command on foreign stations, to execute the sentence of courts martial, arises also from the instructions regulating the respective duties of governors and commanders of the forces, in those colonies where there is a commander of the forces distinct from the governor, or officers administrating the government; it is directed, under such circumstances, that where sentence of death may be pronounced, execution of the sentence shall be suspended until the sentence shall have been approved, on her majesty's behalf, by the civil governor or other person or persons administering the civil government. In all other cases, it is expressly declared, that the sentence of courts martial shall be carried into execution without the previous sanction of the civil governor or person administering the government. By the hundred and second article, as it now stands, in every case where a sentence of death or transportation shall be awarded under its provisions within the territories of the East India Company, the concurrence of the governor general or governor in council of the presidency where the offender shall have been tried is requisite, before such sentence, whether original, revised, or commuted, can be carried into execution.

by

as

A partial exception to the power of officers to remit the penalty arising from convictions courts martial, arises in cases of desertion, the additional pay and pension on discharge, (necessarily forfeited on conviction of desertion, as also the pay of a convicted soldier for the

(1) Instructions to governors, &c., circulated to officers in command, December 30, 1824. Gen. Reg. p. 458.

Forfeitures, on desertion, and

conviction of

absence without leave, cannot

be remitted:

(2) Since 1841.

on the applica

tion of the commanding officer.

days on which he may have been absent without leave,) cannot be restored but by the approbation of her majesty obtained, on the special certificate of the commander in chief, and signimay be restored fied through the secretary at war.' Applications for the restoration of advantages as to additional pay and pension on discharge are to be made twice a year only2; and in a prescribed form, accompanied by a correct transcript of the record of service of the individuals", and are to be transmitted with the confidential inspection reports of the regiments to which the men respectively belong.

Warants operative at home and in

General officers, at home and in the channel islands, have, by the warrant directed to them, power to execute no power to execute, mitigate, or remit any sen

the chaunel

islands have no

or remit,

proceedings

are laid before her Majesty.

Approval,

tence; the proceedings, as in cases occurring abroad, where the decision of her majesty is required, are transmitted to the judge advocate general, in order that he may lay the same before her majesty for her royal consideration, and afterwards send them to the commander in chief, or, in his absence, to the adjutant general, for her majesty's decision thereon.*

The approval or confirmation of an officer vested with authority, was generally affixed with his signature to the proceedings; and a

(1) 82 Art. War.

(2) Circular, 31st January, 1825. By a circular from the adjutant general, dated 15th April, 1842, the attention of commanding officers is directed to the modified circumstances under which, at the suggestion of the secretary at war, the general commanding in chief was authorized to recommend the restoration of their future service, namely, one year's good conduct, in cases of simple desertion, and at least two years' in all cases where, in the judgment of the commanding officer, the court would have passed a sentence of forfeiture of future service had not the mutiny act (previous to 1841) imposed that penalty upon the mere conviction of desertion. (3) Circular Memorandum, dated Horse Guards, the 30th of

August, 1837.

(4) War Office Reg. p. 561, and Warrant.

public notice of it usually appeared in the orders of the day, in which the infliction or remission of the punishment was directed.1 By the recent edition of the regulations, general and other officers who have authority to approve and confirm the sentences of courts martial, are required to be very particular in stating, at the end of the proceedings, their determination in each case, and the manner in which the case is disposed of.

punishment.

In cases of capital punishment, the approval in case of capital appears, as in ordinary cases, in orders; or a special warrant, enjoining the execution of the prisoner, is addressed to the officer commanding the division, brigade, or garrison, as it may happen; in cases of murder, hanging in chains and dissection having been abolished, can no longer be applied on carrying into execution the sentence of courts martial.

confirmed, but

When courts martial have, on revision, ad- Sentence, hered to the judgment first pronounced, the not approved, opinion and sentence have sometimes been confirmed, but not approved, the legal effect of which differs in no degree from an approval, except perhaps on trials under the hundred and second article of war, it being declared by this article that sentence of death shall not be carried into effect, until approved and confirmed. The disapprove 1, opinion and sentence of a court martial, on other occasions, have been disapproved, and not confirmed; the effect of which is to nullify the

(1) Lieutenant colonel Robertson, of the 8th regiment, was charged in the third count of the seventh charge, for "permitting sentences of regimental courts martial to be carried into execution, without affixing his approval to the proceedings of the same;" and was found guilty thereof, without any commentary by the court, or by the prince regent, who confirmed the proceedings. G. O. No. 450.

