370 HARVARD LAW REVIEW tary law in advance. In the Manual for Courts-Martial the chap- ter on Evidence ^° prescribes the modes of proof which includes rules of admissibility for witnesses and other evidence. This chapter is not in the form of a statute but rather in the form of a text book. It refers to the Digest of the Opinions of the Judge- Advocate-General, to cases which have been decided by federal and state courts, to text writers, and to statutes. Principles are illustrated by hypothetical cases. We have here an instance in which at military law the President as Commander-in-Chief lays down in advance broad principles of law which are but a modification of the common-law rules of evidence, not for any specific case but for all cases which may arise in the future and which may involve the application of such principles. V In discussing the resemblances of military law to Roman law, no reference has been made to its content. There is* but little in common between a criminal code which makes scourging and crucifixion its ordinary punishments and one which forbids pun- ishment by flogging, branding, marking or tattooing; and which imposes death as a penalty, but without torture or degradation, except as conviction of crime, may amount to a declaration of an existing degradation. The early English Articles of War, no doubt, were much more savage in their nature than modern Eng- lish or United States articles and more like Roman law, but, even for them, there is Httle need to invoke any theory of direct bor- rowing. It is quite Ukely that, in view of the relation of the King of England to his continental possessions, some continental ideas upon military law were embodied in the English Articles of War. It is probable that as far as he could, the King ordained the same Articles of War for his army whether in England or on the Con- tinent, and whether it was raised in England or in Aquitaine. If the continental military codes influenced the content of the early English Articles of War and if they cause the slightest in- fusion of Roman ideas, it was probably the debased popular Roman law man and not the classic law.^^ '" Manual for Courts-Martial [U. S. Army] (corrected to April 15, 1917), paragraphs 194-289. " Interesting collections of Military Ordinances and Codes are to be found in
