4th and 5th arts. (28) of sec. viii. apply to the different penalties of dismissal and cashiering to lighter or more serious degrees of the same offence.

9. In the observation quoted in the concluding part of the para. now under review, cashiering is evidently considered by the writer in its general vague sense, of annihilating the bond of the soldier to the service. Yet the enumeration of the several modes by which that separation is effected does not deny, though it does not specify, the character conferred on cashiering by the statute.

10. On the 5th para. of the ct.'s letter, I am directed to observe, that it must be every where understood that cashiering does not always induce disqualification; for the King has the power to cashier any officer in his service, without the same incapacitation being annexed to such an exertion of H. M.'s pleasure, as is attached to the graver mil. offences contemplated by the act of parliament (29). But this obviously refers to the mere judgment of the King on the fitness of his servants; and it is the exercise of his prerogative to discharge any servant from his employ, with, doubtless, the right of re-employing (30) him whenever, in the royal judgment, that unfitness no longer exists. In the case, however, before the ct., cashiering assumes its character from the statute which defines it. Indeed the ct. now distinctly declare that cashiering for false musters has the legal consequence of disqualification; and the passage connected to cashiering by " thereby," which hitherto has been declared by the ct. to carry additional penalty to cashiering, namely, disqualification, is, in this instance, accepted by the ct., as merely definitive of the necessary effect of the previously pronounced word.

11. Yet with this full and distinct expression of the ct., they still support the propriety of their first sentence of dismissal to which no such legal consequence does, by the letter of the statute, attach.

12. In the assertion of the ct., that dismissal for false musters equally embraces a legal disqualification-His Lordship is induced to accept that the word moral was intended to be expressed by the ct. ; for "thereby disabled" does not follow the word "dismissal” in the sec. of the M. A., or in the sense of any one art. of the Arts. of War, under which the ct. could have contemplated the offence of Maj. M. It would be a questionable assumption of authority which should pronounce incapacitation as following a sentence of dismissal for false musters; and the intention of the law would be left incomplete.

(28) 2d and 3d of these Arts. of War.

(29) Art. 18, sec. xiv., of these Arts. of War.

13.

(30) H. R. H. the P. R. in the name and on the behalf of H. M. has been graciously pleased, at the recommendation of H. R. H. the Com, in chief, to direct that Mr. T. W., late a Lieut. in the 73d regt., who was sentenced by a gen. ct.-mar., to be "dismissed from H. M.'s service," shall, under all the circumstances connected with his case, be reinstated in his rank, as Lieut. in the 75d regt. (G. O. H. G. 16th April, 1816, and many other cases.)

13. On the 6th para. his Lordship may not accurately embrace the sense intended to be conveyed by the court; but if it mean, that supplying the full penalty, because it is remissible, is not an aggravation of the minor punishment first pronounced, and that a moral conviction existed that the full penalty would not be inflicted to the letter, his Lordship dissents entirely from the court. He accepts the sentence now pronounced in its revised shape, as a positive aggravation of punishment, and holds any contemplation of equity or mercy, dictating its remission, as resting on the sole judgment and act of the Com. in chief. Nor does his Lordship consider any court whatever permitted to renounce the right which the king and the public have, in the due application of the law to an offender, merely from their own notions of its injustice or severity; much less could he admit the latitude, if it proceeded from any conception of the inutilily of the provision, grounded on supposed feelings in another quarter, according with their own, and dictating that equity or mercy, which the court, by this act, deny to the only competent expression of it. The law of treason directs the mutilation of the body; but what judge would omit, in the sentence he pronounces, this express ordination, because he knows it will not be executed.

14. The court's letter concludes with the repetition of their conviction, that the words dismissal and cashiered, have no difference in their signification and effect. It will be for his Lordship to consider how he can best reconcile justice to the public, and to the prisoner, with this commentary of the court on their own sentence.

(Signed) J. BRYANT, Judge Adv.gen. Judge Adv.gen.'s Off. Py. Ft. Wm. 16th Jan. 1820.

