the 20th art. of sec. xiv, by directing an officer to be placed in arrest, a non-com. officer or soldier to be confined, and the article at present under consideration, gives directions with respect to crimes of a civil nature. The party injured would, therefore, make an application to the comg, officer, stating the subject and nature of his complaint, upon which it would be the duty of such comg. officer, to listen to the same, and to use his utmost endeavours to deliver over such accused person to the civil magistrate. The truth of the complaint can only be ascertained on an investigation of the case; and though in criminal cases it is usual for a magistrate to require the party accusing to make oath as to the crime or injury committed, before he grants his warrant for commitment, still a comg. officer is not here invested with the power of so acting; he is not authorized to administer such oath, and therefore all he can, or is authorized to do, is to deliver over the accused to the civil magistrate, either by sending such accused to him, or by informing the magistrate of the case; that he may investigate it, and then demand in writing the delivering up of the accused person, sending, by his officer, his warrant or other authority, for the delivery into his custody of the body of the accused. This appears to be the letter and spirit of the intention of the art. and the M. A. above recited, and the acting in obedience to it can never involve such comg. officer in any subsequent difficulty; for besides the authority and direction contained in both, sec. lxv. of the M. A. enacts "that if any action, &c. be brought against any person or persons, for any act, matter, or thing to be acted or done in pursuance of this act, it shall and may be lawful to and for all and every person or persons used as aforesaid, to give this act in evidence, &c." (17); therefore all the officers who aid and assist are protected in the exercise of such duty, though the party accused should be ultimately acquitted. If the accused is, when required by the act, to be delivered up to the magistrate, the committing the accused for trial rests with him, and the comg. officer does his duty by giving the magistrate immediate information of the complaint, and sending the accusing party before him; were he, on the other hand, to investigate the case himself and decide against taking any steps, not thinking any necessary, he would take upon himself a heavy responsibility for which he is answerable; at the same time, the accusing party should be acquainted with the consequences of making a false accusation, and care should be taken that he be sent with a proper person to the magistrate to insure his appearance against the accused; that the latter may have the means of clearing himself of the accusation, and, if the same should turn out to be malicious, have the means of proceeding against him-thus giving the means of doing justice to all parties as well as to the govt. The application is to be attended to if duly made by or in behalf of the party injured. It may

SO

(17) See No. XV, p. 18.

so happen that the party may be killed, or so injured that he cannot appear personally to complain, or he may be withheld by the accused and prevented; therefore, some relation, &c. would be necessitated to make the complaint, or in the latter case any bye-stander might give information, which would render it necessary to send some person to the spot. By the term due application is to be understood, the statement of the party himself, by another coming immediately from the party injured in the case of death or other injury preventing his attendance, or by that of an eye-witness-but not on mere report. Still, however, a report of the death of another by a soldier, &c. should occasion such an inquiry to be made as may prove or disprove it, and in the former case steps would be necessarily taken, to bring the party to justice.

4. All Officers of a Regt. &c to use their utmost Endeavours.] The complaint is supposed to be made to the comg. officer, but other officers of the regt. may beforehand, become acquainted with the accusation, in which case they are "to use their best endeavours to deliver over such accused person to the civil magistrate," by which it 'is intended that they should inform the comg. officer of the circuinstance, and be aiding and assisting him, and, subsequently, the officers of justice, sent to apprehend and secure the accused-they are to "use their utmost endeavours," from the moment they hear the accusation till the apprehension of the accused; therefore, concealing or harbouring the accused, or giving him the means of escape, or aiding, or in any manner assisting therein, or conniving at, or even advising such escape would be criminal acts; and any wilful neglect, in not properly securing the person of the accused, would amount to the "not using the best endeavours."

5. The accused is to be tried by a Genl. Ct.-mar., if Crime, &c. be committed above 120 miles from Calcutta, &c.] In this case all the previous observations would apply as to the measures of precaution to be taken, but here the comg. officer must investigate the complaint, and he would also report the case to the officer comg. the station, &c. for him to decide upon ulterior steps.

