by a general court martial. For a prifoner, by pleading before an improper judicature, cannot effablith, in the court, a jurifdiction which the legislature hath witholden, nor give any fanction to their proceedings; but he may at any time claim, and affert his right of being brought before that court, which has the full and proper cognizance of his crime, and fo much the rather, as the persons who labour under thefe circumstances are in general illiterate and unadfed of the most regular time for taking their exception, nor will the prohibition of a second trial affect this cafe. For the proceedings of the regimental court martial, as not being founded in law, are totally void, and thofe of the general court martial become original, without any confideration or retrospect had to the fentence of The regimental court martial. But this may rather be deemed a plea to the jurifdiction of the court, (which fhall be more fully explained hereafter) than an appeal.

'As the court of King's Bench, which is the highest court of common law, takes cognizance of all criminal caufes, from high treafon down to the most trivial mifdemeanour or breach of the peace, and indictments from all inferior eourts may be removed into it, by writ of certiorari, fo may general courts martial judge of all military crimes, from the higheft to the loweft; and it may be often expedient to bring caufes of an inferior nature, and which are cognizable by a regimental or garrifon court martial, before a fuperior court; but each cafe must depend upon its own peculiar circumitances.

In the latter part of that claufe of the mutiny act, which provides against officers and foldiers being liable to be tried a fecond time by the fame or any other court martial, for the fame offence, unlefs in the cafe of an appeal from a regimental to a general court martial, it is enacted, that no fentence given by any court martial, and figned by the prefident thereof, be liable to be revifed more than once; and even the privilege of one revifion has been condemned, upon the principle that no man's life fhould be twice brought in danger for the fame fuppofed crime. But this may be rather deemed an appeal to the fame court than a new trial, fince the fame perfons only are to re-confider what they have already done, without any new judges being added to them, or new witneffes produced. Juries are often fent back to re-confider their verdicts. The very beft difpofed men may occafionally err, and be happy,' upon reflection and re-confideration, to correct that error. With fuch men no rifk can be run upon a revifion; they cannot be led to fwerve from the folemn oath they have taken, to judge without partiality, favour, or affection: bad men are as liable to be led away at first as at last. Another reafon may be offered in vindication of this fort of appeal or revital; points of law may arife in the courfe of the proceedings of a court martial, which the judge-advocate, much lefs the members, may not be adequate judges of, and they may confequently fall into legal errors, which, when pointed out to them, they will joyfully correct. And here I fhall take an opportunity of remarking on the diftinction made in the oath taken by the prefident and members of a general court martial, and that of the judge-advocate. The former are fworn, not only to conceal

the

the vote or opinion of each particular member, but also the fentence of the court, until it fhall be approved by his Majefty, or by fome perfon duly authorized by him; the latter is only fworn not to divulge the opinion of any particular member of the court martial. Should every member be at liberty to reveal the fentence previous to its being approved of, or ordered to be revifed, or a judge-advocate take advantage of the omillion in his oath, which diftinguishes it from the other, it might, in the cafe of a revifal, in particular, occafion, inferences to be drawn, and jealoufies raifed of undue influence, as in the inftance of a sentence and punishment, which were known publicly to have been the original ones, being altered on a revifal, though thefe alterations may in fact arife merely from a legal error being pointed out to the court. But, as was juft now obferved, doubts may arife with refpect to points of law, which it may be neceflary to fearch into, and regulate, by taking the advice of counsel learned in the law, before the approving officer puts his fiat to a fentence. Whom then can he employ with fo much propriety on this occafion, as the judge-advocate, whofe oath has given him a latitude (which may and fould occafionally be made ufe of) .of divulging the opinion of the court; even before it is approved of?'

To his treatife on courts-martial our author has fubjoined an Effay on Military Punishments and: Rewards. Here his experience of the military life, enables him to bring forward many judicious and ufeful obfervations. The following remarks on the fubject of punishments are acute and fenfible.

