an Officer on half-pay tried;

Morne Bruce when this affair happened, as having been grossly negligent of his duty, in not interposing his authority on that occasion, by putting the parties under immediate arrest; thereby effectually preventing not only the fatal consequences which might have ensued to lieutenant Mahon and lieutenant Geagan, from their being left at large, but also the subsequent conduct adopted by ensign Mills, and the fort-adjutant, which cannot possibly be justified." It may also be

remarked, that lieutenant James Blake, when on half-pay, was tried by a general court martial, in May, 1805; he was described in the charge as on half-pay of the York rangers, and late of the 2d battalion 44th regiment of foot. It may be right to observe, that " previous to arraignment, the prisoner informed the court, that it never having been notified to him his having been put on the half-pay of the York rangers, he still conceived himself a lieutenant in the 2d battalion 44th regiment, and acknowledged himself subject to martial law." The concurrence or acquiescence of the prisoner could not, it is conceived, affect the law of the question, or extend the jurisdiction of the court. An individual, if not under martial law, could not, by any effort, bring himself within its influence. If, therefore, the trial of lieutenant Blake, who was cashiered, was legal, which there is no reason to doubt, as the proceedings were approved by his majesty, the amenability of officers on half-pay to martial law cannot be questioned.

Previous to the substitution in the mutiny act

(1) G. O. No. 452.

(2) Manuscript copy of the proceedings of the trial.

of the word "commissioned" for "mustered,"
neither brevet officers nor officers on half-pay
were subject to martial law.' The introduction of
the amendment caused much discussion in either
house of parliament, which may tend to show the
intention of the parties who introduced the alter-
ation, but cannot decide the point of law; it
does not appear that any opinion of high legal
authority has subsequently been given on the
question. Some members, who took part in the
debate, expressed an opinion, that hardship and
injustice to officers on half-pay would arise by
subjecting them to martial law; but when it is
considered that officers on half-pay are subject to
dismission by order of her majesty, it will be
admitted that their amenability to trial must be
held as an advantage, and their actual trial a boon,
rather than a hardship. The lord chancellor
Thurlow aptly remarked, during the debate refer-
red to,
"If gentlemen chose to have the advan-
tage of military rank, they ought to hold it on
the condition of being subject to military law;
and if they disliked that condition, they might
ease themselves of the grievance, by resigning
their commissions." The respectability of the
army would certainly be promoted by the con-
stant trial and dismission of every officer on
half-pay who conducted himself in a manner

(1) In 1785, the court martial appointed to try general Ross (respecting a letter written by him, reflecting on general Boyd) met agreeable to their adjournment, to receive the opinion of the twelve judges of England, on the point submitted to them, viz: whether general Ross, as an officer on half-pay, was subject to the tribunal of a court martial? The judges gave an unanimous opinion, that he was not, as an half-pay officer, subject to military law. They stated their answer in two points, and in both declared it as their opinion, that neither his warrant as a general officer, nor his annuity of halfpay, rendered him obnoxious to military trial. In consequence of this, the general was discharged from the custody of the marshal, and the court broke up.-1 M'Arthur, p. 196.

expediency of

subjecting Officers on half-pay

to

Military Law.

A Brevet Officer on half-pay tried.

Listed, or in pay, comprehends Masters of bands, &c., though not listed.

derogatory to his profession; and, as on an officer's resumption of active duties, whether by a new commission or by a staff appointment, the commission which he retains on half-pay is that alone by which his rank in the army is ascertained; and as the period he may be on half-pay is included in the time of his service, there can be no injustice, but a positive necessity, one would imagine, for rendering an officer accountable to the service for his conduct on half-pay. The exertion of the royal prerogative to dispense with the further service of an officer on half-pay, is seldom resorted to but in very aggravated cases: nor can it be wished that recourse should be had to it more frequently, since its application must always be attended by difficulty; the delinquency of the individual being judged by reports, and not by judicial enquiry.

Brevet lieutenant-colonel Bayley, late of the 98th regiment, was tried when on half-pay, by a general court martial at Limerick, in September, 1829,' on charges imputing unofficerlike conduct when in command of the depôt of that regiment, in January, 1828, the brevet lieutenant-colonel having been placed on half-pay in November, 1828.

The words "listed or in pay as a non-commissioned officer or soldier," clearly comprehend masters of bands, serjeant school-masters, serjeant-armourers, drummers, boys and others, who, though not enlisted or attested, are borne on the establishment and in the receipt of pay as

(1) G. O. No. 511.

(2) It is no longer the custom to dispense with a regular attestation in any case; armourer serjeants are required to be regularly enlisted as private soldiers and are then promoted.-Gen. Reg. p. 172

non-commissioned officers and soldiers. Were this otherwise doubtful, it would be evident from the decision of lord Loughborough, in the often-quoted case of serjeant Grant, who, though not enlisted, but being in pay as a serjeant in the 74th regiment, and employed on the recruiting service, was brought to a general court-martial, found guilty of having promoted, and been instrumental towards the enlisting of two men in the service of the East-India company, knowing them to be deserters from the guards, and sentenced to be reduced to the ranks and to receive one thousand lashes. The remarks of his lordship occurred on a motion in the court of common pleas, trinity term, 1792, for a prohibition to prevent the execution of the sentence. In remarking on the refusal of a prohibition in this case, it should be noticed, that a parallel clause to that in the thirtieth section of the present mutiny act, which expressly includes "persons employed in the recruiting service, receiving pay in respect of such service," did not then exist. The sentence of the court and the decision by lord Loughborough, also evinces that a person once in the receipt of pay as a soldier, must serve till discharged, or till the completion of the period of his engagement serjeant Grant, though not enlisted, was sentenced "to serve as a private soldier in the ranks."

Parliament,

or in pay, liable to arrest

and trial;

A question has been agitated as to whether Members of peers, being officers, are exempt from trial by commissioned courts martial, and Mr. Tytler has, in some measure, countenanced this opinion, and extended the principle to members of either house of parliament, by assuming that, "as the law has not

expressly warranted the suspension of parliamentary privilege in such cases, the safest course seems to be, that previously to the arrest of any member, in order to trial for a military crime, notice should be given to the house of which he is a member, with a request that, for the sake of public justice, they should consent to renounce the privilege in that instance, in so far as the body of parliament is concerned, as the individual member is understood to have renounced it for himself, by the acceptance of a military commission." If this reasoning of Mr. Tytler be correct, and the admonition necessary to be observed, the influence of the privilege maintained by it must be productive of the most baneful consequences on the discipline of the army, whether it be viewed as affecting the individual conduct of officers thus privileged, or as to its tendency to create a feeling of disgust and insubordination in other officers. If a commanding officer be restricted from placing a peer or member of the lower house in arrest for any breach of military discipline, until he may have obtained the consent of one of the houses of parliament, it must happen that, for a time at least, his authority may be defied, and the most mischievous example afforded. This, probably, is the least pernicious effect resulting from the doctrine.

It may be supposed that such cases would seldom arise; but from the influence which such privileged officers must necessarily possess, they would frequently be in command; and could it be tolerated or desired, by any man of liberal feeling, that a body of men should be subject to

(1) Tytler, p. 130.