F .. ----·······-_-·--·------·--~ F· r· J-, Jf J3f f. i i ] udge ftdvooaie 9u,..L-l._ U.S. flnny. I · 1 ~-~P. ......~ THE LAW RELATING TO OFFICERS IN THE ARMY, q. 9l~.. THE LA "\V RELATING TO OFFICERS IN THE AR~IY. BY HARRIS PRENDERGAST, OF LINCOLN'S INN, ESQ., BARRISTER-AT-LAW. REVISE!) EPITION. LONDON: PARKER, FURNIV ALL, AND PARKER, MILITARY LIBRARY, WHITEHALL. MDCCCLV. LONDON': PRINTED BY GEORGE PHIPPS, RA..~ELJ.GH STREET, EATON SQUARE, PREFACE TO FIRST EDITION. THE preparation of the following Work was sug­ gested by my brother, Lieutenant William Grant Prendergast, of the 8th Bengal Cavalry*, Persian Interpreter on the Staff of Lord Gough, Commander­ in-chief in India ; and from the same quarter much valuable assistance was originally derived, both as to the selection of topics, and the mode of treating them. Without the help of such military guidance, a mere civilian would have laboured under great disadvantages; and the merit, if any, of the Work, is therefore attributable to my coadjutor alone. For the composition, however, I am alone responsible. Officers in the Army are subject to a variety of special laws and legal· principles, which deeply affect their professional and private rights; and it is hoped that a Work, which endeavours to develope these subjects in a connected and untechnical form, will not be deemed a superfluous contribution to military literature. With this view, the following pages are by no means so much addressed to lawyers, as to a class of readers whose opportunities of access to legal publications are necessarily very limited; and care has been taken, in all · cases of importance, to set • Now Brevet-1\lfaj~r, and Acting Brigadier on the frontier of the Punjab. iv PREF ACE TO FIRST EDITION. forth the exact words and expressions employed by the learned Judges in propounding the law, and, on other occasions, to give quotations at length from books of authority. It is conceived that no apology can be necessary for this humble attempt to define the civil rights, duties, and liabilities of an honourable profession. " It has been," says Mr. Justice Blackstone, " the " peculiar lot of the English system of laws to be " neglected, and even unknown, by all but one Hpractical profession,'' ..•..• " I think," says the same eminent writer, " that a competent knowledge " of the laws of that society in which we live, is " the proper accomplishment of every gentleman and '' scholar-a highly useful, I had almost said essential, " part of liberal and polite education.*'" " No rank, no elevation in life, and let me add," says Mr. Justice Foster, '~no conduct, how cir­ " cumspect soever, ought to tempt a reasonable " man to conclude that these enquiries do not, nor " possibly can, concern him. A moment's cool re­ " flection on the utter instability of human affairs, " and the numberless unforeseen events which a day " may bring forth, will be sufficient to guard any " man, conscious of his own infirmities, a,gainst a " delusion of this kind. t" LINCOLN'S INN' 21st May, 1849. * I Blackstone's Commentaries, pp. 5, 6. t Preface to Foster's Crown Law. PREFACE TO SECOND EDITION. FOR the purpose of the present Edition, this Work has been carefully revised; and many new decisions on important points have been added. LINCOLN'S INN, December 1854. ANALYTICAL INDEX OF CONTENTS. -+-. CHAPTER I. On the Legal, Constitution o/ the Army. PAGE , A Standing Army contrary to Common Law • 1 Militia the only Force before the Revolution 1 The King the sole Captain-General 1 Composition of the Militia · I Contest between King Charles I. and the Parliament I Arrangements at the Restoration of Charles II. 2 Militia remodelled • 2 Origin of the modem British Army 2 Present System established at the Revolution 3 Origin of the first Mutiny Act 3 Courts Martial established 4 Common Law incompatible with Discipline 4 Military Punishments under Charles II. and James II. 5 Lord C. J. Loughborough's Observations on Mutiny Act 5 Mutiny and Desertion first made capital 6 Marines under Military Law on shore 7 Articles of War 7 Military Establishment in Ireland 7 Permanent Standing Army there 7 Distinction between Martial and Military Law. 8 Observations of Lord C. J, Hale • 8 Observations of Lord Loughborough 9 Earl of Kent's Case 9 Theobald Wolfe Tone's Case 10 Sir James Mackintosh's Opinion 12 Irish Rebellion in 1799 12 Irish Coercion Act of 1833 • 12 Subordination of Army to the Government • 13, 15 ~~~ A vi ANALYTICAL INDEX OF CONTENTS, PAGE Public feeling regarding Military Government 13 Constitutional jealousy of Army 13 Subjection of Military to Common Law 15 Major Uniacke's Case 15 Removal of Troops during Elections 15 Modern Regulations as to Elections • 16 Interference in Elections · 16 Practice at Elections 16 Origin of County