The prisoner is not entitled to have a previous communication made to him of the written evidence by which the change or charges against him are to be proved.

The court-martial being formed, the charge or complaint against the prisoner must be read aloud by the Judge-Advocate, after which the witnesses, with the exception of the one whom it is intended first to examine on the prosecution, are to be directed to leave the Court.

The evidence of all witnesses must be given on oath, administered by the Judge-Advocate *; there can be no deviation to this rule; the sovereign of the realm could not give evidence in a court of law, unless sworn. The witness in his oath appeals to the Almighty for the truth of the statement he is called upon to make; as he hopes for His help, he declares the veracity of the evidence he shall give, and calls on himself the vengeance of God if his testimony should be false. †

"The substance of the oath must always be the same, though the form in which an oath is taken varies in different countries, and according to different forms of religion." "Christians are sworn on the New Testament, Jews on the Old Testament, Mahometans on the Koran, and persons of other religions according to the form prescribed for that purpose by the religion they profess; Christians are sworn with their hats off - Jews

* Queen's Regulations, chap. vii. art. 7., p. 78.

† 1 Phillips, 8.

with their hats on. Even among the different sects of Christians, there may be a variance in the manner of taking the oath; a Scotch Covenanter, for instance, instead of kissing the book, as is done by other sects of Christians, holds up his hands, whilst the book lies open before him. Each witness, in short, swears in the particular form prescribed by his religion; the only general rule that can be laid down upon the subject is, that the oath be such as the witness deems obligatory upon his conscience; and it is expressly declared by the Statute 1 & 2 Victoria, cap. 105., that, in all cases in which an oath may lawfully be administered, the party is bound by the oath administered, provided it have been administered in such form and with such ceremonies as he may declare to be binding; and that, in case of wilful false swearing, he may be convicted of perjury, in the same manner as if the oath had been administered in the form and with the ceremonies most commonly adopted. A witness may be asked, after he is sworn, whether he considers the oath he has taken obligatory upon his conscience; but, if he answer in the affirmative, his answer is conclusive, and he cannot further be asked whether there be any other mode of swearing more binding upon his conscience than that which has been used."*

It was formerly the practice of our courts of law to reject the evidence of Jews and infidels; it was found that a prohibition of such a nature materially

* Archbold's Pleading and Evidence in Criminal Cases, 154.

affected the course of justice; it is now usual to receive the evidence of all persons of whatsoever creed, denomination, or sect, given on oath, or affirmation, or under such forms as they consider binding on their consciences. It is, however, indispensable that they should believe in the existence of a Supreme Being, and in future rewards and punishments. To establish the incompetency of a witness, it is not sufficient to show that he holds crude and irrational ideas on points of religion: it must be made apparent, that he neither believes in the existence of God, nor dreads punishment hereafter, should he speak falsely: the proper time for questioning a witness on these subjects is before he is sworn, but he may not be interrogated as to the particular tenets of his religion.

"By the statutes 9 Geo. 4. cap. 32. sect. 1. and 3 & 4 Geo. 4. cap. 49., a Quaker or Moravian, required to give evidence in a criminal case, may, instead of taking an oath in the usual form, be permitted to make a solemn affirmation or declaration in these words: 'I, A. B. do solemnly, sincerely, and truly declare and affirm,' &c., which has the same force and effect in all courts of justice and other places where by law an oath is required, as if such Quaker or Moravian had taken an oath in the usual form. And if any person making such affirmation or declaration shall be convicted of having wilfully, falsely, and corruptly affirmed or declared any matter or thing, which, if the same had been sworn in the usual form, would have

D

amounted to wilful and corrupt perjury, every such offender shall be subject to the same pains, penalties, and forfeitures to which persons convicted of wilful and corrupt perjury are subject. The same rule is now by statute 3 & 4 Will. 4., cap. 82., applicable to the denomination of Christians called Separatists; and by statute 1 & 2 Vict. cap. 77., to any person who shall have been a Quaker or a Moravian; it having been held that a person formerly a Quaker who had seceded from that sect on some point of doctrine, retaining their opinions on the unlawfulness of swearing, but refused to affirm under the forms given in the 3 & 4 Will. 4. cap. 49. and 3 & 4 Will. 4. cap. 82., was not admissible as a witness in a criminal case on making the affirmation according to the 9 Geo. 4. cap. 32.”*

* Archbold, 155.

35

CHAP. III.

Evidence in general.

to be produced. in Evidence.

EVIDENCE.

The best Evidence that can be had Written Documents, how to be received One Witness generally sufficient. — Case of Lieutenant W. Jones, commanding H. M. S. "Racehorse."-Prosecutor a competent Witness.- May conduct the Prosecution after giving his Evidence. Captain Thompson, of H. M. S. "Edgar." to be postponed.

Case of

Trial not

We shall now endeavour to lay before the reader a brief outline of the rules by which our courts of law are governed in receiving and rejecting the evidence submitted in criminal cases: by these rules it is right that the members of naval courts-martial should be guided, for they have been established by the wisdom of ages,-their end being to obtain such true knowledge of facts as may enable the judges to administer justice with fairness to all parties. In a case, civil or criminal (not capital), if a verdict has been given where improper evidence has been received, a new trial is granted, and that even where, in the opinion of the Court, the jury might have been warranted in finding the same verdict upon the unobjectionable parts of the evidence, with