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under the age, by which he soldier, having magistrate (75). hear, then
tion of their leaves; and that failing to do so within a reasonable time, they will be considered to have forfeited all claim to a similar indulgence in future: or in case of being sick, to apply at the nearest station, &c., to the comg. officer, with the view to obtaining an extension of leave, which, if granted, is directed to be reported to the regt. to which the soldier, &c. belongs (73); or if there be no mil. near, then to the nearest civil station, to the judge and magistrate (75). It sometimes happens that a native soldier, having fallen sick on the road or at his village, by which he has overstaid his leave, is afraid to return under the apprehension of being tried for having overstaid such leave,
-hence they are induced not to return at all, and thus to desert the service; and therefore they should be instructed to desire the police officer, at any place where they fall sick, to report the circumstance to the magistrate of the district.
3. Charges.] See Forms, Nos. 39 and 40, Chap. I. That A. B. did, on , at , absent himself from his troop or comp., (as the case may be,) without leave from his comg. officer, from — till
- , &c. (See also Charges to art. Ist of this sec.) The same being in breach of the Arts, of War.
4. Evidence. Nos. 1 and 2, as at Chap. III. sec. ii. art. 1. 3. Prove the absence as stated in the charge. 4. Prove that no leave was given. 5. Prove the return of the soldier, &c. One witness to prove that leave was not given; the same can prove the return to the regt. 5. Punishment.] Discretionary.-(See Punishments, at the end of
Chap. (73) G. 0. C. C. 1st Feb. 1820. Rutton Sing, of the 4th battn. co., Ist battn. 27th regt. N. I. who was struck off the strength of that battn, on the 8th Dec. 1819, for having exceeded his leave of absence, having since returned to his corps, and produced a certificate signed by Surgeon Phillott, of the 23d regt. N. I., and countersigned by Brigade Maj. Conroy, setting forth that he had been discharged from the hospital of the above corps, on the 1st ulto., cured of his complaint, the Com. in chief is pleased to direct, that the name of the above sepoy be restored to its place on the rolls of his corps and co., and his arrears drawn in the same manner, as if he had not been struck off.”
“ H. E. takes this occasion to call the attention of all officers concerned, to the very great inconvenience and detriment to the service, experienced by their not reporting, in all cases of this nature, the situation of the soldier to his comg. officer, as directed in G. 0. 19th Dec, 1814, and 17th March 1817, and to impress on them, the necessity of being more observant, in future, of the injunctions therein given."
(74) He need not be re-enrolled to be tried.-(See G. 0. C. C. 6th Oct. 1817. No. 19, p. 144.
(75) By sec. cxxi, Ann. M. A. 1824. Inspecting field officers on the recruiting service, or any officer of the rank of capt., or of superior rank, or adjts. of regular militia within the district, or any justice of the peace (if there be no officer within a convenient distance) are authorized to grant extension of leave, on account of sickness, or other casualty which shall, on due inquiry, appear to be necessary; and to certify the same, with the cause of its being so granted, to the corps, &c., to wbich the man belongs; and, by sec. cxxii. such extension of leave shall protect the soldier, &c. from being apprehended as a deserter, unless the leave so granted be obtained under a false representation; but such an extension is not to exceed one month, unless with the approbation of the genl. or other officer comg. in the district, or of the officer comg, the corps, &c., to wbich the soldier, &c. belongs.
Chap. XXIV.-He would not receive his pay during such absence. M. A. sec. xliv.)
Case 1.] G. 0. C. C. 10th April, 1819. Gunner F. Thomas, of the regt. of artil., was arraigned on the following charge:
“For [desertion) on or about the 20th of March, 1819, after repeatedly absenting himself from his corps without leave.”
FINDING—Not guilty of desertion, but of being absent from his corps without leave, after repeated commissions of the same offence. SENTENCE-To receive 500 lashes (76).
Approved and confirmed: (Signed) HASTINGS. The above sentence to be carried into effect at such time, and in such proportion, as the comdt, of artil. may direct.
(Signed) J. Nicol, Adj.gen. of the army.
Penalty of persuading any one to Desert. ART. 7.) (77) Whatsoever officer, non-com. officer, or soldier, shall be convicted of having advised or persuaded any other officer or soldier to desert the Co.'s service, shall suffer such punishment as by the sentence of a gen. ct.-mar. shall be awarded.
