CHAP. X. Protection from Arrest. 209 been frequently committed by several tradesmen and others in order to defraud their creditors of their just debts, under pretence of being listed or entered as volunteers in Her Majesty's service, and at the same time keep houses, follow their several trades and employments, and appear as persons of reputation, which practices tend to the great damage of honest creditors, the decrease of personal credit, and the great discouragement of trade." And to remedy "these evil practices," the Act provided that in case of arrest for any debt under 207., a volunteer should be discharged; then, within two months after his discharge, he should be actually sent into Her Majesty's service abroad beyond the seas; and in case he should not be actually sent into, and continue in, the service abroad, then he should have no privilege, advantage, or protection as a soldier.2 ed by the 1st test. 9. The Mutiny Act first granted exemption in the 1st George I. to any volunteer, in the same words These grantthat were used in the Statute of 4 & 5 of Anne, Mutiny Act of George I.'s and the third Mutiny Act of that reign gave any reign. Justice power to release the soldier (without fee) on proof of his enlistment. The clause of exemption met with decided opposition in Parliament, upon grounds that are thus stated in the Lords' protest of the year 1717: 3—" Because by this Bill the Lords' Prosoldiers are exempted from being arrested by process of law, at the suit of any person for recovering a just debt, or upon any action whatsoever, which is a great injustice to the subjects, taking from them the benefit of the law for recovering their just demands, and for obtaining satisfaction for any injury done them by a soldier, either by wounding or maiming, or wrongfully taking away his goods; and we conceive this will be so far from preserving good order and discipline in the Army, that, on the contrary, it will be a great encouragement to the soldiers to live in their quarters in all manner of licentiousness, and to insult their fellow subjects, both in their persons and estates, 19 Anne, c. 4, sec. 3. 2 After the peace of Utrecht, two privileges were granted to disbanded soldiers(1), to set up trade in any town, notwithstanding any local law to the contrary, and (2) exemption from arrest, &c., for three years. See 12 Anne, c. 14, secs. 1 and 6; and also, as to the first of these privileges, 5 and 6 Wm. IV., c. 76, sec. 14. See also Appendix LXIII.* 37 Parl. Hist., p. 429. VOL. I. P when they know that by this law they are disabled from obtaining any effectual satisfaction from them, by the course of justice, for any such violence or injury; and the only reason offered to justify this exemption from arrests being to prevent the taking soldiers out of His Majesty's service by collusive arrests, we think the preventing such an imaginary mischief can be no reason to discharge the persons of soldiers from being taken upon any civil process, where the cause of action is real, which is a privilege only belonging to a peer of the realm." Limited to 10. In the following year the exemption was limited to debts under 107., and the Act amended to enable debts of 10%. honest creditors to recover their just debts, and to prevent unjust and fraudulent arrests to deprive His Majesty and the public of the soldier's services, by providing-in terms still in the Act1-for proof of the plaintiff's debt to entitle him to an arrest, and for the soldier's discharge (upon his own or his officer's application) where he has been arrested contrary to the intent of the Act. Opposed, and test. 11. The opposition was renewed without success, and the Lords' protest contains the arguments that were urged for the rejection of the Bill. "Because the clause in the Bill alleged to be made for enabling honest creditors to recover their just debts from soldiers seems to us rather to give a protection to the soldier than any real advantage to his creditor or other person having just cause of action against him; it protects the person of a soldier from execution as well as the mesne process, for any debt under 107., and it protects the estate and effects as well as the person of every soldier from all other suits but for debt, when the cause of action doth not amount to the like sum, and in other cases, when the cause of action exceeds that value, plaintiffs are in many instances put under such unreasonable difficulties that we conceive, before they can be allowed even to commence their suit, their bare compliance therewith may become more grievous to them than the loss of their debt, or a quiet submission to the wrong sustained, by which means His Majesty's good subjects may be highly injured in their properties and insulted in their persons CHAP. X. Exemption from Arrest extended. 21 I by the soldiery, and yet be deprived of the legal remedies appointed for the redress of such grievances. Exemption and otherwise 12. The same clause has since been continued in the Mutiny Act with little alteration, except that in 17801 the amount was raised to 207., and in 1830 it was raised raised to 30%., to 307., at which it now stands. Exemption from extended. arrest has been granted in other cases, and the clause as it now stands has an extended operation. 