1863. DICKSON v. VISCOUNT COMBERMERE and Others. "Sir, I have the honour to request that you will lay this my recommendation for the approval of Her Most Gracious Majesty, that Lieutenant-Colonel Dickson be immediately removed from the service for the reasons as under: "1. Lieutenant-Colonel Dickson, while in command of the regiment, having received money from the secretary of the Wellington College on the 28th day of October, 1855, for the purpose of paying for public clothing, arms, &c., damaged or lost in Cremorne Gardens in August, improperly retained part of the said money in his possession until the 2nd instant, after he was aware that his conduct was under investigation, although repeatedly applied to by the Quartermaster, who was there held responsible by the clothier. "2. For having totally disregarded the rules of the service in not allowing any investigation of the accounts of the mess, although repeatedly applied to for that purpose, in consequence of which gross neglect on his part debts were contracted beyond the means of the regiment, without the officers having any power of supervision or any knowledge of the state of the funds, a considerable part of which he retained in his own possession until a Board for the investigation of his accounts was assembled twelve months after the disembodiment of the regiment, and some of which he has not repaid. "For conduct unbecoming the character of an officer and a gentleman in threatening his officers that he had a way of his own of getting rid of any officers, and that he was privately informed of their conversation and actions, thereby destroying all mutual confidence and good feeling, to the detriment of the same. "I beg to forward the various documents corroborative of the above charges, which I have most carefully perused, and, in conclusion, I beg to say they fully prove the total unfitness of Lieutenant-Colonel Dickson for the command of the 2nd Tower Hamlets Militia. "I have, &c., "COMBERMERE, Lieutenant, Tower Hamlets. "To the Secretary of State for War, Pall Mall." The plaintiff was examined as to all of these charges; and though he could not, and did not, deny that mess meetings and accounts had been neglected, he denied the last charge in toto, and gave evidence in explanation of the other matters, with a view to show that so much as was true in the charges were matters for which he was not responsible; that they contained statements wilfully false; that his explanations were not attended to; and that the last and most odious charge was false. But he admitted, in a great degree, the retention of monies, and gave no evidence to show that the Earl of Wilton knew there was no foundation for the charges, except as above stated, by showing his explanations and counter-statements sent in to the Earl as comments on the charges (a). To this, upon the 30th of June, General Peel replied in these terms (b) : "War Office, June 30, 1858. "My Lord,—With reference to your Lordship's letter of the 9th instant, and its inclosure, respecting Lieutenant-Colonel Dickson, of the 2nd Tower Hamlets Militia, I have to inform you that, after due consideration of your Lordship's recommendation, together with the several statements which accompany it (c), I feel it my duty to instruct your Lordship to call upon that officer to resign, as, unless he do so, I see no alternative but to submit to her Majesty that he be immediately removed from the regiment. "I have the honour to be, my Lord, "Your Lordship's obedient servant, It was suggested that the Secretary of War had come to this resolution without any due inquiry (d). It was stated, as part of the plaintiff's case, that Colonel Dickson, however, declined to resign, and, on the 19th of July, 1858, Mr. Duncombe asked a question in the House of Commons on the subject (e), and General Peel gave an (a) Why was Lord Wilton to be satisfied with his explanations? (b) According to Home v. Bentinck, 2 B. & B. 130, it is conceived that this letter would not have been admissible, but it was not objected to. (c) The letter does not disclose on what particular grounds the Secretary of State had resolved to submit to the Queen the removal of the plaintiff; nor whether it was on the admitted charges as to neglect of mess meetings and accounts, or on the disputed charges which alone were suggested to have been unfounded. And as the Secretary of VOL. III. State was not called as a witness (d) Vide ante, pp. 528, 548. 1863. DICKSON บ. VISCOUNT COMBERMERE and Others. 