6. With respect to Native Soldiers, &c., accused of Capital Crimes or Misdeameanors, &c.] Sec. cix. of 53d Geo. III, cap. 155, (18) enacts "That all persons whosoever, being natives of India, who have been, now are, or hereafter may be employed, by or in the service of H. M., the said United Co., or of any of H. M.'s subjects, were, and are, and `shall be subject and amenable to all provincial courts of competent jurisdiction for all crimes and misdeameanors, and in all actions and suits whatsoever, of which such courts respectively could take cognizance, if the persons having committed such crimes or misdemeanors, or against whom the cause of such actions or suits shall have arisen, had not been employed by, or had not been in the service of H. M.,

(18) Last renewal of the Charter.

or

or the said United Co., or any of H. M.'s subjects: Provided always, that nothing herein contained shall anywise oust the said Supreme Courts of Judicature of Ft. Wm. and Madras, and the said court of the Recorder (19) of Bombay respectively, of any jurisdiction over any natives of India, which such courts may now lawfully exercise; but such Supreme Courts of Judicature of Ft. Wm. &c. respectively, as well as the provincial courts herein referred to, according to their several jurisdictions, shall have a concurrent jurisdiction over natives of India, employed by or in the service of the said United Co., or any of H. M.'s subjects." And it is further enacted, by sec. cxiii. of the said 53 Geo. III, cap. 155, "That it shall and may be lawful for the said court of Sudder Dewanny and Nizamut Adawlut (20), or other provincial courts aforesaid, to execute or cause to be executed, upon all persons subject to the jurisdiction of such courts respectively, all manner of lawful process of arrest, within the respective limits of the towns of Calcutta, and Madras, and of the town and island of Bombay, in the same manner as the said courts respectively may, by virtue of any power now vested, or hereafter to be vested in them, lawfully execute, or cause to be executed, such process in any place situate without the said limits (21): Provided always, that all such process which shall be executed within the limits aforesaid, shall be in writing, or shall have under-written or indorsed thereon, or otherwise annexed thereto, a translation thereof, or of the substance thereof, in the English language and character, signed by one of the judges of the court from whence the same shall issue."

If a native soldier were accused of any capital crime, &c. he would, if committed within the limits of the town of Calcutta, or Madras, or town or island of Bombay, be delivered over to the judge and magistrate for the town of Calcutta, to be tried by the provincial court for the division of Calcutta, &c. &c. (22). If the crime were committed

(19) Now the Supreme Court, 4 Geo. IV, cap. 71, sec. vii. (20) The Chief Civil and Criminal Court.

in

(21) More than 10 miles from Calcutta, Madras, and Bombay.-(Sec. cvii.) (22) By sec. cix, 53 Geo. III., cap. 155, the Supreme Court is declared to have a concurrent jurisdiction with the Provincial Court, according to their several jurisdictions. The jurisdiction of the Supreme Court over natives of India, only extends to those residing in the town of Calcutta, or within the limits thereof, and not beyond those limits. Such concurrent jurisdiction, gives an authority to the Supreme Court to try natives accused of any capital crime, and only where a native soldier is apprehended by one of the police of the magistrates for the town of Calcutta, would such court, it is presumed, proceed to try him; but as the Provincial Court has a concurrent jurisdiction, it is presumable that he would be made over to be tried by the latter. In the one case, he would be punished according to the law of England; and in the other, by the Mahommedan law, as modified by the British Governments. In the latter case, the sentence is confirmed by the Court of Nizamut Adawlut, the chief criminal court, which does not try criminal cases. Were the crime committed within the fort, the Provincial Court would have no jurisdiction over the accused; but there is a judge and magistrate for the town of Calcutta.

in any cantonment or station beyond Calcutta, the accused would be delivered over to the judge and magistrate of the district in which the regt., &c. was stationed, by whom he would be confined in gaol, and be tried by one of the judges of the court of circuit (23); and therefore, though the above article does not regard the native troops (24), still, any native soldier, accused of any capital crime, &c. which not triable by a native gen. ct.-mar., should be delivered over to the judge and magistrate of the district. But native soldiers and others, amenable to mil law, regs., &c. are triable by a native gen. ct.-mar., where the crime has been committed at places out of the Co.'s provinces or dominions.

