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.] 66 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 infliction not warranted by the modern practice of the army. (83) Blackstone, vol. iii. p. 112—and Tytler, p. 168 and note. (84) Blackstone, vol. iii. p. 454-and Tytler, p. 167.

(85) Blackstone, vol. iii, p. 454--Tytler, p. 163.

(86) "For it is no ground of prohibition, that a court has decided wrong in a matter clearly 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 1817. 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 2d 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.

Crime. Ram Sing, a na2d bat. of regular inf.,

CASE 3.] G. O. C. C., 13th Nov. 1818. tive of Hindostan, and late a havr. in the 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. 1st 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."

CHAPTER VIII.

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

standing

standing as may eventually lead to a quarrel, if not to a duel. The 4th article gives authority to all officers, of whatever rank, to interfere, to quell all quarrels, frays, and disorders, and, therefore, it becomes the duty of those who are present whenever a quarrel, &c. takes place to do so, but particularly in the case of the senior officer at a mess, where such quarrels most frequently arise (1), or are the result of something said or done there; and a timely interference may prevent very serious consequences ensuing. The refusal to obey such interference is also declared to be punishable. The article would have been more complete had it commanded, in express terms, to be done, that which it gives a power to do; but the power here given to all officers, evidently evinces the intention of the framing the article to be, to provide for an extreme case, and thus vesting the youngest ensign even, with such power over his superior officer of whatever rank. The power is given with an intention of being used when occasion requires it, and all can judge, what language or words may lead to a quarrel; the giving a blow decides the question as to the propriety of interference. The intention of the article it is evident is, that the officer so offending should be put in arrest to save the consequences that may ensue. It does not mention by whom, but the 4th article declares it may be done by all officers of whatever condition i. e. rank, though belonging to another regt. which clearly applies to those cases even, where officers of different regts. may be assembled together any off duty, for if on duty such an occurrence could not take place; and, of a necessary consequence, to officers of the same regt. when met together at the mess or at any private party, where such quarrel, &c. may take place. Many officers have stated the advantages that would result to the service in general, by the establishment of a court of honour in every regt. to be sanctioned by authority. The whole of the officers to assemble at their mess-room, and to decide on the case by a majority of voices. The expression of the sentiments of a body of officers, upon the conduct of one of their members, and evinced by their subsequent conduct towards such individual, would have a greater effect upon him, than any reprimand he could receive, in any possible shape; as an officer of any character, values the good opinion of his brother officers, and in proportion as he falls in their estimation will he, if he has any feeling, be lowered in his own. To such a court should be referred the settlement of all regimental quarrels, and as to those which may arise between officers of different regts., a joint meeting of the officers of both regts. should take place. It would be of importance, that all should attend unless prevented from duty or indisposition, as by this means, not only would the general sense be expressed, but all shew of partiality would be avoided. In case the officer, or both if required, should be desired to make an apology, and should refuse to do so, then the only course left would be,

where

to

(1) See remarks to the case of an officer striking another in a mess room, contents to sec. xiv, art. 26.

to place the one, or both, in arrest, and to exhibit charges against them (2).

With respect to non-com. officers or soldiers, reproachful or provoking speeches or gestures towards each other, are most likely to be accompanied with blows; and, therefore, the first indication of such a disposition should be repressed by confining one or both of the parties. It is not stated by whom the party is to be confined, but it is clearly the duty of the orderly serjts. of companies, or indeed of any non-com. officers to interfere on such occasions. Such transactions are chiefly confined to the barracks, or to places in their vicinity, and the orderly serjts., &c. of companies are the military police of the barracks. It would even become the duty of a private soldier to interfere, and, by analogy, such is in accordance with the spirit of the 4th article, which appears imperfect in this respect, since it only says, "All officers, &c. have power to order non-com, officers or soldiers to prison," and not providing for the case of occurrences most likely to take place, when officers are not present-namely, in the barracks, &c. But, in well regulated regts., regs. are established to preserve order among all ranks; and where the Arts. of War fail to provide for a case, the custom of the service becomes a sanctioned rule of practice.