Militia 16 Employment of Troops in riots 17 Lord Chancellor Hardwicke's speech 17 Billeting of Troops , 18 Statutory Regulations as to billeting 19 Private drilling unlawful • 20 Erection of Private Fortresses unlawful 20 Militia, Volunteers, and Irregulars 20 Standing Army in India 20 Articles of War for India 21 Origin of East India Company's Military Powers , 22 Courts Martial in India 23 Origin of power to hold such Courts 23 Case of the Conquest of Scinde 23 Power to hold Courts Martial there 24 Povrett's Case 24 Half-pay Officers not under Military Law 25 General Ross's Case in 1785 25 Lord George Sackville's Case 25 Half-pay Officers, with Brevet Rank 26 CHAPTER II. On .Admission to the Service. Royal Prerogative of selecting Officers • 27 Contest of Crown with Long Parliament 27 Lord C. J, Tenderden's Opinion on the Prerogative 27 Supreme Command of the Army in the Crown 27 Promotion at Pleasure of the Crown 27 Delegation of Power to grant Commissions 28 Powers of Colonial Governors, &c. 28 Usage the Test 28 Cannot appoint Civilians to Military Commands 28 ANALYTICAL INDEX OF CONTENTS. vii PAGE Admission to the Militia • 28 Commissions from East India Company 28 All British Subjects eligible for Military Employment 29 Former Exclusion of Dissenters and Roman Catholics 29 Present Law regarding Protestant Dissenters 29 Disputes on Admission of Roman Catholics in 1807 29 Roman Catholic Relief A.ct 29 Jews not disqualified 30 Foreigners disqualified 30 Regulations as to Foreigners during Last War 30 Promotion of Foreign Officers • 32 Enlistment of Foreign $oldiers 32 Negroes • 32 Military and Naval Professions anciently combined 32 The Earl of Surrey 33 Sir Walter Raleigh 33 Admiral Blake • 34 General Monk 34 Women cannot hold Regimental Commissions 34 But can be Governors of Castles, &c. • 34 Infancy no Disqualification in Officers generally 34 But is so in Members of Courts Martial 34 Natives of India eligible to High Military Rank 35 Commissions, how granted 35 Great Seal not necessary . 35 Militia Commissions 35 East India Company's Commissions • 36 Importance of Regularity in Commissions 36 Case of the Spanish Slaver 36 London Gazette no Evidence of Commission 37 CHAPTER III. Home and Foreign Enlistment. Mode of Raising Troops 38 Enlistment the only Legal Mode 38 Compulsory Enlistment declared illegal by Parliament 38 Cases of Foreign Invasion excepted 38 Private Recruiting prohibited 39 Receipt of Pay makes a Soldier 39 Serjeant Grant's Case • 39 Irregularities in attesting Recruits 40 Vlll ANALYTICAL INDEX OF CONTENTS. PAGE Hecruiting Officers 41 Enlistment of Wards in Chancery 41 Enlistments on Sunday not invalid 42 Limited Service 42 Right to Discharge 42 Officers not "Deserters" 43 Case of Captain A. Douglas 43 Volunteer Corps 43 Right of Retirement 44 Case of .Rex v. Dowley 44 Lord Erskine's Opinion on same point 44 Foreign Enlistment • 44 Instances of British Troops in foreign Pay 45 Sir Horace Vere 45 Earls of Oxford and Essex • 46 Scotch Brigade under Gustavus Adolphus 46 Same in Service of States General 46 Present Foreign Enlistment Act 47 Suspended during late Spanish Contest . 47 British Auxiliary Legion 47 CHAPTER IV. Rank and Command. Legal Importance of Rank • 48 Rights founded thereon 48 Power of Crown to create new Grades 48 First creation of Field Marshals 48 Regulated wholly by the Crown • 49 Indicated by Officer's Commissions 49 Brevet Rank 49 Rules of Seniority • 49 Officers of the East India Company's Service 50 Rank not lost by going on Half-Pay 50 Nor by Disbanding of Regiment • 50 Lieutenant-Colonel Bradley's Case • 51 Usage of the Army recognized by Courts of Law . 53 Recognition of Rank by Official Authorities sufficient 53 Duty of Ubedience • 53 Captain Sutton's Case • 53 Disobedience never justifiable 53 TI.auk of Commanders-in-Chief in India 54 ANALYTICAL INDEX TO CONTENTS. ix CHAPTER V. Sale and Purchase of Commissions. PAGE Commissions on the footing of Public Offices 56 Exception as to liberty of Sale and Purchase 56 Common Law forbids Sale of Offices of Trust 56 Lord C. J. Kenyon's Dictum 56 Early Acts of Parliament as to Sale of Offices 56 Military Offices not included • 57 Captain Ash's Case 57 Consent of Crown essential • 57 Price originally unrestricted 57 Agency formerly open t.o all persons 58 ' Restricted by Statute 58 Case of Davis v. Edgar 58 Mutiny Act 59 Statute 49 Geo. III. 59 Sales must not be secret 60 Regulation Prices 60 No Purchase in Marines and Ordnance Corps 60 Nor in East India Company's Service 61 India Cadetships 61 Penalties for Breach of Law 61 Case of Blackford v. Preston 61 Case of Card v. Hope • 62 Rule of Law as to illegal Sales and Purchases 62 Rule of Eqnity as to the same 62 Purchase-money recoverable ·back in Equity 62 Case of Morris v.