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staff officer immediately mentioned ; and it has been explained, that the army, though deprecating the abolition, submitted most cheerfully to that harsh and unpopular measure. It remains only to be remarked, that the new regulation respecting tents, and the public stores, had been now acted upon for several months, and had experienced not the slightest opposition ; and nothing threatened to revive the subject, or any matter connected with it,

until the discovery of the official paper

described. This document, which was put into the hands of Col. Capper, by Sir George Barlow, unfolded the information on which the abolition proceeded, suggesting, in substance, but under a confused phraseology, that six years experience of the practical effect of the tent contract had shewn, that by granting the same allowances in peace and war, when the expenses bore very lightly in the first, comparatively with the latter period, it placed the interests and duties of the commanding officers, parties to the contract, in variance with each other ; making it their advantage, contrary to the interest of the state, that their corps should be in an inefficient state for field service, and therefore inducing them to neglect their duty. Practical experience, it is to be observed, is the very essence of the report, for if that betaken away, it is reduced to simple reasoning. But what will become of the foundation whereon to build the reform : The inconveniences are stated explicitly to have been developed by the practical effect of the contract ; –which effect could not be produced without considering the evils enumerated, real, and not chimerical. And if real it may be asked, what must have produced them 2 the acts of the commanding officers of corps; and these acts being culpable, they necessarily implied the condition of the agents. The passage in the quarter-master-general's report, which has been just stated, might possibly have been allowed in another season, and under the influence of another temper, to pass as a general insinuation ; and, being inapplicable to individuals, to go harmlessly by. - But

this was not a time to expect a favourable interpretation of the report by the persons to whom it related. It was sufficient if they could extract from it a reasonable complaint against its author; who was known to have been instrumental to the annihilation of a beneficial arrangement to them, and, according to their impressions, on groundless and false assertions. It is a circumstance of regret, that the report, in any interpretation of it, could warrant the construction put upon it by the commanding officers of corps. Such a construction might have been attached to it in the natural jealousy of professional honour, peculiarly characteristic of soldiers, abstracted from all interested considerations. In vain would it have been insisted, if any defence had been attempted, that it was a mere declaration of a general principle, a reasoning on an universal maxim, applicable to the common concerns of mankind ; since the report stated, that the objection to the contract was founded on its practical effect after six years experience of its operation. It could not be supposed that the government had determined on the abolition of the tent contract on general principles, and on mere abstract reasoning; but on the personal knowledge, truly stated to the government, of the officer under whose peculiar cognizance the contract was conducted. It was besides the official duty of the quarter-master-general to muster the public cattle, and to inspect the tents, subject to the contract, once a month, and to report on their sufficiency : so that if the establishment was not complete for any emergency, of war as well as peace, it would have been the business of that officer to have marked such incident in his reports. In these periodieal returns no notice is said to have been taken of any remarkable inefficiency;—a circumstance of a further aggravated appearance to the report immediately under our view, since it gave it the colour of a private and secret insinuation, instead of a public and honest detail. It seemed, unfortunately, to impute facts, prejudicial te the character, as well as interests of the army, and to add insult to injury. Under these impressions it is not to be wondered, that immediate means were taken to resent the imagined wrong; by the exhibition of a formal complaint against the quarter-master-general, signed by a numerous body of the commanding officers of corps, charging the quarter-master-general “with conduct “unbecoming the character of an “ officer and gentleman, for having in “ his proposed plan for the abolition “ of the tent contract, made use of “false and infamous insinuations, “tending to injure the characters of “ commanding officers of corps, and “ otherwise injurious to their reputa“tations as gentlemen.” After some delay and hesitation, and reference to professional authorities, the charge of the officers commanding corps, was duly admitted by the commander-inchief. It is not necessary to consider, whether the report would admit of a more natural interpretation than that fastened on it by the officers of corps ; nor, whether the quality ascribed to it in the charge was imaginary or real, false or true; nor whether the matters of the charge, under the circumstance of the case, were cognizable or not by a military court; such an enquiry would seem superfluous, when the only authority on the spot, competent to form a judgment, had decided these incidental questions, in entertaining the charge. The quarter-master-general was now placed under arrest, as a preparatory measure to trial ; whereby the truth or falsehood of the charge was put into a train of investigation, when it might be ascertained, by the event, whether the individual was criminal or blameless. A sudden order of the government, for the release of lieutenant-colonel Munro, to the surprise and astonishment of the army, broke the ordinary and natural course of proceeding. The quarter-master-general had appealed, it appears, from the arrest of the commander-in-chief, to the governor-in-council, setting forth that the

