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SENTENCE – To be cashiered.
(Signed) H. CALVERT, Adj.gen. CASE 27.] G. O.P.C. O. Ist May 1807. At a gen. ct. mar., for the trial of all such prisoners as shall be brought before it.
Crime.] W. Shea, J. Bagnal, and H. Kennedy, privates of H. M.'s 67th regt., confined by Lieut.col. Gordon, on the following charges :
1st. “ For beginning, causing, exciting, and joining in a mutiny or sedition in the co. of H. M.'s 67th regt. to which they belong, on or about Sunday, the 22d March last.
2d. “ For mutiny and disobedience of the lawful commands of Lieut.col. Gordon, their comg. officer at the evening parade, on the 22d March last, when on the word being given by the said Lieut.col. Gordon, to shoulder arms,' they, W, Sbea, J. Bagnal, and H. Ken
nedy, grounded theiler arms,' they, W. Shaken by the said Lieut.
3d. “ In mutinous contempt of his authority, and also in further mutinous disobedience of the lawful commands of the said Lieut.col. Gordon, for obstinately remaining stationary, when repeatedly ordered by him to go to the right about,' on the same evening, in breach of the rules and arts., for the better governing of all H. M.'s forces.
FINDING-Guilty. SenTENCE-W. Shea, to receive 1,500, J. Bagnal, 1,200, and W. Kennedy 800 lashes.
Approved: (Signed) W. Dowdeswell, Provl, Com. in chief.
In consideration of the good character of H. Kennedy, I remit the punishment awarded to him.
I cannot but regret the heat that seems to have been manifested in the course of this trial, but whatever improprieties there may be either on the prosecutor's or Judge Adv.'s part, I have no doubt of the purity of intention of both parties.
(Signed) W. Dowdeswell, P. C. C. · CASE 28.7 G.O.H.G. 25th Sept. 1812. At a gen. ct.-mar., privates T. Sloan, J. Allisen, R. Scott, and A. Wallace, of the Dumfrieshire militia, J. Pugh, and D. Evans, of the Montgomery militia. T. Mitchell, of the Westmoreland militia, S. Newton, of the Nottingham militia, and W. Graham, of the Northumberland militia, were arraigned upon the undermentioned charge, viz.
« For mutinous conduct, and disobedience of ors., on Thursday, the 18th day of June 1812, when on a march from Chatham to Sheerness fortress, 'with a division of a battn. composed of detachmts, of British militia, by refusing to go into the island of Sheppy, or to cross the passage at the king's ferry, (the usual communication into the said island, and road to Sheerness,) being an express violation of his (and their) duty as a soldier, (and soldiers) and contrary to the Arts, of War."
FINDING --Guilty. Sentence-To receive individually 300 lashes each. RECOMMENDATION.- The court taking into consideration the circumstances and evidence set forth by the prisoners, of their offering to return to their duty upon the parade, in Chatham barracks, on the 18th June 1812, by expressing every willingness to go to Sheerness, before they were actually confined, and from a conviction that the prisoners having refused to do so at the king's ferry, proceeded more from a perfectly erroneous idea of the island of Sheppy being unconnected with, or a separate island from Great Britain, than from any meditated mutinous conduct or disobedience of ors., doth humbly presume to recommend them, generally, as objects of mercy ; but, particularly, the prisoner W. Graham, who has proved to the court, that he was delayed, and thereby prevented receiving the pardon, which had been granted to many men who returned to their duty, by the laudable intention of persuading an absent comrade to follow him, in acknowledging his error, and to obtain forgiveness.
H. R. H. the P. R. was pleased to approve and confirm the finding and sentence of the court ; but, under the circumstances upon which the court grounded their recommendation, H. R. H. was further pleased to extend his most gracious pardon to each of the prisoners.
By command: (Signed) H. Calvert, Adj.gen. N. B. The militia are not compellable to serve out of the kingdom.
SECTION II1.-Or DiscHARGING SOLDIERS, &c.
Discharge granted to all Soldiers dismissed the Service. ART. I.) (1.) Non-com, officers and soldiers having been duly enlisted and sworn, shall not be dismissed the Co.'s service without a discharge, granted according to the gen. order on that head, which shall be in force at the time of granting the discharge.
