furnished by the paymaster up to the 24th of June; and on the 17th of June previously to the time when this advance is supposed to have been begun, I being at that time in command of the regiment, myself ordered the circular letters of government to be sent down to him, which empower all recruiting officers to draw upon the agents for the necessary funds; therefore if he made any advance, it was a gratuitous act of his own, totally uncalled for, and totally unnecessary; besides whatever advance he might have made, must have been for so short a time as to be quite inconsiderable; for you will find from his own estimates, that, on the 7th of July, he reimbursed himself by bills on the agents for all that he had already laid out, and at the same time provided himself with a large sum in hand for future contingencies; so that throughout the whole of the time to which these charges refer, he had always a great balance of money in his pocket: and I should not have thought it necessary to notice these advances at all, if I had not understood that he intends to rely on this point in his defence: but I must beg leave to observe, that no advance, however considerable, made by an officer at one time, is an excuse for a defalcation committed at another. The advances that may have been made before the 7th of July, can therefore furnish no answer to charges which relate merely to the months of August and September. The troops from whom the payments of to-day are with-held, can find very little satisfaction in reflecting that the payments of last month were punctually made; the payments of last month served but for last month: they are all expended now; and the question is, what must be done for a present supply; a question which it will not be easy to answer, if the commanding officer refuses to make his payments. In short there is no irregularity, however dangerous, which an officer might not commit, if a court would allow him to stand excused upon one occasion for having behaved well upon another.

The fourth charge is founded on events unconnected with the unfortunate recruiting party, which has betrayed the prisoner into so many errors. This charge, which is the last of the list given in, accuses him of keeping an account current with his Pay Serjeant, neglecting to pay the balances, and, at the death of this Pay Serjeant, remaining indebted in a considerable sum. Captain Dale has acknowledged, before a court of inquiry, the keeping of this account. The books of the Pay Serjeant will prove the perpetual existence of a balance against Captain Dale, and with respect to the debt remaining at the death of the Serjeant, I shall shew that Captain Dale, when examined in private by some of the officers of the regiment, offered to pay any sum they should appoint to the Serjeant's widow; thus virtually admitting that a debt did exist. A court of inquiry has been held in order to ascertain the balance, but the statements

of the prisoner have been so inconsistent and unsatisfactory, that nothing seems likely to be done for the widow; but by the sentence which this court may think fit to pronounce; indeed he has contradicted himself so unguardedly that he even at one time professed himself ready to swear to a payment, which a few days afterwards he as absolutely disavowed. No practice in itself can be more prejudicial to the honor of the regiment, and even of the service at large, than the existence of such accounts current, at all, between the officer and his pay serjeant, for when balances exist against the officer, they always imply a most uncreditable backwardness on his part, and frequently put him so much in the serjeant's power, as to induce a connivance at many malpractices, which an officer compleatly unshackled would have been vigilant to prevent. The attempt to create such a balance is sometimes attended with an evil consequence of another kind, for when it does not tend to embarrass the officer it will in all probability tend to embarrass the serjeant, whom it places in the distressing dilemma, either of advancing sums which the narrow finances of a poor man must always be unable comfortably to afford, or of disobliging his officer, and thus running the risk of having the payment of the company taken out of his hands. It is, perhaps, possible, that, at some given moment, a small balance may be due to a serjeant without a blameable neglect on the side of the officer, merely from some casual omission on the serjeant's part to bring in his accounts, or from some other unusual accident, but the fault which is charged in the present accusation is not of a slight nor of an accidental nature. It was of serious amount, and it has been of perpetual continuance. In the course of the time during which the account subsisted, Dodd, the serjeant, was very much distressed by the irregularity of Captain Dale; on one occasion he came to me, to complain that he could not procure his balance from the prisoner, and that he was totally at a loss for money to discharge the bills delivered to him for necessaries on account of the company. At that time, Captain Dale and I were on terms of cordiality, and I immediately stated to him the complaint which had been preferred to me by the serjeant. Captain Dale assured me upon his honor, as an officer and a gentleman, that he was not indebted to any serjeant. At eight o'clock the same evening, after the conversation with captain Dale, I met serjeant Dodd, and asked him whether he had not got his money from the prisoner? he answered, "No Sir, but I am to meet him at his lodging at nine this evening." I now perceived that Captain Dale had been strangely premature in denying himself to be indebted to any serjeant. From all his postponements and excuses, I became more and more convinced that there was a most inexcusable duplicity on the part of Captain Dale, and from that time I studiously avoided all social communication with him. I had hoped that this event, the complaints

B

of the serjeant, the representation which I made to Captain Dale, and the awkward denial into which conscious misconduct betrayed him at that interview, would have sufficiently wrought upon his feelings, to be at least a warning against future errors of a similar kind. I did not expect that he would still persist in allowing his serjeant to be his banker; and, at last, on the death of the man, with-hold from the widow the sum which, even by his own acknowledgement, appears to be her due. The widow is greatly distressed for the money, and has made many applications to me upon the subject. I am exceedingly sorry for her situation, and would willingly have done any thing in my power to relieve her from the pressure of unmerited poverty; but the question is now in better hands than mine. It rests entirely with this honourable court. On this, as on all the other grounds of charge, it will appear by the evidence that various statements have been made by Captain Dale, not only inconsistent with the facts, but inconsistent with each other: and I will confess that, through the whole of my acquaintance with this gentleman, nothing has tended more strongly to excite my suspicions and fix me in my opinion of his delinquency, than that want of candour and that frequent mis-statement of fact which have forced themselves so disagreeably upon my view. It is not easy to conceive by what excuses the prisoner can now justify any one of the four delinquencies that are charged against him, towards the officers, from whom he has with-held their marching allowances-towards the privates, from whom he has with-held their pay-towards the recruits, from whom he has with-held their bounties or towards the serjeant and his widow, from the latter of whom he still withholds the money advanced for him. As to the marching allowances, the pay and the bounties, he may wish to plead that he had no instructions for making his payments, but, unfortunately for that plea, it will be proved both by the dates of the instructions themselves, and by his own letters, that he had received instructions the most full and satisfactory. His letters will presently be produced, and it will be seen that though in some passages of them he denies, yet in others he confesses the receipt of his instructions on the 28th of June. If he should wish to plead that he had no funds for carrying the instructions into effect, he will be confronted by his own estimates, and by the evidence of the agents who paid the value of those estimates into his hands.

