303.
Revision, Confirmation, Execution of Sentence.
REVISION The authority by which a general court martial Revision, is convened, is competent to order? a revision; but no finding, opinion or sentence, given by any court martial, and signed by the president, is liable to be revised more than once. Previous convening
may order, to 1750, this limitation did not exist; the sentence might have been returned for revision any number of times; the sixteenth clause of the mutiny act is not, therefore, as some have imagined, an enabling, but a restrictive clause. The power of the superior authority, to order a revision of the sentence of a court martial, is, in some degree, analogous to that of a judge in a court of civil judicature, who may remand a jury for the reconsideration of their verdict; but this power in the judge is not limited to one revision.
The mutiny act now declares, that no witness shall be examined, or additional evidence received by a court martial on revision. Courts martial,
(1) The court, having adjourned sine die, usually reassembles by a general order; sometimes by a circular from the officiating judge advocate. The order for the reassembling of the Court is adverted to in the proceedings. The order or letter directing the revision of the finding or sentence, when the reason is not written at the foot of the proceedings, is also noticed on the record of the court or annexed to it; or, a copy of such order or letter is embodied in the proceedings. (2) of 1830. Mut. Act, Sec. 16.
no witness examined on,
Court revised, prisoner having been unduly restricted in defence,
on revision, never, with propriety, received evidence or examined fresh witnesses : but particular questions had been put by the court to a witness previously examined, with a view to clear up any doubt which might be suggested to exist as to the import of the testimony recorded ; and to this extent only, that is, as it may bear on the questions thus put, was the party interested permitted to re-examine. Much difficulty often arose from this guarded reexamination of witnesses on revision ; its entire prohibition can only, therefore, be deemed judicious. One incidental advantage is the immediate and certain release of the witnesses, on the adjournment of the court for approval.
Where a court martial has decided to hear certain statements in defence, and not to admit the reading of parts of a printed book," which the prisoner insisted upon his legal right to urge as a justification against the charges,” such statements and extracts, not being otherwise than “ decent and proper;" and the prisoner has, in consequence, withdrawn his address, and declined to make any defence, (at the same time protesting against the decision of the court, and subsequently submitting the point to the judge advocate general, the general officer in command having declined to interfere upon the question,) ) a revision has been ordered, upon the express
grounds that the trial had “ not been regular, Court, ordered and that the sentence of the court could not be
sustained :” the rejected document has been directed to be admitted and inserted, and the prisoner's defence to be heard throughout; the judge advocate general remarking, that “the
matter expunged by to be admitted
decision of the court, that the prisoner was at liberty to refer to the chapter and verse of any book, but not to read extracts from religious works,' would seem to be arbitrary, and inconsistent with itself; for when matter is admitted, by permission to refer to it, to be pertinent, it is of the essence of any defence, that the party should be permitted also to explain the application of such matter to his own particular case."! For similar reasons, a revision has been ordered where the court had directed certain parts of a prisoner's address, “ containing religious matter, to be expunged, as being quite foreign to the charge,” the prisoner protesting against the act of the court, by observing, “ that he should reserve to himself the liberty of referring to higher authority," but proceeding with his defence.
In neither of the cases referred to did the prisoners attempt 10 produce evidence, though no law then existed to prevent it. It is not perhaps possible to decide, by reference to precedent, whether or not, under the existing circumstances, the prisoner had a right to produce witnesses on the revision.
On the one hand, it may be argued, that the rejection of the address (or a part of it) did not preclude the examination of witnesses, nor could it operate to nullify their effect; and, tủerefore, that, on revision, witnesses could not, in accordance with the custom of courts martial, be admitted. On the other hand, as it is optional with the prisoner to open his defence by an address, if (1) Letter of judge advocate general, lieut. Dawson's trial, p. 83.
(2) Captain Achisson's trial, p. 16.