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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. 0. 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 Arti).
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 l.) The upbraiding may be by words uttered, or by letter. The following letters are applicable to this art. :
* G. 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, r. 47. See Blackstone, vol. iv, p. 150.)
“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." “ To the officer comg, the
regt. of “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 letter, circular, to comg. officers, with directions to cause it to be inserted in the books of orders of their respective regts.
(Signed) « H. CALVERT, Adj.gen." “ To Maj gen. Coote, &c. &c.”
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 aequits 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 doubts-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).
3. Charges.] See Forms 39 and 40, Chap. I.That A. B. did on at — 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.
receipt of the letter by C. D. need not be proved, its production and proof of hand-writing is sufficient,
5. Punishment.] Officers cashiered.-(See art. 2.) Non-com. officers and soldiers punished at discretion.
Case 1.] G. (). H. G. 12th July, 1809. At a gen. ct.-mar., Capts. T. P., J. C., J. A., T. C., and R. G., of the Ist. Somerset regt. of militia, were arraigned upon the undermentioned charges, viz.
1st. “ For convening and holding an irregular meeting of several of the officers of the 1st Somerset militia, on the 5th day of Feb. last, in the mess-room of the regt. at Bristol, to consider the conduct of Maj. J., then comg. the said regt. and Maj. Sir W. Y., Bart. of the same regt. on the 4th of Feb. preceding, and at such meeting, binding themselves to secrecy, and agreeing together, to make a partial and injurious report of the conduct of the said Maj. J., and Sir W. Y., to Earl Poulett, the col. of the regt. which was afterwards transmitted to him. And also at the said meeting, combining together, and agreeing not to associate, nor do any mil. duty (39) with Maj. J., and Sir W. Y., till they, the officers composing the said meeting, should hear Col. Earl P.'s sentiments, on the report made to bim, all which said conduct was contrary to their duty as officers, highly detrimental to the service, and to the prejudice of good order and mil. discipline.
2d. “ For maliciously conspiring and combining together, with
(39) Extract letter from Earl Cornwallis to Brig. Horne, dated 19th March,
Para. Ist. -" There is, however, on that part of the proceedings where Capt. B. is upon his defence, an apparent admission of a principle, which, being incompatible with mily. discipline, has attracted my particular notice; by the mode in which Capt. B. puts the question to some of the witnesses— Whether they did duty with him after the imputations had been cast on his character and by the manner in which these questions are answered, an idea seems to be entertained, that an officer may, upon his own, or upon the general opinion of others, decline to do mily. duty with another officer who is not under an arrest, nor under any other legal disqualification. I have been happy to observe, that there are no specific expressions upon this head, on the face of the proceedings, which render it necessary for me to apply my remarks in the form of censure to any particular officer ; but, it is of importance to correct, as soon as possible, an opinion which might interfere with mily. subordination, and on some occasions do irreparable injury to the service.”
Para. 2d._“You will therefore be pleased to give the most explicit caution upon the subject, to the officers serving under the presidency of Ft. St. George, by calling to their recollection, that although mily. officers are, in common with other gentlemen, at liberty to make choice of their companions for private society, and may prefer charges, if they think proper, against an officer for in.proper conduct; yet, that they cannot refuse to do public duty with an officer, who is not under some legal and known disqualifications to exercise the rights and privileges of his rank; without ex. posing themselves to the penalties, which must follow so evident and direct a breach of the Arts, of War" (40).
(Signed) “ Cornwallis." From Madras Code of Regs., published in G. O., 11th March, 1806. (40) See sec. ii, art. 5. Disolveying any lawful commands.
several other officers of the same regt., on the 5th of Feb. last, at Bristol, to stigmatize the characters of Maj. J. and Maj. Sir W. Y., of the 1st Somerset militia, for not having engaged in a duel, in consequence of a quarrel, which had taken place between them on the 4th of Feb. preceding, although they, the officers, so conspiring and combining together, well knew that the said quarrel had, before that time, been amicably and honourably adjusted and made up; which said conduct, tended to create and keep up dissentions in the regt., was highly detrimental to the service, and to the prejudice of good order and mil. discipline.
FINDING-Guilty. Sentence-To be dismissed from the 1st Somerset
regt. of militia.
By order : (Signed) H. CALVERT, Adj.gen.
. “ For conduct unbecoming the character of an officer and a gentleman, in having, on or about the middle of August, 1816, struck, and kicked Lieut. M. of the same regt., while spending the evening together in his own tent.
2d. “ For (scandalous and infamous] conduct, in the following instances : Ist, for associating with that officer (Lieut. M.) athough the insult had not been noticed ; [and] 2d, for making public) the circumstances, to the prejudice of Lieut. M.'s character.”
FINDING-Guilty of the 1st charge, but that he was impelled to strike the late Lieut. M. in his own defence2d. Guilty of highly improper conduct, &c. (Not Guilty of the words in italics). SENTENCE.--To be dismissed H. M.'s service.