able part of the coast army had been prevailed upon to stain the pure and honourable character of their profession, by lending their countenance in any shape, or in any stage, to a proceeding stamped, as this prosecution was, with injustice and oppression, and founded on such motives as all the circumstances conspire to vindicate. most 48. But it is said, Colonel Munro was only to be tried, and if innocent, would have been acquitted. Yet the memorialists themselves allege, that he was already condemned; having incurred the suspicion of having acted in a manner that was generally considered to have been criminal. "Having incurred the suspicion," are mere words of form. The meaning of the passage is a positive assertion, that lieutenant-colonel Munro had acted in a manner that was most generally considered to have been criminal. We assume this to be the meaning of the passage, because there was no question concerning the facts. 49. It is difficult to imagine that such a charge as that which was preferred against lieut.-colonel Munro, should have rested only on vague report; and that the officers who signed it should not have used all the means in their power to obtain the perusal of a paper on which they meant to found an accusation of libel. We must therefore presume, that the memorial on the tent contract was in the hands of those who charged its author with defamation. From that memorial therefore, never denied nor disavowed by lieu enant-colonel Munro. and capable of certain and easy proof, is to be collected, "the manner in which he had acted;" and if that manner of acting was already most generally accounted criminal, sentence was already passed, so far as faith can be given to the memorial intended to be presented to this government. We trust however more in the honour of the army, than in the party feelings of the memorialists; and we hope they were too sanguine in their expectations of so unjust a sentence. But although the acquit tal of lieu-colonel Munro must be supposed possible, it was not fit that such an officer should be brought to the bar as a criminal for his honest services. It was not fit that the mode of providing carriage for the camp equipage of the army, approved and adopted as it had been by all the legal authorities in India, should be appealed from these authorities to a board of officers. It was not fit that this first step should pass without opposition in the process of usurping the regula tions of the army from government to the officers of the army. It was not becoming that the supreme government, the commander-in-chief of India, the government of Fort St. George, and the late commander-inchief of that presidency, Sir John Francis Cradock, should hold up their bands as cul prits before a tribunal of ofheers sitting in judgment upon the deliberate measures of their government. 50. The whole proceeding was monstrous, and we repeat in the strongest terms our warmest approbation of your just, legal, and indispensable interposition on that occasion to vindicate the honour of your government, and to shield one of your best and ablest servants from an arbitrary and oppressive abuse of power. If you had omitted to do so, you would have failed in the most sacred du ies of your high stations, and would have merited, because you would have sanctioned, that long train of insult and encroachment which was to follow, and of which the prosecution of lieutenant-colonel Munro would have proved to be only the first experimental step. 51. It is admitted, that the warrant to hold courts martial is addressed to the commander-in-chief, and we deem his authority exclusive in that branch of the public administratio. But the abuse of a legal power is illegal, and the supreme military controu! of the governor in council extends in our judgment, and beyond all doubt, to the prevention of such abuses. This does not suppose an habitual and indiscriminate interference. We assert only for the government of Fort Si. George a right and a legal power to come, in extraordinary cases, to the support of their own authority, and against seditious encroachment combined with the oppression of innocent men, by a gross abuse of the power confided to the commander-in-chief in the direc tion of military prosecutions. 52. If this opinion were wrong, there are higher authorities who have power to pronounce it erroneous., and to provide another remedy, which in that case would be neces sary for the evil supposed. 53. In the mean while your opinion was binding, and when confirmed by ours, is still more so, on the army of Fort St. George, who are not the judges either in the first or last resort on that subject. 54. This is not a question in which the officers of the army could be justified to interfere. It concerns the extent of your legal powers under the constitution of your government, upon which they cannot sit in judgment. If the commander-in-chief, lieutenant-general Hay Macdowall, differed with you, as he affects to do on that point, he might have properly stated it to the court of directors, and to his Majesty's government, for their decision. But when he appealed that question to the army, which is subject to your authority in India, as he did by his general order of the 28th January, he carried that controversy to a tribunal the incompetence of which he well knew, and before which the agitation of such a question, as it could tend to no useful conclusion, so it could hardly fail to kindle animosity and excite dis cord tending assuredly to some mode or other of public disorder, and perhaps eventually to military insubordination and mutiny itself, in the progress of which calamity and distress were sure to fall first and heaviest on his own friends and associates. 