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govt. contained in the G.O., under date the 15th Jan. 1811 ; and H.E. feels it to be his duty to certify to the army, in the most explicit terms, that officers who shall, under any pretence, levy any tax or duties of any description whatever, in the bazars subject to their controul, and for which they cannot produce an express regn., or authority from govt., will subject themselves not only to the consequences of such conduct as a mil. offence, but to such further legal proceedings as govt. may think fit to institute against them” (9). The punishment is dismissal from the service, and suffering such penalty as they may be liable to by law. Therefore in case a gen. ct.-mar. dismissed the officer, he would still be liable to a prosecution in the supreme court, by which he would not only be made to refund the money so exacted, but be subject to any penalty authorized by law.
3. Charges.] See forms Nos. 39 and 40, Chap. I. That A. B. being the govr., &c. of, did on — exact an exorbitant price from C. D., a licensed suttler attached to
regt., &c., for the house or stall let out to the said C.D., in the bazar of the said regt., &c. (or did connive at an exorbitant exaction, for the same, being made by E. F.) Or, that A. B. did, for his own private advantage, lay a duty or imposition amounting to the sum of upon the sale of victuals, liquors, or other necessaries of life, or merchandize (describe them) brought into the garrison, &c. under his command for the use of the troops (or was interested in the sale thereof—and state how).
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 A.B. to be the govr., &c. (if demanded). Prove C. D. to be a licensed suttler. 4. Prove the exaction and amount thereof, and the fixed or usual rate. (Or that A. B. connived at E. F. exacting the same from C. D.) Or, prove that A. B. did lay a duty or imposition—and the amt. thereof, for his own private advantage, on victuals, &c., brought into the garrison, &c. for the use of the troops (or having been interested in the sale thereof, and in what way).
1. Witness to prove to the exacting, &c., or laying any duty, &c. The interest or advantage is presumeable from the proof of the above fact.
5. Punishment.] Dismissed the service by the art., and suffering besides such penalty liable to by law- [by prosecution in supreme court. See conclusion to No. 2, above).
See case 1-Exacting money for allowing a licensed suttler to sell spirituous liquors. See case 2_Levying duties for the passage of merchandize at a g,haut near a fort. There is a positive order against the practice (10), and therefore it is inserted in this place.
Case 1.) G.O. H. G. 30th Jan. 1813. At a gen, ct. mar., Lieut. col. H. G. W., of the 8th L. D., was arraigned upon the undermentioned charge, viz.
“ For (9) G.O.C.C., 13th Feb., 1811.-(Henley, p. 629.) (10) G. 0. G. G., 9d March, 1802.-(Henley, p. 629.)
“ For scandalous and infamous behaviour, such as is unbecoming
Approved and confirmed by H. R. H. the P. R.
(Signed) H. Calvert, Adj.gen. Case 2.] G. 0. C. C. 9th Feb. 1816. At a gen. ct.-mar., Capt. H., engineers, was arraigned on the following charges :
1st. “For neglect of duty, when stationed at the Ft. of Calpee, in suffering certain unauthorized sums of money to be collected, for the passage of merchandize (13) and goods, at the g,hauts near the fort of Culpee, by Nunnoo, Mud,haree, and Peerbuksh, the said Nunnoo and Mud, haree then receiving public pay from Capt. H., and being distinguished by badges as public servants, and the said Peerbuksh being then in his private service, from on or about the 20th of April, 1813, during the months following, until Feb. 1814.
3d. “ For unofficer-like conduct and disobedience of orders, in employing, as hurkaras on the public establishment, private servants of his own, and distinguishing them with badges as public servants.
4th. “ For disobedience of orders, and conduct unworthy of an officer and a gentleman, in having unwarrantably exacted duties on
passage of the merchandize and goods as above stated, for his own personal benefit, he being then stationed in command at the fort of Calpee."
