Under the protectorate of Cromwell the government of England was entirely military and defpotic. The kingdom was divided into twelve military jurifdictions, under as many Major-Generals, who had power to levy taxes, and to enforce the payment of thofe taxes by feizing the perfons, and diftraining the eftates of all fuch as were refractory; and a standing army was established of thirty thousand horfe and foot, of which the protector had the abfolute command. Immediately after the restoration the army was difbanded, and a statute pafled abolishing the antient military tenures, and changing all fuch tenures, held either of the King or of any other perfon, into free and common foccage. The military power of the Crown, however, was folemnly recognized in an act, 13th and 14th of Car. II. for ordering the forces, which, proceeds upon the following preamble:

"Forafmuch as within all his Majefty's realms and dominions, the fole and fupreme power, government, command, and difpofition of the militia, and of all forces by fea and land, and of all forts and places of frength, is, and by the laws of England ever was, the undoubted right of his Majefty and his royal predeceffors, Kings and Queens of England; and that both or either of the Houfes of Parliament cannot, nor ought to pretend to the fame; nor can, nor lawfully may raife or levy any war, offenfive or defènfive, against his Majefty, his heirs or lawful fucceffors, &c.' And by the fame ftatute it was ordained, that all Lords-Lieutenants, Deputy Lieutenants, officers, and foldiers, fhould take the following cath. I do declare and believe, that it is not lawful, upon any pretence whatfoever, to take arms against the King; and that I do abhor that traiterous pofition, that arms may be taken by his authority against his perfon, or against thofe that are commiffioned by him in purfuance of fuch military commiffions: So help me God.' The recent experience of the nation juftified the propriety of impofing army this explicit renunciation of the doctrine of Refiftance; but fo frongly had the current of opinion fet in towards royalty, that a bill was actually introduced into parliament for impofing this oath upon the whole nation; and it was rejected as unneceffary, only by a majority of three voices."

In the beginning of the reign of James II. the Duke of Monmouth's rebellion gave occafion to fome dreadful exertions of the martial law, and furnifhed a pretext for maintaining on foot a fanding army of 30,000 men, which the infatuated Monarch oftentatiously difplayed to the people in frequent reviews and encampments.

The confequence of this was, that in "the Declaration of Rights, previously debated and voted in the Convention of the States, and folemnly affented to by the Prince and Princefs of Orange, as the

effential

effential conditions on which they received the Crown, it was settled in pofitive terms, That the raifing and keeping of a standing army in time of peace, without confent of Parliament, is contrary to law.' This, with the declaration That the fubjects, if Proteftants, may have arms for their defence, fuitable to their condition, and as allowed by law,' are the only articles in that important deed regarding the military power of the Crown; which must therefore be confidered as refting in its effentials on the broad bafis on which it was placed by the ftatute 13th and 14th Car. II. c. 3.”

In the first year of the reign of William and Mary, feveral of the British regiments showed ftrong fymptoms of difaffection to the new government, from a jealous refentment of the preference which the King was fuppofed to fhew to his Dutch troops; and, to enable the Sovereign conftitutionally to fupprefs this fpirit, the firft mutiny-act was paffed for fix months only. From that period, with the exception of a single interval of three years during the reign of the fame Sovereign, it has been annually renewed by parliament, and thus refts upon a bafis of the moft indifputable legality.

From this detail, which muft have employed much time and much labour, the author juftly thinks himfelf entitled to conclude,

-" that amidst all the fluctuations of government, and the changes of our conftitution, in the alternate extenfion and retrenchment of the royal prerogative, the fundamental right of the Sovereign to command the military force of the fate has ever been acknowledged; unless in that calamitous period, when the whole frame of the conftitution was unhinged and overthrown, and an anomalous tyranny fubitituted in its place, under the falfe title of a Republic. A ftanding army, ever an object of jealousy to a free people, is now clearly understood to owe both its existence and duration folely to the will of Parliament; and while the fupplies for its maintenance can be retained or granted at their pleasure; while the Sovereign, even in the regulation of this army, acts only by their authority, and through their organ; it muft be acknowledged, that there cannot exift a reasonable apprehenfion of the abuse of that power of the fword, which is vested in the only hands in which it could be exercifed at once with ufeful energy, and with perfect fecurity to the liberties of the nation."