7. Charges.] See Forms, Nos. 39 and 40, Chap. I. That A. B., comg. the regt. of -, (or other officers of the regt., &c.) on

at

due application being made to him by C. D. (or others in behalf of C. D), on against E. F., a soldier, &c. under his command, accused of (insert crime, &c. and particulars), did not use his best endeavours to deliver over such accused, &c. to G. H, the judge and magistrate of ; (or, aid and assist the police in apprehending the said E. F.; or, did wilfully neglect to use his best endeavours to deliver over, aid, and assist in apprehending and securing, the said E. F., by which neglect he escaped.) Or, That the said A. B. (or other officer) did, upon due application being made to him by the said G. H., on at —, wilfully neglect or refuse to deliver over the said E. F. to the said G. H. The same being in breach of the Arts. of War.

N. B. By sec. xvii. M. A., may be proceeded against in the Supreme Court, for refusing to deliver over.

8. Evidence.] Nos. 1 and 2, as at Chap. III, sec. ii, art. 1. 3. Prove C. D. to be a person entitled to the Co.'s protection. 4. Prove the accusation made by C. D. against E. F., and that the best endeavours. were not used to deliver over E. F. to G. H., judge and magistrate; or, that A. B., &c. did not aid and assist the police in apprehending and securing E. F.; or, prove the wilful neglect or refusal to deliver over the said E. F.-One witness to prove the complaint was duly made; one witness to prove the refusal to assist, aid, &c., or the refusal to deliver over. The wilful neglect is established by the proof of the above fact.

9. Punishment.] For refusing to deliver over to the magistrate, by sec. xvii. M. A., in the case of a comg. officer,-shall be cashiered, and utterly disabled to have or hold any civil or mil. office or employment in the said Co.'s service in the East-Indies, if proceeded against in the Supreme Court. By the art., all officers shall be cashiered for any disobedience of the art.

Penalty

(23) Or Court of Appeal, as appeals lie from the Judge and Magistrate's Court to them.

(24) M. A., sec. lxiii.

Penalty if an Officer protect any from his Creditors.

ART. II.] (25) No officer shall protect any person from his creditors on pretence of his being a soldier; nor shall he protect any non-com. officer or soldier who does not actually do all duties as such, and no farther than is allowed by the act of Parliament for punishing mutiny and desertion of officers and soldiers in the service of the E. I. Co., and according to the true intent and meaning of the said act: any officer offending herein, being convicted thereof before a gen. ct.-mar., shall be cashiered.

1. Non-commissioned Officers and Soldiers protected from Arrest, where the Debt does not amount to 200 Sa. Rs.] It is declared by sec. Iv. of the M. A., that no soldier shall be arrested, except for a real debt, amounting to 200 Sa. Rs.; and "if any person shall nevertheless be arrested contrary to the intent of the act, it shall be lawful for one or more judges of the Supreme Court, upon complaint thereof made by the party himself, or by any of his superior officers, to examine into the same, by the oath of the parties or otherwise, and, by warrant under his hand and seal, to discharge such soldier so arrested contrary to the intent of this act, without paying any fee or fees, upon due proof that such soldier was legally enlisted in the Co's service, and arrested contrary to the intent of this act." An affidavit is required by the same sec., to be made before one of the judges of the Supreme Court, out of which the process or execution issues, that the debt amounts to 200 Sa. Rs.; a memorandum of which oath shall be marked on the back of such process or writ (26). And therefore, until the comg. officer is shown such process or writ, he would not appear to be compelled to deliver over any non-com.officer or soldier under his command, to the officer who served the process or writ; and that if the memorandum of the oath, on the back of the same, should show the debt sworn to, not to amount to 200 Sa. Rs., he would be justified, according to the true intent and meaning of the act, in refusing to deliver over such non-com. officer or soldier: for the art. in question, only prohibits protection being given to those who are not soldiers. Sec, lxv. of the M. A. protects officers acting according to the intent of the M. A., and would appear to warrant such refusal, in the case of bonâ fide non-com. officers and soldiers, where the amount is under 200 Sa. Rs. (27), or "in case the process or writ was served on a Sunday." "But it may be executed in the night-time, as well as by day" (28).

2. Officers shall not protect any Person from his Creditors, on the pretence of his being a Soldier, &c.] The term " officer" is included in the general term of " any person." The words "nor any non-commissioned officer or soldier, who does not actually do

(25) Art. 2, sec. viii, Arts. of War for Bengal Native Troops.

(26) See M. A., sec lv, No. X, p. 13.

(27) See sec. Ixv, M. A., No. XV, p. 18.

(28) Russell on Crimes and Misdemeanors, vol. i, p. 743.

all