article are in a great degree discoverable in it. The first part of the order having stated, that some correspondence had been received from the army, which had occasioned considerable alarm at Oporto, afterwards proceeds: "The commander of the forces will not make any inquiry to discover the writer of the letters which have occasioned this unnecessary alarm, in a quarter in which it was most desirable it should not be created. He has frequently lamented the ignorance which has appeared in the opinions communicated in letters written from the army, and the indiscretion with which these letters are published. It is impossible that many of the officers of the army can have a knowledge of facts, to enable them to form opinions of the probable events of the campaign; but their opinions, however erroneous, must, when published, have mischievous effects. The communication of that of which all officers have a knowledge, viz., the numbers and dispositions of the different divisions of the army, and of its magazines, is still more mischievous than the communication of opinions, as must be obvious to those who reflect that the army has been for months in the same position; and it is a fact come to the knowledge of the commander of the forces, that the plans of the enemy have been founded on the information of the description extracted from the english newspapers, which information must have been obtained through private letters from officers of the army. Although difficulties, inseparable from the situation of every army engaged in the operations of the field, particularly in those Difficulties of an aggravated by munications; army in the field imprudent com Officers may of a defensive nature, are much aggravated by communications of this description, the commander of the forces only requests that the officers will, for the sake of their own reputations, avoid to give opinions upon which they cannot have a knowledge to enable them to form any, and if they choose to communicate facts to their correspondents, regarding the positions of the army, its numbers, formation of the magazines, preparations for breaking bridges, &c., they will urge their correspondents not to publish their letters in the newspapers, until it shall be certain that the publication of the intelligence will not be injurious to the army or the public service." This order best explains the apparent deviation, in the twenty-seventh article, from ordinary penal enactments, which attach penalty to intention evinced by the result, rather than making it depend on the result itself.1 Officers, by the order, are not absolutely prohibited from communicating to their correspondents the positions and preparations of the army; they are rather led to reflect on the probable tendency of such proceeding, if persevered in indiscriminately; they are, however, strictly enjoined to urge their correspondents not to publish their letters in the newspapers, until it shall be certain that the publication of the intelligence will not be injurious to the army or the public service. The article of war, in unison with the liberality of the order, leaves officers in their discretion to communicate local intelligence from the (1) Affectio enim tua nomen imponit operi tuo; item crimen non contrahitur nisi nocendi voluntas intercedat.-Bracton, 1 c. 4. army, but justly makes them responsible for injurious results arising out of an abuse of this privilege. Using words create alarm; Lieut.-Colonel To support a charge grounded on the twenty- tending to sixth article, the best proof is to establish the words charged, as used previous to or going into action, and to show their tendency by the effect created; but it may be sufficient, where the effect is not demonstrable, to put in proof the words, the tendency of which the court will judge. This article seems directed to such cases as that which produced the third charge exhibited against lieutenant colonel the honorable Thomas Mullins, in consequence of occurrences happening before New Orleans, in 1815. He Case of was tried on the third charge "for scandalous Mullins, conduct, in having said to an officer of his regiment, on the 7th January, 1815, when informed the 44th was destined to carry the fascines, &c. It is a forlorn hope, and the regiment must be sacrificed, or words to that effect; such an expression being calculated to dispirit those under his command, to render them discontented with the service allotted to them, demonstrative of the feeling with which he undertook the enterprize, and infamous and disgraceful to the character of a commanding officer of a british regiment." On which the court decided as follows: "On the third article of charge, the court do find that the prisoner, lieutenant colonel Mullins, did use the expressions set forth in the third charge, or words to that effect; but the court do find that those words were not used in the sense, with the view, or with the evil intention, or consequences, im puted in the said charge; the court do, therefore, most fully and honorably acquit the prisoner, lieutenant colonel Mullins, of the said charge and all criminality thereon."1 Two remarks naturally present themselves. Under the old articles of war, it would have been difficult to have charged the words, proved to have been used by lieutenant colonel Mullins, in any other way than in that actually set forth; the imputation scandalous, as here applied, might perhaps have been modified by the epithet unofficerlike. As the offence now declared by the twenty-sixth article did not then exist, premeditated or malicious intention must have been proved before punishment could have ensued, upon the use of any words, however detrimental to the service by their tendency to create alarm or despondency. Under the present articles of war, the finding of the court on the third charge, to the extent declared in the sentence, must inevitably have been followed by cashiering. Art. 30. This article admits of no discrimination as to punishment by the court martial; the irregular detention, seizure, or appropriation of supplies proceeding to the army, contrary to orders issued in this respect, being proved, the court is required peremptorily to award cashiering; any alleviating circumstances, even amounting to the destitution of a corps or detachment, can only be taken into account by the approving authority. It must be observed, that irregularly detaining or appropriating, unless it be "contrary to the orders issued in that (1) G. O. No. 378. 14th September, 1815. order of the lington. respect," does not amount to the offence contemplated by this article, but may be tried and punished in the discretion of the court as prejudicial to good order and military discipline. This article was first introduced in 1829; it appears to have been framed to meet the irregularities referred to in the following general order of the duke of Wellington, dated Arganil, 20th March, 1811: "The commander of the forces Duke of Welis concerned to hear that some of the regiments, coming up in the rear, have forcibly seized on the supplies, on the march, for those in front, in consequence of which these last have been deprived of them. Those who stopped and seized those supplies should reflect, that it is most easy to supply the troops nearest to the magazine, whilst those nearest the enemy require the supplies with the greatest urgency. besides quite irregular, and positively contrary to the orders of this army, for any commanding officer to seize supplies of any description; there is a commissary attached to every part of the army, and there is no individual, much less regiment, for whom some commissary is not obliged to provide. It is necessary that this practice should be avoided in future, otherwise it will become impossible to carry on any regular operation." It is infamous Art. 31.-This article, which is essential to Scandalous, the high respectability and honorable character conduct. of the army, by providing for the removal from it of officers who may be guilty of scandalous, infamous behaviour, unbecoming the character of an officer and a gentleman, although not immediately bearing on its discipline, is in its |