1. Duly enlisted and sworn.] Sec. xci of the Ann; M. A., 1824, enacts, “ That every person who shall receive enlisting money from any officer employed (2) on the recruiting service, or from any noncom. officer or private soldier belonging to the recruiting party under the command of such officer, or from any person employed on the recruiting service, he being an attested soldier, shall be deemed to be enlisted as a soldier.” Sec. xciii of the Ann, M. A. enacts, # That when any person or persons shall be enlisted, he or they shall within four days, but not sooner than 24 hours after such enlisting, be carried before some justice of the peace of any county, riding, city,
(1) Art. 2, Ann. Arts, of War, 1824.
(2) Ann. M. A., 1824, sec. c., enacts a penalty of £20 for advertising for recruits without authority, for each offence.
or place, or chief magistrate of any city, or town corporate, residing or being next to, or in the vicinity of the place, and acting for the division or district where such person or persons shall have been enlisted, and not being an officer in the army; and if such person or persons shall declare his or their having involuntarily inlisted himself or themselves (3), then such justice or chief magistrate shall forthwith read over or cause to be read over in his presence, to such person or persons, the 3d and 4th art. of sec. ii, and the 1st art. of sec. vi of the Arts. of War, against mutiny and desertion, and to tender and administer, in the case of recruits enlisting to serve either in H. M.'s troops or in the forces of the E. I. Co., according as H. M. shall think fit, in pursuance of the act of 39 Geo. III., c. 109 (4), the oath of allegiance in the schedule (5) marked (E); and the justice or chief magistrate shall certify such enlistment and swearing, accordingly to the form mentioned in the schedule (6) marked (F.); and in the case of recruits enlisted for the special purpose of serving in the E. I. in the forces of the E. I. Co. only, in pursuance of the act of 50th Geo. III. c. 87, the oaths marked (G. and H.) in the schedule (7); and the justice or magistrate shall certify such enlistment and swearing accordingly, in the form (8) mentioned in the schedule (I.); and if any such person or persons so to be certified shall wilfully refuse to take the said oath of fidelity (allegiance), it shall and may be lawful for such officer, from whom he received such money as aforesaid, to detain and confine such person or persons until he or they shall take the said oath. Sec. xciv (Ann. M. A.) declares persons receiving enlisting money and absconding, &c. to be deemed duly enlisted.
And by sec. liv (H. E. I. Co.'s) M. A., it is enacted, “that any person who shall voluntarily surrender or deliver himself up as a deserter from any regt. or corps of the said Co.'s forces, or who, upon being apprehended for desertion, or any other offence shall, in the presence of the magistrate or of the comg. officer of the place, confess himself to be a deserter from any such regt. or corps, shall be deemed to have been duly enlisted, and to be a soldier, and shall be liable to serve in any such regt. or bat. or corps of the said Co.'s forces, as the com. of the forces of the said Co. (9) shall think fit to appoint, whether such person shall have been ever actually enlisted as a soldier or not.”
2. Not to be dismissed without a regular Discharge.] Soldiers enlisted for the service of the H. E. I. Co. under the Act 50 Geo. III. c.
87 (3) If they declare their dissent, “ upon such declaration and returning the enlisting money, and paying the sum of 20s., together with the full rate allowed by law for the subsistence or diet, &c., furnished subsequent to the period of enlisting, shall be forthwith discharged and set at liberty, but refusing or neglecting, within 24 hours after declaring their dissent, to return and pay such money, shall be deemed and taken to be enlisted, as if they had given their assent before the magistrate. -(Clause 93., sec. Ann. M. A. 1824.)
(4) If transferred to E. I. Co.'s service. (5) Ann. M. A. 1824, p. 238. (6) Ann. M. A. 1824, p. 239.
(7) Ann. M. A. pp. 241, 242. (8) Ann. M. A., p. 243.
(9) At Bengal. Madras, or Bombay, &c.
87(10) are enlisted for the period of 12 years, if the recruit be 18 years of age or upwards, but if under 18 years, then the difference between his age and 18 is to be added to such 12 years, provided the Company require his services so long (11). If after the above period of service the soldier should not renew his contract to serve, he becomes entitled to his discharge. If a soldier has enlisted for unlimited service, and shall have conducted himself to the satisfaction of his comg.officer, he is entitled at the expiration of 12 years from the date of his enlistment, to a bounty; and at the expiration of 17 years to his discharge, or to re-enlistment on the usual terms. The discharge of Company's soldiers is usually authorized, if applied for, on payment of £80; the soldier defraying his passage to England."
