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the solution of those doubts, in which others, as well as myself, have experienced difficulties, upon points of practice; which the many theoretical treatises that have been written, do not appear to have satisfactorily elucidated.

During the last ten years of a service of nearly twenty years, I have given much consideration to the subject of Military Law, and have, since my return to England, applied my attention very closely to those points upon which I have heard, or understood difficulties to have been raised. Under the advice of professional friends, I consulted the best and most approved works on the Criminal Law of this country, to enable me to ascertain, how such or similar difficulties are overcome, in Courts of Criminal Judicature; from which the Military have necessarily borrowed their forms and mode of proceeding.

It has been usual to designate works similar to the present, with the title of “ Military Law;" but, on a careful perusal of all the works that have been published on the subject, it appears to me, that the term, if applied to any peculiarity in that, from the common and criminal law of the land, does not mean any thing more, than the application of so much of the latter, as is sufficient for, or does in any manner appertain to, the circumstances of Military Courts. * That the forms of Military Courts do, in some respects, vary from those adopted in Courts of Law, is certainly true; but the variance is of no material consequence; and, in the main points, they must necessarily be the same.

There is no written law regarding Military Courts, except what is contained in the provisions of the Mutiny Act and the Articles of War; their practice, therefore, can only be derived from the common law, while their application is to be collected, from the proceedings of General Courts-Martial, conducted by the Judge Advocate-General, and from the proceedings of other courts, in the absence of such authority.

Though the private opinion of a military writer, may, in the absence of other sources of information, be useful; still, I have considered

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that it was necessary, that I should show, what has been the practice of General Courts Martial, approved and confirmed by His Majestys with the professional advice of the person, whose duty it is, in his official character, to offer it.

As the rules of evidence, in all the Courts of Common Law, and of Criminal jurisdiction, are the same, the Military Courts can have no better guides than those which are universally adopted by the former; a the equal administration of justice, mainly depends upon a strict and impartial adherence to the established rules of evidence; and which, until otherwise settled, by the solemn decision of the Judges of the Land, are cited as precedents, and held as law in other cases. I have, therefore, dovoted a Chapter exclusively to the general rules of evidence and other matter, which properly belongs to that subject. *

I have also devoted a considerable portion of the work, to the mode of conducting trials for capital and other crimes, punishable by the Common or by the Statute Law of Englandt ; as the Legislature has given cognizance of the same to General Courts-Martial, under local, and particular circumstances. The importance of such cases, bas been duly considered, and any information that may be necessary for a General Court-Martial to possess, in investigating and deciding upon them, bas been given in the same manner and order, as if such trials were proceeded in, before the ordinary Courts of Criminal jurisdiction ; and, as the punishment, which on conviction, a General Court-Martial is directed to award, is to be " in conformity to the Common and Statute Law of England”, so it appears to be a necessary consequence, that, in investigating a crime submitted to their cognizance, the known and established rules of evidence should be applied, through the medium by which, the Court shall arrive at a conclusion, that insures such a result.

The Legislature, in giving to General Courts-Martial the cogni. zance of such crimes, which necessity and circumstances have made expedient, never could have intended, in transferring the power of the

* Chap. xxiii, p. 875 to 927.

| P.690.

§ P. 691.

# P. 690 to 872.

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solution of those doubts, in which others, as well as myself

, have rienced difficulties, upon points of practice ; which the many retical treatises that have been written, do not appear to have satis.

rily elucidated. uring the last ten years of a service of nearly twenty years, I given much consideration to the subject of Military Law, and since my return to England, applied my attention very closely to points upon which I have heard, or understood difficulties to have raised. Under the advice of professional friends, I consulted -st and most approved works on the Criminal Law of this country, ble me to ascertain, how such or similardifficulties are overcome, urts of Criminal Judicature; from which the Military have arily borrowed their forms and mode of proceeding.

as been usual to designate works similar to the present, with le of " Military Law;" but, on a careful perusal of all the that have been published on the subject, it appears to me, 2 term, if applied to any peculiarity in that, from the common minal law of the land, does not mean any thing more, than fication of so much of the latter, as is suficient for, or does in mer appertain to, the circumstances of Military Courts. the forms of Military Courts do, in some respects, vary from

opted in Courts of Law, is certainly true; but the variance is terial consequence; and, in the main points, they must necesthe same. is no written law regarding Military Courts, except what is in the provisions of the Mutiny Act and the Articles of War; tice, therefore, can only be derived from the common law, ir application is to be collected, from the proceedings of Courts-Martial, conducted by the Judge Advocate-Gene. from the proceedings of other courts, in the absence of

rity.

private opinion of a military writer, may, in the absence

tin, be useful; still, I have considered

Courts of Criminal jurisdiction to Military Courts, to give any au. thority, or sanction, for a departure from the rules of evidence, by which justice is administered in those Courts.

The words of the 4th Article of the 24th Section of the Annual Articles of War, give to General-Courts Martial, the cognizance of such crimes, “where there is no form of our Civil judicature in force," plainly indicating, that the form of procedure, in such cases, should be consonant to that, which obtains in the ordinary Courts; otherwise, some particular directions would have been given, on such an important subject.

