« PreviousContinue »
do so without assigning a reason. This right has been exercised at all times, and even of late years in some well-known instances. Those who in each case counsel or assist in the exercise of this prerogative are of course responsible; but the existence of the prerogative is subject to no question whatever. It is, however, a very different right which has in the late sentence been assumed; a censure—and a censure of the gravest kind-has been pronounced, with the greater publicity by its insertion in the Gazette. It is a sentence such as the Articles of War denounce, and in the terms of those Articles; such as courts-martial acting-that is, trying and judging-under those Articles pronounce when they find the party tried guilty of "conduct unbecoming an officer and a gentleman." Now our doubt upon the late proceedings arises upon this, that not merely a dismissal from the service has been ordered, which could be legally done without any trial; but this sentence, declaring the parties guilty of such conduct, has been pronounced without trial; for the Court of Inquiry said to have been held goes for nothing. It sits and acts in secret, and in the absence of the parties. It is a mere grand jury to determine whether or not they shall be put upon their trial. Possibly it may be regarded as aiding with its advice the heads of the army. But it has no substantive authority, and cannot pronounce any sentence; accordingly, no reference whatever is made to it in the memorandum.
We conceive that no argument can be raised upon the dismissal being a greater penalty than the censure, and upon the power to inflict the lesser being implied in the undeniable power to inflict the greater. The Crown is armed with the power of dismissing, not as a punishment at all, but as necessary for maintaining discipline; and every soldier, whether officer or private, holds his place subject to this power, as a servant holds his place subject to the master's power of discharging him. If the master, when he discharges him, publishes that he does so because the servant has been caught thieving, he is liable to an action and to a prosecution, and his rights as a master cannot even come into consideration if he is sued or prosecuted. Our objection-or say only our grave doubt
arises upon this,—that the Crown having no right of dismissal quasi punishment, there has been added to the act-the perfectly justifiable act of dismissal-a punishment, a published censure for a grave offence, conduct unbecoming officers and gentlemen.
It is wholly beside the question to complain of proceedings in courts-martial as sinning against legal principles, as irregular, as dilatory, as inefficient. This course of argument, we perceive, has been taken in order to commend the promptness and vigour of the late proceeding; but it proves nothing whatever in favour of its legality. If courts-martial are open to the objections ventilated, let them be improved; but no justification arises of illegal proceedings, from those courts being open to blame.
The case of officers thus dismissed by the prerogative is by no means a singular one. The Crown has the unquestionable right to dismiss a functionary who holds his office during pleasure. Take the instance of a Privy Councillor. The Sovereign orders the book to be brought, and strikes out the name of any Privy Councillor without cause assigned. It was thus that Mr. Fox's name was erased in 1798, in consequence of a speech made at the Crown and Anchor Tavern. But if the Gazette had added that he was removed "in consequence of seditious speeches," or " of treasonable speeches," at a tavern, this insertion would have been wholly illegal, unless he had been previously tried and convicted. The case is precisely the same
with an officer dismissed.
If the strictures which we have here felt it our duty to make on the recent dismissals from the army be well founded, we deem it clear that a second official memorandum should at once issue in correction of the error which has been committed,-not specifying the ground of dismissal (as was before done), but simply setting forth that her Majesty has no further occasion for the services of the dismissed officers.
NOTE ON THE DYCE-SOMBRE CASE.
In our last number we suggested as an excuse for Lord Combermere, or at least as some explanation of his conduct, upon which the most severe censure had been solemnly pronounced by both the Courts, that he was probably a person singularly deficient in ordinary capacity" (p. 363). A more attentive examination of some parts of the evidence seems to make this explanation more than doubtful. In our next number we shall direct the reader's attention to the systematic interference of the noble field-marshal with the unhappy lunatic's affairs, both before and after his insanity had been declared; such as the attempt to borrow 10,000l. of him (before the declaration); the persuading him to make a will, in which, if he had been named executor, the debt would have been extinguished; the obtaining signatures to a paper, together with his own, for the purpose of influencing the Lord Chancellor's judgment, that paper being privately communicated to his lordship. These and other passages are to be well considered before we can venture to admit the excuse or extenuation formerly suggested. The incalculable importance of keeping the administration of justice pure, of preventing even a suspicion from falling upon it, renders the conduct of a witness in such position as Lord Combermere a matter of a grave description; and we should ill discharge our duty were we lightly to pass over a case like his. It is to be hoped, indeed to be confidently expected, that no party influence, still less any court influence, will be exerted for his protection, should he, upon full investigation of his conduct, be found as culpable as the Courts have pronounced him.
