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by a general court martia!. For a prisoner, by pleading before in improper judicature, cannot eitablith, in the court, a jurifdition which the legidature hath witholden, nor gire 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 these circumitances are in general illiterate and unanvisid of the most regular time for taking their exception, nor will the prohibition of a second trial affeét this cafe. For the proceedings of the regimental court martial, as not being founded in law, are totally void, and those of the general court martial become ori-ginal, without any confideration or retrospect had to the festtence of i he 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 caules, from 'high treason down to the most trivial misdemeanour or breach of the peace, and indictments from all inferior eourts may be removed into it, by writ of certiorari, so may general courts martial judge of all military crimes, from the highest to the loweft; and it may be often expedient to bring causes of an inferior nature, and which are cognizable by a regimental or garrison court martial, before a superior court; but each case must depend upon its own peculiar circumItances.
“In the latter part of that clause of the mutiny act, which provides against officers and soldiers being liable to be tried a fecond 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 inartial, it is enacted, that no fentence given by any court martiat, and figned by the president thereof, be liable to be revised more ihan once ; and even the privilege of one revision has been condemned, upon the principle that no man's life should be twice brought in danger for the same lupposed crime. But this may be rather deemed an appeal to the same court than a new trial, fince the same persons only are to re-consider what they have already done, without any new judges being added to them, or new witnesses produced. Juries are often sent back to re-consider their verdicts. The very best disposed inen may occasionally err, and be happy; upon reilection and re-confideration, to correct that error. With such men no risk can be run upon a revision; they cannot be le ? to swerve from the folemn oath they have taken, to judge without partiality, favour, or afeclion: bad men are as liable to be led away at first as at last. "Another reason may be offered in vindication of this fort of appeal or revital; points of law may arise in the course of the proceedings of a court martial, which the judge-advocate, much less the members, may not be adequate judges of, and they may consequently fall into legal errors, which, when pointed out to them, they will joyfully correct. And here I shall take an opportunity of remarking on the distinction made in the oath taken by the president and members of a general court martial, and that of the judgc-advocate. The former are tworn, not only to conceal
the vote or opinion of each particular member, but also the sentence of the court, until it shall be approved by his Majesty, or by some person duly authorized by him; the latter is only sworn not to divulge the opinion of any particular member of the court martial. Should every member be at liberty to reveal the sentence previous to its being approved of, or ordered to be retifed, or a judge-advocate · take advantage of the omillion in his oath, which distinguishes it from the other, it might, in the case of a revilal, in particular, occafion, inferences to be drawn, and jealoufies raised of undue infuence, as in the instance of a sentence and punishment, which were known publicly to have been the original ones, being altered on 2 revisal, though these alterations may in fact arile merely from a - legal error being pointed out to the court. But, as was just now observed, doubts may arise with respect to points of law, which it may be neceílary to fearch into, and regulate, by taking the advice of counsel learned in the law, before the approving
officer puts his fiat tu a sentence. Whom then can he einploy with so much pro· priety on this occafiou, as the judge-advocate, whose oath has given
him a latitude (which may and dould occationally be inade use of) .of divulging the opinion of the court; even before it is approved
of?' :: To his treatise on courts-martial our author has subjoined an Effay on Military Punishments and Rewards. Hére his experience of the military life, enables him to bring forward many judicious and usefui observations. The following remarks on the subject of punishments are acute and fenfible.
• As punishments become more mild, clemency and pardon are less neceílary.
That punishments are essential to the good of fociety in general, and particularly to the keeping up good order and dito cipline in an army, is toò apparent to call for argument; but it müst
; I thould think, appear, that the work of eradicating crimes is not to be effected by making panithments familiar, but formidable ; 'to be both is not pollible, for familiarity with punishment, as with other things, will breed contempr.
· In aligning punishments, not only the nature of the crime or offence, but the motive which induced the person to commit, and the circumttances attending the coumitting of it, are to be considered. For it may be committed, either out of premedita:et defign, in the heat of pathon, or through'imprutlence, which may each be considered in its proper degree: this, in a transport of paision, it is more culpable than when proceeding from imprudence; and through premeditated defign, more heinous than in a transport of passion. The violence of paffion or temptation may sometimes alleviate a crine; as theft, in caie of hunger, is far, more worthy of compassion than when committed through avarice, or to supply one in luxurious excelles. To kill a man upon a sudden and violent refentment, is less penal, than upon cool deliberate malice.' The age, education, and character of the offender, the repetition (or otherwise) of the offence, the time, the place, the company, wherein it was com.nitted; all these, and a thousand orker incidents, may K 2
aggravate or extenuate the crime. Sir Michael Forster, in the pre face to his Reports, observes, that no rank or elevation in life, no uprightness of heart, no prudence or circumspection of conduct, hould tempt a man to conclude, that he may not at some time be deeply interested in these researches.
“The infirmities of the best amongst us, the rices and ungovernable pallions of others, the instability of all human affairs, and the numberless unforseen events which the compass of a day may bring forth, will teach us, (upon a moments reflection) that to know with precision what the laws have forbidden, and the deplorable consequences to which a wilful disobedience may expose us, is a matter of universal concern.
