contempt of the justice of the nation, is a strong aggravation of the affray, though no mischief has actually ensued (28). Another aggravation is, when thereby the officers of justice are disturbed in the due execution of their office (29); or where a respect to the particular place ought to restrain and regulate men's behaviour more than in common ones (30); as in the King's court (31), and the like” (32). The article in question vests in all officers, of what condition soever, the power to quell all quarrels, frays, and disorders, supposing that on such occasions, some officer (and that officer would most probably be the adjt.) would have intimation of such fray, &c.; and, being on the spot, would act as directed. But there may arise cases, where two or more regts. are together in the same garrison, and an affray may take place between the men of two regts. (or even between men of the same regt.) when it may become necessary, before the arrival of any officer, for the serj. maj., or a non-com. officer to interfere, and endeavour to part those engaged in a fray; which might otherwise assume an alarming height, if it were not immediately suppressed. On a fray taking place, a party would be detached, under a non. com. officer, from the regimental qr.guard (supposing there was no main guard at the station) of the regt. within whose limits the affray took place, such party would have orders from their officer, and the N.C.O. of it, would of course adopt measures to quell the fray; but in the mean time the serj.maj. of the corps, or any non.com. officer would be in duty bound (33) to separate those engaged in the fray, and if necessary, to order any non-com. officer or soldier into confinement. If such a circumstance occurred in the barracks, it would be the particular duty of the orderly serjts. of companies, aided by the other non.com. officer. These are frays which are considered with refe, rence to the non.com. officers and soldiers of a regt. In the case of frays among officers (and which may occur between the officers of the same regt. or those belonging to one or more regts.) they are most likely to occur at a mess-room, or at some place of amusement, which is general and open to all; and therefore it may become necessary in cases, where perhaps an individual officer of one regt. may be in company with several officers of different regts., that even a junior officer in some other regt. should interfere, and order him into arrest. The proper superior officer alluded to, who is to be made acquainted with the arrest of an officer, is the comg. officer of his regt. (or company, (28) See note 15, p. 196. (30) See sec. i, art. 1. (32) Blackstone, vol. iv, p. 145. (29) See sec. ii, art 5. if (33) The 4th art. of the sec. ii., requires all officers, non-com. officers, and soldiers to suppress a mutiny, without reference to the rank of the parties concerned in it, and in the case of a fray, where the lives of the parties may be in danger, or other bodily injury may ensue, from a continuance of the fray, prompt measures are requisite, and a man might lose his life before any officer was present. After the words "all officers," should have been added to this article, "and non-com officers, in the case of N. C. O., &c." if detached); the confinement of a non-com. officer or soldier, to the adjt. of the regt., for the information of the comg. officer (or to the capt. of the company, if detached). 2. Quarrels and Disorders.] The same observation will apply in these cases, as to that of a fray, except that quarrels and disorders are not attended with the same serious consequences as a fray, which is an actual fighting. Quarrels or disorders may precede or follow a fray, but as the article uses the words "all quarrels, &c.," the intention would appear to refer, to all cases whether connected or unconnected with a fray, the object being to prevent quarrels and disorders. In these cases, if they occur within the barracks, the remedy is very simple and well understood. If they occur in the case of officers, here, also, the youngest ensign has the power, to order any superior officer into arrest, though of another regt., if the case demands it; if it does not, he is answerable for the consequences, but as he must have witnesses of the transaction, he can easily justify hmself, if the case admits of it. But there may arise cases, where an officer of one regt. may be passing through the cantonment of another regt., and may find it necessary to interpose his authority, to quell a fray, quarrel, or disorder; if no officer of the regt. was present, and the interference of an officer became necessary (34). The article would appear to be directed to the above cases, as well as to that of one or more regts., &c. being quartered or in camp together, as is implied by using the words "though belonging to another regt.," &c. The refusing to obey an arrest, &c. or drawing a sword upon the officer imposing it (though he should subsequently obey the arrest, &c.), is punishable; and though not expressed, the offer to draw (35) a sword, or any offer of violence or resistance, would also be punishable. (See case 1.) 