out having recourse to such parts as were irregularly admitted. In cases of conviction for capital offences, where by law there can be no second trial, the sentence is never carried into execution if improper evidence has been received. If it should be said the members of a naval court-martial are judges as well as jurors, we answer they are so undoubtedly, but having performed their functions of judges in regulating their proceedings and determining on the admissibility or rejection of evidence, their functions with respect to the facts, and the conclusion to be drawn from those facts, is precisely the same with that of other jurors. The Law, and the Judge the organ of the Law, will not trust a jury, in a common case, to hear evidence not legally adduced or applicable to the charge; and if, by mistake or inadvertence, they have heard what ought to have been excluded, a verdict founded on such materials is not permitted to stand or to be acted upon. And what is the reason for this anxious caution?- because otherwise the verdict might be founded on prejudice excited by what ought not to have been heard, and not built, as it should be, upon the legitimate evidence in the case. We are not recommending or expecting that naval officers should be skilful lawyers: the observations here suggested appear to accord with the plainest rules of natural universal justice, unshackled, as it should be, by any technicalities.

No man will suspect that honourable and gallant officers, on whom the principal duty of prosecuting

is cast, frame their questions purposely with a view to influence the witness; but the authority which belongs to their character and station, particularly where, as it must often happen, the witness is himself a prisoner under accusation, appears strongly to recommend the adoption of the most unobjectionable mode of bringing the evidence before the Court.

Evidence may be classed under the four following heads:

1. Confessions.

2. Presumptions.

3. Written Evidence. 4. Parol Evidence.

The prosecutor is bound to produce the best evidence that can be had to substantiate the charges against the prisoner. Should he bring before the Court only secondary evidence, he must explain the causes which prevent him from producing primary proofs of the guilt of the party accused. If a person were charged with writing a letter to his superior officer, containing expressions of disrespect, and only a copy of the letter were submitted to substantiate the fact, it would not be right to give judgment against the accused, unless it should be shown that the original document was lost or destroyed, or that it had been forwarded by the prosecutor to his superior officer and not returned. The authenticity of the copy must be proved. If the original document should be put in, it, or the signature attached to it, must be

proved to be in the handwriting of the accused, or written by his direction: the delivery also should, if possible, be proved. It will be necessary to use the utmost caution in receiving copies of documents submitted as evidence; and the Court should invariably reject them when the originals might have been obtained: they should also carefully consider the reasons that may have induced the prosecutor to withhold the primary evidence, and the probable disadvantage to the prisoner's defence by its non-production.

At common law, one witness is sufficient in all cases, except perjury; and at courts-martial one witness, if the Court believe him, is sufficient to justify and support their sentence. But a court-martial could not, with propriety, proceed to inquire into the cause of the loss of a ship on the testimony of the Captain only. In 1777, the "Racehorse" sloop, commanded by Lieutenant William Jones, was captured by the rebels, and taken with her crew into Philadelphia. Lieutenant Jones was released; but the men belonging to the sloop were detained as prisoners. Mr. Cust, the solicitor of the Admiralty at that time, gave it as his opinion that a court-martial could not, with propriety, be convened to inquire into the particulars of the loss of the said sloop on the evidence of Lieutenant Jones, unsupported by other testimony.

The prosecutor is a competent witness, and has always been adınitted as such at courts-martial.

After giving his evidence it is not necessary that he should withdraw from the Court.* The practice, on all occasions, has been to permit him to continue to conduct the prosecution. The following is a copy of a letter from Mr. Greetham, acting as Judge Advocate at Portsmouth, to Mr. Secretary Stephens of the Admiralty, dated Jan. 7. 1789:

"Captain Thompson, commander of his Majesty's ship 'Edgar,' being directed by their Lordships to assemble a court-martial for the trial of Mr. Charles Thackeray, Lieutenant of his Majesty's ship ' Thorn,' on several charges exhibited in a letter from Captain W. Taylor her commander, to you, and among others, for going into the captain's cabin, when alone, at sea, and calling him scoundrel and liar;' which Captain Taylor can alone prove; and as Captain Thompson apprehends that the Court may have a doubt of the propriety of admitting Captain Taylor to give his evidence, because he is the complainant, he has directed me to state the case to you, and to request you to move their Lordships to lay the same before such counsel as they shall think proper, for an opinion on the following questions, viz.:

"Whether Captain Taylor's evidence, under the above-mentioned circumstances ought to be admitted, or not? and if it ought to be admitted,

“Whether, after he has been examined, as it is the custom of courts-martial to examine the wit

* Queen's Regulations, chap. VII., art. 8., p. 79.

nesses separately and apart from each other, he can be permitted to remain in the Court to conduct the prosecution?"

These questions were referred to Mr. Cust, who delivered the following opinion thereupon:

"The distinction between objections to the competency and objections to the credit of a witness has been long established, and in criminal prosecution it is not a legal objection to the competency of a witness, or to the admissibility of his evidence, that he is the prosecutor, whatever objection to his credit may arise under the circumstances of the

case.

"The effect of the evidence, when admitted, and the mode of conducting the prosecution, must be left to the judgment of the Court. If this practice of courts-martial in examining the witnesses separately is so universal that it cannot be dispensed with in any case, I suppose that some agent or attorney on behalf of the prosecutor may conduct the prosecution, which is every day's practice in courts of law.

"If any doubt should be conceived by the Judges of the Court on the propriety of receiving the evidence of a complainant, it may be proper to observe, that the rule which is universal in civil actions that a plaintiff cannot be admitted as a witness in his own cause, does not apply to criminal prosecutions, which are always to be at the suit of the Crown, and on the behalf of the public; and therefore objections from interest, or from want of other evi