have fallen into the hands of the enemy; had it not been for the gallant and timely exertion, of the naigue of the guard, "Mootoosawmy." FINDING-Guilty. (He confessed the 1st instance of the chargeSENTENCE-To be dismissed from the H. Co.'s service.) (Signed) T. HISLOP, Lieut.gen. CASE 10.] G. O. H. G., Feb. 17, 1815. At a gen. ct.-mar., Lieut gen. Sir J. M., Bart., was arraigned upon the undermentioned charges, viz. 1st. ["For landing, or continuing on shore when landed, between the 7th and 12th June 1823, near Tarragona, a large quantity of heavy artily., ammn. and stores, when he had good reason to believe, that no real benefit could be derived for 10 or 12 days, as to producing the fall of Tarragona, by these means; and when he had received information, which he believed, that long before that time a superior force of the enemy would be near him, and was aware that the siege must then be abandoned; knowing at the same time, the great difficulties and dangers attending a sudden re-embarkation on that coast; such conduct being highly unmil. and against the spirit of his instructions.] 2d. ["For neglect of duty, and disobedience of the express order of of H. E. Field Marshal the Marquess of Wellington, the comr. of H. M.'s forces in the Peninsula, by not immediately re-embarking the whole of the forces under his command, after he had determined to raise, and had actually raised, the siege of Tarragona, and returning to Valencia, in order to assist the Spanish armies in that province, in securing the positions, which they might have acquired there.] 3d. ["For neglect of duty, in hastily re-embarking the forces under his command, without any previous preparations or arrangements, and thus precipitately and unnecessarily, abandoning a considerable quantity of artil., stores, and ammn., about the 12th June 1813, near Tarragona, [when he was so far from being compelled to this degrading measure, by the immediate approach of any superior force, or by any other sufficient cause, [that] by due zeal, firmness, and exertion, the greater part, if not the whole], might have been embarked in safety: [Adm. Hallowell, who was at the time on duty on the station, engaging to effect the same; such conduct being highly to the prejudice of the service; and detrimental to the British mil. character."] FINDING-Not Guilty of the 1st and 2d charges. Guilty of the 3d charge (except of the words in italics). SENTENCE-The court, under all the circumstances of the case, considering the conduct of Sir J. M. to have proceeded from a mere error in judgment, is of opinion, and does adjudge, that for the part of the 3d charge of which Lieut.gen. Sir J. M. has been so found guilty, he be admonished, in such manner as H. R. H. the Com. in chief may think proper. H. R. H. the P. R. has been pleased to approve and confirm, the finding and sentence of the court; but as the court has only attributed to to Sir J. M. a mere error in judgment, the case has not appeared to H. R. H. to call for any further observation. By command: (Signed) H. CALVERT, Adj.gen. Penalty of compelling or inducing others to misbehave before the Enemy, or to abandon Posts, &c. ART. 21. (142) Whatsoever officer, non.-com. officer, or soldier, shall compel the gov. or comg. officer of any garrison, fortress, post, or guard, to deliver up to the enemy or to abandon the same, or shall speak words, or use any other means to induce such govr. or comg. officer or others to misbehave before the enemy, or shamefully to abandon or deliver up any garrison, fortress, post, or guard committed to their respective charge, or which he or they shall be commanded to defend shall suffer death, or such other punishment as by a gen. ct.-mar. shall be awarded. 1. Compelling the Gov. or Comg. Officer of any Garrison, &c. to deliver up to the Enemy or abandon the same.] This article is founded upon sec. i. of the M. A.-" This article renders all accessaries, whether officers, N. C. O. or soldiers, liable to like punishment with the principals, in the cases described in the preceding article" (143). "This article includes two cases:-one of direct force or compulsion; the other of influence or persuasion. This force or compulsion amounts to a plain and palpable act of mutiny, being nothing less, in effect, than the supersession, or the assumption and exercise by force (144) of the powers of the govr. or comg. officer, by his refractory troops." (145) The compelling the gov. or comg. officer of any garrison, &c. to deliver up to the enemy, or to abandon the same, may also proceed from cowardice, or treachery. 2. Or shall speak Words, or use any other Means, to induce such Govr., &c. to misbehave, &c. or abandon or deliver up, &c.] So important (142) Sec. xiv. art. 20, Annl. and sec. xi, arts. 13 and 21, Arts. of War for Bengal Native Troops. (143) Samuel on the Arts. of War, p. 607. (144) In the case of the King v. Geo. Stratton, Henry Brooke, Charles Floyer, and George Mackay, Esqs., on an information filed by H. M.'s Att.gen. for a misdemeanor, in arresting, imprisoning (under a military force at the Mount), and deposing, George Lord Pigot, Com. in chief of the forces, and President of the Council at Madras; Lord Mansfield, in his address to the jury, stated to the following purport-That "Lord Pigot's act was illegal," (he would not sign what the majority of the council wished,) on which they told the Secretary to Govt. to draw up the order of the majority, when Lord P. turned two of the council out, and thus secured his majority, and carried his measure,) "but the council had their legal remedy-that if their deposing the governor, was necessary to save the factory, there was their justification, otherwise they were guilty of an illegal act." They were sentenced to pay a fine to the King of £1000 each, and imprisoned till paid; taking all the circumstances into consideration, their loss already sustained by having been deprived of their situations in India. Lord P. died while confined (11th May 1776).