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particular case. McArthur cites the case of Lieutenant Thackeray, of the English Navy, who was tried before a naval court-martial on charges preferred by his captain, one of which was, for going into the captain's cabin, when alone at tea, and calling him a scoundrel and liar. The privacy of the offense excluded all other positive evidence but that of the prosecutor, which was admitted, on the opinion of counsel, and Lieutenant T., was dismissed the service.1

To justify conviction there must be "such a moral certainty as convinces the minds of the tribunal as reasonable men, beyond all reasonable doubt.” 2

As a rule cumulative evidence (i. e. evidence of the same kind to the same fact) is not necessary, unless from the character of the witness, or his testimony, the court is not satisfied.

Judicial Cognizance. In this connection it may be stated that courts of a country take notice of various things without requiring them to be regularly proved: such as public acts, proclamations of war and peace, courts of general jurisdiction, or in fine, of whatever ought to be generally known within the limits of their jurisdiction. Courts-martial, in addition, take judicial cognizance of General Regulations, and General Orders when duly promulgated. Special Orders, as before said, should be regularly proved. In all these cases the court may resort to documents at hand to refresh their memory.

DOCUMENTARY EVIDENCE.

The remaining instruments of evidence are documents, and the evidence derived from them is termed documentary or written evidence.

1 McArthur, p. 104.

8 Rule as expressed by Parke, B., cited by Best, Vol. I. § 95.

The term document includes all material substances on which the thoughts of men are represented by writing, or any other species of conventional mark or symbol.1

Documents consist, in general, of two kinds : Public and private.

Public Documents are all such records, papers, and acts, as are filed in the public offices of the United States or of the several States; as, for example, public statutes, public proclamations, resolutions of the legislature, the journals of either branch of the legislature, diplomatic correspondence communicated by the President to Congress, and the like.2

Proof and Effect. The edition of the laws aud treaties of the United States, published by Little & Brown, shall be competent evidence of the several public and private acts of Congress, and of the several treaties therein contained, in all the courts of law and equity and of maritime jurisdiction, and in all the tribunals and public offices of the United States, and of the several States, without any further proof or authentication thereof.

4

Congress under its constitutional authority has provided for the mode of proving, and the effect of public documents of the several States.

Acts of the Legislature. The acts of the legislature of any State or Territory, or of any country subject to the jurisdiction of the United States, shall be authenticated by having the seals of such State, Territory, or country affixed thereto. Courts of the United States take judicial cognizance of the public laws of the several States when called on to apply them. Private statutes must be proved in the ordinary way.

Records and Judicial Proceedings.

1 Best, Vol. I. § 215.

§ 908, Revised Statutes.

The records

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and judicial proceedings of the courts of any State or Territory, or of any country subject to the jurisdiction of the United States, shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, that the attestation is in due form, and the said records and judicial proceedings, so authenticated, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which they are taken.1

Records not Judicial. All records and exemplifications of books, which may be kept in any public office of any State or Territory, or of any country subject to the jurisdiction of the United States, not appertaining to a court, shall be proved or admitted in any court or office in any other State or Territory, or in any such country, by the attestation of the keeper of the said records or books, and the seal of his office annexed, if there be a seal, together with a certificate of the presiding justice of the court of the county, parish, or district in which such office may be kept, or of the governor, or secretary of state, the chancellor or keeper of the great seal, of the State or Territory, or country, that the said attestation is in due form, and by the proper officers. If the said certificate is given by the presiding justice of a court, it shall be further authenticated by the clerk or prothonotary of the said court, who shall certify, under his hand and the seal of his office, that the said presiding justice is duly commissioned and qualified; or, if given by such governor, secretary, chancellor, or keeper of the great seal, it shall be under the great seal of the State, Territory, or country

1 § 905, Revised Statutes.

aforesaid in which it is made. And the said records and exemplifications, so authenticated, shall have such faith and credit given to them in every court and office within the United States as they have by law or usage in the courts or offices of the State, Territory, or country, as aforesaid, from which they are taken.1

Greenleaf says,-"The Acts of Congress respecting the exemplification of public office books is not understood to exclude any other modes of authentication which the courts may deem it proper to admit."

As records cannot generally be transferred from their place of deposit, courts-martial would ordinarily allow proof by a copy. Where the proof is in this way, an examined copy, duly made and sworn to by any competent witness, is always admissible. that the record, from which the copy was taken, was found in the proper place of deposit, or in the hands of the officer in whose custody the records of the court are kept.3

It should appear, however,

The proceedings of a court of inquiry may be admitted as evidence by a court-martial, in cases not capital, nor extending to the dismissal of an officer; Provided, that the circumstances are such that oral testimony cannot be obtained.'

Private Writings produced in evidence must be proved to be genuine.

It is a general rule of evidence that where a fact can be established by written proof, which is regarded as superior to parol proof, the writing ought to be produced.

The originals of private writings must be produced, and, until accounted for, oral testimony of their contents or copies will not be received.

How Proved. The proof of deeds, wills, pay rolls,

§ 916, Revised Statutes.
Ibid., §§ 485-559.

Greenleaf, Vol. I. § 489.

4 Article 121.

etc., where there is an attesting witness, should be by him. If he is dead, insane, infamous, or otherwise incompetent, proof of his signature is inadmissible.

Other private writings are proved by the admission of the party, or by proof of handwriting.

Handwriting in a document may be proved in the following ways:

(1) By calling the party who wrote it.

(2) By a party who saw him write it.

(3) By a party who has seen the person write on other occasions, if even once only; but he must swear that he believes, not that he thinks, it is his writing. The latter will not do.

(4) By a witness who has seen documents purporting to be his writing, and, by subsequent communications with such party, he believes them to be authentic.1

In the last two cases the knowledge must not have been acquired with a view to this specific occasion.2

(5) By comparison. Proof by mere comparison of handwriting is not sufficient, but where other writings admitted to be genuine are already before the court, the comparison may be made by the members of the court, or by experts.

Upon the testimony of experts to handwriting it seems to be the opinion that little if any reliance should be placed.

There are a class of writings with which courts-martial may frequently have to deal: viz., documents subscribed by affixing near it a mark. Unless there is something to identify it as being the mark of a particular person, the evidence is deemed not admissible.

When a party gives part of a writing in evidence the adverse party has a right to have read all the passages connected with, or which may modify these, but not irrelevant passages.

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