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evidence, and the delivery of the same to C. D.; or the posting up of a written, &c., paper or papers. Of the words used; or writing received as evidence, the ct. will judge as to the intention and tendency.

Witnesses.-One witness is sufficient to prove the fact of C. D. taking charge or comd. of the garrison, &c. (the genl. orderly book, &c. may be given in evidence to prove the appointment). There should be two witnesses to prove the other facts charged, as in arts. 15 and 16, pp. 321, 326. See title witnesses. If they are contained in writing only, one witness may prove the hand-writing, and delivery to C. D.

5. Punishment.] Death, or such otherpunishment.-(See arts. 15 and 16, pp. 321, 326.)

Penalty of entering into the Service of the Enemy, &c.

ART. 22.] Any non-com. officer or soldier, who shall have been taken prisoner, through wilful neglect of duty on his post, or shall have served with, or under, or in any manner have assisted the enemy, or who shall not have returned as soon as possible to the service, may be adjudged by the sentence of a gen. or other ct.-mar. to the forfeiture of the whole or any proportion of pay and allowances, which he might otherwise be entitled to claim, for the period during which he was a prisoner, and up to the date of his rejoining the Co.'s forces.

1. Explanation.] By sec. lix of the M. A., it is further enacted, "that every soldier who shall be taken prisoner by the enemy, shall forfeit all right or claim to pay and allowances, during the period of his remaining a prisoner, and until he shall again return to the Co.'s service provided always, that upon the return of every soldier to the Co.'s service, due inquiry shall be made as to the conduct of such soldier, in relation to his being made prisoner, and during the period of his so remaining a prisoner, and before return to service, by some gen. or regtl., or garrison, or other ct.-mar., which shall be constituted under any art. of war, made by H. M. for the purpose of investigating such cases; and any soldier who shall prove to the satisfaction of the court, by oath of himself or others, or in such manner as such court shall require (and which oath every such court is hereby authorized to administer), that he was fairly and unavoidably taken prisoner, in the course of service, without any wilful neglect of duty on his part, and that he hath not served with, or under, or in any manner aided or assisted the enemy, and that he hath returned as soon as possible to the Co.'s service, shall be thereupon entitled to receive either the whole of any such arrears of pay or allowances, or a proportion thereof, as shall be adjudged by any such court."

2. Procedure.] The court to be assembled on the occasions alluded to by the art., whether it should be a gen, regtl., or garrison ct.-mar., must depend upon the circumstances of the case. Should, for instance, the case fall within the 8th, 10th, 15th, or 16th arts. of this sec.— "quitting a platoon, &c. without leave, or urgent necessity," or found sleeping upon a post, or leaving it before regularly relieved," or "hold

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ing correspondence with, or giving intelligence to, or relieving, with money, victuals, or ammn., or knowingly harbouring or protecting the enemy;" either of which two last mentioned cases, are included in the words "shall have served with, or under, or in any manner have assisted the enemy; then it is obvious, that a gen. ct.-mar. would be the proper tribunal. If the object be to ascertain the fact, as to the "wilful neglect of a non-com. officer or soldier, in being taken prisoner while on duty on his post, or of having served with or under the enemy," after being so taken prisoner; "or not having returned as soon as possible to the service," which would imply "a serving with the enemy;" in such cases, also, a gen. ct.-mar. would be requisite to take cognizance of them. In the view of the case, as one merely to ascertain how far the non-com. officer or soldier should forfeit the whole, or any proportion of his pay and allowances, it would be quite unnecessary to assemble a gen. ct.-mar., which might, indeed, in many cases, be impracticable. Whenever the case rises above these latter circumstances, of course a charge, pointedly drawn up to meet the case, should be submitted for investigation before a gen. ct.-mar.

