Proceedings transmitted to judge advocate general;

to carry into execution, suspend, mitigate, or remit the sentence of a court martial; it does not authorize them to alter the species of such punishment. This rule applies to officers confirming the sentence of inferior courts martial : they may remit the whole or any part of a sentence, with the exceptions previously noticed; but cannot, even with the consent of the party sentenced, commute or change the punishment.1

On general courts martial, the judge advocate, or person officiating as such, and on district or garrison courts martial the president, is required,2 with as much expedition as the opportunity of time and distance of place will admit, to transmit the original proceedings to the judge advocate general in London, there to be carefully kept in his office; and any party tried by a general court martial, is entitled to a copy thereof, on paying reasonably for the same, after the lapse of certain periods, varying from three to twelve months, according as the trial may have taken place at home or distant stations. The original proceedings of all courts martial held for the trial date of sentence. of marines, are sent to the secretary of the admiralty, if of a general court martial, by the

party tried

entitled to copy

after certain periods.

Marines tried entitled to a

copy in three

months from

3

to authorize general officers abroad to suspend for his royal consideration, to mitigate, or remit, or carry into execution, the sentence of death by courts martial; except, as before noticed, with respect to officers, and on stations where there may be a person distinct from the commander of the forces specially delegated to represent his royal authority. Such then, it is imagined, is the law at the present time; no other conclusion can be attained, after comparing together each part of the article of war, after referring to the warrants for assembling courts martial, the instructions to governors, the customs of the service, and the dictates of common sense, as applying to the case itself.-2nd Edition, 1835.

(1) Gen. Reg. p. 114.

(2) Mut. Act., sec. 17. Officers commanding regiments are by the circular letter, dated Horse Guards, 25th June, 1838, desired to take effectual measures to prevent unnecessary delay in the transmission of the proceedings of courts martial, by the officiating judge advocates or presidents of courts martial.-Add. Gen. Reg. p. 55.

(3) Mar. Mut. Act, Sec. 27.

judge advocate; and of other courts martial, by the president and the party tried by a general court martial is entitled to a copy at the expiration of three calendar months from the date of sentence. The proceedings of the trial of officers and soldiers of the East India Company service by general court martial are transmitted to the office of the judge advocate general of the army in which the court is held by the officiating judge advocate: and the party is in similar manner entitled to a copy at the end of three or six months.' It is by each act provided that the demand for such copies must be made within the space of three years from the date of confirmation of the proceedings.

When a general or district court martial, before which a soldier may be brought, shall find that the maiming or mutilating of his person was the effect of accident and not of design, the proceedings are to be sent, through the usual channel (that is, the judge advocate general), to the commissioners of Chelsea hospital; in order that they may, when the case comes before them, have the best means of arriving at a just decision, either to grant or withhold the pension.3

(1) 3 & 4 Vict., c. 37, s. 26.

(2) Very recently the original proceedings of a court martial, after having been confirmed by the general officer, were lost in their transit to the officer commanding the prisoner's regiment: the present (1842) judge advocate general, upon being officially applied to by the adjutant general, observed, that the best evidence of the proceedings the finding sentence and confirmation having been lost, it was necessary to resort to secondary evidence, which, in this instance, was furnished by a memorandum transmitted by the general officer and by the testimony of the president of the court; he concluded his letter as follows:

"Under these circumstances this is amply sufficient, and, I think, the sentence should be promulgated in conformity with the memorandum, and should be carried into execution, as it would have been if the original proceedings were forthcoming.”

(3) 41 Art. War.

Sentence as mutilating

to maiming or

person.

The King alone competent to review the sentence of

Courts Martial.

