mental debts of these persons shall be paid out of their effects, in such proportions as the Secretary-at-War shall direct, in preference to any other debts of such officer or soldier.

Again, to secure the service of the soldier, the Mutiny Act provides that no enlisted soldier, and no commissioned officer or drummer on the permanent staff of the disembodied militia, shall be liable to be arrested or taken out of the Queen's service in respect of any debt less than £30. This would include private marines, who are, to all intents, enlisted soldiers.

It is the custom of our courts to require all persons resident, and being subjects, to give security for costs; or otherwise, if they were unsuccessful, they might run away: but this does not apply to officers on service; nor even to an officer who may have left the country and taken a command in foreign service by leave of the government, unless he can be made out to be a foreigner: and officers of the British Army who have gone to join foreign powers are not considered to be foreigners. The same rule applies to Englishmen who are prisoners of war in foreign countries. †

When an officer or soldier is arrested or imprisoned, it is laid down by the Articles of War that he shall not be kept in confinement more than eight days, or until such time as a court martial can conveniently be held. In some few cases, where soldiers have been longer kept in confinement, they have endeavoured to obtain their discharge by writ of habeas corpus; but, although on principle it would be obtainable, there is no instance of its having been actually obtained. The superior courts have undoubtedly the power of ex

*Stat. 58 Geo. III. c. 73, secs. 1 and 2.

† O'Lawler v. Mc Donald, 8 Taunt. 736; Tullock v. Crowley, 1 Taunt. P. 18.

amining the merits of military proceedings. The court will not, however, grant such a writ, when the delay is satisfactorily explained; if it be not a wanton or oppressive delay, but arising out of the circumstances of the country.* An officer absent without leave cannot be arrested as a deserter, in time of peace. †

Officers and soldiers must attend as witnesses at courts of justice, when duly summoned, and for this purpose the commanding officer is bound to grant leave of absence.

The legal discharge of an officer from military service may be effected in four ways:-1. By royal mandate: 2. By sentence of a court-martial: 3. By sentence of a civil court: 4. By voluntary resignation.

It has been more than once mentioned in this volume, that commissions, being held at the sole will and pleasure of the Crown, a royal mandate or order is at any time sufficient for the summary discharge of an officer from the formality of a court of inquiry or a court-martial. This power of the Crown is not affected by the circumstance of an officer having purchased his commission, the value of which he forfeits upon dismissal; though, by way of indulgence, an officer so situated is usually allowed to sell one of the steps of his rank.‡

The East India Company, by the contract it makes with its officers, possesses similar powers over them; and, by an express Act of Parliament, military officers in the service of the East India Company may be summarily dismissed by the Crown, without the intervention of a court-martial or a court of inquiry.§

* Blake's Case; Wade's Case, 2 M. and S. 428.

† Prendergast's Law of Officers, 181.

Prendergast, p. 207.

§ Ibid. and 53 Geo. III, c. 155, sec. 74.

This power of dismissal is a constitutional prerogative, of which the Crown cannot divest itself, being entrusted with it for the good of the Army and the safety of the state. Any attempt, therefore, on the part of the Crown to give an officer an indefeasible right to his commission, is unconstitutional and void.

Similarly, this indefeasible power of the Crown is in no way controlled or affected by the sentence of any courtmartial. There has been instance after instance, in which, after acquittal by a court-martial, the parties had been dismissed; and this, not from any notion that the court had acted improperly, but because there have been many cases in which legal guilt could not be proved, yet in which there have been circumstances to affect the character of a gentleman, or the harmony of a regiment, or in some other way the good of the service. Nothing has at some times been so common as to dismiss those whom a court-martial had not ordered to be dismissed; leaving, or not leaving, to an individual the price of his commission: which is another circumstance on which the Crown may exercise its discretion.

Conversely, the sentence of a court-martial declaring an officer incapable of future service, is not binding on the Crown, neither with respect to military or civil employment.

Courts-martial have the power of sentencing officers to dismissal from the service, under various sections of the Mutiny Act.

Two cases have been mentioned before, in which officers may be ipso facto cashiered from the service, on conviction before any Court of Record at Westminster, Dublin, or Edinburgh; and become disabled by those convictions from again serving the Queen. As suggested by Mr. Prendergast, this incapacity of future service is not removed by a Royal pardon. These are the only cases in which the

sentence of a civil court operates as a dismissal from the service.

The monarch of this country has a general power to call upon every one of her subjects to assist and aid her in carrying into execution her legal powers and duties, and to continue that assistance as long as she deems it necessary; on this principle, an officer who has accepted a commission is not at liberty to resign it without the permission of the Crown, directly granted and notified through the proper channel. The tender of a resignation is, during the time of peace, uniformly accepted; though difficulties, even then, are sometimes thrown in the way of certain classes of officers, such as medical officers on distant stations, whose place cannot be readily supplied.

It is said that Lord Raglan has lately refused to accept the resignation of many officers; but he would have no power to accept their tenders, unless it were expressly delegated to him in his own commission; such a prerogative being peculiarly seated in the Crown.

In the cases of Parker v. Lord Clive, and Vertue v. Lord Clive, it was laid down that "The officers in the East India Company's Service are not bound for life by their contract; but that they have not a right to resign their commissions at all times, and under any circumstances whatsoever, whenever they please. The commission received in this service contains no engagement or obligation on the Company, to keep an officer a moment longer than they like; nor upon him, to continue in their service longer than he likes; either party are at liberty to put an end to the contract, under proper circumstances, and in a proper situation." *

But the position of an officer in the East India Company's service, which rests upon the contract between the Company

and the officer, does not apply to an officer in the Queen's service, who is drawn into the service, under a royal prerogative, and who is disciplined and paid under the authority of parliament; even bodily or mental infirmity, or very advanced age, would not form a legal claim to be discharged, although it might found a good excuse for neglect of duty. The Crown is sole judge of the usefulness to itself of an officer's service.