Chapters Second and Third treat of the authority of courtsmartial; the former of general, and, the latter, of regimental, and garrifon courts-martial; and in both, the officer will find much useful information, refpecting the perfons who are fubject to the jurifdiction of thefe courts, the authority by which they are held, the number and quality of the members of each court, the time of their fitting, the advantages of the military mode of trial, and the perfect harmony which fubfifts between the military and the civil tribunals.

The

The fourth Chapter, which is entitled, Of the preliminaries to trial before courts-martial, treats, in two fections, of principals and acceffaries, and of the apprehending of criminals in order to trial. Here the different kinds of arreft are explained, the legal duration of each is ftated, and the duties of the civil magiftrate are pointed out in cafes of desertion and other military offences.

The fifth Chapter, which details the procedure and form of trial before a general court-martial, must be particularly interefting to military men, and, indeed, to every reader of liberal curiofity. It is divided into three fections, which treat ift. Of the accufation or charges; 2d. Of the form of conflituting the court; and 3d. Of the arraignment and trial of the prifoner. The fubject of each of these fections is perfpicuously detailed; and many pertinent remarks are made on the proceedings of former courts-martial, which difplay the acuteness and found judgment of the author, and will be found of the utmost importance to officers when fitting as members of fuch courts in But we haften to Chapter VI. which treats of

time to come.

Evidence.

"Evidence is that which either proves and demonftrates, or which renders highly probable and worthy of credit, to a court or jury, the facts or points in iffue before them.

"What has no tendency to establish the facts or points in issue is therefore no evidence, and ought not to be admitted by a court.

"But in circumstantial and prefumptive evidence, circumftances which have not an immediate and direct tendency to prove the very facts in iffue, may have an indirect and confequential tendency to that effect, and are therefore not to be difallowed by a court, provid ed the party who urges them fhall make their confequence apparent.

"It is a general rule, that, in all cafes, the best evidence of which the matter is capable fhall be reforted to, provided that evidence can be brought. If that is impoffible, the court will require the best evidence that can be had: For if it be plainly feen in the nature of the transaction, that there is fome more evidence that doth not appear, the very not producing it is a prefumption that it would have detected fomething more than appears already; and therefore the mind does not acquiefce in any thing lower than the utmost evidence the fact is capable of. Gilbert's L. of Evid.

"All evidence for and against the facts in iffue is to be weighed, and judgment given according to that which preponderates. In the balancing of contrary evidence, the mind is to be guided by no other rule than this, that affent must be given to that teftimony, of whatever nature it be, which produces the ftrongest belief. Thus, if one fingle witness of fufficient credibility, who had the best opportunity of knowing the truth, fhall fwear pofitively to a fact, and his testi

mony

mony shall be encountered by two other witneffes, whofe credibility is more fufpicious, or whofe opportunity of knowledge was not fo great; the teftimony of the fingle witnefs producing ftronger belief than that of the others ought to preponderate.

"On the fame principle, a teftimony which is precife and circumftantial, muft outweigh that which is lefs particular or minute, and goes only to a general fact; because the former implies more attentive obfervation or more pointed recollection, and therefore creates a stronger belief.

"From this principle, likewife, it follows, that positive evidence muft outweigh that which is negative; for the former being the refult of attention and obfervation of the facts, can never be encountered or difproved by that which may have arifen merely from the want of fuch attention and obfervation. Thus, fuppofing two credible witneffes fhall depofe pointedly to certain words spoken by A, as, that he called B a fcoundrel; and two or three others of equal credibility fhall fwear, that, though high words were used, they did not hear that particular expreflion; the former evidence ought to preponderate over the latter.

