Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 JURISDICTION.
Subject_3 The Court of Session competent to try a question among the officers of a disbanded Regiment, involving pecuniary interests, although arising out of military transactions.

Captain Robert Campbell of Monzie, and Others,
v.
Major Allan Maclean, late Commandant of the 114th Regiment

Date: 8 March 1766

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In 1761, Captain Allan Maclean was appointed major commandant of a corps then to he raised. His instructions from the secretary of war, bore, “That the proposed major and captains should sell their present commissions: That the captain-lieutenancy should be sold: That the money arising from such sales should be thrown into a fund: and that no other levy money was to be allowed.” The corps was raised. It was disbanded at the peace. The officers were put upon the half-pay list. Captain Robert Campbell, and others, officers in this corps, insisted in an action against Major Maclean, calling him to account for that proportion of the aggregated fund arising from the sale of commissions, which they contended did belong to them, in consequence of the instructions from the secretary at war, for defraying the expense of their respective levies.

Argument for the Defender,—Major Maclean contended, for certain reasons by him urged, That the pursuers had not right to any proportion of this aggregate fund. But he separately objected to the jurisdiction of the ordinary courts of justice, and he pleaded, that, although the law has in general subjected soldiers to the ordinary courts of justice in questions as well criminal as civil, yet, with respect to the various military questions which necessarily arise in the army, the law has provided that they shall be tried by military courts, or be determined by those whose province it is to direct the affairs of the army. Thus the Act for punishing mutiny and desertion, at the same time that it empowers the King to issue other regulations for the better government of his forces, provides, section 17, That every commissioned officer, &c., that shall embezzle, &c., any provisions, &c., shall be tried before a general court-martial, and, upon conviction, shall be dismissed the service, and forfeit £100 sterling. And such offender to make good the loss thereby sustained, “to be ascertained by the court-martial; which shall have power to seize the goods of the person so offending, and sell them for the payment of the £100 and the damage. If sufficient goods cannot be seized, he shall be committed to prison, to remain there until he pay such deficiency.” Thus also, by the articles of war, drawn up in consequence of parliamentary authority, sec. 12, “Of redressing Wrongs;”—“If any officer shall think himself wronged by the commanding officer of the regiment, and shall, upon due application made to him, be refused to be redressed, he may complain to the general-in-chief, in order to obtain justice, who is hereby required to examine into the said complaint, and, either by himself or our secretary at war, to make report to us thereon, in order to receive our farther direction.” Every officer, who apprehends himself wronged by his commander, has two different remedies competent to him by the Mutiny Act and the articles of war. 1st, A court-martial, either general or regimental. 2d, An application to the commander-in-chief, or secretary of war: and, in either of those cases, the person offending will be obliged to make reparation out of his effects; and, if they are not sufficient, by the sale of his commission.

But farther, The question between the parties depends upon the construction of certain orders, issued by the secretary at war, concerning the application of money in such manner as should be directed by the King. If there be any ambiguity in those orders, they must be explained either by the King or his secretary at war.

Argument for the Pursuers,—Although the claim of the pursuers arises from a military question,—the raising of a regiment,—yet it is a civil claim. Thus many civil actions arise from the commission of crimes, although the crimes themselves can only be prosecuted before a court having a proper criminal jurisdiction. An officer may be liable to trial in a Court-martial for malversation in his military character: but a claim of damages, arising to a third party from such malversation, is actionable in the ordinary courts of law. A court-martial cannot execute its own sentence quoad civilem effectum; the civil magistrate is not bound, and indeed dares not interpose his authority to the execution of such sentence. It follows, that redress can only be obtained by a legal action before the ordinary courts of law. It may be doubted, and it has been doubted, whether a court-martial can grant even military redress against an officer after his regiment is disbanded, and himself put upon half-pay. If he should refuse to acknowledge such jurisdiction, the only consequence will be, the striking him out of the half-pay list; but this would afford no satisfaction to the complainer. The effects mentioned in sec. 17 of the mutiny Act, are military effects and no other. The sec. 11, of the mutiny Act, is conclusive in favour of the pursuers, “That nothing in this Act contained shall extend, or be construed to exeme any officer or soldier whatsoever, from being proceeded against by the ordinary course of law.” Hence also, in sec. 49, a fine of £100 imposed, is made payable, upon a suit, “in any court of record.” And, in sec. 38, a penalty of £5, for the use of the poor, is appointed to be levied by distress, in consequence of “a warrant under the hand and seal of a justice of peace.” The sec. 12 of the Articles of War is a salutary regulation for obtaining justice, in so far as it can be awarded by a court-martial. But, supposing that the pursuers had sought for and obtained a court-martial against Major Maclean, and the sentence of that court had cashiered him, all this would not have forced him to refund the money in question. With respect to the ambiguity in the orders which, it is contended, ought to be explained by the King, or his secretary at war, like ambiguities daily occur in Acts of Parliament; and yet the courts of law determine thereon, instead of leaving them to be explained by the legislature.

30th July 1765, The Lord Stonefield, Ordinary, “sustained the defence founded on the incompetency.”

21st November 1765, Upon advising a representation with answers, “he adhered.”

8th March 1766, “The Lords, upon advising a petition and answers, remitted to the Ordinary to find the action competent.”

Act. A. Lockhart. Alt. Ilay Campbell.