(2) Page 248.

Her Majesty

may substitute transportation for death;

similar power is

Commander of

the forces at the several

Presidencies in

His Majesty previously

poses-ed such

power; but delegated the

as to death or

cashie ing of officers;

sentence: but, as before stated, not to the extent of exposing the prisoner to a second trial.

Her majesty is empowered, by the mutiny act, to substitute transportation for capital punishment. In the East Indies, the comcommitted to the mander in chief at the presidency to which the offender may belong, is also empowered to order transportation for life, or for a term of years, instead of death, awarded by a court martial. This provision was first made in the seventh clause of the mutiny act of 1831; the corresponding alteration was introduced into the hundred and second article of war in 1832. His majesty previously possessed such power, but, inflition of the by his warrants to general officers in command sentence, except abroad, has always authorized the infliction of the sentence of courts martial in their discretion, except as to officers sentenced to cashiering or death, and except also where there may be a civil governor, in which case the instructions for governors in colonies and settlements direct that the execution of the sentence of death by courts martial shall be suspended until approved, in his majesty's behalf, by such civil governor. Now, the concluding paragraph of the hundred and second article, as altered, if taken literally, is opposed to the previous provision of the same article, and would have the effect of prohibiting the infliction of capital punishment on a soldier, awarded by any court martial held under it, unless approved by his majesty; very great delay and consequent inconvenience might therefore result, since such courts are only held "beyond the seas." The previous provision referred to declares that "any officer or soldier,"

(1) Instructions for governors, &c., 24th November, 1842.

66

102nd Art. War.

if found guilty, shall suffer death, or such other punishment as by the sentence of any such general court martial shall be awarded: such sentence, nevertheless, not to be carried into effect until such governor or officer commanding in chief as aforesaid" (that is, who shall appoint the court martial) "shall have approved and confirmed the same." The last paragraph runs: "We likewise reserve to our- New clause, selves the power, in all cases where a sentence of death shall have been pronounced on any soldier by any general court martial held under this article of war, to order the offender, in place of suffering death, to be transported as a felon for life, or for a certain term of years, as to us, on consideration of all the circumstances of the case, shall seem to be most just and fitting."

It is particularly to be observed, that the only power given to officers, by the king's warrant, is (1) The author has failed in an attempt to ascertain the real intention of the alteration in this article; he is therefore left, as the army generally are, so far as he is aware, to form his own conclusions upon it. It must be observed that the provisions noticed in this article are not only seemingly at variance with each other, but they are both opposed to the warrants for convening general courts martial. The first provision referred to in the hundred and second article, declares that an officer shall suffer death if such sentence be approved by the officer appointing the court martial: on the other hand, the warrants for assembling courts martial specially except this case. Again, the warrants for assembling courts martial authorize the carrying into effect the sentence of death against a soldier, but the latter part of the article reserves to his majesty in all cases arising under it, " to order the offender, in place of suffering death, to be transported, as on consideration of all the circumstances of the case shall seem to be most just and fftting." The warrants for assembling courts martial, and the former provision of the article, differ as to the infliction of the sentence of death against an officer, but they alike permit the execution of such sentence against a soldier, on the approval of the officer convening the court martial; and, in this respect, are equally opposed to the instructions to governors of colonies and settlements, before referred to. How then are these difficulties to be reconciled? The author believes that the reservation made by the recent addition to the hundred and second article does not tend to any alteration in the law. His majesty previously had the power of ordering the substitution of transportation for death, but hitherto he has been pleased by warrant *Late Mut. Act, Sec. 7. Former Mut. Act, Sec. 5.

Commutation by not lawful.

superior officers