alarm by reports; using1 desponding words on going into action; causing injurious effects to the service by unauthorized communications; leaving the ranks to secure prisoners or horses, without leave; suffering himself to be taken prisoner from want of due precaution; appropriating to private use public supplies; behaving in a scandalous and infamous manner; conniving at the exactions of suttlers, or taking any fee for suffering persons to sell provisions within the command; impeding the civil magistrate, or refusing to assist him in arresting an officer or soldier; impeding the Provost Marshal, or refusing to assist him; refusing to obey any other officer, though of inferior rank, who shall order him into arrest, when concerned in any fray or challenge; demanding billets for more than the number of men, or taking money for freeing from billets; lastly, protecting a person from his creditors,3 under pretence of his being a soldier, such not being the case. To this we should add, that in two instances, officers may be cashiered through the medium of the civil power. By the second section of the Mutiny Act, officers impeding or refusing to assist the civil magistrate in apprehending any officer or soldier, who has committed any violence against the person or property of any of his Majesty's subjects, shall, upon conviction thereof in any court of record at Westminster, Dublin, or Edinburgh, "be deemed to be ipso facto cashiered, and be utterly disabled to hold any civil or military employment in his Majesty's service." And by the 64th section of the act, the same penalties are denounced against any officer taking

1 One of the charges against Lieut.-Colonel the Honourable Thomas Mullins, of the 44th regiment, was for saying, when told that his regiment was destined to carry the fascines in the attack on New Orleans, " It is a forlorn hope, and the regiment is sacrificed."

* This clause was added in consequence of the communications made by officers during the war to the English newspapers, from which the enemy often derived information respecting the strength, position, &c., of the army. Lord Wellington published a very strong order on this subject.

3 By the third section of the act no soldier can be arrested and taken from his corps for any debt which does not exceed £30, over and above all costs of suit, and any soldier arrested for a debt under that sum, shall, on complaint to any judge of the court out of which the process has issued, be allowed such costs as the judge may think reasonable. As the words of the clause are any person enlisted as a soldier," it would appear that commissioned officers are not within it; in Scotland, however, it has been determined otherwise.

upon himself to quarter soldiers, otherwise than is by law allowed, or using any menace or compulsion to magistrates, or constables, to induce them to act contrary to their duty, on conviction thereof "before any two or more justices of the county, by the oaths of two credible witnesses." It is to be observed, that a court-martial cannot award two punishments quite distinct in their nature, for the same offence. Thus an officer sentenced to be placed at the bottom of the list of his rank, cannot also be imprisoned; nor can a soldier be imprisoned, to whom corporeal punishment is awarded. Though an officer cannot be tried twice by a court-martial for the same offence, yet he is still amenable to such a tribunal for an offence for which he has been tried by a civil court, and that whether acquitted or convicted; but if found guilty, he can be punished only by cashiering. This power of bringing an officer to trial, although he may have been acquitted of the offence by a civil court, is necessary to maintain the high character of the army. A delinquent is often acquitted by a civil court, through the omission of some necessary formality, although his guilt may be perfectly notorious; and it would be a hardship upon the service, to say that such an acquittal should preclude any further inquiry: at the same time the individual is in a measure protected from the vindictive feelings of disappointed authority, by limiting the power of the military court to cashiering. To preserve accused persons from suffering through the inattention of the members of the court, occasioned by weariness and lassitude, courtsmartial can sit only between the hours of eight in the morning, and four in the afternoon, except in the East Indies, where six in the morning is substituted for eight. This regulation, and indeed many others in these courts, might be adopted with advantage by other criminal courts, in which, on a press of business arising from a heavy calendar, and other causes, we often see convictions obtained with an indecent haste, which would not be endured in a military court.

No sentence of a court-martial is complete until it is approved of or confirmed by the sovereign, or some officer having an especial authority to do so. The Commander-inChief of the army abroad, and officers commanding on foreign stations, have this authority included in the warrant by which

