which he had received on the 1st July, enabling the officer to draw at the rate of nine pence per mile; therefore, as far as any authority of government was concerned, he might just as well have paid the allowances in July as in October.

But he pleads that the officers had their money when they applied for it, and some of them even without any application. I allow that some of them received the money without application, after Captain Dale had kept it in his hands for three months; but Captain Thain and Mr Morrison applied, and though Captain Thain's recollection extends only to one application, Mr Morrison, who does not appear to have been treated in quite so friendly a manner by Captain Dale, positively declares that his applications were no fewer than three; but I do not conceive that it is very material to prove how many applications there were, or even that there were any, for it is sufficiently well understood among military men, that as soon as any sum is drawn for any specific purpose, that sum is to be applied to that purpose without reservation or delay. That Mr Nicholson may have been content to wait for the allowance is also altogether immaterial, for it by no means follows that because one person may consent to wave his right, it is allowable to withhold that right from another who does not give such a consent.

Having said thus much on the first charge, I pass on to the second and third. Captain Dale thinks it hard that these charges have been preferred distinctly; he argues that they ought to have been consolidated; but, in the proceedings they have been consolidated; so that, practically, he has had all the advantages of consolidation; and in the accounts, which it remains for this honorable court to investigate, such an arrangement has been adopted that the court, if it shall be their pleasure, may consider jointly the expenditure and receipts on all the three charges; but in whatever mode, Sir, you shall resolve to consider these accounts, I believe you will find, on the 24th day of each month, a balance of money was in the hands of Captain Dale, and that he omitted to pay that money when the service required it.

In the account which I have had the honor of submitting to you, I have first stated on the left hand side of the page, the expenditure of Captain Dale for pay and bounties up to the 24th day of July, and on the right hand side, I have placed the amounts of the bills which he drew up to the same period. I have then cast up the sums and struck the balance between them, and it will be seen, that, on the 24th July, there was a balance of money in the hands of Captain Dale. I have added to this balance the other sums of money which he had drawn on the public account, namely, the marching allowances; and the sum so composed constitutes the whole sum of public money lying in the hands of Captain Dale, on the 24th July. I have then made up a similar account up to the 24th August, placing on the right

hand side of the page against Captain Dale the balance of pay and bounties which remained in his hands on the last day of the former period, that is to say, on the 24th July, (not the total balance of public money with the marching allowances included, but the balance of pay and bounties only) always adding the sum drawn for marching allowances at the end of each period, so as to leave that sum properly distinct, and free to be dealt with according to the convenience of the court. The accuracy of these statements will be seen by referring to the quarterly pay list, to the levy lists, and to the forms containing the expences of the parties marched up to head quarters; and, in order to give the court a clue to those documents, I have laid upon the table pay lists, and lists of bounties, accurately calculated from the original documents themselves, each comprehending, at a single view, the expenditure of the period to which it refers. Thus the court will see how much Captain Dale was obliged to pay from period to period, and how much from period to period he drew. His expenditure in point of fact, as indeed appears in evidence, was not made by piece meal in the months of June and July, but by advances of £40. and £20. to the officers; but such advances do not appear to have been made in August and September, the time to which the present charges apply; for, at this time, the remittances to the parties were made, by the week or by the fortnight, through Serjeant Cockburn, with the exception of the Hexham party, to which no remittance was made at all.

However, the mode in which Captain Dale may have thought proper to arrange the payment with his officers, has nothing to do with the principles of these charges: It concerns me merely to shew how much was actually paid to the men for pay and bounties, and how much was drawn for these services. The rest is a matter of his own convenience, and as he himself very justly observes in his defence, the service knows nothing of accommodation. However, as Cockburn has said that from the 20th August, to the 19th September, Captain Dale advanced £231, I beg leave simply to state that the amount of his drafts during that period was upwards of £359, as will appear by his bills themselves. Captain Dale also has laid accounts before you, and though he has avoided the regular monthly pay days, namely the 24th of each month, and thus made his statements more intricate than they otherwise would have been, yet I believe I shall be able to explain my view of them with sufficient clearness to the court. With respect to any advances stated in these accounts as made by Captain Dale in June and July, before the period to which the present charges refer, I shall probably have occasion to speak, when I mention the letters of credit. At present I beg leave to observe, that though about the 20th August Captain Dale had paid away all the money which he had then drawn for pay or bounties, yet he had even then a

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balance of public money in his hands, on account of the yet unpaid marching allowances; and that during the whole of the month of September, up to the time when the debt to Mr Morrison was paid, a very large balance was constantly in the hands of Captain Dale, for pay and bounties. Perhaps though for another purpose, he complains of the division of the accusations, het may here object to their consolidation, and say that it is unfair, when he had exhausted all the money drawn for pay, to charge him with the balance still in his possession for bounties, and that when pay and bounties were both exhausted, it is unfair to state the marching allowances as a balance in his hands: But, Sir, contend that all these sums in Captain Dale's hands were public money, it is perfectly fair to debit him with the whole balance; and if he urges that the marching allowances could not be applied to the general purposes of the service, because he was bound to apply them to their own specific object, I answer that in point of fact he did not apply them to their own specific object, but continued to keep them in his own pocket. I now come to that part of the case, which I consider as by far the most unjustifiable of all the transactions connected with the present prosecution; I mean the unwarrantable and shameful endeavours which have been made, to cast a slur upon the highly correct and respectable evidence which was delivered to you by Mr Morrison. Every one is aware how difficult it is to preserve a complete recollection, after the lapse of many months, ou almost any subject not strikingly remarkable; and, yet, I believe there has scarcely ever been an instance of an examination so long and so severe as that which Mr Morrison has undergone before this court, an examination of several days, where so few instances have occurred even of the slightest forgetfulness or misapprehension. It is extremely to be regretted, that Captain Dale should have thought of no better mode of saving his own reputation than by endeavouring to destroy that of an innocent and honorable man. You are told, Sir, in the defence, that Captain Dale never intentionally injured or offended Mr Morrison; then it is the less likely, that Mr Morrison should have been actuated by malice. Captain Dale has even ventured to assert, without the shadow of proof, or even probability, that Mr Morrison's conduct was a settled plan to entrap Captain Dale, by allowing the debt to go on increasing, and by avoiding meetings for payment. It must be very unnecessary to make any comment on so unjustifiable a statement; a statement not only unsupported by any evidence except Captain Dale's own assertion; but even directly contradicted by the numerous applications and personal visits of Mr Morrison to Captain Dale, all of them clearly proved by Mr Morrison, and many of them admitted even by Captain Dale himself. Mr Morrison has said, that one of his applications was made from Hexham, and he having been at the date of that