Short Notes of Cases;
BEING A SELECTION
REPORTED SINCE 1ST AUGUST, 1856.
POINTS DETERMINED IN THE COURT OF CHANCERY.
Lord Chancellor and Courts of Appeal 6 De Gex, Mac. & G. Part 1.
The Master of the Rolls
Lord Chancellor and Master of the 5 Ir. Ch. Rep. Part 1.
Rolls of Ireland
21 Beav. Parts 1, 2.
3 Drew. Part 7.
2 Kay & Johns. Part 4.
3 Smale & Giff. Part 1.
I. POINTS DETERMINED IN THE COURT OF
1. Administration Suit-Costs of, when instituted by Mortgagee. 2. Assets, whether Legal or Equitable-Principles for determining the Question-Equity of Redemption of an Equitable Interest in a Sum of Money advanced on Mortgage, Legal Assets. 3. Boundaries, Confusion ofDuty of Tenant, owner of adjoining Lands, to keep Boundaries distinct. 4. Conditions of Sale-"Largest Lot," Purchaser of-When entitled to Deeds. 5. Devise-Charity-Secret Trust for, must be proved. 6. Judgment registered-No Charge on Benefice under 1 & 2 Vict. c. 110. 7. Marriage in France of domiciled Englishman-Previously-born Child not legitimatized. 8. Married Woman Clause against Anticipation cannot be released by the Court to enable her to elect. 9. Partnership in purchasing Land for Sale-Conversion of Realty in Personalty. 10. Partnership Solvent Partner may wind up Business, and sell Partnership Property-Not his Assignee or Judgment Creditor. 11. Power of Sale
with Consent of Tenant for Life in Possession-Accelerated by Surrender of previous Interest. 12. Settlement of Infant's Property under 18 & 19 Vict. c. 43-Propriety of Marriage not considered by Court. 13. Trade Mark-Label-Injunction to restrain Printing of, dissolved. 14. Trust -Breach of-Duty of Bankrupt Trustee to prove for Money due on account of, by himself-Certificate does not remove his Liability. 15. Voluntary Assignment invalid-Remarks as to Declarations of Trust. 16. Will-Construction of Gift of Securities for Money-Passes Legal Estate. 17. Will-Construction-Ulterior Bequest on Failure of Prior Gift.
1. FORD V. EARL OF CHESTERFIELD. 21 Beav. 426.
Administration Suit-Costs of, when instituted by Mortgagee.
"I hold the settled rule and practice of this Court, and one which I have acted on in a great number of cases, to be, that in a suit for the administration of an estate, all the proper and necessary parties are paid their costs in the first instance, and before the fund is administered. But when the suit is by a mortgagee, or for the benefit of mortgagees to ascertain priorities upon an estate, or upon a fund which is the produce of the estate (after payment of such costs as may be proper to the plaintiff, in the first instance, where all persons obtain the benefit of the suit), the costs of the mortgagees are added to their mortgage securities." Per Sir John Romilly, M.R.
2. COOK V. GREGSON. 3 Drew. 547.
Assets, whether Legal or Equitable-Principles for determining the Question --Equity of Redemption of an Equitable Interest in a Sum of Money advanced on Mortgage, Legal Assets.
It was held by Sir R. T. Kindersley, V.C., in this case, that the equity of redemption of an equitable interest in a sum of money charged upon real estate, was legal assets in the hands of executor; it followed, therefore, that the specialty creditors would be entitled to priority over, and not be paid merely pari passu with, simple contract creditors, which would have been the case had the equity of redemption been held to be equitable assets. "Much difficulty," said his Honour, "has sometimes arisen in determining the precise distinction between legal and equitable assets. The general proposition is clear enough, that when assets may be made available in a Court of Law, they are legal assets; and when they can only be made available through a Court of Equity, they are equitable assets. This proposition does not, however, refer to the question whether the assets can be recovered by the executor in a Court of Law, or in a Court of Equity. The distinction refers to the remedies of the creditor,