FINDING-Guilty of the 1st charge, for the periods comprized between the 26th April, 1813, and 4th Nov. 1813, or thereabouts, but acquit him of the remaining period set forth in the charge; Not Guilty of the 2d; Guilty of the 3d; and Guilty of the 4th, for the time admitted in the finding of the 1st charge.
Sentence—To be suspended from rank and pay for six calendar months.
Revised SENTENCE—The court, in obedience to the orders of the the Rt. Hon, the Com. in chief, having maturely reconsidered their sentence, adhere to their former opinion.
The court, in adhering to their former opinion, beg leave most respectfully to observe, that although they have found Capt. H. guilty of an offence unworthy of an officer and a gentleman, it nevertheless
appears (11) It is not necessary to specify the art., and better not to do so. It may occasion cavilling, &c.—(Tytler, p. 216.) (12) Dismissed by the art.
(13) See note 10.
appears to them, that offences may be so in a greater or less degree, and they have on this occasion visited that degree of it committed by Capt. H. with a commensurate punishment, according to the best of their judgment, founded on the evidence brought before them.
REMARKS by the Coin. in chief.—The main object in the public prosecution of an offence, being the warning which the sentence passed upon it shall hold forth to others, it is of the utmost importance, that a culpable procedure should not be inaccurately rated by the recorded decision of a tribunal. The Com, in chief, perfectly comprehends the considerations which have actuated the court in the present instance, might have been influenced by them in the event of a fit sentence, and does allow them weight in his present determination ; his Lordship, however, thinks that the court have not made their discrimination correctly. In finding the fact of which the 4th charge accused the prisoner, it was competent to the court to declare, that, although there was a transgression of orders proved, it was not justly described as conduct unworthy of an officer and a gentleman, on the supposition that the court had been satisfied such was a proper construction of the case; and the revision of the sentence was directed with a special indication of the effect of these words. When the court continues to find the prisoner guilty of " conduct unworthy of an officer and a gentleman,” the Com. in chief cannot admit a reference to shades in such a definition; but must think it ought to have been a natural consequence in the contemplation of the court, that an individual, against whom such a verdict was given, could be no longer adapted to the service. In this view, the Com. in chief is bound to disapprove the sentence, and does so accordingly.
Penalty of conniving at others selling Provisions at exorbitant Rates.
Art. 3.] (14) And if any gov, or officer comg. in any of the garrisons, forts, or barracks, shall connive at any other officer or person selling such victuals, liquors, or other necessaries of life, or merchandizes, to the soldiers under his command, at exorbitant rates, he shall, on conviction thereof by a gen. ct.-mar., bę cashiered, and shall besides suffer such penalty as he may be liable to by law.
1. Conniving at the Sale of Victuals, Liquors, or other Necessaries of Life, or Merchandizes, at exorbitant Rates to Soldiers.] It matters not whether, in the sale of the above articles at exorbitant rates, the comg. officer derives an immediate profit himself, or allows, as in case 1, suttlers or others to do so; as, in either case, the soldiers are the sufferers: but by a connivance at the prohibited act, the soldiers may more extensively suffer, as such connivance may be general, and be the means of continuing an oppressive act, without the same facility of the abuse being detected. The imposition of a duty, by which the price of articles is raised, is more open to detection, and becomes very soon generally known; the other may be concealed for a longer period when in distant situations, or where there is no ready means of making a comparison with the rates of other places: the articles are sold at an exorbitant price; but whether it be owing to the scarcity of the article, or to what cause, may for some time remain concealed.
(14) Art. 5, Ann. Arts. of War.
2. Canteens established for the Sale of Liquor, &c.] By sec. lii. of the Ann. M. A.,“ Any two justices of the peace, or magistrates, are empowered, within their respective jurisdictions, to grant or transfer any license for selling ale by retail, or cider, or perry, to be drank or consumed in any house or houses, or premises, where more houses or premises than one shall be held together by the same person or persons as a canteen, or any license to sell spirituous liquors or strong waters, or wine, or liquor, by retail, to any person or persons applying for the same, without regard to the time of the year, or any notices or certificates specified or required, in relation to the applying for or granting any such licences. And to sell therein, and in the premises thereto belonging, and not elsewhere, victuals, and all such exciseable liquors as he and they shall be licensed and empowered to sell, under the authority of any such excise license, without being subject to any penalty or forfeiture.”