REVISED FINDING.-The court having, in obedience to the orders of the Most Noble the Com, in chief, reconsidered their proceedings, adhere to their finding on all the charges; and with respect to the 8th charge, having found Maj. M. guilty of retaining a part of the bazar chowdree's pay, they acquit him of the latter part of the charge.

REVISED SENTENCE.-The court do now adjudge Maj. M. to be cashiered; though they cannot divest themselves of an opinion, that their present adjudication essentially coincides in all respects with the former one.

Approved:

(Signed)

HASTINGS.

REMARKS and Observations by the Most Noble the Com. in chief. -The Com. in chief has deemed it necessary, that the letters relative to the sentence passed on Maj. M. should be made public, for the information of the army, on a point of much importance in the mil. adminstration of justice. A misconception respecting the comparative effect of the terms "cashiering" and "dismissal" might entail, on the one hand, a judgment not consonant to the provision of the M. A., or on the other, an infliction on the prisoner beyond the purpose of the

court. Although these terms may be used as synonymous in common parlance, and even were the distinction between them less clearly marked by the Arts. of War than the Com. in chief apprehends it to be, an established construction in England (31) makes a discrimination in their import which might bear heavily on an officer against whom cashiering was awarded by his judges, without their intending to subject the individual to the extensive disadvantages which it would practically involve.

As to the case of Maj. M., the Com. in chief fulfilled a painful duty when he called on the court to go beyond their original sentence, and to pronounce that severe decision which he thought imperatively rerequired by the law. He feels that he has thereby satisfied the enactment of the legislature, in holding forth the consequences of the delinquency which has been substantiated against Maj. M., and he can have no disposition to enforce the full penalty; while he is confident that there was not a particle of foundation for the plea advanced by Maj. M., that he had acted according to precedent, in drawing pay for the complete establishments of the corps, though they were severally short of their numbers, and for making the stoppages enumerated in the charges. His Lordship collects, from the proceedings of the trial, circumstances which afford a degree of extenuation. It is evident, that on assuming the command of the hill rangers, Maj. M. recurred to the sircar and to the serjt.maj. for guidance as to his procedures. The corps was of an anomalous nature, not strictly fashioned according to the regns. of the army, being at the same time allotted to the police of the district, under civil authority: and it may be believed, that, as certain allowances assigned for furnishing particular conveniences to local corps, on the ordinary establishment, were not extended to the hill rangers on an equal scale, Maj. M. might be to some extent, misled by the persons abovementioned, to consider those irregular sources of accumulation admissible towards collecting a fund for providing more competently the objects in question. This supposition is strengthened by the fact, that the sircar never disclosed the circumstances till he found that he and the serjt.maj. were not to participate in the sums so obtained. While, however, the Com. in chief seeks to bring forward every palliation which the evidence recorded in the proceedings can afford, his Lordship must still consider the conduct of Maj. M. as having been decidedly culpable. Though it is proved that he did apply to the public purposes of the corps, a portion of the money illicitly collected by him, he converted to his own use a large balance. The retention of this, he attempted to justify, as a legitimate perquisite; whereas, the pointed interdicts which have been repeatedly issued in the Hon. Co.'s army, against the receipt of any species of perquisite, (even when not tainted with the infraction of law, which attends the one under review,) unequivocally condemned

(31) See remarks to case 4, art. 20, sec. xii., of these Arts. of War.

and

and forbade such an appropriation. Moreover, had the whole amount been expended for the convenience of the corps, the mode of raising the fund led so obviously to abuse, that it was the indispensable duty of Maj. M. to represent to govt. the irregularity of the practice, which he was told existed in the corps, and to solicit that the deficiency, in due provision for the comfort of the hill rangers, might be remedied.

On these grounds, the Com. in chief remits the penalty of being cashiered. But his Lordship must hold it unfit that Maj. M. should remain in the active line of the army; and the expedience of removing that officer to the pension list will be submitted to the consideration of council.

As it appears that Serjt.maj. Morley wilfully connived at, if he did not actively encourage the irregularities, the Com. in chief is pleased to order his being displaced from his situation in the hill rangers.