2 should be guarded 13. That this privilege should be looked upon with jealousy by the civil community need not be a matter of sur- Exemption prise. The Judges, following the rule of the earlier jealously cases, have placed a strict construction upon the Act, against. and have administered its provisions for the benefit of the public rather than of the soldier seeking relief from imprisonment. No doubt, in cases where the crying down of credit does not take place-as in the case of the Permanent Staff of the Militia and Volunteer Forces-and a knowledge of this privilege does not reach persons trusting the soldier, great injustice is done. the Poor 14. It will be noticed, upon the perusal of the Clause, that Parliament has sanctioned the extension of the exemp- Charges tion to other claims than ordinary debts, and by so doing thrown on has thrown burdens upon the Poor Rates that would Rates. otherwise come upon the soldier. However, in no case does the Act contemplate the intervention of the Minister of the Crown; the soldier's release is to be sought for by his own. agency, or through that of his Commanding Officer, from the civil tribunals of the country, and the Judges are not disposed to sanction any abuse of this privilege. 15. The other exemptions that have been sanctioned or 120 Geo. III., c. 12, sec. 66. 2 11 Geo. IV., c. 7, sec. 3. 3 Lloyd v. Wooddall, 1 Bla. Rep., p. 29; Bryan v. Woodward, 4 Taml. Rep., p. 599; 1 Bur., 466. 4 King v. Archer, 2 Ter. Rep., p. 274; Same v. Bowen, 5 ib., p. 156; Ferrall's case, 2 Den. Cr. Cases, p. 54. Other exemp granted by Parliament may be divided into three classes. The first, as to the wills and estates of deceased tions, of three officers and soldiers. The second, as to the Taxes classes. and Rates. The third, as to discharge of Municipal and other offices that pertain to a citizen. 16. I. The exemption granted by the 29 Charles II., cap. 3, as to the Wills of Officers and Soldiers was continued by the 1 Victoria, cap. 26, Section 11; and therefore, as the law at present stands, any soldier (and in this expression officers are included), being in actual military service, may make a nuncupative will, as to his personal estate, to be judged of as to its validity according to the law in force prior to the passing of the 29 Charles II. Actual military service 17. What is "actual military service," within the meaning of these Statutes, has been a matter of controversy before the Ecclesiastical Courts. In a recent case (1843) it -what? was contended, "that this privilege extended to soldiers of all degrees, and under any circumstances, with this exception, that there might be a distinction between soldiers on full-pay and on half-pay, but that otherwise all persons belonging to the British Army were to be considered as being on actual military service;" so that "every soldier on full-pay, from the recruit of to-day to the oldest General in the service, could dispose of his personal property by a will made by word of mouth." This view of the law is untenable. Those who enjoy the privilege are not such as lie safely in some castle, or place of defence, or besieged by the enemy, only in readiness to be employed in case of invasion or rebellion, but such as are on an expedition or in actual service of war; and such during the time of their expedition are privileged, whether employed by land or water.2 13 Cur. Rep., pp. 527, 563-7-8. 2 Cases (1) of Probate refused: 3 Cur. Rep., p. 819; 1 Rob. Eccl. Rep., p. 76; 1 Eccle and Ady, p. 24. (2) of Probate granted: Herbert v. Herbert, 2 Jur. (N. S.), p. 24; E., p. 251; 11 Jur. (N. S.), p. 569. CHAP. X. Personal Effects of Deceased Officers, &c. 213 effects of a officer or 18. The administration of the estates of officers and soldiers dying in camp or quarters, is regulated by the ordinary As to the law of the realm; but, for the purpose of securing deceased the property to the rightful owners thereof, provision soldier. has been made, from the earliest times, for its collection and realisation by the Commanding Officer or brother officers of the deceased. "Wherever Martial Law prevails," said Lord Loughborough, "it claims a jurisdiction over all military persons in all cases—even their debts are subject to inquiry by a military authority." The Articles of War from the earliest date-as those of 1639, 1642, 1666, and 1672, show-have contained a provision on the subject; but it was not until the year 1813 that any direct statutory authority was given to the arrangement. In that year, the 58 George III., cap. 73, was passed, and in the year 1825 amended by the 6 George IV., cap. 57. 19. Both statutes, though repealed, were in substance reenacted by the 26 & 27 Victoria, cap. 57 ("the The personal Regimental Debts Act, 1863 "). effects of officers and The main purport of the Act is to secure the pay- soldiers. ment (1) of certain expenses that are inevitably incurred on the decease of any person, and (2) of other demands of a regimental nature. The mode of effecting this object is by the appointment of a committee of officers (called the Committee of Committee of Adjustment), with defined statutory Adjustment. powers (1) for the collection and conversion into money of all the deceased's effects in camp, &c.; (2) for the payment thereout of all the preferential claims; and (3) for the remittance of the surplus or balance of the estate to (say) the Secretary of State. Crown not responsible mittee's Acts. for the Coin The Commit 20. The Committee have a statutory duty to discharge, for which they (not the Crown) are responsible to the creditors or next of kin of the deceased. The Committee have an absolute legal and preferential title against any other claimant to the effects in camp, &c., belonging to the deceased officer. And in a case where the sheriff entered under a fi. fa. issued against the estate of the deceased officer, the title of the Committee was held to prevail, and the sheriff withdrew. tee have an absolute title camp, &c. to effects in 21. The functions of the Secretary of State, under the Act, |