Page images

or the spirit and reason of the law. It will not be necessary to follow the learned commentator to the full extent. He observes, that words are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use; that terms of art, or technical and technical terms, must be taken according to the accep- peculiar sense ; tation of the learned in each art, trade, and science; that when words are dubious, we may establish their meaning from the context ; with which it may be of singular use to compare a words to be word or a sentence, whenever they are ambigu- oumparison, ous, equivocal, or intricate. Thus the proeme, or preamble, is often called in to help the construction of an act of parliament. Of the same nature and use is the comparison of a law with other laws, that are made by the same legislator, that have some affinity with the subject, or that expressly relate to the same point. And as to by the context; the subject matter, words are always to be understood as having a regard thereto; for that is always supposed to be in the eye of the legislator, and all his expressions directed to that end. As to the effects and consequence, the rule is, that where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them. And lastly, the most universal and and according to effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it, or the cause which moved the legislator to enact it.

sul dect matter.

(1) 1 Blac. Com. 50-63.

Meaning of writings.

It may be observed, that the intention of any writing must be judged from all its parts, taken in connection, and not from any insulated or detached passage; that faults in orthography or in the grammatical construction of sentences, if the intention be apparent, cannot vitiate the design of writings; and that, though writings are the best proof of the fact or facts, resulting from or depending on their contents, yet they afford no proof of the facts or circumstances related in them ; it must be quite obvious that to admit such averments would be to receive assertions not on oath, and, consequently, to depart from the first principles of evidence. It may also be remarked, that though collateral circumstances may be considered, in endeavouring to fix the meaning of ambiguous passages, yet such circumstances, to be available, must be referred to in the writing itself.

It is not necessary to annex original docusufico eo annex ments, admitted in proof, to the proceedings

of courts martial, but copies of them, or, if voluminous, extracts to the extent bearing on the question, and required by the parties, should

be embodied in the proceedings, in the order in the testimony by which they may be produced in evidence. If

admitted by the party against whom they may be produced, such admission must be recorded, instead of the testimony, by which they would otherwise be supported. Copies of such documents are sometimes annexed to the proceedings, as an appendix ; in which case, they must be numbered or lettered, and referred to in their proper order on the face of the proceedings; and, if not in the hand-writing of the judge

Copies of 'priginal documents

tv proceedings,

substantiated being recorded.

advocate, must be compared and identified by his signature or by that of the president.

Depositions are not, as a general rule, ad- Depositions. missible evidence, and for one reason, because there can be no cross-examination. In civil courts there are, however, certain exceptions, but such as are little likely to occur on trials by courts martial; indeed never, except on trials under the hundred and second article of

Depositions relative to manslaughters or felonies, taken on oath and in presence of the prisoner, and in conformity with certain statutes,' are admitted in evidence, being proved to be the same, without alteration, as those sworn before the magistrate ; it being also proved to the satisfaction of the court, at time of trial, that the informant is dead, incapacitated by illness from travelling, or not to be found. Depositions before coroners are also admitted, though the prisoner may have been absent at the time of taking the inquisition. Depositions, or interrogatories by consent of parties, in civil causes, the witness being about to quit the country, are also admitted ; but such depositions are not admissible before the informant embarks, or after he may return to the country. The 13th Geo. 3, c. 63, provides for the admission of depositions to be taken in India; but this can, in no case, apply to courts martial. There are other cases in which depositions are aclmitted in civil courts, equally unimportant to be noticed here.


With respect to the admission of, and the Annexing to annexing to the proceedings, writings which willinge hue (1).1 & 2 Phil. and Mary, c. 13, and 2 & 3 Phil. and Mary, c. 10.

are not legal evidence, it is customary to allow a prisoner to embody or introduce in his defence, letters relative to character, since the authority which has to confirm the sentence may thereby have an opportunity of attributing to them their due importance and influence. But it must be borne in mind, that evidence as to character, to weigh with the court, must not only apply to the charge, but be strictly legal evidence. If a court be not authorized to admit a deposition, when made before a person competent to administer oaths, much less can it admit the statement of any individual in writing, when

not substantiated by the solemnity of an oath. Thebandwriting It is scarcely necessary to remark, that the evidence, cannot authenticity of the handwriting of letters, or

other similar documents, as to character, cannot be established by oath before a court martial. It would be an attempt to identify that which is not evidence, and, therefore, to misapply and trifle with an oath.

be verified on oath.


Of Criminal Offences.

to dispenso

COURTS MARTIAL are occasionally called on Courto Martial to dispense the common and statute law of 1020 Art. War, England, by virtue of the hundred and second Justice article of war, which declares that any officer or soldier, accused of treason, or any offence which in England would be felony, or any other offence against the person or property either of British subjects or persons entitled to British protection or that of the East India Company, who may be serving in the garrison of Gibraltar, or in any place beyond the seas, where there is nó civil judicature in force, by her majesty's appointment or under her majesty's authority, or anywhere in the territories of the East India Company at a distance of upwards of one hundred and twenty miles from either of the three presidencies, excepting Prince of Wales' Island, shall be tried by a general court martial, and if found guilty, shall suffer death or such other punishment as by the sentence of the court martial


be awarded ; such sentence, never- Sentence to bo theless to be in conformity to the common and with the statute law of England. The concluding para- England' graph was introduced into this article only in 1830; but his late majesty had been previously pleased to declare the true intent and meaaning

common and statute law of

« EelmineJätka »