55. We pass naturally from the general order just mentioned to the dismissal of the offices who published it to the army, and our sentiments on that subject must materially depend on the opinion we entertain of the character and tendency of the order itself. 56. In deliberating on this subject, we have not thought ourselves bound by the form under which the substance and real purview of this paper has, for obvious reasons, been disguised. 57. It purports to be a reprimand to lieutenant-colonel Munro, but substantially it Conveys in every line a reprimand to the government of Fort St. George, and that reprimand is addressed to the army subject to its authority. The subject matter of the censure passed ostensibly on colonel Munro, renders it inseparable from a censure on the government. The offence charged upon that officer, in his appeal to the president in council from an arrest imposed upon him by the commander-in-chief, and the general order itself informs the army that the appeal which is subject to his reprimand was followed not by the reproof but by the protection of government. 58. Lieutenant-colonel Munro hod exhausted all the means he possessed of obtaining rehef from the commander-in-chief himself. This it was his duty to do in the first instance. But when justice was denied him in that quarter, and when the hand of persecution pres sed close upon him, we are decidedly of opinion that he had a right to claim the protection of the supreme military authority, which is vested by law in the governor in council of Fort St. George. 59. If that government possessed a legal power to intervene in a case of abuse, it could not be criminal in the party suffering under it to claim their protection, and the conduct of lieutenant-colone Munro could not justly be made the subject of a reprimand. 6. That the government of Fort St. George is not restrained by law from this particular exercise of the supreme military powers which it possesses, was acknowledged by lieutenant-general Macdowall himself, since he obeyed their orders for the release of heutenant-colonel Munro. If that order had not only been an undue encroachment on his own authority as commander-in-chief, but had been beyond the legal and competent pow ers of those who issued it, he would not have been bound to obey it, as he distinctly professed himself to be. 61. The government of Fort St. George did not exceed therefore their legal powers, and the only question that could be made was, whether they exercised them properly in the particular instance. On that point, undoubtedly, the government of Fort St. George is subject to the responsibility which is inseparable from the exercise of all delegated authority. But to what tribunal were they amenable? Where was it proper, where was it for the public interest, that lieutenantgeneral Macdowall should carry his appeal? to the army of Fort St. George, or to the king, and court of directors? 6y. That he should convey this question to the army, in the shape of a reprimand to lieutenant-colonel Munro, appears to be in contradiction with his own sentiments on the subject, as we have just stated them; for if the government of Fort St. George had a legal power to release lieutenant-colonel Munro, it could not be criminal, it could not in any mode or degree be culpable; it could not incur the penalty of a reprimand; but it was his clear right and privilege to claim the legal and competent protection of government from the oppression of the cominander-in-chief. 63. If the government, on the contrary, did not possess those powers, lieutenant-general Macdowall owed them not obedience. 64. If the legality of those powers be disputed, notwithstanding the testimony borne to it by lieutenant-general Macdowall's submission, it is again to be asked, to what tribunal that disputed question ought to have been submitted-to the army, or to the supreme authorities in England? 65. It is also to be enquired, whether, in a controversy between the commander-inchief and the government, concerning the limits of their respective authorities, it was fit that lieutenant-general Macdowall should arrogate the decision to himself; and, sanctioned alone by his own opinion in his own case, should inflict a severe punishment on lieutenant-colonel Munro for having acted on a different opinion, but one which had been supported by the judgment of the govern ment, that is to say, of an authority, and of a military authority, to which that of the commander-in-chief himself, and of the whole army, is made subordinate by an act of the British legislature; an authority to which they owed implicit obedience, and which must, at the very least, have been felt to challenge sufficient respect to exempt an individual officer from the imputation of a crime for having acted conformably to it. 66. The reprimand to lieutenant-colonel Munro, therefore, was not only not necessary, but it was unjust and inconsistent with the principle which lieutenant-general Macdowall had himself professed. 