3. Charges.] See Forms, Nos. 39 and 40, Chap. I. That a fray, quarrel, or disorder (insert particulars) took place at —, on — in which A. B. was engaged, that the said A. B. was ordered into arrest or into confinement (as the case may be) by C. D., which arrest, &c. the said A. B. did refuse to obey (or upon being ordered into arrest, &c. did draw his sword upon C. D., or offer to draw, or use or offer violence or resistance towards, or to C. D.), 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 existence of the fray, &c. 4. Prove that A. B. was engaged in it. 5. (34) Officers' commissions, give them army, as well as regtl. rank.—(See Tytler, p. 195.) And, "in general, it may be held as military law, that all accessaries to the commission of crimes and offences, either by the furnishing of actual aid, or assistance to the principals; or by silently witnessing or concealing the crime, harbouring or assisting the escape of the criminals, or barely neglecting that essential duty of every soldier, to promote, to the utmost of his power, the strict observance of good order and discipline, for which the martial law invests him with full authority, are guilty of a positive crime, and amenable for the punishment thereof, to the cognizance and judgment of a ct.-mar."-(Tytler, p. 197.) (35) See sec. ii, art. 5, or lift up any weapon, &c., or offer any violence, &c. 5. Prove the refusal of A. B. to obey the arrest, &c., or drawing, &c. a sword on C. D. One witness to prove the existence of the fray, and one witness to prove the refusal to obey, &c. or one witness may prove both facts. 5. Punishment.] Discretionary. (See Punishments at the end of Chap. XXIV. By law, fine and imprisonment. CASE 1. G. O. H. G. Nov. 1, 1813. At a gen. ct.-mar., Assist.surg. C. D., of the Royal Artil., was arraigned upon the undermentioned charges, viz. 1st. "For having on the night of the 14th May, or morning of the 15th of May 1813, made use of ungentleman-like and improper language to Assist.surg. S., of the Royal Art., and for having, on the aforesaid night, repeatedly struck Assist.surg. S., of the Royal Artil. 2d. "For having on the night of the 14th, or morning of the 15th of May 1813, defamed the character of Assist.surg. S., of the Royal Artil., by accusing him of fraudulent practices, with regard to some money transactions in England. 3d. "For having on the night of the 14th, or morning of the 15th May 1813, made use of insulting and provoking language to Lieut. Cotton, of the Artil., when in the execution of his duty, and for disobedience of his (Lieut. C.'s) orders, in refusing to consider himself in arrest, when ordered in arrest by the aforesaid officer." FINDING-Guilty. SENTENCE-To be cashiered. Approved and confirmed by H. R. H. the P. R., and H. R. H. has been further pleased to command, that the charge of embezzlement against Assist.surg. S., as appears upon the face of the proceedings, shall be referred to the mast.gen. of the ordnance, for such investigation as his Lordship may now think practicable. By command: (Signed) H. CALVERT, Adj.gen. Penalty for upbraiding any for refusing a Challenge. ART. 5.] Whatsoever officer, non com. officer, or soldier, shall upbraid another for refusing a challenge, shall himself be punished as a challenger; and we hereby acquit and discharge all officers and soldiers of any disgrace, or opinion of disadvantage, which might arise from their having refused to accept of challenges; as they will only have acted in obedience to our orders, and done their duty as good soldiers, who subject themselves to discipline. 1. Upbraiding another for refusing a Challenge.] An officer who upbraids another for refusing a challenge is to be cashiered; non-com. officers and soldiers, punished at the discretion of a ct.-mar. The holding a meeting of officers, to consider of the conduct of other officers for not having engaged in a duel, has been punished by the dismissal of those who were present at such meeting-(See casc 1.) The upbraiding may be by words uttered, or by letter. The following letters are applicable to this art.:— "G. "G. O. H. G. 28th June, 1800. Sir,-I have the honour herewith to transmit to you a copy of a letter, addressed, in pursuance of H. M.'s commands, to Maj.gen. C.; and at the same time to signify to you, that it is H. R. H. the Com. in chief's pleasure, that you cause the same to be read, the first opportunity, at the head of the regt. under your command, and afterwards to be inserted in your regtl. orderlybook, to the end that every officer may be fully apprized of H. M.'s sentiments upon the subject to which this letter alludes; and particularly that officers, who are entrusted with commands, may be made sensible, that it is incumbent on them, on no account, to permit any misunderstanding, which originates on points of duty, to become a matter of personal dispute. "The Com. in chief is persuaded that the royal