The weight of a witnefs's evidence does not altogether depend upon the words which he utters upon oath, but often greatly upon the manner in which his teftimony has been delivered. Thus the teftimony of a witnefs who appears evidently to be influenced by his pallions, in giving his evidence on either fide of a caufe, is of much lefs weight when fwearing to facts which favour that fide, than the evidence of another who exhibits no fuch bias; and conversely, the testimony of a witnefs fwearing to facts which make against that fide to which his paffions evidently incline him, is entitled to the greateft weight. For this reason, the testimony of a person who voluntarily offers himfelf to be an evidence is always fufpicious, as arguing a ftrong bias of paffion or of interest.

"Even the countenance, looks, and geftures of a witness, add to, or take away from, the weight of his teftimony. It is therefore neceffary, that thofe external criterions of veracity should not only be carefully attended to, but should be guarded pure, and free from every endeavour of parties interested to warp, difguife, or fupprefs them. Hence all attempts to browbeat, perplex, or irritate a witnefs in the delivery of his teftimony, are most reprehenfible; and a court is not only deficient in a proper feeling of its own dignity, but pofitively in its bounden duty, if it does not reprefs fuch conduct with exemplary feverity. As all attempts of this kind affect the weight of the evidence, they are in fact nearly allied to the punishable crime of fubordination of perjury."

The author, after thefe preliminary obfervations on Evidence, treats feparately of parole, and of written evidence; and under the former head he fhews particularly who may be admitted, and who must be rejected from giving evidence in any criminal trial. No man, he fays, who understands the

fubject

fubject to which his teftimony is required, and feels his obligation to fpeak the truth, is to be rejected on account of his religion, provided he acknowledge a God, and be willing to bind himself by the requifite folemnity of an oath. This is true; but we wish that Mr. Tytler had defined, with his usual precifion, the kind of obligation which a man, muft feel to fpeak the truth, before he can be admitted as a witness in a criminal court; for there are men who profefs to acknowledge a God, while they deny his moral government of the world, and by confequence the reality of a future ftate of retribution. Such men can feel no other obligation to speak the truth than that which is laid upon them by the principle of honour; and in our opinion an oath would be adminiftered to them with as much impropriety as it would have been to that man who was juftly rejected by the court as incompetent, because though "he had heard that there is a God, and believed that persons who fhould tell lies would come to the gallows, yet acknowledged himself ignorant of the obligation of an oath, a future ftate of rewards and punishments, and what becomes of wicked people after their death."

On the comparative weight of parole evidence and written teftimony the reader will here find many valuable obfervations; but, perhaps, the most important part of the chapter, is that which treats of probability, and the weighing of evidence.

"A thing is probable in proportion as it agrees with what usually happens in fimilar circumftances. It is natural that the mind should more eafily give its faith to things which are probable from most ufually happening, than to matters that are repugnant to that probability; and therefore in judicial proceedings a much smaller degree of evidence ought to be held fufficient to establish the truth of the former, than is required to prove the latter. A fingle witness may be fufficient evidence of a probable fact, whereas it may require the concurring teftimony of many to prove what is not likely to have happened in fuch and fuch circumstances. In criminal matters, it is often difficult to fay whether the probability is for guilt or innocence; but the law with great humanity holds, that the prefumption fhould always be in favour of innocence, and that no perfon fhould be convicted of a crime unlefs upon the ftrongest and most fatisfying evidence. Pofitive proof therefore is always to be required where it can poffibly be had; as the teftimony of two or more impartial witneffes fwearing directly to the facts. Where a proof of this kind is wanting, circumitantial and prefumptive evidence must be resorted to, that is, a proof of a number of concurring circumftances, which ufually attend certain facts, and which may furnish fuch ftrong motives of belief of the facts, themfelves, as nothing but a pofitive proof to the contrary can destroy."

"The