Penalty on an Officer taking Money on a Muster, or on Signing the Muster-roll.

ART. 3.] (32) Any officer who shall be convicted before a gen. ct.mar. of having taken money by way of gratification on the mustering any regt., troop, or comp., or on the signing the muster-rolls, shall be displaced from his office, and suffer such other penalty as he is liable to by the said act (33).

1. By a clause in sec. xxxix. of the M. A. it is enacted, that "every officer who shall, directly or indirectly, take or cause to be taken any sum or sums of money, or any other gratuity, on or for the mustering any regt., troop, or comp., or on or for the signing of any muster-rolls, or any duplicate thereof, upon proof thereof upon oath made by two witnesses before a gen. ct.-mar. to be thereupon called (which is hereby authorized and required to administer such oath), shall for such offence be forthwith cashiered (34), and shall be thereby utterly disabled to have or hold any civil or mil. office or employment in the said Co.'s service in the East-Indies."

2. Taking Money or other Gratuity by way of Gratification.] The taking any money or other gratuity, directly or indirectly, is sufficient to constitute the offence. The bare offer of any gratuity would naturally excite suspicion in the mind of the officer to whom it was made, that such offer was made with a criminal intention; but the acceptance of the money or other gratuity, either to connive at a false or untrue muster, or on the signing of false muster-rolls, renders the acceptor a participator in the guilt with the officer who causes the money to be taken, and involves him in the penalties denounced; aud the officer giving such money, would fall under the penalties of sec. xxxviii. (35), for procuring the signing of a false certificate, &c.

(32) 4th of Ang. Arts. of War.

(33) Sec. xxxix., M. A., 4 Geo. IV., cap. 81. (34) See note 4, p. 114.

viz.

(35) See sec. xxxviii., at art. 1, sec. iv.

viz. the forfeiture of 400 Sa. Rs., and forthwith to be cashiered, and the disqualification for any mil. office or employment. The words "or other gratuity" mean any consideration, pecuniary or otherwise. The officer who takes is the principal; the officer who causes the money to be taken is an accessary before the fact, punishable the same as the principal.

at

3. Charges.] See Forms, Nos. 39 & 40, Chap. I. That A. B., on

did take, or cause to be taken, (as may be,) a sum or sums of money, or other gratuity, (as may be,) by way of gratification on the mustering, or on the signing of the muster-rolls, of (as may be), the same being in breach of the Arts. of War.

4. Evidence.] Nos. 1 and 2, as at Chap. III. sec. ii. art. 1. 3. Prove by two witnesses, as sec. xxxix. M. A. directs, the taking or causing to be taken the money, &c. (as may be).

5. Punishment.] By sec. xxxix. M. A., to be cashiered, and thereby utterly disabled to have or hold any civil or mil. office or employment in the said Co.'s service in the East-Indies.

CHAPTER VI.

SECTION 5.-RETURNS.

Penalty on Officer making a false Return.

ART. 1. Every officer who shall knowingly make a false return to the govt. of the presidency to which he belongs, to the Com. in chief of the forces (1), or to any his superior officer authorized to call for such returns, of the state of the regt., troop., or comp., or garrison, under his command, or of arms, ammn., clothing, or other stores thereunto belonging, shall, upon being convicted thereof before a gen. ct.mar., be cashiered.

1. Knowingly make a false Return of the State of the Regt., Troop, or ·Company, or Garrison.] The object of making a return of the above description is to enable the adj. gen. and other superior officers authorized to call for such returns, to become acquainted with the strength and efficiency of regts., &c. and therefore a false return may be attended with very serious consequences. There is an intermediate check, as returns are transmitted by comg. officers to the genl., &c. officers comg. divisions, &c. and their brigade maj. or staff officer having to prepare a gen. return for transmission to the adj. gen., they (the gen., &c. officers) by being nearer at hand, have the means of inquiring into the cause of any deficiency or any other circumstance, which the adj. gen. can only do after a lapse of time, and, therefore, there would appear to have been an intention, in requiring these intermediate returns, not only for information, but also as a check upon those comg.