approbation, which has been so fully expressed to Maj.gen. C., will ensure the same line of conduct, under similar circumstances, from every officer who entertains a just sense of the duty he owes to himself and to society, and is actuated by an earnest zeal for the good of H. M.'s service; which is best exemplified, by a strict observance of discipline, and a due submission, on every occasion, to the laws and govt. of his country. (See also G. O. H. G. 13th May, 1824, No. 1. p. 182.) (Signed) "H. CALVERT, Adj.gen." regt. of "To the officer comg. the "G. O. H. G. 25th June, 1800. Sir, I have received H. R. H. the Com. in chief's directions, to signify to you, H. M.'s most gracious approbation of your conduct, in respect to Mr. A. late major in the 11th regt. of foot. "H. M. considers the conduct of Mr. A., in having endeavoured to ground a personal quarrel on the evidence (36) you gave in conformity to your duty on your oath before a gen. ct.-mar., as militating not less against the principle of public justice, than against the discipline of the army; and H. M. has been pleased to direct, that it should be signified to you, in the strongest terms, that by having had recourse to the laws of the country on this occasion, you have displayed a spirit truly commendable as a soldier, and peculiarly becoming the station you hold in H. M.'s service; to which you have rendered a material benefit, by furnishing an example, which H. M. has ordered to be pointed out, as worthy the imitation of every officer under similar circumstances. "In order that H. M.'s sentiments on this head may be generally known, I have received H. R. H.'s commands, to transmit a copy of this (36) "In consequence of the evidence which Maj.gen. Sir E. C. gave at his ct. mar., Maj. A, after he had sold out of the army, sent a challenge, which was not only declined by the former, but followed up by a criminal prosecution at law. Maj. A. was tried in the Court of King's Bench, found guilty, fined 30 marks, and sentenced to one year's imprisonment in the King's Bench prison."—(James, p. 47. See Blackstone, vol. iv, p. 150.) this letter, circular, to comg. officers, with directions to cause it to be inserted in the books of orders of their respective regts. (Signed) "To Maj gen. Coote, &c. &c." "H. CALVERT, Adj.gen." 2. Officers and Soldiers acquitted of any Disgrace, or opinion of Disadvantage, in refusing a Challenge.] The object is to prevent duelling; but though the art. in question acquits all officers and soldiers of any disgrace, or opinion of disadvantage, on account of refusing a challenge, still, if an officer, insults another, some steps are intended to be taken to clear the character of the officer insulted, and to punish him who offers the insult; and a case has arisen, wherein charges have been exhibited against an officer, for associating with him whom he had insulted, the insult not having been noticed.-(See case 2.)-No doubt,-upon the principle of punishing the insult, and of noticing the conduct of the party offering it, with a view of preventing the consequences which might otherwise ensue, and of upholding the character of officers, as officers and gentlemen,-that, by the issue, those who have forfeited that title, should be removed from the army. And since the art. in question, cashiers the officer who upbraids another for refusing a challenge; it is but justice to the army at large, that the above measure should be adopted, to relieve officers from having those among their body who have so forfeited that title. It is, therefore, evident, that it is the intention that proper notice should be taken of any conduct that affects the character of an officer, even as a gentleman; and there is a particular art. directed to this object (37). But, on the other hand, it does not appear to be the intention, that the officers of a regt, should take any further notice than by bringing forward charges, and submitting them to their comg. officer, where the case requires it-See case 3, and note 39, p. 208.)—A court of honour, if established by proper authority in every regt., would not only have it in their power to settle many cases of regtl. disputes, now submitted to investigation before a gen. ct.-mar., but very frequently prove the means of preventing the occurrence of a duel (38). at 3. Charges.] See Forms 39 and 40, Chap. I.-That A. B. did on upbraid C. D. for refusing a challenge, to fight a duel, from E. F. The same being in breach of the Arts. of War. N.B. In H. M.'s service a gen. regl. ct.-mar. may be held on non-com. officers and soldiers. (See Warrant, sec. xiv, art. 14.) 4. Evidence.] Nos. 1 and 2, as at Chap. III, sec. ii. art. 1. 3. Prove the challenge having been sent by E. F. to C. D. 4. Prove the words uttered by A. B. to C. D. or the letter having been sent to C. D. (if in writing) and the hand-writing of A. B. One witness to prove the words uttered, &c., and one witness to prove the hand-writing of A. B. (if there be a letter sent) though the receipt (37) Sec. xiv, art. 26. (38) See p. 175. |