1. Persuade or procure to Desert.] Sec. Ixviii. of the M. A. further enacts, “ That if any person or persons shall, in any part of the territories which are or may be under the govt. of the said Co., directly or indirectly, persuade or procure any soldier or soldiers, in the service of the said Co., to desert or leave such service as aforesaid, and being thereof lawfully convicted, shall, for every such offence, forfeit to the said Co., or to any other person or persons who shall sue for the same, the sum of 800 Sa. Rs.; and if it shall happen that any such offender so convicted as aforesaid, hath not any goods and chattels, land or tenements, to the value of 800 Sa. Rs., to pay and satisfy,— or if, from the circumstances or heinousness of the crime, it shall appear to the court before which the said conviction shall be made as aforesaid, that any such forfeiture is not sufficient punishment for such offence,- it shall be lawful for such court to commit any such offender to prison, there to remain for any time not exceeding 12 months, without bail or mainprize” (78). Sec. Ixix. directs the penalty “to be sued for and recoverable in H. M.'s court of record at the Presidency under which such offender shall be resident." Sec. lxx. provides, “ That no action shall be brought or prosecution carried on by virtue of this act, for the penalties aforesaid, unless the same be commenced (79) within six months after the offence is committed” (80). The above sec. applies to persons in a civil capacity, who are not amenable
(76) Others for absence without leave have been sentenced to 400 lashes, one months' soly. confinement, &c.
(77) Sec. v, art. 4, Arts. of War, for Bengal Native Troops.
(80) The penalty of harbouring and concealing deserters.-(Sec. Ixvii. M. A., at art. 2, of this sec.)
to a mil. tribunal. If the offender be an officer or soldier, &c., the gen. ct.-ınar, would have nothing to do but to attend to the art. in question. The art. does not allude to the penalty which is awardable against those in a civil capacity.
2. Having advised to desert.] This may be done by recommending a soldier to desert, by pointing out some advantage to be obtained by sodoing, as in case 2,- the bettering his condition in life. Or, if a soldier be dissatisfied with the service, and he be advised to desert it ; such advice would come within the intent of the art., whether the soldier, &c. did actually desert or not: the simple advising is sufficient, without looking at the consequence, which depends not on the will of the party counselling the act; what may be the effect of such advice, is to be seen by the conduct of the party to whom it is given. The soldier may not desert, but still the person “having advised ” him to desert is required to be punished.
3. Having persuaded to desert.] There is this difference between having advised” and “having persuaded” to desert—that the one is an advice to another to do an act, which he may or may not consent to commit; the other a persuasion, by which the act is done (81). A man may endeavour to persuade another to commit an act, and not succeed in his endeavour; but when he has persuaded him to commit it, the party persuaded, is brought over to his purpose, and commits the act. The persuasion may be by mere words-promise of promotion or other advantage, offer of a high bounty or other valuable consideration, pecuniary or otherwise; in fact, any thing that shall persuade a soldier to desert.-(See case 1.)
4. Inciting to desert.] The inciting men to desert, by holding out promises of being otherwise provided for, as in case 2, is also the effect of persuasion; for no one can be incited by promises to commit an act, unless persuasion be used. It would be better that the words of the art. were in all cases used ; and, if it be necessary, to charge an attempt to seduce from their duty, &c. as in case 3, in an additional charge. In case 1, had there been an additional charge, stating “that the said Serjt. Grant did further promote or was instrumental towards the enlisting, &c.” the court would have acquitted him of the original, and found him guilty of the additional charge; and the question, as to their sentence, would never have been agitated.
5. Charges.] See Forms, Nos. 39 and 40, Chap. 1. That A. B. did, on
advise or persuade (as may be) C. D. to desert the Co's service. The same being in breach of the Arts. of War.
N. B. In H. M.'s service, a gen, regtl. ct.-mar. may try the crime. -(See Warrant, sec. xiv. art. 14.)
6. Evidence.] Nos. 1 and 2, as at Chap. III. sec. ii. art. 1. 3. Prove that C. D. did desert. 4. Prove that A. B. did advise or persuade C. D. to desert. [It does not signify whether he deserted or not, the
advising (81) Unless the soldier deserted, it is not likely that the having advised or persuaded to desert would be known, but in either case the art, commands a punishment.
advising or persuading is sufficient.] One witness to prove the desertion; one witness to prove the advice given (if in presence of any person).