—19 and 20 Geo. III, A. D. 1779-80.-(Howell's State Trials, vol. xxi, p. 1046.) (145) Samuel on the Arts. of War, p. 608. portant a matter, has the defence of fortified places been considered by the French, that the late celebrated Carnôt wrote a work, containing a new system of fortification, one of the objects of which was, to instil into the minds of the French generals, the impregnability of such places; and to induce them to hold out, even against any superiority of force, that should be brought against them (146). "The offence consists, as it is shewn, in the use of speeches or other means to induce the gov. or comg. officer, or others, to misbehave before the enemy, or shamefully to abandon or deliver up any garrison, &c. i.e. they must have a tendency to influence or persuade those, to whom they are addressed; to forsake their duty, and to betray the interests of the state." "The speeches or means used, in so far as they have relation to a govr. or comg. officer, must, in order to render them criminal to the extent implied by the article, be not only unwarranted or unauthorized, but dictated by the mere will of the inferiors, and with a view to influence the conduct of the superior, to the betrayal of his duty. But it would be otherwise, if such speeches or means are used on authority previously given in a fit place, or proper occasion, and proceeding from honest motives; as in the instance, where officers are summoned to a council of war, and are desired to give their advice, in times of difficulty and peculiar urgency. Words spoken, or measures recommended in these emergencies, and under this sanction, cannot in any light involve a crime" (147). "But speeches, or means used to induce others to misbehave before the enemy, or to bring on the other consequences specified in the article, cannot be considered, at any time, but as in the highest degree criminal; inasmuch as soldiers, in every part of their duty, can only act under the order of their mil. comdt., and any advice or counsel to contravene such authority, or to persuade men to act in opposition to it, in the consultation of their own will, though under the specious cover, of the supposed general or public interests, is a flagrant and mischievous offence; in subversion of the first principles of mil. authority; shaking in every possible instance, the confidence of the troops in the acts of the genl. ; and damping their energies, in the execution of the duty commended to them (148). For soldiers to throw out their own counsels (146) De la défense des places fortes, ouvrage composé par ordre de sa Majesté Impériale et Royale, pour l'instruction des Elèves du Corps du Génie. Par M. Carnot, ancien officier de ce corps, à Paris, 1811.-(See Edinburgh Review, No. 76, vol. xxxviii, p. 467.) (147) Samuel on the Arts. of War, p. 608. (148) At a ct.-mar. held on board H. M.'s ship the Bredah, in Port Royal harbour, in Jamaica, in America, 12th Oct. 1702, relative to the engagement between Admiral Benbow and Mon. Du Casse, Capt. S. Vincent, comr. of the Falmouth, and Capt. C. Fogg, comr. of the Bredah, were tried on a complaint exhibited by the Judge Adv., for high crimes and misdemeanors, and ill practices, in time of Admiral Benbow's fight with Mon. Du Casse, which commenced on the 19th, and continued until the 24th of August 1702; when, in consequence of the misbehaviour of Col. Kirkby, counsels among one another, or to spread their own fears, during the progress of any public service, has ever been accounted an act of great culpability" (149). "The and of several of the other comrs., the admiral was obliged, for the preservation of H. M.'s fleet, to give over the chase and fight. The French had four ships; the English seven ships; and 122 guns more than the enemy. The complaint against them was, in signing the following paper, called a consultation and opinion, held on board the Bredah, the 24th of August 1702, which had been drawn up by Col. Kirkby, with a view to poison the minds of the rest of the capts. At a consultation held on board H. M.'s ship, Bredah, the 24th of August, 1702, off Carthagena, on the main continent of America, "It is the opinion of us, whose names are under-written: 1. "Of the great want of men in number, quality, and the weakness of those we have. 2. "The general want of ammn. of most sorts. 3. "Each ship's masts, yards, sails, and rigging, being all in a great measure dis.. abled. 