The penalty, under this article, is _peremptorily_ that of cashiering. A less punishment the court is not competent to pronounce. The article has for its express object the removal from the service of officers who are convicted of scandalous and infamous behaviour. “There is no provision,” says Mr Warren, “in the Articles of War, for the cognisance of unofficer-like and ungentleman-like conduct, divested of a tendency to prejudice good order and military discipline, (so as to bring it within Article 108,) in any degree less than that involving infamy and scandal. In the year 1801, an officer was charged before a General Court-martial with scandalous and infamous conduct, unbecoming the character of an officer and a gentleman. The Court acquitted the prisoner of ‘scandalous and infamous behaviour,’ but considering his conduct, nevertheless, as ‘unbecoming the character of an officer and a gentleman,’ adjudged him to ‘be suspended from rank and pay for six calendar months.’ His Majesty King George III. declared the adjudication irregular, and disapproved the sentence, ‘inasmuch as the Court had acquitted the prisoner of the only imputation which could bring the business as a charge before them—namely, of any scandalous and infamous behaviour in the transaction.’ In another case, which happened in 1814, in India, an officer was tried by General Court-martial, on the charge of ‘scandalous and infamous conduct, unbecoming the character of an officer and a gentleman,’ in two instances. The Court acquitted him of the first, but found him guilty of the criminal acts charged in the second instance; acquitting him, however, of ‘scandalous and infamous conduct, unbecoming the character of an officer and a gentleman.’ The Commander-in-Chief, Earl Moira, declared that ‘he regarded the Court as having returned a verdict of acquittal generally, and directed the officer who had been convicted to return to his duty.’ His lordship observed that ‘the Court, in declaring that the criminal act proved against the prisoner did not come within the description of ‘scandalous, infamous, and unbecoming the character of an officer and a gentleman,’ had divested itself of all power to award punishment, except inasmuch as the acts might be considered to come under the above specific definition.’ In the present case, the Court _could_ not have acquitted of scandalous and infamous conduct, because _it was not charged_.”