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he prefer that mode, and deem it esssential to the impression he may desire to make by his witnesses on the court, (reserving their examination,) it may urged that the rejection of the address, or a part of it which the prisoner deemed essential, was an actual prohibition of one line of defence; and the prisoner not being bound, in deference to the court, to adopt another line of defence, the exclusion of the address must be deemed a virtual rejection of all witnesses calculated to support it; and, therefore—to render the proceedings legal, by a revision, without which the sentence of the court could not be sustained—that not only the necessity of receiving the address, but also of admitting witnesses in its support, must be involved. Though the question, as to the admission of evidence, is now set at rest, yet the cases just referred to may tend to show the importance of the due admission or rejection of a prisoner's address, and much more of legal evidence: if the sentence could not be sustained, because a prisoner was improperly restricted in his address, much more would the rejection of legal evidence render it inoperative.'

A court martial, on revision, cannot alter or recorded cannot obliterate any part of the previous proceedings,

or expunge from the record any testimony, however illegally it may have been admitted : its duty in such case is, as the word revise indicates, to review and re-consider its judgment, opinion and sentence; which may obviously require a re-consideration and weighing of the recorded testimony, with a view to correct, by

(1) See Musprat, case of.-Index.

Matter

be expunged:

Summary of duty of Court on revision.

an insertion of a second opinion, any error in the sentence which may have arisen from inadvertence, misconception of law, or of the customs of the service. Where a court martial had received evidence as to previous convictions, subsequent to the defence, but prior to the finding of guilt, it has been ruled that, as there did “not appear any irregularity till after the defence,” a revision might be ordered, and the court enjoined“ to dismiss from their consideration any part of the evidence admitted subsequent to the defence; thereupon deliberating upon the guilt or innocence of the prisoner, and passing sentence accordingly.” It was also observed, on the same case, that the inadvertent approval of the sentence, under such circumstances, would have rendered the proceedings altogether invalid.

Any illegality as to the constitution of the Illegality in the court, or any defect in its composition, cannot constitution of be amended on revision ; much less can an ille- not to be gality as to the charge be so remedied. Such illegality in flaws must obviously invalidate the proceedings to such a degree as to render the sentence in invalidate the noxious to the prisoner, as must any illegal assumption of jurisdiction over a crime or person ; but it cannot be admitted that every such capital error must necessarily so entirely

(1) Letter of the judge advocate general to major general Ross, relative to the proceedings of a district court martial on private Rushton, of the 95th regiment.

(2) On a reference made to thejudge advocate general, he replied, “ I entirely concur with major-general Ross, in thinking the charge so absolutely defective in all legal respects, that it was impossible to confirm a finding of guilty thereupon. I need not add, that I consider any revision out of the question, as no sentence of punishment could be properly adjudged or enforced upon a charge not supportable in law.” The Right Hon. Sir J. Beckett, Bart., to the Judge Advocate, on a District Court Martial, 18th March, 1830.

amended on

charge;

but must

D D

An offence

be again tried.

annihilate the court as to expose the prisoner to entertained by a trial by another court martial. The statute offender cannot declares that no officer or soldier, being acquitted

or convicted of any offence, shall be liable to be tried a second time, by the same or any other court martial, for the same offence, unless in the case of an appeal from a regimental to a general court martial. A court of inferior jurisdiction may still, in itself, be a legal court, though not legally competent to entertain a particular charge, or any charge against an individual of privileged rank, for the trial of whom a court specially composed is enjoined, as in the case of a field officer ; but a trial having, by inadvertence, illegally taken place before such intrinsically legal court, and an acquittal or conviction being once recorded, the statute just quoted must preclude any further trial. If indeed the court be of itself illegally constituted, as, for instance, by assembling under an expired warrant, by administering an improper oath, or by omitting the appointed one, it is, in fact, no court at all ; and, therefore, whatever opinion such illegal assembly may be pleased to express in writing, it cannot be termed the acquittal or conviction of an officer or soldier by a court martial : their acts would be mere nullities. The illegal act of a legal court, and the act of an assembly of officers constituting no court whatever, must be totally different and can require no further commentary.