67. For these reasons, we consider the shape given to the general orders of the 28th of January as merely colourable; and we are of opinion that the reprimand to lieutenantcolonel Munro was evidently intended only as a vehicle for circulating, throughout the army serving under the government of Fort St. George, a vehement and intemperate public censure of that government, and au inflammatory address to the professional feelings of that army, and to topics thought likely to produce irritation and disorder. It was, in other words, a most seditious paper, under the title of a general order to the army, and bearing the thin disguise of a reprimand to a particular officer. 68. That this attempt to excite irritation, and to produce disorderly conduct amongst the officers of the army, has not been entirely unsuccessful, we lament the necessity of acknowledging; and that those designs have nevertheless been substantially frustrated, and have failed in far the greater part, we have a cordial satisfaction in ascribing, first, to the good sense of the army at large, which could not be misleal by fallacies so easily detected; but next, and principally, to the firm attach ment to the duties of their profession, and to that steady loyalty and incorruptible fidelity, which, in that army, we are confident, will ever be found proof against the acts and seditions of faction, 69. Notwithstanding the sentiments we have expressed concerning the true nature and tendency of the general order in question, we have not neglected to consider whether the officers who gave it currency by the orders of the commander-in-chief, were responsible for its criminal purport, and were on that account justly removed from their officers. 70. In deliberating upon this question, we resorted naturally to such general principles applicable to the subject as we thought best established, and most free from doubt. 71. The following propositions have appeared to us of that description. First, That as a general principle, a military officer is not only justified in obeying an order of his superior, but that he is bound to do so, without regard to the quality of the order. Under this head we consider the adjutant-general as obliged, in a peculiar manner, by the duties of his office, to publish to the army any orders which the commanderin-chief may commit to him for that purpose. We are clearly of opinion, as a general prin riple, that the adjutant-general is not bound berate on the propriety of the order whh he is commanded to issue; that it aba breach of military duty to do so; is merely ministerial in these funcand is not responsible for the propriety propriety of the orders he may circulate fi fly to the army. 013 or ༈ 79. We regard these principles as very important, and in a manner fundamental in the theory of military subornation. Secondly, We consider, however, as not less established, that the general principle above stated is subject to exception and modification. The modification by which the general principle of simple obedience ought to be limited is, in our judgment, the following: That crimimal orders are not to be obeyed, and that the officer who executes a criminal order of his seperior is personally responsible for his con duct. We look upon this modification of the general military principles as forming itself a great and primitive principle, not less important and fundamental for the civil security of society, than we allow the other maxim of implicit obedience to be for the due support of military subornination. 73. Considering then, as we have already stated, the general order of the 28th January, as a seditious paper, we might at once pronounce the adjutant and deputy adjutant-gene ral guilty of sedition by the publication of that order, notwithstanding the authority under which they acted. 74. But that judgment would not be justified by the mere criminality of the order which they issued; and it is necessary, in order to establish their participation in the crime, and to render them personally responsible, to show that they were acquainted with the seditious character of the paper. 75. In forming our judgment upon this point, we have not considered it as an abstract question, but as fit to be combined with all the circumstances of the case, and especially with those in which the parties concerned were placed; and from this view of the question, it has in our opinion resulted, that colonel Capper and major Boles are to be considered as partaking personally in this act of lieutenant-general Macdowall, and as deeply responsible for its pernicious and criminal tendency. 75. Before this order was prepared, it was not only known to those confidential staff officers of the commander-in-chief, but it was notorious to the whole army and settlement, that there was a warm and vehement dissension between the commander-in chief and the government. These officers were acquainted with the prosecution of lieutenant-colonel Munro, and the part which lieutenant-general Macdowall had taken in that proceeding; they knew every step in that extraordinary transaction was a studied insult to the government; they knew that lieutenant-general Macdowall had become the patron and channel of a memorial to the court of directors, highly disapproved by the president in council of Fort St. George, which he had himself, at the instance of that government, and at no distant period, written circular letters to discourage and suppress, but which in a riper stage of hostility towards the person and authority of the governor, he had countenanced and promoted. It is, in fine, superfluous to prove, what is beyond doubt, and is not denied, that a warm passionate rupture had broken out between these two high authorities. 