By sec. lii. of the M. A. 4 Geo. IV. c. 81. Every soldier entitled to his discharge is sent home free of expense, and is entitled on his return to receive marching money from the place of his being landed to the parish or place in which he was originally enlisted, at the same rate as allowed to soldiers in H. M.'s service, and by sec. liï. he is made subject to this act, and the Arts. of War till his debarkation.
Every native soldier in the E. I. C.'s service is entitled to his discharge in time of peace, after three years' service, and the same is granted at the expiration of two months from the application being made, provided it does not cause the vacancies in his comp. to exceed 10, in which case he must continue to serve till that objection be removed; but in time of war, he has no claim to a discharge, but must remain, and do his duty, until the necessity of retaining him in the service shall cease. -Declaration M. C. Bengal, 8th August, 1796.
The Penalty of signing false Certificates. ART. 1.) (1) Every officer who shall be convicted before a gen. ct.mar, of having knowingly signed a false certificate relating to the absenice of either officer, non-com. officer, or private soldier, shall be cashiered ; and every officer who shall be convicted before a gen. ct.. mar. of having signed certificates, returns, or forms of account in blank, previously to the insertion in them by the paymaster, or other officer or person concerned, of the accounts or circumstances for which his sig. nature is to be a voucher, shall be liable to be cashiered. 1. Knowingly signing a false Certificate, &c.] The sec, xxxviii of the
M. A. (10) Ann. M. A., 1824, sec. xciii., p. 146. (11) Ann. M. A., 1824. p. 242. (H.) (1) Ann. Arts. of War, 1824, art. 2.
M. A. enacts “ That if any person do make or give, or procure to be made or given, any false or untrue certificate, whereby to excuse any soldier for his absence from any muster, or any other service which he ought to attend or perform, upon pretence of such soldier being employed upon some other duty of the regt., or being sick, in prison (2), or on furlough; then every such person so making, giving, or procuring such certificate, shall for every such offence, forfeit the sum of 400 sicca rupees (3), and shall be forthwith (4) cashiered and displaced from his office, and shall be thereby utterly disabled to have or hold any mil. office or employment in the service of the Co. in the East-Indies, and no certificate shall excuse the absence of any soldier but for the reasons aborementioned, or one of them.” The above sec, extends the penalty to accessaries before the fact.
“ The above sec. (xxxviii) of the M. A. makes not the same distinction with the art. in question, between a false certificate, knowingly or otherwise given ; acting, as it may be supposed, on the presumption, that the party certifying is bound to inform himself fully of all that he is in duty called upon to certify, and if he be negligent in informing himself, or take any thing on trust, he cannot find any
lawful excuse in his ignorance or misplaced confidence, being both in opposition to a plain and manifest duty; or it would be making the breach of one part of duty, which is contrary to every principle of right, a sanction for another” (5). The offence is properly called a positive fraud or de. ceit (6)
The art. in question relates to the signing a false or untrue certificate as to the absence of a soldier “from any muster or any vice, without expressing what is meant by the words “ or any other service.” A capt. &c. knowingly signing false reports of his division, as in case 1. The falsely returning men in the daily states of a comp, as in case 2, are both of them cases which may serve to shew what is intended by the words “ or any other service.” The term “ service" means duty of any description. A muster is only taken once a month, and the muster-rolls are transmitted to the pay department (7), to assist that office in checking the pay abstracts or rolls which are subsequently made out to correspond, as to numbers and facts, with the muster-rolls. A false certificate, to excuse a soldier from any duty is justly punishable by the infliction of the highest penalty. It is obvious that if, for instance, a certain number of men in one comp.
excused (2) Or confinement.
(3) Recoverable in the Supreme Courts at Calcutta, Madras, and Bombay respectívely.- (See M. A., sec. xli., 4 Geo. IV. cap. 81.
(4) Though the 18th art., sec. xiv. authorizes the cashiering or dismissal of an officer without trial, still in a case like that in the art. in question, the more usual course is to try the party by a gen. ct.-mar, The words “convicted before a gen. ct.-mar." explain the mode of procedure intended.
(5) Samuel on M. A. and Arts. of War, p. 298.