PART VIII. OF EVIDENCE IN COURTS MARTIAL. CHAPTER I. PRELIMINARY OBSERVATIONS. § 468. IN entering upon the subject of evidence in Courts Martial, we are led first to observe the distinction between Martial Law and that which is commonly, and for the sake of this distinction, termed Military Law. The difference between them relates more directly to the subjects of jurisdicdiction, but in its results it affects the rules of evidence. In the language of Lord Loughborough, "where Martial Law prevails, the authority under which it is exercised claims a jurisdiction over all military persons, in all circumstances. Even their debts are subject to inquiry by a military authority; every species of offence, committed by any person who appertains to the army, is tried, not by a civil judicature, but by the judicature of the regiment or corps to which he belongs." It extends also to a great variety of cases not relating to the discipline of the army, such as plots against the sovereign, intelligence to the enemy, and the like. It is "founded on paramount necessity, and is proclaimed by a military chief;" and when it is imposed upon a city or other 1 territorial district, all the inhabitants and all their actions are brought within the sweep of its dominion. But Military Law has its foundation and limits in the statutes for establishing rules and articles for the government of the Army and Navy, and in the instructions and orders issued by the Executive Magistrate pursuant thereto, and in virtue of his authority as Commander-in-Chief. Its jurisdiction extends only to those who are a part of the army, in its various grades and descriptions of persons; and it is limited to breaches of military duty. These breaches of duty are in many instances strictly defined; particularly in those cases which are fatally or highly penal; but in many others it is impossible more precisely to mark the offence than to call it a neglect of discipline.2 § 469. It is thus apparent, that while Martial Law may, or does in fact, assume cognizance of matters belonging to civil as well as to criminal jurisdiction, Military Law has respect only to the latter. The tribunals of both are alike bound by the common law of the land in regard to the rules of evidence, as well as other rules of law,3 so far as they are 1 Where an officer was charged with scandalous and infamous conduct, 1st. in submitting tamely to imputations upon his honor, and 2dly. in attempting to seduce the wife of another officer; and was acquitted upon the first specification, but was found guilty of the fact in the second, but acquitted of the charge of "scandalous and infamous conduct, unbecoming an officer and a gentleman;" the sentence was disapproved and set aside; on the ground that the fact itself, in the latter specification, divested of all connection with the discipline of the army, was not a subject of military cognizance. Case of Capt. Gibbs, Simmons on Courts Martial, p. 439-441. But where the fact itself involves a breach of military discipline, such as striking an inferior officer, and using opprobrious language towards him, though the party is acquitted of the charge of "scandalous and infamous conduct, unbecoming an officer and a gentleman," yet he may well be sentenced under the specification. Case of Lt. Dunkin, Simmons, p. 442, 443. 2 2 H. Bl. 100; 1 McArthur on Courts Martial, p. 33-37; 1 Kent, Comm. 341, note; Wolton v. Gavin, 15 Jur. 329; 16 Ad. & El. 48, N. S.; Mills v. Martin, 19 Johns. 7, 20-22; Smith v. Shaw, 12 Johns. 257. 3 "The act for punishing officers and soldiers by martial law has only laid |