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ter and habits, were invariably discharged. The article of war now? introduced, authorizing courts martial to recommend that measure, may be productive of much good, especially if the efforts, which have recently been made to establish a more refined and higher degree of feeling in the soldier, be seconded : the very existence of an article of war pointing to disgraceful conduct, may, by the feeling it is calculated to create, tend to raise the soldier in his own estimation. Every individual officer would feel it almost as a personal injury, if that article of war were expunged, which provides for the expulsion from the army of any officer convicted of scandalous, infamous conduct, unbecoming the officer and the gentleman. And may it not be believed that the same feeling, perhaps in a less refined degree, may pervade the breast of the men ? There is no doubt but that soldiers, when properly managed, have collectively and regimentally, as well as individually, great pride in avoiding punishment. It is much to be regretted that, in the british army, there is no badge by which to distinguish merit, even of the highest order, in the private soldier ;the single military decoration to be gained by a non-commissioned officer or private,—the only one within his reach.—can be conferred only at the moment when he receives his discharge and ceases to be a soldier. Napoleon, who well understood what general
(1) 1830. (2) This was written in 1830; many changes have since taken place, but this subject is not enlarged upon, interesting as the condition of the soldier and the moral discipline of the army must be to every military man, being but indirectly connected with the practice, however immediately with the frequency of courts martial.
Badge of merit. Ceremony of discharging a Boldier with ignominy;
Rogniat terms the métaphysique de la guerre,' in
The ceremony which takes place on dis-
Character notified to Parish.
(1) Considérations sur l'art de la guerre, chap. 12. (2) Gen. Reg. page 202.
(3) 83 Art. War.
The rules of evidence obtaining in the criminal The laws of courts of England are, with some slight modifi- este tially the cations, identically those which guide courts and in common martial ; indeed, the rules of evidence, being the laws of truth, are, or ought to be, in all courts of justice, intrinsically the same.
Mr. serjeant Marshall, when advocating the cause of serjeant Grant, in the court of common pleas, assumed, “ that a court martial was the creature of the mutiny act,” and laid it down as an indisputable principle, the truth of which it would indeed be difficult to combat, “ that whenever an act of parliament erects a new judicature, without prescribing any particular rules of evidence to it, the common law will supply its own rules, from which it will not allow such newly erected court to depart.”
Desirable as it may be to elucidate the law of evidence, it would be inconsistent with the design of this essay to introduce a full and dilated inquiry into it. Besides that, such a task is not within the ability of the writer; there are several works, and particularly that of Mr. Phillips, which will be largely and literally quoted, that would render the attempt super
(1) Blac. Rep. 69.
fluous. In this place' it may be sufficient, and perhaps more useful, to advert to certain general maxims or rules of evidence; to refer briefly to positive and presumptive evidence; to the competency and credibility of witnesses; their examination and cross-examination; to the confession of the party charged ; and subsequently to touch upon the rules of written evidence.
GENERAL MAXIMS OR RULES OF EVIDENCE.
General rules of evidence;
The general rules or maxims, as to the laws of evidence which will be adverted to, are: First, That the evidence, on either side, must be confined to the points in issue ; Secondly, That the point in issue is to be proved by the party who asserts the affirmative ; Thirdly, That it is sufficient to prove the substance of the issue or charge; Fourthly, That the best evidence must be produced, which the nature of the case will admit of; and Fifthly, That hearsay is not evidence.
First.—That the evidence on either side must be confined to the points in issue, and that all manner of evidence ought to be rejected which is foreign to the charge, cannot be too strongly insisted on by courts martial. A deviation from the spirit of this axiom, has incurred the marked disapprobation of his majesty. Mr. Phillips
Evidence confined to points in issue.
(1) For the attendance of witnesses, and the authority of the court as regards them, see Chap. IX. pages 190_202.
(2) G. O. 29th August, 1803. Court martial on captain Barlow, king's dragoon guards. “His majesty, adverting to the voluminous minutes, noticed that the proceedings appear to have been drawn into that length by the court martial having, contrary to their own declared opinion, allowed matter to be brought before them, which did not form a part of the charge in question, and by their having, in some instances, received evidence which was not properly admissible."
says, “this rule is founded in common justice, for no person can be expected to answer, unprepared and at once, for every action of his life.” Plain as is this precept, there is, notwithstanding, sometimes much difficulty in ascertaining what particular evidence ought to be admitted or rejected; and the utmost attention is often necessary to arrive at a correct judgment on the subject. This rule, so important to be well understood, arises from the very nature of evidence, the sole object of which is to establish the truth as to the questions of fact involved in the charge : before applying it, however, it is proper to consider the view with which evidence may be offered in order to decide on its relevancy, and the consequent necessity of admitting or rejecting it. Evidence may be admissible in one point of view, though not in another. Circumstances which have not an immediate and direct tendency to prove the very point in issue, may have an indirect and consequential tendency to that effect, and are, therefore, not to be disallowed by a court, provided the party who urges them shall make their
consequence apparent. A question irrelevant and improper on the examination in chief may be rendered necessary by the course of a cross-examination.
An enquiry into other facts, besides those proof of other charged, may often be totally irrelevant; at other times, they bear on the point in issue, and constitute presumptive proof: as on a charge of stealing, though it is not material, in general, to enquire into any other taking of goods besides
(1) I Phil. 194.
on a charge of stealing,