The art. is framed in such a manner that, in even the most extreme case, a non-com. officer or soldier has the opportunity of shewing, how far his absence has been culpable; he is even allowed to be put upon his oath; the credit to be given him will, of course, depend upon his general character, and particularly that which he bore at the time of the transaction; while the cause (152) of his absence will be either capable of proof, by the evidence of others of the post, &c. to which he belonged at the time, or from circumstances existing shortly before, or subsequent to, the time at which he was missed, or about the time in question. Should the case fall under either of those above enumerated, refer to arts. 8, 10, 15, or 16 of this sec. for the Charges, Evidence, &c. The art. was first inserted in the Ann. Arts, of War for the year 1817; and I have been informed, that it was framed in consequence of the following case :—

CASE 1.] In 1813, a serjt. (a German), of H. M.'s 60th regt. of foot, who had originally deserted from the French, entered that regt, by a voluntary enlistment. On the advance of the army, under the Duke of Wellington, into Spain, he was taken prisoner by the French. To save his life, forfeited by the act of desertion, he entered into the corps

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(152) Notwithstanding the jealousy which had for so long a period existed between the English and French, I have been assured, by officers who have served in the peninsula, that though the sentries posted from the advanced posts of the two armies, were frequently very near each other, the exchange of shots between them scarcely ever took place, and that they were usually undisturbed. It is stated to have been by no means an unusally thing, for the soldiers of the two armies, when not on duty, to hold a conversation with each other, while unarmed, and to exchange articles-the British soldier his shoes for the eau de vie of the Frenchman ; each taking care to see a simultaneous deposit on the ground, of the respective articles to be exchanged.

des Etrangers, set apart, in the French service, for such men, as an inducement to them to return to it.

At the battle of Vittoria he was again taken prisoner by the English, and a gen. ct.-mar. was ordered to try him for desertion. The first sentence acquitted him of the act of desertion, there being the powerful inducement to the act, with the view of saving his life; but the sentence was revised, and it is stated, that on revision, he was sentenced to suffer death, and was afterwards shot, in the presence of that division of the army to which he belonged.

I also understand that it was intimated to the above court, that the excuse pleaded by the prisoner was inadmissible; as he should have preferred death rather than have entered the service of the enemy.

CHAPTER XIV.

SECTION 13 (1).-RANK.-BREvets.

ART. 1.] Officers having brevets or commissions of a prior date to those of the regt. in which they are serving, may take place in cts.-mar. and on detachments, when composed of different corps, according to the rank given them in their brevets or dates of their former coinmissions; but in the regt., troop, or company to which such brevet officers, and those who have commissions of a prior date, do belong, they shall do duty and take rank, both on cts.-mar. and on detachmts., which shall be composed only of their own corps, according to the commissions by which they are mustered in the said corps.

1. Explanation.] Where officers of different regts. are members of a genl. ct.-mar., or on any other general duty, they are directed to take rank according to the dates of their respective commissions, i. e. their last commissions, or that of the rank they they then hold in the army. If the commissions of A. and B. be of the same date, reference must be had to their next former commissions, and, if they be of the same date, reference must be made to all those of a former rank, even down to that of ensign, till there is a commission found, bearing a prior date to the other of the same rank. In the case of two company's officers, if it should so happen that both commissions, as ensigns, were of the same date, reference must then be had to the seniority of the cadetships, or the priority of the order in which they were published in the Govt. G. O. on assigning them rank, in the service, according to the list or order of rank, transmitted by the Court of Directors to the govt. of the estabt. to which they belong. Were such a case to occur between officers of the different presidencies-the ensigns' commissions being

(1) Sec. xv, art. 1, Ann. Arts. of War.

of

of the same date, then,-as a reference cannot be made to the above lists-the officers of the Bengal would take rank of the Madras, and the Madras of the Bombay establishment (2).

With regard to the relative rank between H. M.'s and the Hon. E. I. Co.'s officers, the 2d art. sec. xxii. of the Ann. Arts. of War, for 1824, will explain in what manner it is regulated. The article in question declares that, "Whenever any of our forces shall be employed in the East-Indies, the officers of our forces so employed are, upon all detachments, at cts.-mar., and upon any other duty, wherein they may be joined with officers in the service of the U. Co. of merchants trading to the E. I., to command and take precedence of officers of equal rank in the service of the said U. Co. not holding also a commission from Us, although the commissions of the said U. Co.'s officers should be of elder date."

As all the Co.'s officers on the three estabmts., have a King's commission (3), by which act they become, while in the E. I., King's as well as Co.'s, officers-a reference to the commissions of the officers of the two services would be made in the manner above described: but,

(2) G. O. C. C. 6th Jan. 1823.-" Doubts having arisen with respect to the relative rank of second lieuts, of artil. with cornets of cavalry and ensigns of engineers and infantry, the Com. in chief is pleased to signify for the information of the army, that the Most Noble the G. G. in C. has determined, that the junior officers of each branch of the service, above enumerated, shall, as heretofore, be deemed of equal rank, and precedence be allowed to priority of commission alone."