The object in establishing the above canteens, is to ensure to the soldier a good and wholesome liquor ; and it is placed under the controul of the comg. officer, for the purpose of his having a salutary check, and thus to prevent either an abuse on the part of those supplying the liquor, or in an improper use of it, to the detriment of the health of the
3. Charges.] See Forms, Nos. 39 and 40, Chap. I. That A. B., being gov., &c. of -, did, at
connive at the sale of victuals, liquors, &c., &c. (specify the articles), at exorbitant rates, by C. D.
The same being in breach of the Arts. of War.
4. Evidence.] No. 1 and 2, as at Chap. III, sec. ii, art. 1. 3. Prove the sale of the victuals, liquors, &c. by C. D. 4. Prove the rates to be exorbitant. 5. Prove that A. B. connived at such sale.
One witness to prove the sale (having bought them). One witness to prove A. B.'s knowledge of such sale; the connivance is then esta. blished. One witness to prove the rates to be exorbitant, by comparing it with the rates of any other bazar or market.
5. Punishment.) Shall be cashiered, and shall besides suffer such penalty he may be liable to by law.—(See Punishment, art. 2, ante.)
Case 1.] G. O. H. G., 22d July 1813. At a gen. ct-mar., Lieut. F. S., of the 1st bat. 60th regt., was arraigned upon the undermentioned charges, viz.
7th. “ For conduct highly unbecoming the character of an officer and a gentleman, in having, at different periods, between the 8th Jan. and 2d Aug. 1812, bought quantities of spirits from farmers, and giving (allowing) the same to be sold to the detachment under his command, at nearly double the price paid for it by him, (thereby deriving considerable profit to himself) in direct violation of H. M.'s regs., highly prejudicial to good order and mil. discipline, and contrary to the Arts. of War."
Finding-Guilty of having purchased spirits, and allowing it to be sold at nearly double the price paid for it. But the ct. are of opinion, for want of sufficient evidence in support of the prosecution, the fact of the prisoner having derived a profit, is not established, and do, therefore, acquit the prisoner of that part of the charge (15). Sentence–To be cashiered.
Approved and confirmed by H. R. H. the P. R. By command : (Signed) H. CALVERT, Adj.gen.
Section 9.-OF CRIMES PUNISHABLE BY LAW.
Commanding Officers are, upon Application, to use their utmost Endea
rours to deliver over to the Civil Magistrate, any Officer, Non-commissioned Officer, or Soldier, accused of Crimes punishable by the known Laws of the Land, and to be aiding to the Officers of Justice, in securing such Offenders ; and upon wilful Neglect or Refusal, to be cashiered.
Art. 1.] (1) Whenever any officer, non-com. officer, or soldier shall be accused of a capital crime, or of having used violence, or committed any offence against the persons (2) or property of our subjects, or any others entitled to our protection, or the protection of the respective govts. of the E. I. Co. (3), such as is punishable by the known laws of the land, the comg. officer and officers of every regt., troop, company, or detachment, to which the person or persons so accused shall belong, are hereby required, upon application duly made, by or in behalf of the party or parties injured, to use his and their utmost endeavours to deliver over such accused person or persons to the civil magistrate (except in the cases mentioned and provided for by the act of 4th Geo. IV, cap. 81, sec. ii.) (4); and likewise to be aiding and assisting to the officers of justice, in apprehending and securing the person or persons so accused, in order that he or they may be brought to a
trial : (15) He was found guilty of several other charges relative to the sale, &c. of provisions.
(1) Sec. xi, Ann. Arts. of War, and sec. viii, art. 1, Arts. of War for Bengal Native Troops.
(2) Estate, M. A. sec. xvii. p. 8.