(1) Mut. Act, Sec. 16. (2) The author is sorry to perceive a difference of opinion on this head, between the sentiments he has expressed and those of major Vans Kennedy; he cannot, however, see any grounds ou which to alter his judgment; much less can he concede to this officer, should any illegality take place in passing sentence, or in the course of the

395

Sentence

till confirmed;

The sentence of a general court martial is in- inoperative operative until confirmed by her majesty, or by an officer duly authorized under the sign manual."

proceedings, (of a legally constituted court,) vitiating them and causing the discharge of the prisoner, that “such proceedings are not to be considered as a trial of the prisoner, not having been le. gally conducted,” and that: “A new charge may therefore be preferred against the prisoner, and a new court assembled to investigate it, and in this case the prisoner cannot plead a former trial or acquittal or conviction in bar of his impending trial.” The author can but adhere to the opinion above given, that the illegal act of a lega!ly ronstituted court, though it vitiate the proceedings so as to render the sentence inoperative, cannot have the effect of subjecting the prisoner to a second trial for the same offence by the same or any other court martial; and consequently, if þrought to trial under such circumstance, a prisoner may rightfully plead the former ac. quittal or conviction in bar of his impending trial. The author had supposed that the mutiny act was sufficiently clear, but he is enabled to refer in support of the constraction which he has placed on it, to the following opinion given, with reference to the proceedings of a garrison court martial, in December, 1828, by Sir J. Beckett, when judge advocate general: “The circumstance of ensign Brown, (whose property the prisoner is accused with an attempt to steal,) sitting as a member of the court, appears to me to be more open to observation; indeed I think it so objectionable that I acquiesce in the propriety of the punishment awarded by the court, being remitted in this case, and as the prisoner cannot legally be brought to trial a second time upon the same charge, I would suggest that the prisoner be ordered to his duty forthwith.”

(1) 72 Art. War.-It appears by an abridgment of the english military discipline, printed by especial command for the use of his majesty's forces, A.D. 1686, that, at that period, confirmation by the superior authority was not customary. The criminal being brought in, the sentence was pronounced to him in the name of the council of war or court martial, (2 Grose Mil: Antiq: p. 73.) This custom now obtains on naval courts martial; and, for some reasons, it is to be regretted that it should have been superseded on military; though it perfectly accords with that high deference, which is due to the commission of his majesty, that no officer bearing it should be deprived or cashiered, but with his majesty's concurrence and assent. It is probable that, from this cause, the confirmation of the superior authority became general on all military courts martial; and it may also account for the distinction, in this respect, between courts martial in the naval and military services.

The sentence of a court martial which contemplates the deprivation of his majesty's commission, either by death or cashiering, cannot for the reasons above assigned, be carried into execution till approved by his majesty; and, by an easy gradation, this custom might in time, without due reflection as to the cause, have been extended to the sentence on soldiers, and the confirmation by the authority ordering the court.

All officers in the army bear a commission direct from his majesty: officers in the navy derive theirs mediately from the crown, but directly from the lord bigh admiral or lords commissioners of the admiralty. No commission, proceeding directly from the crown, can, without an infringement of the prerogative, be cancelled, but with the express and particular concurrence and assent of his majesty; this principle is manifest in the ordinary warrants for assem

Warrants operative

, to executo, mitigate or remit any

commissioned officers cashiered or sentenced to death, when the

to her majesty,

The warrant empowering officers in command convey a power abroad to convene general courts martial, in

cludes a power to cause sentences, passed by such sentence, except courts, to be put into execution, or to mitigate

or remit the same, except in the case of com

missioned officers adjudged to suffer death or to proceedings are be cashiered, in which case, as in the instances

wherein the officer, to whom the warrant may be directed, shall think proper to suspend the execution of any sentence, the proceedings of the court are transmitted to the judge advocate general, who lays them before her majesty, and afterwards sends them to the commander in chief, or, in his absence, to the adjutant general,

for her majesty's decision thereon. In India and where there alone, the commander in chief is authorized governor, capital to carry into execution capital punishment as

affecting commissioned officers, and cashiering.? An exception to the power given to officers in

except also as to India;

punishment cannot be executed till approved by

him ;

bling general courts martial, which except, from the general power of confirmation granted by them, the case of commissioned officers adjudged to suffer death or to be cashiered. Now the deprivation of a naval officer of his commission, in the usual mode, does not, by cancelling an instrument under the royal signature, affect the prerogative of the crown, which would be the effect if an officer in the army were similarly cashiered. It is probably from want of duly considering the deference which ought to be inseparable from a commission under the royal sign manual, that commanders in chief in India have recently been empowered to confirm the sentence of courts martial cashiering king's officers. There is no reason why the officers in the company's service should not be cashiered on the confirmation of the sentence hy the officer commanding in chief, because their commissions do not emanate directly from the crown; and the same reasoning would apply to the king's commissions, as they are termed, which the company's officers hold from authorities duly deputed by his majesty. The cancelling these commissions would not, ipso facto, cancel the royal signature. It would, as in the nary, be simply a revision, by the superior authority, of an act authorized to be performed without reference to his majesty; it would merely be the recalling or cancelling a commission by the same authority which had been empowered with discretion to grant it.

(1) See the warrant, No. 1, Appendix. See also the circular, 22nd August, 1806, War Office, Reg. p. 561.

(2) G. O. Nos. 370, 371, 372.

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