Thus proved to have been furnished with instructions and with funds for payment, did he want the inclination alone. Perhaps he will tell this honorable court that in with-holding the money, whether allowances or pay, or bounties, or the balance of the account current, his conduct, if not strictly correct, was free at least of every design of fraud. Sir, if by fraud, Captain Dale would imply an intention of never paying any of these various creditors at all-under that interpretation of the word fraud, I

should certainly acquit him of fraudulent designs; but if it be a fraud to keep back the property of others secretly, for the purpose of profiting by their distresses, then I do conceive that his conduct has been fraudulent to a most culpable and dangerous degree-nor is there, even on the score of blameless intention, the same excuse for his errors which might have been pleaded for some inexperienced officers, for before he came into the Northumberland Regiment he held a commission in the line, and in that school he must needs have learnt what nice and punctilious strictness of honor is indispensible in a military life.

Gentlemen, these errors of Captain Dale are not only offences against the rules of justice, and of good order, and of military discipline; they are offences against another rule, secondary indeed to those great and general principles, but of infinite importance to your present investigation, I mean the rule of express enactments passed by parliament, and articles of war promulgated by his majesty under the authority of the legislature. It will be sufficient for me merely to read to you the penalties prescribed by those enactments and articles, which the prisoner has thus violated, in order to set before you, in the clearest point of view, the intentions of the legislature with respect to such trespasses.

By the 4th article of the 13th section of the articles of war, it is commanded that "if any commissioned officer shall embezzle or misapply any monies with which he may have been intrusted for the payment of the soldiers under his command, or for enlisting men into our service, or for any regimental purposes, and shall be thereof convicted by a general court martial, he shall be dismissed our service, and shall forfeit the arrears due to him upon account of his pay, or of so much thereof as may be sufficient to make good the deficiency occasioned by such embezzlement or misapplication."

A commissioned officer is now on the trial before you, who has misapplied monies with which he has been entrusted for the payment of the soldiers, and for enlisting men into the service, and for other regimental purposes; such as the providing of the marching allowances to the officers: but, with respect to the pay of the soldiers, there is, besides this provision in the articles of war, another specific enactment in the 105th section of the mutiny act.

By that section, it is enacted, that "if any paymaster, agent, or clerk, of any garrison, regiment, troop, or company, shall unlawfully detain or with-hold by the space of one month the pay of any officer or soldier (clothes and all other just allowance being deducted) after such pay shall be by him or them received, or if any officers, having received their soldier's pay, shall refuse to pay each non-commissioned officer and soldier their

respective pay when it shall become due, according to the several rates established by his majesty's orders, then upon proof thereof before a court martial, as aforesaid, to be for that purpose duly held and summoned, every such paymaster, agent, clerk, or officer, so offending, shall be discharged from his employment; and then the section goes on to point out other forfeitures incurred by the offender."

Now, throughout the last summer, the prisoner was acting as paymaster of the recruiting party; and with-held the pay of the soldiers not for ONE MONTH only, against the provision of this section, but for many weeks. Further, at the time I have specified, he was an officer, and did receive the soldiers' pay, and refuse to pay the respective pay when it became due, which are the precise words of this 105th section.

The two extracts, which I have had the honor of reading to you, comprehend the substance of all the enactments bearing upon the three charges which relate to the recruiting party, nay, indeed, the articles of war alone, I mean the former of the two extracts, which I have submitted, is in my humble opinion compleatly decisive upon all the three charges.

Against the offence imputed in the fourth charge, there is no specific enactment, but the punishment of such offences falls generally within the discretionary power furnished by the 2d article of the 24th section of the articles of war, the words of which are as follow:-" All crimes not capital, and all disorders and neglects which officers and soldiers may be guilty of, to the prejudice of good order and military discipline, though not specified in the said rules and articles, are to be taken cognizance of by a general or regimental court martial, according to the nature and degree of the offence, and to be punished at their discretion."

Enough, I am sure, has already been said, to shew that the disorders and neglects of which this officer is accused under the fourth charge, as well as those of which he is accused under the other three, tend manifestly to the prejudice of good order and military discipline.

Having thus endeavoured to explain my charges clearly, I have only a few words more to add, by way of general conclusion. Indeed, it would be an ill return for the patience and indulgence with which I have been treated by the court, to trespass now at any length upon their time and attention. Much as I regret that the present duty has devolved upon me, it will be some recompence to me for the invidiousness and trouble of the under❤ taking, if I shall have contributed to establish that security and punctuality of payment, by the neglect of which the comforts of so many meritorious and loyal persons, commissioned officers, non-commissioned officers, and private men, have been unhappily invaded and disturbed; and the character and well being of the