report was made in an official character, and at the instance of his superiors, and that it was not, therefore, for public reasons, examinable by anyother than the power under whose authority it was made ; that this doctrine, or, which the safety of public servants depended, was acknowledged by the Judge Advocate, who had given an adverse opinion to the charge : that the authority of the government itself, was involved in the accusation, since it had approved and adopted the report, and had acted on the plan which it recommended. Every one of these considerations, if applicable to the matters alleged, was for the commander-inchief to determine on, in the exercise of an ordinary discretion, in the admission or rejection of the charge. The report and the plan might have the character described by the quartermaster-general, in opposition to that stated by the commanding officers of corps; but it was impossible to take the averment of one party in preference to the other. It was not sufficient to call the Report, and its statement, official, to render them so in point of fact—this was to be shewn in some judicial way, it could not be presumed. But if so, it would then remain to be seen, whether the official character of the report, abstractedly considered, could exclude the court martial from -entertaining jurisdiction over it, or any incident connected with it, however it might operate to the prejudice of third parties. It is to be observed, that all the matters, stated by the quarter-master-general to the government, are circumstances of justification or defence, available before the military court, if at all available to him ; and could not be attended to in the first instance, without closing the door of justice against the complaints of a large body of the army, arising out of a conceived inJury. The circumstance of the plan having been sanctioned by the government, could not form any ingredient in the judgment to be passed by the commander-in-chief, or the authority to whom the appeal was addressed, without the infallibility of government, which it would have been difficult to argue, could have been satisfactorily demonstrated. The merits or demerits of the report, could not depend on the humour of any authority to receive or reject it; but on its own intrinsic worth. This would be the same under any, and all contingencies. If this were apparent, it wanted not any sanction to countenance it; but if deficient, no authority whatever could supply the inherent defects. So that the approbation of the report, could not of itself afford an indemnity to the party making it. Or how if the report had been rejected In either case it is the nature and discharge of the duty, and not the success attendant on the execution of it, that must operate the indemnity to the servant of the state. It must rest, it is presumed, on principle, not on caprice. Much less could the opinion of the judge advocate, if he had been a professional man, which was not the case here, have been imperative on the commander-in-chief. It is his, the judge-advocate's office to inform, not to control his superior's judgment. With the latter the discretion is constitutionally left to decide on the whole matter. To shew the nature and extent of the interference of the government, in the release of the quarter-mastergeneral, and its effects on the rights of the army, it will be fit to take a short view of the relative authority of the commander-in-chief, and of the governor-in-council. The first is an officer, appointed generally, as in this instance, by his majesty and the court of directors, to the supreme command of the joint army of the king and the East India conipany, with all the usual powers, incident to such command ; and, among others, with the power of holding courts martial, for bringing military offenders to justice; whether they be officers or privates of the king, or of the East India company. The 27th of

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forces shall be employed in the defence of the company's settlements, or assist against their enemies in the East Indies, the power of appointing courts martial shall be in the commander-in

chief of his majesty's forces, for the

time being, over such, the said company's officers and soldiers. In the absence of a commander-in-chief, then it is competent to the court of directors, and then only, being first duly authorized by the King, by a special commission to that effect, to authorize and empower their presidents in council, by a warrant under seal, to appoint courts martial, and to empower the company's commander in chief also to assemble the like courts. Thus the respective powers of the commander-in-chief of the King's forces, and of the governor or president of the company's council, are so clearly defined, that it would seem impossible they could be misinterpreted. The whole judicial power, as respects the joint army of the King and Company, is placed expressly in the hands of the commander in chief of the King's forces for the time being, not to be exercised, in any event, by the governor or president, but in the absence of a king's commander in chief. The right of holding courts martial, and of affirming or disallowing their sentence, necessarily includes all the subordinate powers requisite for bringing military offeuders before these courts for the purpose of trial, as well as the subsequent means of carrying the sentence into execution. The office of the governor or president in council, is more ample in power, not less distinctly marked out, than the province of the commanderin-chief. The 33d of his majesty plainly describes what authority is lawfully resident in this important officer; in whom and his council, in all instances, and at some times in the governor alone, on his single responsibility, is vested the whole civil and military government of the presidency, and all territorial acquisitions, within the prescribed range of his authority. But it is at the same time declared in the

act, which gives this large and extensive power, that it is not arbitrary, and unconfined, but limited and restricted by the laws then in force, for the government of the British possessions in India; or, in the quaint language of the statute, “ subject to such rules, re“gulations, and restrictions, as are “ made, provided, or established in “ that behalf in this act, or acts now “in force, and not by this act repealed “ or altered.” Now neither by the 33d of the King, nor by any other act preceding or subsequent, has the judicial power, given by the 27th of his late Majesty, been abridged or taken away from the commander-in-chief of the Kings forces, acting in conjunction with the troops of the company. It may therefore be affirmed, that howsoever the authority of the governorin-council may have been extended by this act, that the new power, granted by it, cannot interfere with the objects governed by preceding positive regulations. If the whole civil and military power, mentioned in the 33d of the King, be, as asserted, a relative and not an absolute term, it would then seem to result, that the commander-in-chief, and the governor-in-council, stood in the same relation each to the other, after the passing of that act, as they did before : and that the former was altogether independent of the latter power in all matters respecting the administration of the law in military cases. A contrary supposition, giving a larger scope to the statute, would overturn the entire constitution of things. If the whole civil power, which is conveyed at the same time with the military power, should be supposed to be vested absolutely in the governor-incouncil, what would controul him, if he so willed, from interfering in the whole scheme for the administration of justice, civil as well as criminal, among his majesty's and the company's subjects. He might throw open at pleasure the doors of the gaol to the debtor, as well as the criminal, despising the form and figure of the in

stitutions. for the nrotection of nronert v.