• Whatever species of punishment is pointed out as infamous, will have the effect of infamy Imprisonment is an usual preparatory step to trial : and is also adopted as a punifhment for certain crimes, on conviction thereof; but imprisonment, inflicted as a puniflıment, is not according to the principles of wife legislation. It links useful subjects 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 essential point that there should be a certain proportion in punishments, because it is essential that a great crime fhould be avoided rather than a Imaller, and that which is most pernicious to society rather than that which is lefs.
Solemnity in punigment is requisite, for the sake 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 such 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 foit in fyanpathy with the superfluous sufferings of the criminal, the example loses its efficacy, and the law its reverence, It is not the intenseness of the pain that has the greatest effect on the mind, but its continuance; for our sensibility is more easily and more powerfully affected by weak, but repeated impressions, than by a violent, but momentary impulse. The power of habit is universal over every sensible being. The death of a criminal is a terrible, but momentary spectacle, and therefore a less efficacious method of deterring others, than the continued example of a man, deprired of his liberty, condemned as a beast of burden, to repair by his labour the injury he has done to fociety. The execution of a criminal is, to the multitude, a spectacle which in some creates compallion, mixed with indignation.
"The severity of a punishment should be just fufficient to excite compassion in the spectators, as it is intended more for them than for the criminal. A punishment, to be just, should have only that degree of severity which is sufficient to deter others.
The depravity of mankind often obliges us to fiverve from the Mofaical law, an eye for an
i cye, a tooth for a tooth, &c. but let not a mistaken zeal for the military service lead us too often to take away what we cannot give.
• Corporal punishments, which are the next capital ones to death, should be iparingly made use of." Punith not' a man in the fame manner, for perhaps a few hours ablence from his " quarters, as if he had been a deserter from his country, and a violator of his fa.' cred promise ; for it is not the number of lashes, - but the shame that must attend it, that constitutes the punishment. To fix a lasting, vifible stigına upon an offender, is contrary both to humanity and found policy. The wretch finding himself subjected to continual infult, becomes habituated to his disgrace, and loses all sense of Mame.'
As a composition, 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 perspicuous, and that his words convey his meaning with precision.
For the English Review.
Member of that Academy,
academy of Europe is under the necessity of dividing the fum, or of postponing the adjudication of such prizes as are offered for new discoveries, or pursuits tending to improve science : because the candidates did not comply with the terms, or attain the desired end, to the satisfaction of the learned body of judges. They are fometimes even reduced to the disagreeable alternative of crowning fome dissertations and solutions to the proposed problems, which have a very moderate share of merit, for fear of discouraging individuals from attempting to solve those questions, and pursue those inquiries which may tend to elucidate useful knowledge, and require exertions of labour and industry,
The case was far different in which the Imperial Academy of Sciences at St. Petersburg, found itself, relatively to the complete solution given by the ingenious and indefatigable Mr. John Hedwig, Doctor of Phyfic, and Member of the Philosophical Societies of Berlin and Leipfic, to the botanical question proposed by the faid Imperial Academy, concerning the generation and fructification of the plants called by the name of Cryptogamia among botanists, such as the ferns, molles, algas, and mushrooms. The author treats this fubject with such perspicuity, and in fo masterly a manner, that there cannot remain the least doubt about the sexual parts of the said plants, their fructification, and the propagation of many of them by seeds. His observations are truly new and
original, and highly ingenious. The title of this excellent differtaion, which is in Latin, runs thus,
Theoria generationis & fructificationis Plantarum Cryptogamicarum mere propriis observationibus & experimentis superstructa : Dissertatio quæ præmio ab Academia Imperiali Petropolitana pro anno 1783 propofito ornata eft. Auctore Johane Hedwig, M. D. Societatis Physiophilorum Berolinenfis et Lipfienfis Socio. Ingeniorum commenta delet dies. Petropolitypis Academiæ Imperialis Scientiarum MDCCLXXXIV.
This differtation is juftly entitled to rank with that of the famous Van Linné, on the sexual parts of the plants, which the same Imperial Academy crowned twenty years ago with the prize it had propofel to the learned world at that time. It was in consequence of the great merit of this new dissertation that the. Body of the Imperial Academy be.. stowed on Mr. Hedwig, the proposed prize of one hundred ducats of Holland, together with a present 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-seven copper-plates, which the President of the Imperial Academy, Her Highness the Princess de Daschkaw, the glory of her fex, ordered to be engraved at Leipfic, under the inspection of the author, by the best artists; so that neither care nor expence were spared to make this edition one of the most perfect, and most compleat hitherto published in Europe. This work is sold: at Petersburg; by the bookseller of the Imperial Academy, at the price of four roubles and forty copèques, which answers to about eighteen shillings of our English money.
M O N T H L Y C A T A L OG U E.
[For AUGUST, 1785.]
ART. 18. Loose thonghts on the very important situation of
Ireland, containing a distinction between the Catholics and Protestants : and stričtures on the conduct of Ministers. Addrefied to the Right Hon. Lord Thurlow. By Joseph Williams, Esq. Southern. Oetavo 1785, 15. 6d.
R. Williams shews that the Protestants 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 set up an authority of their own, looking forward to independence, after having been fostered and nursed by England with tender care. There is a wide difference, he says, between the claims of independence which the Americans contended for, and that obligatory