4. "The winds are so small and variable, that the ships cannot be governed by any strength: each ship 5. "Having experienced the enemy in six days' battle following, the squadron consisting of five men of war and a fire-ship, under the command of Mon. Du Casse; their equipage consisting in guns from 60 to 80, and having a great number of seamen and soldiers on board for the service of Spain. "For which reasons above-mentioned, we think it not fit to engage the enemy at this time, but to keep them company this night, and observe their motions; and if a fair opportunity shall happen of wind and weather, once more to try our strength with them." "RICHARD KIRKBY, CHRISTOPHER FOCG, "The said consultation and opinion tending to the great hindrance and dis-service of H. M.'s fleet then in fight: and the said paper so written, being shewed to each of them, they severally owned their hands to the same. But the said Capt. Vincent and Capt. Fogg, for reason of signing the same, alleged--that being deserted during each day's engagement by Col. Richard Kirkby (Defiance), Capts. Constable (Windsor), Wade (Greenwich), and Hudson (Pendennis), and left as a prey to Mon. Du Casse, they had great reason to believe, they should be captives to the enemy. And the Hon. Admiral Benbow declared, that during the six days' fight, the said Capt. Fogg behaved himself with great courage, bravery, and conduct, like a true Englishman, and lover of his queen and country: and that the said Capt. Vincent valiantly and courageously behaved himself during the said action, and desired leave to come into his the said admiral's assistance, then engaged with the enemy, and deserted by all the rest of the above said ships; which he did, to the relief of the said admiral, who otherwise had fallen into the hands of Mon. Du Casse." "Whereupon the court being of an opinion, that the signing of the aforesaid paper brought them under the censure of the 20th Art. of War, accordingly adjudged Capt. S. Vincent and Capt. C. Fogg to be suspended; but the execution thereof is hereby respited, till H. R. H. Prince George of Denmark, Lord High Admiral of England's, &c., further pleasure be known therein." Col. Kirkby and Capt. Wade were sentenced to be shot to death, and Capt. Constable to be cashiered and rendered incapable of serving H. M., for their cowardice, neglect of duty, breach of orders, &c. on the above occasion. Capt. Hudson died before his trial. (See as to this inglorious transaction, the Lives of the Admirals, vol. iii, pp. 25, 347.)(Howell's State Trials, vol. xiv, p. 537.) (149) Samuel on Arts. of War, p. 609. "The very speaking of surrender, so as to familiarize the ear of the mil., to so mean and unsoldier-like an advice, or the recommendation of a parley to learn the terms which the enemy might be willing to concede, unless in a council of war, has been always regarded criminal; as having an effect to daunt the courage and constancy of the troops, and possibly to bring about an event, which has been often turned to the surprise, and capture of the besieged fortress" (150). "It has been before observed, that the offence is the same, and of equal criminality, whether the speeches or means, having the tendency supposed by the article, be used towards the comg. officer, or the officers or troops under his command; since, in the first instance, they have an immediate interference with his authority, and as bearing on the freedom of his action; and in the second, induce a want of confi dence in the comr.; an irresolution amongst the soldiery, and a contagious cowardice, that might be productive of the worst evils. For these considerations, it cannot be wondered, that so signal an offence, should have been so severely treated in former times, and in our own" (151). at 3. Charges.] See Forms, Nos. 39 and 40, Chap. I, That A. B. did on compel C. D. the govr. or comg. officer of the garrison, fortress, post of, or guard posted or stationed at, (insert the place, &c.,) to deliver up to the enemy, or to abandon the same; or, did speak words, or use other means, (such as by over-persuasion, illadvice, or counsel, or writings, &c. posted up, or delivered to C. D., or the like, which describe,) to induce the said C. D. &c., to misbehave before the enemy, or shamefully to abandon the garrison, &c., of &c. committed to the charge, or placed under the command of the said C. D., and which the said C. D. was commanded to defend; 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 that the garrison, &c. was committed to the charge, or placed under the command of C. D., and give in evidence, the order appointing him to the same, and patent if necessary. Prove that A. B. did compel C. D. to deliver up to the enemy, or abandon the same. It does not signify, whether the garrison, &c. be abandoned to the enemy; the quitting the place, and leaving it unprotected, is an abandonment of the same; neither would it matter, whether the enemy took possession of it; they may not know of the fact in time to take advantage of the desertion of the place; or it may be re-taken possession of by another detachment of your own troops; the abandonment is a fact easily established; compulsion constitutes the criminality of the act. Or, prove the words spoken, or other means used, to induce the act, &c. If in writing, the original writing in question, (or an authentic copy if the original be proved to be lost; see written evidence ;-copies, at Chap. XXIII.), to be proved (proof of the hand-writing), and given in (150) Samuel on the Arts. of War, p. 610. (151) Samuel on the Arts. of War, p. 611. evidence, |