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application absent from Hexham, is immediately accused of the greatest perjury. His explanation follows; and it is the simplest in the world. Being away from Hexham, he sends one of his party over to that place with the letter containing this application to be put into the post, and the reason of his doing that is very obvious and very natural:-He did it, of course, to prevent Captain Dale, who was commanding officer, from discovering, by the post mark, that he was absent from Hexham without leave. The person sent may have been Daniel Carmichael, but Mr Morrison stated, that he could not recollect with certainty who the messenger was, though he knew it must have been one of his own party. Daniel Carmichael refuses himself to swear, that when he came from Shafto he brought only one letter, but as Serjeant Keys would probably have received all the letters brought, and as Keys says he did not receive any letter addressed to Mr Cap! Jale Morrison, I am perfectly ready to admit that the messenger, instead of being Carmichael, as Mr Morrison thought, may have been some other person; indeed, it is only natural, that at such a distance of time, so trivial a circumstance should escape the recollection of any officer who has many men under him, and sometime employs one and sometimes another. The only question is, can there be any doubt that the letters which Mr Morrison has sworn he wrote, were really written and sent? If letters are put regularly into the post office, it is not to be supposed that they can miscarry so often, as that Captain Dale should scarcely ever get any of Mr Morrison's communications. I leave it to the court to decide for themselves, whether they will believe that the conveyance of letters at this juncture was so very slovenly, or that Captain Dale really received those letters only, of which, from other collateral proofs, such as his own answers, he cannot help acknowledging the receipt. Mr Morrison has proved that letters were put into the post, and it is incumbent upon Captain Dale to prove their non-delivery, by miscarriage, delay, or any other cause.

As to the appointment at the Queen's Head, Newcastle, Mr Morrison obviously appears to have understood it generally as an appointment, but not as an engagement for dinner. Captain Dale's brother has sworn that Captain Dale and himself waited at the Queen's Head, in expectation of Mr Morrison, and did not go away until near six o'clock. Before they went, Captain Dale enquired of the waiter if Mr Morrison had been at the Queen's Head; the waiter answered that Mr Morrison had not been there himself, and did not say that he had even sent. Perhaps the court may think that if Mr Morrison had really sent, the waiter would have mentioned that circumstance to Captain Dale, but if they will have the goodness to refer to Mr Morrison's evidence, they will see that he sent to the master of the house, and not to the waiter, and that therefore the waiter most

probably knew nothing of any message or letter from Mr Morrison. But, there is a contradiction between the evidence of Mr Morrison and that of Ensign Dale, as to the time of Captain Dale's departure from the Queen's Head. Mr Morrison, when he arrived at Newcastle, on the 8th of September, being soiled with his journey, stopped to change his cloaths, that he might go to Captain Dale, and in the mean while, to save time, he sent a message to Mr Forster, the landlord of the Queen's Head, requesting to know whether Captain Dale was there, and desiring that Captain Dale, if not there at that time, might be informed as he should come in, that Mr Morrison was arrived. From Mr Morrison's examination it appeared, that it could not be more than five o'clock when Mr Forster's answer was brought to him, informing him that Captain Dale had just dined, and gone forward to Morpeth. On the other hand, from Ensign Dale's statement, it should seem that his brother did not set off till between five and six o'clock. Without intending the least insinuation against the character of either witness, I may be permitted to observe, that where any contradiction arises between the evidence of two persons, that evidence is always considered the more worthy of reliance, which is delivered with the less probable bias from friendship, relationship, or any other cause. Now it cannot be supposed but that Ensign Dale must feel a strong interest in his brother's acquittal, and that, therefore, upon a subject so doubtful and difficult to be accurately remembered, as the precise hour of the day, he may very easily have persuaded himself, without any culpable motive or design, that it may have been later, when they set off for Morpeth than it actually was. Lieutenant Morrison could have no motive to avoid Captain Dale; he had been with that gentleman the whole of the preceding evening, and for a considerable time the day previous to that: Nay he had the strongest motive for wishing to see Captain Dale, for he was in pressing want of money that was due to him. Weighing these probabilities against each other, the court, I trust, will not be of opinion, that Mr Morrison's evidence is in the smallest degree invalidated by that of Ensign Dale.

With respect to an application of Corporal Dowson's to Serjeant Cockburn, it may not be quite so easy to decide. From the corporal's evidence it seems that an application was made to Cockburn for pay: that an evasive answer was returned by Cockburn about being busy at that time, and that in order to get rid of the corporal altogether, Cockburn at last contrived to send him away upon another errand. All this Cockburn positively denies, and as this is not a doubtful matter like the time of the day, but a positive and easy remembered fact, it is obvious that either Dowson or Cockburn must have absolutely mis-stated the truth. Now Cockburn has also denied the receipt of any letter from Serjeant Keys, and has sworn that he is confident any letter