Military crimes, in general, are of a very different complexion from the former, and do not require such nice forms and distinctions ; for, as Lord Ellenborough observed, “ I do not deny, that both in Civil and . Criminal cases, the rules of evidence are not substantially the same ; but it is in the nature of man, to look with more anxiety to a Criminal, than to a Civil case.”* This observation will apply to those military cases, wherein a capital punishment may be inflicted. On the other hand, there are cases, in which a departure from the ordinary rules and forms of trial, 'is sanctioned ; for, as was remarked by the same learned Lord, “ it imports the public safety, that the means of resisting an enormous and overbearing evil, should be as strong, sudden, and capable of application, as the evil itself is capable, of immediate mischievous effect.”+

In closing my own labours on the present occasion, and in repeating my gratitude to your Honorable Court, for the very liberal patronage which I have received, I feel it my duty to express my sincere acknowledgments, for the professional advice and assistance, which I have received, during the whole progress of this undertaking, from George Long, Esq., Barrister at Law; without whose advice and aid in, and revision and correction of, the legal portion of the work, I should have been unable to have presented it to you, with the conscious satisfaction, that it is calculated to give that assistance, and

*Howell's, St. Tr. vol, 30,' p. 977. + P. 381.

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ts of Criminal jurisdiction to Military Courts, to give any au!v, or sanction, for a departure from the rules of evidence, by 1 justice is administered in those Courts. e words of the 4th Article of the 24th Section of the Annual es of War, give to General-Courts Martial, the cognizance of crimes, “where there is no form of our Civil judicature in force,”

. indicating, that the form of procedure, in such cases, should be want to that, which obtains in the ordinary Courts; otherwise, articular directions would have been given, on such an important

assurance of confidence, that I could not individually have obtained for it; for, though I have possessed the best information, and have applied myself, very closely, to the consideration of the various subjects which it was necessary to investigate, still, I have felt the great value and importance of that gentleman's assistance, and the advantage of the trouble and labour he has imposed upon himself, by a second revision of the whole; and the pains he has taken to insure accuracy and perspicuity in the most important part of the work.

I have used my best endeavours to merit the liberal patronage, with which you have been pleased to honour me.

It will afford me a very high gratification, if my humble labours should meet with the approbation of your Honourable Court, and prove to be in the least degree useful, to the profession to which I have the honour to belong.

I have the honour to subscribe myself,

tary crimes, in general

, are of a very different complexion from ner, and do not require such nice forms and distinctions ; for, as llenborough observed, I do not deny, that both in Civil and ul cases, the rules of evidence are not substantially the same ; in the nature of man, to look with more anxiety to a Criminal, a Civil case."* This observation will apply to those military jereina capital punishment may be inflicted. On the other hand, cases, in which a departure from the ordinary rules and forms

Honourable Sir, and Sirs,
Your much obliged, and most faithful humble servant,

WILLIAM HOUGH,
Captain 18th Regiment, Bengal Native Infantry.

7, Tavistock Street, Bedford Square, 1st April 1825.

i sanctioned ; for, as was remarked by the same learned Lord, orts the public safety, that the means of resisting an enor. overbearing evil, should be as strong, sudden, and capable tion, as the evil itself is capable, of immediate mischievous

ng my own labours on the present occasion, and in repeating de to your Honorable Court, for the very liberal patronage ave received, I feel it my duty to express my sincere acvents, for the professional advice and assistance, which I ed, during the whole progress of this undertaking, from

18, Esq.

, Barrister at Law; without whose advice and aid sion and correction of, the legal portion of the work, I

been unable to have presented it to you, with the conction, that it is calculated to give that assistance, and

P. 381.

Ir vol. 30, p. 977.

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In publishing a second edition of this work, it has been found necessary to give a new form to it. b

The plan of the present work, is that which Į had originally intended to have adopted in the former, but the requisite information and materials were wanting; I was, therefore, obliged to confine myself to a compilation of General Courts-Marțial, with some other information, to the extent of my then means and materials.

Since my return to England, I have haờ the opportunity and ad, vantage of consulting, the latest and best works on the Criminal Law of England. I have also attended the Courts of Justice, to observe the mode of conducting trials; and I have had the professional advice and assistance of George Long, Esq., a Barrister at Law, by whose aid I have been enabled to present this volume, in its present shape.

The nature of Military Crimes, in general, does not require that the charges should be so formally drawn, as in the case of those crimes which are punished, capitally, or otherwise, by the Common, or Statute Law of England.

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In the former, I have, agreeably to the practice of drawing military charges, set them out, by pursuing the words of each article ; and with respect to the evidence and necessary proofs on such occasions, I have adopted the course which appears likely, to render the proceedings, concise, clear, and perspicuous. I have also exhibited the number of witnesses required in each case, and the punishment which follows on conviction.

With regard to capital crimes, and those which are punishable under the 4th article, 21st section (*) of the Articles of War, a ) greater strictness is required. I have given the indictments as they

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* And 4th Article 24th Section, Annual Articles of War, p. 690.

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