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book had been out of print for seven or eight years, he was induced to revise it in 1862, by the assurance of those whose position gave them a right to speak with authority, that great inconvenience was occasioned from the want of a new edition.

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On the publication of the "Queen's Regulations and Orders for the Army," in 1868, the Editor had the honour to receive an interleaved copy of the new issue, accompanied by a letter from the Adjutant General, informing him that "His Royal Highness the Field Marshal, Com"manding in Chief, recognising the efforts he had made "in collecting the precedents, rules, and axioms which guide the administration of Military Law, had directed "him to transmit" it "as a mark of consideration, in the "hope it might be useful to him in any continued prose"cution of his labours." It was a further encouragement to him to find not only that-unsought by him-the work was included in the number of those " recommended to "the Army as useful books of reference," but also that paragraphs from it had been adopted in the text (b), and that nearly all the forms for recording "some of the more “unusual incidents," which he had drawn up, had been transferred to the Form of Proceedings, then for the first time added to, and authorised by, the Queen's Regulations.

It was intended that the present edition should have been published early in 1869, but it was delayed in consequence

"column on the 25th instant under a "most murderous fire." Their loss was very heavy in this desperate struggle, but it was not until the 29th of September, that, in a successful sortie from the Residency-again to quote the gazette--"we had the misfortune "to lose Major Simmons, who was "killed by a musket-shot, whilst lead"ing his men into the most advanced "building." Sir James Outram, in his despatch of the following day, speaks of this operation as being "attended "with the serious loss of one officer "and fifteen men killed and missing, "the officer killed, being Major Simmons, commanding Her Majesty's

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"Fifth Fusiliers, most deeply regretted by the whole Army."-London Gazette Extraordinary, Feb. 17, 1858.

(b) In 1863 the Lords Commissioners of the Admiralty were pleased to apply for permission to issue extracts from the Author's remarks in the chapter on Courts of Enquiry, and the Circular (8th September, 1863) is now included in the "Addenda to the Queen's Regulations and Admiralty Instructions," 1868. Shorter extracts on the same subject were embodied in the "Regulations for the Volunteer Force," 1863, and in the “ Queen's Regulations and Orders for the Army," 1868.

of an official intimation that very considerable changes were in contemplation. As the projected legislation did not take place, the Editor has now continued his revision with careful reference to the latest authorities, including the Acts of the last session of Parliament, the Orders in Council, Regulations and Warrants now in force, and the General Orders and Army Circulars to the present month inclusive.

The annual renewing of the Mutiny Act and Articles of War, and the occasional issue of subsidiary regulations, afford peculiar facilities for the improvement of Military Law; but this has at all times a tendency to render it especially fluctuating in its details, and the last ten years having been productive of more and greater changes than many longer periods in its history, many parts of this treatise have been re-written, and some brief notices have also been added on collateral points. If the Editor cannot hope that he has everywhere succeeded in adapting the following pages to the existing state of the Law and Practice of Courts Martial, he has at least the satisfaction of knowing that he has done his best to carry out his father's wish, that his work should continue to be useful to the Service.

DALTON HOLME, YORKSHIRE:

29th December, 1872.

AUTHOR'S PREFACE

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THE FIRST EDITION.

THAT it is expedient for officers of the army to make themselves acquainted with that system of laws, to which, as soldiers they are subject, is self-evident; that it is their duty, is obvious from a consideration of the nature and responsibility of the judicial functions which, in the course of their service, they are called on to discharge. The obligation is rendered still more imperative by the orders for the army, which expressly declare, that "The duties "attached to officers on courts martial, are of the most

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grave and important nature; and, in order to discharge "them with justice and propriety, it is incumbent on all "officers to apply themselves diligently to the acquirement "of a competent knowledge of military law, and to make "themselves perfectly acquainted with all orders and regu"lations, and with the practices of military courts." By close and assiduous attention to the proceedings of Courts Martial, a sufficient fund of information may perhaps be collected; but individual observation is gradual and confined; and he, who relies solely on the result of his own experience, will, in the meantime, be often called to the exercise of functions, his knowledge of which cannot as yet

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have attained much accuracy and consistence. Works on the practice of Courts Martial and on the subject of Military Law are therefore indispensable. Several do indeed exist, but they do not appear to have afforded all the information required by the army; nor are they, in all cases, immediately subservient to practical purposes, nor accommodated invariably to the existing state of the law, and to the general orders which have appeared on the subject within the last few years. Besides which, former publications on the subject are, in a great degree, rendered obsolete by the recent revision of the Mutiny Act and Articles of War.

Such are the considerations which led to the compilation of the following essay; and if, in its progress, the author has succeeded in obviating some difficulties attendant on acquiring the knowledge of the practice of Military Courts, and of the nature and extent of the power entrusted to them by the legislature, his principal object will be attained. Whatever may be thought of the manner in which he has executed his design, it will be admitted that what he had designed is by no means unimportant or uncalled for.

The Mutiny Act and Articles of War tend reciprocally to throw light on each other in cases which require elucidation, and where the ordinary rules for interpreting statutes are insufficient. But, in fixing the meaning of the Articles of War, where the pleasure of His Majesty has been expressed, it is decisive; and as the custom of the army can only have originated in orders, or have been adhered to under the sanction of the King; so must the opinion of His Majesty, as to the usage of the service, be received as equally conclusive. In this view, the author has attentively considered most of the orders, which have appeared since the accession of his late Royal Highness the Duke of York to the command of the army; an epoch ever memorable in the history of Great Britain, as being the commencement of that era, in which the British army has been as conspicuous amongst the armies of Europe for

discipline and tactics, as it has always been for patriotism and valour. If the few opinions which the author has ventured to offer on points which have been at times disputed, are not, in each case, supported by reference to a general order; as he believes them to have been inculcated by practice, so he hopes they will be recognised as in unison with the prevailing customs of the service.

In prosecution of the object of the present undertaking, it was found absolutely necessary to advert to the general rules of evidence in the common law courts of the country, and to the more prominent features of the criminal law of England, which, by the operation of the hundred and second (c) Article of War, Courts Martial have frequently to dispense in places beyond the seas, where there may be no form of British civil judicature in force. To this end, the author has consulted, with what attention he could, such works on evidence and jurisprudence as came within his reach. That his enquiries have been conducted with the judgment and exactness of a practised lawyer, he dares not flatter himself; and if he be charged with presumption, in attempting a subject confessedly beyond his grasp, his only plea must be that, in the discharge of his military duties, he felt it necessary to make some enquiries into the law of evidence and the criminal law of England; the result he arranged into the present form, and he is induced, by the observations of some brother officers, to offer it to the army; not by any means as a complete summary of all that may be requisite to be known on the subject; but as embracing the most obvious points, which, in the course of his reading, appeared to a soldier to be connected with, or to throw light on, the administration of Military Law; and which may be most required in cases where Courts Martial have to supply the place of courts of civil judicature. If a good lawyer could be grafted on a soldier of common

(e) The hundred and forty-third article (1872.)

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