77. The commander-in-chief of an army in open and ardent opposition to the government which he serves, is no trivial event, and constitutes a state of things, from which some consequences applicable to this question have appeared to us to follow. 78. We consider these circumstances, therefore, as furnishing a new modification of the military principle first asserted; and we are of opinion, that in such extraordinary and momentous emergencies, it is fit and necessary to require, that an officer, whose duty it is to give currency to the orders of the commander in chief, should, contrary to the principe of blind obedience, which ought to prevail in ordinary times, carefully consider these orders, and deliberate seriously upon their nature and purview, before he publishes them. The circulation, in heated and factious times, of a seditious address to the army, has no analogy to the principle of military obedience to a military order in the common dispatch of business, and cannot be governe by the same rules. 79. We are, after much and serious reflection. decidedly of opinion, that this restriction of the military principle, the general importance of which we nevertheless feel most sensibly, cannot impair the obligations of military subordination and obedience, in any manner or degree, prejudicial to the natural and legitimate objects of military command; and that in times of trouble it may afford a most salutary and necessary protection to the government and people against the possible perversion of military supremacy to the purposes of sedition or faction. 80. In a natural and wholesome state of things, the obedience of subordinate officers is to be implicit, admitting of no deliberation, and subject to no responsibility, except for plain and manifest crimes. In such distempered seasons of open contention with governments as are now in question, addresses from commanders in chief to their armies, having reference to such debates, are a fit subject of deliberation to those whose office it may be to transmit them, and a responsibility b longing exclusively to such Occasions must attach even to their offic.al and minister al acts. 81. In conformity with these sentiments, we have no doubt of the responsibility of the late adjutant and deputy adjutant-general of your army, on the occasion of publish ing the general order of the 28th January; and we are of opinion, that it the author of that order is h mself guilty of sedition, 23 we esteem him to be, these confidential officers of his statf, who consented to he instruments of his crime, are under all the circumstances implicated in the guilt, and subject to the penalties of the offen e. rior, shall subject him to personal responsi bility; are questions to be discussed in colder blood, and by a different de cription of counsellors than are always to be found in numerous bodies at a period of heat and irritation. They are worthy of the informed and impartial deliberation of his majesty's confidential servants and advisers, and of the supreme rulers of the army of India, the honourable the court of directors. 83. To snatch a question of that nature and importance from the decision of those authorities, at the very moment of its formal reference to their judginent, and to cast it, as a source of discord and violence,, into the midst of an army already warmly agitated, is the part of incendiaries, and not of friends either to the army or the state. It is a great crime; and being that of which the officers, who have lately expe ienced the marks of your displeasure, have appeared to you, on a careful investigation of the facts, to have been guilty, we have no hesitation, although we deeply lament the occasion of this necessary seve rity, in approving and commending the vigilant energy with which you have, in a season of great difficulty and danger, asserted the legal authority of your goverament, prevented the factious contagion from spreading through the honourable and hitherto untainted ranks of the coast army, and provided for the security and integrity of the British empire in India. 84. You will perceive, that much of what has been said on the memorial is applicable to the address to major Boles. 85. This is also a measure connected with a military combination. It assumes the cognizance of a question which belongs to fitter and higher tribunals. It pronounces, in the name of an army, open censure of the government which that army is bound to obey. 86. In these respects it stands on the same footing, and partakes in all the criminality of the paper we have already considered But there is, in the address to major Boles, a character of transcendant guilt and danger which is peculiar to itself. We allude to the scheme, of which it professes to lay the foundation, of a combination of private power to contest with the power of government, organized resources of resistance, mutual support against the hand of justice, and indemnity against the legal consequences of crimes." 