2. Reproachful or provoking Speeches.] The reproaching another (3), by bringing to his recollection, in strong terms, any conduct he may have pursued in any transaction which may have been the subject of conversation, or of investigation before a ct.-mar., or in any other way, when the same shall have been decided by competent authority, or agreed not to be noticed; or reproaching another with any personal deformity or defect, are likely to kindle feelings of animosity and revenge, and to produce a result, which the article is intended to prevent. When one officer calls another "a liar," as in case 1, or 66 a coward," such becomes a decided provocation. To tell another, "to consider himself insulted," as in case 2, is also a provoking speech. Telling another that

(2) "In the year 1783, Sir W. Draper, in a letter to Lieut.gen. Murray (comg. at Minorca), used the following words “your insinuation that I am attempting to take the command from you is false and infamous." To which the Lieut. gen. returned in answer: "As to personal abuse, I shall do myself justice, you may be assured, when the proper time arrives." The Lieut.gen. had been tried on account of his conduct in the defence of Ft. St. Phillip, in the island of Minorca, and the letter in question came before the genl. ct.-mar., by whom a communication was made to H. M., who directed the re-assembly of the court, by whom an apology was dictated to both parties; but the Lieut.gen. not complying was put in arrest, though he subsequently subscribed to a qualified apology; and both pledged their words of honour that no adverse measures should take place in consequence of what had transpired between them.-(Samuel on M. A. and Arts. of War, p. 353.) A second instance occurred in the year 1789, on the trial of Maj. John Browne, of the 67th regt., owing to some suspicions entertained by the genl. ct.-mar. in consequence of what had happened on their proceedings, as well as on a former ct.-mar., evincing much heat and animosity between several of the parties concerned in the trial, a similar measure was adopted.”—(Samuel on M. A. and Arts. of War, p. 360.)

(3) It is nearly allied with upbraiding another with refusing a challenge as in the 5th art.

that "he considered it a disgrace that he should be allowed to sit down with the regt. at table," as in case 3, is a provoking speech. Propagating calumnious reports, derogatory to the honour of another, as in case 4, is highly calculated to be the occasion of a duel. Provoking speeches may be by using opprobious language, or by holding out a threat or menace, or by defying, or by the use of language or words which the party knows will irritate the mind of another, and this, whether said in his presence or absence; for if repeated it will produce the same result. And taunting or sneering at another; representing a transaction in a manner calculated to render the conduct of another ridiculous; or giving a false colouring in describing any thing done by another; or doubting another's word; are all likely to occasion a quarrel.

3. Provoking Gestures or Acts.] Shaking a horsewhip at another in a threatening manner, and insulting him indecently by gestures, as in case 5; or making use of provoking language of any description, accompanied with gestures, or making faces, which have a natural tendency to produce a quarrel; such as calling another a villain or rascal, and holding a doubled fist in his face. The caricaturing another who has any peculiarity of gait, or any personal defect, is an act calculated to provoke to a quarrel. Mimicking or ridiculing another, accompanied by action, representing the manner of another, in a way to make it evident who the party is, that is intended to be represented. The conduct to be pursued by those present on such occasions, is clearly pointed out by the 4th article of this section. 4. Charges. See Forms Nos. 39 and 40, Chap. 1. That A. B. did on use a reproachful or provoking speech or gesture (as may be, state the words used or gesture, &c. made use of; to or concerning C. D. in the presence (if so) of E. F., the same being in breach of the Arts. of War.

at

5. Evidence.] Nos. 1 and 2, as at Chap. III, sec. ii, art. 1. 3. Prove the words or gestures used by A. B. to or concerning C. D., as stated in the charge, in presence (if so) of E. F. The tendency of such words or gestures, it is for the ct. to decide. One witness is suffi. cient.

6. Punishment.] If the case does not require a ct.-mar., the officer is to be put in arrest, the non-com. officer, or soldier, to be imprisoned, and to ask pardon of the party offended. If there be a ct.-mar., the punishment is discretionary.-(See Punishments, at the end of Chap. XXIV.)

CASE 1.] G. O. C. C, July 7, 1823.—At a gen. ct.-mar. at Ft. Wm on 17th June 1823, Lieut. J M. W., of H. M.'s 44th regt. of foot, was arraigned upon the undermentioned charge, viz.

"For having behaved in a [scandalous, infamous] manner, such as is unbecoming the character of an officer and a gentleman, in having on the evening of the 16th or morning of the 17th inst., when at the officer's mess table of the 44th regt. in the garrison of Ft. Wm., said to