7. Punishment.] Discretionary.-(See Punishments, at the end of Chap. XXIV. See also cases 1, 2, and 3, under this art.)
Case 1.] “ Serjt. Grant was tried by a gen. ct.-mar. on a charge founded on this art, for advising and persuading Heretage and Stephenson, two drummers in the guards, to desert H. M.'s service, and enter into the E. I. Co.'s service, with a knowledge that they belonged to the Guards. The sentence was, “ that he, the said S. G. Grant, is guilty of having promoted, and having been instrumental towards the enlisting of F. Heretage and F. Stephenson into the service of the E.I. Co., knowing them at the same time to belong to the said regt. of foot guards; and deeming this crime to be precisely of the same nature with that which is set forth in the charge, and to differ only in this, that it is rather inferior, but in a very slight degree, in point of aggravation, they adjudge him to be reduced from the rank and pay of a serjt., and to serve as a private soldier in the ranks, and to receive 1,000 lashes on the bare back with a cat-o'-nine-tails by the drummers of such corps or corps, at such time or times (82) as H. M. should think fit to appoint."
« In Trinity Term, 1792, a motion was made in the ct. of Com. Pleas in behalf of Serjt. Grant, for a prohibition of the sentence (Grant v. Sir C. Gould, Judge Adv.gen. H. Blackstone's Reports, p. 69). In support of the objection it was argued by counsel, “ that the offence, described in the 5th (now the 7th) art., on which Grant had been charged, was that of an accessary before the fact; whereas that of which he had been convicted, if he had been convicted of any offence at all, was of an accessary after the fact.”—The court refused the prohibition. Lord Loughborough, after having laid down with great precision, the principles of mil, law, and having noticed the arguments urged by counsel on both sides, concluded to this effect: “ Taking the whole of the case together, it is clear that there is ground to suppose, that they (the ct.-mar.) meant to convict Grant of the charge. But if by the nicety which they used in penning the sentence, that sentence were to be invalidated, it could not be by prohibition (83), whatever it might be by a review (84), or by an appeal (85). The most that can be made of it is an error in the proceedings, but we cannot prohibit on that account” (86).-(Samuel on M. A. and Arts. of War, p. 339.)
CASE (82) See sec. xiv., art. 10, the extract from the speech of the Rt. Hon. Mr. Perceval declaring a second infiction not warranted by the modern practice of the army.
(83) Blackstone, vol. iii. p. 112-and Tytler, p. 168 and note.
(86) “ For it is no ground of prohibition, that a court has decided wrong in a matter c'early within its jurisdiction, although such decision may be a just ground of appeal, or a sufficient foundation for a review of the sentence."-(Tytler. p. 168.)
CASE 2.] G. O. C. C., Madras, 8th June 181'. Charge. Ram Sing, sepoy, No. 17, in the gren. comp. 2d bat., 15th regt., confined by me to the main guard, on the following charge, grounded upon the proceedings of a batt. nat. ct.-mar., which assembled on the 14th of April 1817.
“ For inciting (men of the 2d batt. 15th regt.] to desert by holding out promises of being otherwise provided for if (they] would go away with him, (particularly in the instance of ]Jaganath Sing, sepoy, in the 20 bat. 15th regt., who deserted from his corps on the 10th April 1817, at the instigation of the said Ram Sing.
Addl. Charge.] “For attempting to desert on the night of the 11th April 1817, when he, the said Ram Sing, was on duty.”
FINDING-Guilty of the 1st charge (except of the words in italics). Guilty of the addl. charge. SENTENCE~ To receive 800 lashes.
Approved and confirmed: (Signed) T. Hislop, Lieut.gen.
Case 3.) G. 0. C. C., 13th Nov. 1818. Crime. Ram Sing, a native of Hindostan, and late a havr, in the 2d bat. of regular inf., in the service of H. H. the Nizam, placed in confinement by me on the following charge:
« For attempting to seduce from their duty, (several] sepoys of the 1st bat. Ist or gren. regt. Bombay N. I., (by persuasions to induce them (the said sepoys ) to desert from the service of the H. C. during the month of Aug. last]."
FINDING—“Not Guilty.of the words in italics, but of attempting to seduce from their duty, two sepoys of the Bombay N. I., viz. T,hakoor Pursad, and Ram Roll. SENTENCE-To receive 500 lashes, and to be drummed out of camp.”
“ Approved and confirmed: but as the notoriety of the sentence incurred, will produce as much effect as the public infliction, the actual punishment may be remitted.
(Signed) - HASTINGS.”
SECTION 7.-QUARRELS AND SENDING CHALLENGES.
Penalty of Provoking Speech or Action. Art. I.] No officer, non-com. officer, or soldier, shall use any reproachful or provoking speeches or gestures to another, upon pain, if an officer, of being put in arrest, or if a non-com. officer or a soldier, of being imprisoned, and of asking pardon of the party offended, in the presence of his comg. officer.
1. The intention of the above article is to restrain any officer, noncom. officer, or soldier from using any reproachful or provoking speeches or gestures towards each other, that shall occasion such a misunder