and violating, with the institutions themselves, the security of the public peace ; and thus become the sole unquestionable arbiter of life, fame, and fortune. But these, the first objects of society, are surrounded by a hundred safeguards: by courts, jealous of their protection, by magistrates, whose only care it is to attend to them, and by a power to enforce the vigilance and duty connected with so sacred a trust. This interesting charge could not be placed by the British legislature, or imagined by a British head, in the hands of a single and uncontrolled agent. It is necessary only to state the extremes to which a different interpretation of the statute might tend ; to shew the fallacy of the assumption, that an unlimited authority, over the whole civil institutions, was given by the act last mentioned. The military authority of the governor-in-council, be it what it may, is conveyed in the same sentence and language, and under the same limitation with the civil authority, and must, therefore, be taken to be circumscribed by the like bounds. If the powers of the governor have been rightly viewed and fairly stated; the release of the quarter-master-general in the manner explained, cannot be considered in any other light, though probably otherwise contemplated by the governor, than an infringement on the lawful authority of the commander in chief, a contravention of the course of military justice, an attack on the fundamental rights of the army, and an oppression on the parties who had preferred the charges. Of the obvious effect to be expected from the disturbance of rights so various, and so important, it is not now the place to speak. This assumption of authority by the governor was not silently admitted by lieutenant-general Macdowali ; though not openly and strenuously resisted. A sormal protest, saving the rights of the crown, and the dignity of his office, satisfied the present feeling and honour of the commander-inchief. It would have been most ad

mirable in the lieutenant-general, though it had required more patience than can be by all men, and at all times, commanded, if he had contented himself with this representation of the insult offered to his high commission, and wounded feelings; if in his submission for the sake of public tranquillity to the usurpation of the civil power, he had sacrificed the resentment against the individual, who had induced the interference. But this might have been regarded by him as an unnecessary compromise of his official rights: and he could not have foreseen, in the course about to be pursued for the enforcement of them, the extensive and calamitidus consequences that ensued. At the time of the liberation of the quarter-master-general from his arrest, general Macdowall was about to embark for a distant part of the coast of Coromandel, with an ulterior intention to proceed to Europe. This determination had been previously adopted under a mingled sentiment of disgust, from the alleged abridgment of the dignity of the office of commander-in chief, and a constant interference by the government in the discharge of the duties of it. A farewell address to the army, published on the 25th January, announced this intention of the general; and, perhaps, imprudently, the reasons that had led to it. Being now at the eve of his departure, he issued an order to the army, explanatory of the cause of the release of lieutenant-colonel Munro, and declaratory of a reprimand to that officer for personal disrespect to the commander-in-chief, for disobedience of orders, and for contempt of military authority, in appealing directly to the civil government; in consequence of which appeal, he, the lieutenant-colonel, had been released from his arrest. This order was published on the 28th January, 1809. Of the nature of the order, an opinion has already been hinted. It would have been probably more discreet, as well as more creditable to the general, if he had abstained from the act; there cannot, however, be a doubt of the lawful powers of the

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commander-in-chief, to express his sentiments fully in the matters contained in it, and it may be fairly said, that such sentiments have been expressed in language, as delicate as the case would admit. It might be due, as much, perhaps to the parties preferring the charges, as to the justification of his own conduct, that some explanation should be publicly rendered to the army. But to the order.—the only part of it, capable of a possible application, by the most forced construction, to any other than the quartermaster-general, is the allusion to that officer's release, by the command of the president in council. But not a word of censure or question of the exercise of the authority by the governor in that instance, is adventured; while the order plainly shews, on the contrary, that the general had yielded obedience to the civil power in the particular ordered. But the quarter-master-general is reprimanded in the order, and, among other things, for his direct appeal to the civil power. Can any one conceive, that it was not possible for the quarter-master-general to be censured, without the government participating in the censure ? They must look too deeply into the paper for the discovery of an intended insult, who could draw from its body the materials of a designed offence. The governor fancied he could perceive in it this latent meaning, and, in the heat of the moment, sent a mandate from the government-house for the suspension of the commander-inchief, and of the deputy adjutant-general, the passive medium of publication of the commander-in-chiefs orders. In one hurried exertion of authority, the military community had to witness the punishment of two supposed offences, of very unequal crimimality, in the same sentence. Nay, the accessary was visited with a severity unexperienced even by the principal, in being removed not only from his office, but the service. Surely, it would have been enough for the satisfaction of an honourable revenge, to have pounced upon the nobler quarry, to have pierced the mas

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