(3) George R... Whereas we were pleased by our warrant, bearing date the 28th March 1788, to direct that the officers in the service of the United Co. of Merchants, trading to the East-Indies, should be admitted to a participation of rank in our army serving in India, we do hereby give you full power and authority, to grant brevet commissions in our service, to all the said Co.'s officers, now serving abroad, conferring upon them the same rank in the army, in our E. I. only, as they now enjoy in the Co.'s service; the commissions to bear the respective dates of their present commissions in the service of the said Co. (4): and we do further give you full power and authority, to continue from time to time, to grant like commissions, giving similar rank in our army, in the E. I. only, to all such officers as shall be hereafter appointed or promoted, in the Co.'s service."

"And all such officers to whom you shall grant commissions, in the manner herein directed, are to be acknowledged, and to command in their respective stations, as if they had received commissions from us."

"Given at our Court at St. James's, this 9th day of June, 1810, in the 50th year of our reign." "By H. M.'s command: (Signed) LIVERPOOL." "To our trusty and well-beloved G. Hewitt, Esq., Lieut.gen. of our Forces, &c. &c. &c."

And in order to prevent misconception, in cases where such commissions had not been issued, it was declared in G. O. C. C. 15th Jan. 1811, that all officers of the Co.'s army, be considered entitled to, and possessing all the rights they would have enjoyed under commissions granting local rank in the King's army in India, corresponding with the several commissions they have obtained in their own, the same as if they had been issued."(Henley's Bengal Mil. Regs., p. 118.)

(4) The commissions so granted, containing the following proviso: " It is to have force and effect no longer that you shall remain in the said Co.'s service, unless you shall be transferred with similar rank into the immediate service of H. M.”

but, if it became necessary to refer back to the ensign's commissions, the King's officer would take rank of and command the Co.'s officer were such commission of the same date (5).

With respect to regtl. duties, officers are directed to take rank according to the commissions by which they are mustered in the said corps. The latter words mean, that, not only shall the officers described as brevet King's officers not command by virtue of the same in the duties, &c. of their own regt., but that, if for instance, A. held a commission as lieut. of prior date to that of B., in virtue of which he was removed to a new regt., and that B., having been longer in the service, should afterwards obtain the brevet rank of captain before A., still A. would command B. on regtl. duties.

The local officers in the Co.'s service, such as those belonging only to the irregular corps, not having a King's commission, as the officers of the Co.'s regular service, are consequently not within the intention and meaning of 2d art. of the 22d of the Ann. Arts. of War.

CHAPTER XV.

SECTION 14.-ADMINISTRATION OF JUSTICE.

Number of Officers to sit on General Courts-martial within the Company's Territories.

ART. 1.] (1) A gen. ct.-mar. in the territories under the presidency of Ft. William, Ft. St. George, and Bombay respectively, shall not consist of less than nine com, officers; but if held for the trial of a commisd. officer, shall not consist of less than thirteen commisd. officers; and the president of such ct.-mar. shall not be the officer com. in chief, or gov. of the garrison where the offender shall be tried, nor under the degree of a field officer.

1. Explanation.] The number of officers required by this art. is conformable to that directed by the 1st clause of sec. xix, of M.. A., and is word for word a copy of sec. xxi. of the M. A. By sec. xxix M. A. upon which art. 1, sec. xix, of these Arts. of War is founded; King's and Co.'s officers may sit in conjunction on cts.-mar,. "as often as there may be occasion," &c.-See art. 1, sec. xix; and see also the concluding part of Note 18, Chap. I, p. 6, relative to officers of the three presidencies sitting in conjunction at a ct.-mar. upon the trial of any officer, non-com. officer, or soldier belonging to another presidency,

when

(5) G. O. C. C. 15th Feb. 1811. "And that no distinction of rank whatever is to be made, in that respect, between the King's and Co.'s officers of corresponding rank, except what must necessarily arise from the dates of their respective commissions."

(1) Sec. xvi, art. 1. Ann. Arts, of War.

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