As punishments become more mild, clemency and pardon are lefs neceflary. That punishments are effential to the good of fociety in general, and particularly to the keeping up good order and difcipline in an army, is too apparent to call for argument; but it muft, I should think, appear, that the work of eradicating crimes is not to be effected by making punifhments familiar, but formidable; to be both is not poffible, for familiarity with punishment, as with other things, will breed contempt.

In affigning punifhments, not only the nature of the crime or offence, but the motive which induced the perfon to commit, and the circumstances attending the committing of it, are to be confidered. For it may be committed, either out of premeditated defign, in the heat of pathon, or through imprudence, which may each be confidered in its proper degree: thus, in a tranfport of paffion, it is more culpable than when proceeding from imprudence; and through premeditated defign, more heinous than in a transport of paffion. The violence of paffion or temptation may fometimes alleviate a crime; as theft, in care of hunger, is far more worthy of compaffion than when committed through avarice, or to fupply one in luxurious exceffes. To kill a man upon a fudden and violent refentment, is lefs penal, than upon cool deliberate malice. The age, education, and character of the offender, the repetition (or otherwife) of the offence, the time, the place, the company, wherein it was committed; all thefe, and a thousand other incidents, may

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aggravate

aggravate or extenuate the crime. Sir Michael Forster, in the pre face to his Reports, obferves, that no rank or elevation in life, no uprightness of heart, no prudence or circumfpection of conduct, fhould tempt a man to conclude, that he may not at fome time be deeply interested in these researches.

The infirmities of the best amongst us, the vices and ungovernable paffions of others, the inftability of all human affairs, and the numberlefs unforfeen events which the compafs of a day may bring forth, will teach us, (upon a moments reflection) that to know with pecifion what the laws have forbidden, and the deplorable confequences to which a wilful disobedience may expofe us, is a matter of univerfal concern.

Whatever fpccies of punishment is pointed out as infamous, will have the effect of infamy. Imprifonment is an ufual preparatory ftep to trial: and is alfo adopted as a punifhment for certain crimes, on conviction thereof; but imprifonment, inflicted as a punifliment, is not according to the principles of wife legiflation. It links ufeful fubjects into burthens on the community, and has always had a bad effect on their morals; nor can it communicate the benefit of example, being in its nature excluded from the public eye.

It is an effential point that there fhould be a certain proportion in punishments, because it is effential that a great crime fhould be avoided rather than a fmaller, and that which is moft pernicious to fociety rather than that which is lefs.

Solemnity in punishment is requifite, for the fake of example, but let not death be drawn into lingering fufferance: detain not the excruciated foul upon the verge of eternity. There fhould be no fuch thing as vindictive justice. Public utility is the measure of human punishments, and that utility is proportionate to the efficacy of the example. But whenever the horror of the crime is loft in fympathy with the fuperfluous fufferings of the criminal, the example lofes its efficacy, and the law its reverence. It is not the intenfenefs of the pain that has the greatest effect on the mind, but its continuance; for our fenfibility is more eafily and more powerfully affected by weak, but repeated impreffions, than by a violent, but momentary impulfe. The power of habit is univerfal over every fenfible being. The death of a criminal is a terrible, but momentary fpectacle, and therefore a lefs efficacious method of deterring others, than the continued example of a man, deprived of his liberty, condemned as a beaft of burden, to repair by his labour the injury he has done to fociety. The execution of a criminal is, to the multitude, a fpectacle which in fome creates compation, mixed with indignation.

The feverity of a punishment fhould be juft fufficient to excite compaffion in the fpectators, as it is intended more for them than for the criminal. A punishment, to be juft, fhould have only that degree of feverity which is fufficient to deter others.

The depravity of mankind often obliges us to fwerve from the Mofaical law, an eye for an eye, a tooth for a tooth, &c. but let not a mistaken zeal for the military fervice lead us too often to take away what we cannot give. 5

Corporal

Corporal punishments, which are the next capital ones to death, fhould be fparingly made ufe of. Punish not a man in the fame manner, for perhaps a few hours abfence from his quarters, as if he had been a deferter from his country, and a violator of his fa-` cred promife; for it is not the number of lashes, but the shame that must attend it, that conftitutes the punishment. To fix a lafting, vifible ftigma upon an offender, is contrary both to humanity and found policy. The wretch finding himself fubjected to continual infult, becomes habituated to his difgrace, and lofes all fenfe of fhame.'