It may be remarked, that the privy council is competent to revise the sentence of courts martial; it did so in the celebrated case of lieutenant Frye, of the navy in 1743; that there is no court in which any appeal against the sentence of a general court martial can be brought, nor in which the sentence can be reviewed: it belongs to the king alone, or to such officers as he may depute, to abrogate or confirm the senSuperior courts tence: but the power of the superior courts to

have power to

entertain prosecutions against

members.

proceedings

entertain prosecutions against the president and members, or any individual member, of a court martial, for an undue exercise of authority, any excess of jurisdiction, or any illegality of proceeding, has been occasionally evinced by actual trials. The seventy-sixth clause of the mutiny act recognises the amenability of members of To what courts courts martial to the common law courts; but restricts such proceedings to the courts of record at Westminster or in Dublin, or to the court of session in Scotland; and secures treble cost to the defendant, in case he obtain a verdict, or the plaintiff become nonsuited, or suffer any discontinuance of the action. It may, at first sight, appear that six months is the time limited for bringing an action against a member of a court

against members are restricted,

Treble costs to defendant.

Time not limited.

(1) See Musprat, case of.-Index, and therein the opinion of lord Erskine, given in the letter relative to Musprat. See also the decision of lord Loughborough, in the case of serjeant Grant. Blac. Rep. 69. In May, 1834, Mr. John Waller Poe, late a lieutenant in the 55th regiment, who had been dismissed his majesty's service by sentence of a court martial, in the October preceding, made an application in the court of chancery for the court to stay proceedings and revoke the sentence. The lord chancellor refused the writ and questioned the power of the court; observing, that the king had the exclusive, uncontrolled prerogative of dismissing any soldier or officer whom he pleased, with or without a court martial; that sir Robert Wilson and colonel Jones had both been dismissed without any court martial being held, and it had been well observed by judge Blackstone, that the safety and peace of society required that this power should be vested in the monarch.

martial; but a more attentive consideration of the seventy-sixth clause, and a comparison of it with former acts,' will show that the limitation applies only to actions which may be brought by virtue of the act for enforcing the penalties declared by it.

By the 11 & 12 Geo. 3, c. 12, it is provided, that governors and commanders in chief may be prosecuted and punished by the court of King's Bench, or by a special commission in England, for acts of oppression or crimes committed in colonies and plantations beyond the seas. And by the 42 Geo. 3, c. 85, it is enacted, that if any person whatever, employed in the service of his majesty, in any civil or military capacity whatever, shall commit any crime or offence in the execution of his office, he may be tried for it in England upon an indictment, or upon an information exhibited by the attorney general; and such misdemeanour may be charged to have been committed in the county of Middlesex; and, besides the punishment by the common law for such misdemeanour, the court of King's Bench, at their discretion, may adjudge the party convicted to be incapable of serving his majesty, or of holding any public employment. The statute then directs how evidence may be obtained abroad, either to support the prosecution or the defence of the party prosecuted.

EXECUTION OF SENTENCE.

sentence,

With respect to the mode of carrying into ex- Execution of ecution the sentence, some remarks have already been offered when treating of the award of courts

(1) Old. Mut. Act, Sec. 155, 156, 157, 158.

in case of capital punishment, by shooting,

martial; in addition it may be observed, that as one great end of punishment is the prevention of crime by example, according to that well known phrase, ut ad omnes metus, ad paucos pœna perveniat, capital and corporal punishments are rendered, in this respect, as extensively useful as possible, by the publicity which attends the execution: they are carried into effect in the presence of the division, brigade, garrison, or regiment, or of the guards and pickets of the several regiments in garrison, as the nature of the court martial and of the charge, and as the convenience of the service may dictate.

In cases of capital punishment by shooting, great ceremony is ordinarily observed: an execution party, consisting of ten or twelve men, commanded by a serjeant, is usually ordered from the prisoner's regiment, and placed under the orders of the provost marshal.1 The troops to witness the execution being formed on three sides of a square, the prisoner, escorted by a detachment, is brought on the ground. The provost marshal heads the procession, followed by the band of the prisoner's regiment, drums muffled, playing the dead march in Saul; the execution party comes next; then four men, bearing on their shoulders the prisoner's coffin, which he, usually attended by a chaplain, follows; the escort brings up the rear. The procession passes down the front of the three faces of the square, facing inwards; brigades or regiments

(1) The warrant to general officers, which enables them to carry the sentence into execution, also authorizes them "to appoint a provost marshal, to use and exercise that office as it is usually practised in the law martial."