they are empowered to convene courts-martial. But this power does not extend to cases where commissioned officers are sentenced to suffer death, or to be cashiered, or dismissed, except in India, where the power of the Governor General to approve and confirm is unrestricted. If there be a civil governor besides the general commanding, the former must also approve of the sentence, if it award death, but not otherwise. As to the sentences of inferior military courts, which have not the power to inflict capital punishment, they may be approved of (except in very rare instances) by the authority which convenes them. General officers commanding stations at home, and in the Channel islands, are not empowered to approve of the sentences of general courts-martial held within their commands, but must refer them, through the Judge Advocate General, for the approbation of the King. As a general rule, the person empowered to approve, can mitigate, commute, or remit altogether the sentences of courts-martial. Thus a sentence of six months' imprisonment may be mitigated to three, or corporeal punishment be commuted (with the consent of the delinquent) for imprisonment. But it is in the province of the King only (except perhaps the Governor General in India) to commute capital punishment for transportation, or to remit sentences whereby pay and pension have become forfeited for desertion. If the person to approve is satisfied with the proceedings and decision of the court, he writes, below the President's signature, the words " approved and confirmed," to which he subscribes his name. There is, however, a difference between the approval and confirmation. Thus, if the commanding officer or person to approve think the sentence too lenient, he may confirm though not approve of the sentence, thinking it better the delinquent should be visited with some, though in his opinion insufficient, punishment, than escape altogether. In this case he writes, before his signature, the words "confirmed but not approved." The withholding his approval makes no difference in the infliction of the sentence, and is merely done to justify himself with the higher powers, and testify his sense of the inadequacy of the punishment.

But if the person who should approve conceives that the court has gone beyond the exercise of its legal powers, or that its proceedings are marked by any irregularity, especially regarding the admission of evidence, or that through the extreme leniency or severity of the sentence, the interests of the service are likely to be compromised, it is competent to him to order the court to revise its proceedings and re-consider its judgment. This was done, as we have seen, in the case of Lieutenant Dawson. If the court, on a careful revision of its proceedings, sees fit to alter its finding or sentence, such alteration is legal, and the sentence, as amended, is good. But on this revision, no new witness can be admitted, nor any fresh evidence from those already examined be received. The act must in fact be a simple revision. Every thing relating to the revision, including the order for that purpose, must be entered on the proceedings; no erasure is permitted, and any alteration must be made by addition. If the court, on solemn re-consideration, sees no sufficient reason for altering its opinion, the sentence must stand, and no further revision is lawful. It very seldom occurs that a revision leads to any alteration; the courts are generally very justly jealous of their dignity, and the surest way for a commander to incur odium with the army, would be the attempt to interfere, without very strong grounds, in their decisions. If after revision, the sovereign is still dissatisfied with the sentence of the court, on the score of leniency, he can still deprive the accused, if an officer, of his commission, by the exercise of his prerogative of dismissing any officer from his service at pleasure. But this power, as we before observed, is very objectionable. Considering that most officers purchase their commissions, it is quite enough that the crown should have the power of dismissing them without trial, but to put it in force against men, who have been declared innocent, after solemn trial by a court which never allows a mere quibble or informality to protect the guilty, is not only offensively arbitrary, but an absolute mockery of justice.

Notwithstanding the clause in the Mutiny Act, which requires that, " no sentence of a court-martial shall be liable to be revised more than once," it is still competent to any party, conceiving himself aggrieved by such sentence, to bring it, even after such revision, under the review of the superior courts of judicature. In fact the members of these courts are

often placed in very perplexing difficulties, for though the higher authorities, and even the sovereign himself, may have approved of their proceedings and sentence, they may still be sued in the civil courts for any illegality in form, or usurpation of authority, which they may have committed. It concerns them therefore that they, or at least the person officiating as the judge advocate, should be well acquainted, not only with the forms and jurisdiction of their own court, but with the rights and privileges as well as the practice of the common law. Actions against members of courts-martial for refusing to receive evidence, or deciding on improper evidence, have sometimes been brought, and heavy damages have been given. An officer of marines, who had been sentenced by a court-martial to a long imprisonment, on the written depositions of persons who might have been produced, obtained a verdict in the Common Pleas, 1000l. damages, against all the members of the court, notwithstanding that the sentence had been previously remitted by the king. But though the sentences of courts-martial are liable to be reviewed by the superior courts for any of the causes for which a new trial would be granted in a civil case, yet it appears there is but one ground on which a prohibition lies from the civil courts, to prevent the execution of the sentence of a court-martial, viz., excess of jurisdiction, as if a court-martial have tried a person not subject to military law. This was settled in the case of Serjeant Grant (before alluded to), who was tried in 1793 by a general court-martial, for enlisting two men into the service of the East India Company, knowing them to be soldiers in the Guards, and sentenced to receive one thousand lashes. A motion was made in the Common Pleas for a prohibition to prevent the execution of the sentence, on the ground that he was not regularly enlisted as a soldier, and therefore not liable to the military law. The motion failed, because it was proved that Grant was in receipt of pay as a serjeant of the 74th regiment, which fixed him with the character of a soldier, from which he could never be released, in the words of Lord Loughborough, " but by a regular military discharge." It was however laid down by his lordship, that such excess of jurisdiction was the legal foundation, and the only one, for a prohibition. "Beyond this