As a compofition, this performance is faulty; and of this the author appears himself to be convinced. But if his diction wants elevation, and be deficient in elegance, it must be allowed, that he has been able to be perfpicuous, and that his words convey his meaning with precifion.

For the English Review.

ART. XVII. Academical News from the Imperial Academy of Sciences at St. Petersburg, communicated by J. H. de Magellan, Member of that Academy,

A YEAR feldom paffes but we fee that one or other academy of Europe is under the neceffity of dividing the fum, or of poftponing the adjudication of fuch prizes as are offered for new difcoveries, or purfuits tending to improve fcience; because the candidates did not comply with the terms, or attain the defired end, to the fatisfaction of the learned body of judges. They are fometimes even reduced to the difagreeable alternative of crowning fome differtations and folutions to the propofed problems, which have a very moderate fhare of merit, for fear of difcouraging individuals from attempting to folve thofe queftions, and purfue thofe inquiries which may tend to elucidate useful knowledge, and require exertions of labour and industry.

The cafe was far different in which the Imperial Academy of Sciences at St. Petersburg, found itself, relatively to the complete folution given by the ingenious and indefatigable Mr. John Hedwig, Doctor of Phyfic, and Member of the Philofophical Societies of Berlin and Leipfic, to the botanical queftion propofed by the faid Imperial Academy, concerning the generation and fructification of the plants called by the name of Cryptogamia among botanists, fuch as the ferns, mofles, algas, and mushrooms. The author treats this fubject with fuch perfpicuity, and in fo masterly a manner, that there cannot remain the leaft doubt about the fexual parts of the faid plants, their fructification, and the propagation of many of them by feeds. His obfervations are truly new and

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original

original, and highly ingenious. The title of this excellent differtaion, which is in Latin, runs thus.

Theoria generationis & fructificationis Plantarum Cryptogamicarum mere propriis obfervationibus & experimentis fuperftru&ta Differtatio quæ præmio ab Academia Im-. periali Petropolitana pro anno 1783 propofito ornata eft.: Auctore Johane Hedwig, M. D. Societatis Phyfiophilorum Berolinenfis et Lipfienfis Socio. Ingeniorum commenta delet dies. Petropolitypis Academiæ Imperialis Scientiarum M,DCC,LXXXIV.

This differtation is juftly entitled to rank with that of the famous Van Linné, on the fexual parts of the plants, which the fame Imperial Academy crowned twenty years ago with the prize it had propofe to the learned world at that time. It was in confequence of the great merit of this new differtation that the Body of the Imperial Academy be-. ftowed on Mr. Hedwig, the propofed prize of one hundred ducats of Holland, together with a prefent of fifty copies of his work. This has been printed at the expence of the Academy, and confifts of one hundred and fixty-four pages in 4to, with thirty-feven copper-plates, which the Prefident of the Imperial Academy, Her Highnefs the Princefs de Dafchkaw, the glory of her fex, ordered to be engraved at Leipfic, under the infpection of the author, by the best artists; fo that neither care nor expence were spared to make this edition one of the most perfect, and moft compleat hitherto published in Europe. This work is fold at Petersburg, by the bookfeller of the Imperial Academy, at the price of four roubles and forty copèques, which anfwers to about eighteen fhillings of our English money.

ART. 18. Loofe thonghts on the very important fituation of Ireland, containing a diftinction between the Catholics and Proteftants and ftrictures on the conduct of Minifters. Addreffed to the Right Hon. Lord Thurlow. By Jofeph Williams, Efq. Southern. Octavo 1785, 1s. 6d.

MR

:

R. Williams fhews that the Proteftants of Ireland (who do not> form above one fifth part of the inhabitants of that kingdom), having deprived the natives of that kingdom of their birth right, now fet up an authority of their own, looking forward to independence, after having been foftered and nurfed by England with tender care. There is a wide difference, he fays, between the claims of independence which the Americans contended for, and that obligatory