1863. DICKSON v. VISCOUNT COMBERMERE and Others. answer, reported in The Times of the 20th of July as follows (a): "Mr. T. Duncombe asked the hon. and gallant General the Secretary of State for War, whether he was aware that certain differences had arisen between Colonel the Earl of Wilton and Lieutenant-Colonel Dickson, both of the 2nd Tower Hamlets Militia, with reference to the affairs and discipline of that regiment; and if it was true that the Constable of the Tower had made an application to have Lieutenant-Colonel Dickson's name, unless he would consent to resign, removed from the Army List, without giving that officer any opportunity of vindicating his conduct before a proper tribunal?" "General Peel said that Lord Combermere applied to the Horse Guards for either a Court-Martial or a Court of Inquiry into this matter, but was informed that as the regiment was not embodied neither of these Courts could be granted. He then forwarded to him (General Peel) a letter from Lord Wilton, which contained the charges against Colonel Dickson. These charges he referred to Lord Combermere, directing him to make an inquiry. Lord Combermere had since addressed to him a letter, in which he expressed the opinion that the charges were proved by the documentary evidence. He (General Peel), however, did not come to the conclusion that the more serious charges were sufficiently proved (b). At the same time, there was abundant evidence that the affairs of the regiment had not been conducted according to military usages; and, therefore, in order to avoid dismissing Colonel Dickson from the service, he called upon him to resign. With that request Colonel Dickson declined to comply, and requested that there might be an inquiry. It abuse but in the exercise of his (a) There was an application to the Court in banc in the previous term, for leave to exhibit interrogatories to General Peel, inter alia, as to this question (Mr. Duncombe being dead), but that interrogatory was refused. (b) Thus, therefore, it appeared on the evidence for the plaintiff, that General Peel, at the time, disavowed, and declared that he had no intention of acting on, the more serious charges. It is difficult to see how, after this, there could be any case for a dismissal on those charges, and those were the only charges suggested to have been false, or wilfully so. was, therefore, his intention to appoint (a) a number of officers to inquire into the charges which had been made against that officer." The plaintiff, in his examination, being asked if this was correct, said he believed it was. He went on to state, that up to that time he had not been aware that there was to be a Board of Inquiry. He was informed on the first day that there was an additional charge contained in a letter of Lord Wilton's of the 24th of July; and on his attendance he heard the official letter of General Peel read, declaring the object of the inquiry. It was represented, in the case for the plaintiff, that General Peel had appointed "the Court of Inquiry" (b), that being the phrase used in his answer to the question in the House of Commons; and though, in point of fact, as it turned out, he did not appoint the Board, it was admitted that he wrote them a "letter of instructions," which ran thus:-"You will be pleased to record your opinion for the consideration and guidance of the Secretary for War." The Board sat fifteen days, from the 11th to the 29th of August, and heard the plaintiff fully on each matter, with any evidence he desired to adduce. The Board of (a) This was used as a proof that the Board was appointed by General Peel, with a view to render him responsible for these proceedings, which it was suggested had been unfair and unjust towards the plaintiff; sed vide post. (b) No doubt on the question whether the charges were false, which of course on either count was an essentially material question, the report of the Court of Inquiry would not be conclusive, as it was held in an action for false imprisonment brought by a master of a manof-war against his captain; in which the defendant pleaded that he imprisoned the plaintiff in order to bring him to a court-martial for disobedience of his orders, quar relling, &c., and that the imprison- But that decision implied not 1863. DICKSON V. VISCOUNT COMBERMERE and Others. 1863. DICKSON v. Inquiry, on the 13th of September, reported to the defendant General Peel. The report had not been made VISCOUNT only that the sentence of the Court COMBERMERE was primâ fucie rather evidence in and Others. favour of the defence (assuming would be inadmissible, as it did not appear that they had anything further to do with the case. Taking it, however, only as affecting General Peel, it would surely be necessary to show an adoption by him of proceedings contrary to natural justice. But none of the matters of complaint appear at all to partake of that character, and indeed most, if not all, of them appear to be such as would have been no ground of complaint even in a Court of Law. And to make them evidence against the Secretary of State, it was necessary to show, as the LORD CHIEF JUSTICE in substance held, that he was privy to and approved of them, and that they were plain violations of substantial justice. Vide post, p. 572. In the present instance, with respect to not enforcing the attendance of the Earl of Wilton to be examined by the plaintiff, even a Court of Law would and could do no more than enable the plaintiff to summon him as his witness, with a discretionary power of adjourning the case in the event of his nonattendance, and the proper course is to apply for such adjournment or to postpone the trial until the witness can attend; or lastly, to grant a new trial on the ground of his absence. But, in support of either of these applications, it must appear that the witness was material, and in support of the latter it must further appear that he was kept away by the other side; Marsh v. Monckton, 1 T. & G. 34. Now in this instance not only it did not |