all persons who shall come or be found in the capacity of spies, or who shall bring or deliver any seducing letter or message from an enemy or rebel, or endeavor to corrupt any person in the Navy to betray his trust, shall suffer death or such other punishmen tas a court-martial shall adjudge. "
In this case the prisoner was convicted of one of the gravest offenses enumerated in the calendar of naval crimes, and he has much more reason to congratulate himself that the court did not award to him the extreme penalty of the law than to complain that his punishment is contrary to the usage of the service. Where death is one of the penalties affixed to the commission of a crime most persons after conviction would be glad to accept any lower degree of punishment, but it seems that in this case the prisoner is unwilling to make even the expiation which is commonly required for the lowest grade of felonies. But he is entitled to the benefit of an answer to the objection he has interposed and I proceed to give it.
The rule which he has invoked for his protection is unquestionably correct, that the words 'such other punishment as a court-martial shall adjudge" are to be limited by the custom of the service, and authorize only such punishments as are usual (Hickman Nav. Court March, 150; Macomb C. M., sec. 138; Kennedy, 176; De Hart, 69). Cruel and unusual punishments are not only forbidden by the law martial but by the Constitution of the United States, and if the punishment in the present case fall within that category the prisoner ought not to invoke the rule in vain.
Is then the punishment by imprisonment for a term of years at hard labor in the penitentiary for the offense of endeavoring to corrupt marine privates in charge of state prisoners to betray their trust against the usages of the service?
It is said by Delafous (Treat. Nav. Courts-martial, 286) the words 'such other punishment as the nature of the offense shall deserve and the court-martial shall impose (which in the act of the 22 George II are the equivalent of the words used in the twelfth and other articles of our act of 23rd April, 1800) are expressions of great and almost unbounded latitude. " It is certainly hard to mark the line where usual and proper punishments end and unusual and cruel ones begin, and the sentence pronounced under an authority so broad and general ought to be so far out of proportion to the offense committed as to shock the sense of justice before it is arrested as contrary to usage. If it bear a just relation to the crime and be not utterly outside of the circle of naval punishments any interference with it on that ground could hardly be justified. No man can say that imprisonment at hard labor in the penitentiary is punishment too severe for a crime to which the law affixes the penalty of death, as it does in this case, and we are therefore limited to the inquiry whether there are any instances in the history of vanal courts-martial of the infliction of this form of punishment. If such precedents can be found the objection urged to the sentence pronounced against Toombs is utterly groundless.
In our own Navy it is a punishment that has been repeatedly imposed. In 1854 Dynes and others were tried by a naval court-martial and sentenced to imprisonment at hard labor in the penitentiary of the District of Columbia. These sentences were approved by the Secretary of the Navy and carried into execution in the usual way. Dynes brought an action against the marshal of the District for assault and battery and fase imprisonment which reached the Supreme Court of the United States. (Dynes v. Hoover, 20 Howard, 65.) One of the