87. We do not know how it is possible 82 If there were doubts, howevr, upon to approach mu h nearer that extreme crithe question, as weighing general an 1 fu- sis, which it so emphatically menaces in the damental principles agains. particular mo- memorial, without reaching it. We trust, difications of them must always be a deli- however. confidently, that those who have cate one, we cannot quit the subject with been improvidently betrayed into these out repeating that it is not a fit matter for desperate courses, will have been awakened the in eference of the army itself. In what to a sense of their perilous situation; and particulars sedition may consist; under that by arresting the progress of the forewhat circumstances the official instrumen- most, you will have saved their inconside tality of an officer, in the crime of a supe rate followers from the ruin and dishonour to which their leaders were conducting them. 88. With regard to those who have taken a leading part in these criminal transactions, we feel that every principle of tried and established policy applicable to such conjunctures, and every obligation of your sacred trust, forbad the extension towards them of a false and mischievous lenity. 89. We concur also entirely in the sentiment expressed in your general orders of the 1st ultimo, that it is not sufficient for officers holding commands to avoid a participation in such proceedings, but that it is their positive and indispensable duty to adopt the most decided measures for their suppression, and to report them to the superior authorities. The purposes of tumult and sedition may as effectually be promoted by their negative concurrence as by their active participation. 90. The neglect of duty is an offence varying only in degree from a positive violation of it; and any officer who, apprised of the progress of disorderly proceedings among those who are placed under his immediate control, abstains from any attempt to suppress them, either by the exertion of his own authority or by an appeal to the superior power, gives to those proceedings one mode of encouragement, and cannot stand absolved of blame, nor found a claim to immunity; much less to a continuance of that implicit confidence which is attached to stations of authority on the cases of so culpable and mischievous a neutrality. 91. From the whole of the preceding dis. cussion, you will naturally infer that we consider the offences charged against those officers whom you have judged it necessary to suspend or deprive of their appointments and commands, as fully justifying the respective degrees of punishment which you have allotted to them. 92. The local means and advantages which you possess, as well as the great delicacy of the enquiry, have necessarily placed the application of these principles to individuals, and the investigation of par. ticular cases, under your exclusive cognizance; and we have only to express that entire confidence which is due to your station and characters in the justice and impartiality, not less than in the vigilance and activity of your proceedings, in a scrutiny so peculiarly circumstanced, 93. We observe with satisfaction, that the general tenor of the replies to their circular letter, addressed by major-general Gowdie to the officers commanding at the several stations of the army, confirms the opinion which we have expressed of the loyalty of the major part of the officers of your establishment. 94. Iu assuring you, therefore, of the firm. support of this government, in maintaining a contest which involves all that is most dear to our sovereign and country. if, contrary to our ardent desire and sanguine hope, any future call should be made on the power and energy of your government, which may require our aid. We will conclude, however, with expressing our fondest wish and expectation, that the late af flicting agitations should subside in a calm and reasonable reliance on the wisdom and justice of the high authorities to which the transactions of this troubled period have been advocated, and in those demonstrations of respect and obedience which are due not more to your station than to the faithful and honourable discharge of all your public but difficult duties, which, in our opinion, has eminently distinguished the present government of Fort St. George. 95. Such a result will be most acceptable to us, most accordant with our views of the public interest, and most congenial with those sentiments of affection and respect towards the army of the coast, which we cordially profess, and remain assured that we shall never have reason to re nounce. We have the honour to be, Your most obedient, humble servants, Fort William, the 27th May, 1809. Letter from the chief secretary of government, forwarding a memorial from colonel St. Leger, and copy of a letter from that officer. To the chief secretary to government. I have received your letter of the 17th, directing me to embark on board the Devaynes on the 20th instant. I beg you will inform the honourable the governor in council, that nothing is more remote from my thoughts than to disobey any onder he may deem it expedient to issue; but I beg you at the same time to communicate to him a fact, of which possibly he may not be apprized, that I found it necessary, from the severe measures he has been pleased to adopt against me, to apply to the laws of my country for redress. For that purpose have made an appli cation, by complaint on oath, to the su preme court, according to the directions of the act of parliament, by which I am entitled to compel the production of evidence sufficient to sustain my action, in order to prosecute it in the king's court at Westminster As the supreme court is not at present sitting, it is highly essential to the remedy which I am seeking, that I should be at this presidency when the court meets, which I am informed is the 18th of next month, in order that I may enter into the securities |