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should contain a clause, providing against the trial or punishment of
It is a delicate question, but one which ought to be so clearly understood by the two services, that there never should arise any dispute. And it might be advisable to frame instructions regarding this subject, of which each comg. officer of the two services should have a copy : and immediately on troops going on board, they should be read to them and to the ship's company, and be monthly read, during the time they are acting together, with the Arts. of War.
6. Officers and Passengers on board Indiamen, &c.] Officers and soldiers are punishable for any misconduct while on board the H. E.I.Co.'s ships with troops (see case 1); (39) and, indeed, an officer on board such ships would be tried for any misconduct, even were there no troops on board.—(See note 23, p. 10; note 26, p. 12.)
Where capts. comg. the E. I. Co.'s ships have falsely imprisoned passengers, or have punished men without trial, the men have reco. vered damages.-(See cases 2 and 3.) There is very much required some regns., with regard to the trial and punishment of sailors, and particularly in the licensed ships, or free traders. It has, I believe, been held, that where a man is flogged, his crime having been duly investigated by all the officers upon deck, though without any regular trial, he will not sustain an action for assault and battery.
7. Offences committed on the High Seas.] It is enacted by sec. cx, 53 Geo. III. cap. 155, “ that it shall and may be lawful for H. M.'s courts at Calcutta, Madras, and Bombay, exercising admiralty jurisdiction, to take cognizance of all crimes perpetrated on the high seas, by any person or persons whatsoever, in as full and ample a manner as any other court of admiralty jurisdiction, established by H. M.'s authority, in any colony or settlement whatsoever, belonging to the crown of the said United Kingdom.”
Case 1.] G. 0. C. C. H.-qrs, Calcutta, Jan. 30, 1823.-At a gen. ct.-mar. assembled at Ft. Wm. on Thursday the 2d Jan. 1822, Lieut. J. M. W. of H. M.'s 44th regt. of Foot was arraigned upon the undermentioned charge :
For conduct (scandalous and infamous,] such as is unbecoming the character of an officer and a gentleman.
1. In having, on or about the 8th of June last, when permitted to proceed to London after the embarkation of the five companies on board the Hon. E. I. C.'s ship Warren Hastings, returned in a state of intoxication.
2. (39) See No, vii, p. 10; No. viii, p. 12; No. ix, p. 13.
2. For having used or misapplied money entrusted to his care during his absence from the Warren Hastings.
3. In conducting himself in a gross and insulting manner to Lieut. M., 44th regt., on or about the 21st July last, in calling that officer “ a d- d hypochondriac son of a bitch and a d- d pusillanimous scoundrel.”
4. In having violated his word and honour, in being drunk on or about the 17th of August last, when he had pledged himself to the officers of the 44th regt. on board the Warren Hastings, that if his apology to Lieut. M. was accepted, that he would not again be drunk, and for behaving on that evening, in a gross and insulting manner to Mr. D., Surgeon of the Warren Hastings, in calling him a d- dcoward.
5. In being drunk on or about the 26th Sept. last, and in making use of insulting and improper expressions to Mr. I., fourth officer on board the Warren Hastings, such as telling that officer - it was a d- d lie, and that if he had him out he would give him a good lacing." (Signed) J. W. MORRISON, Col. and Lieut.-Col., 44th Regt.
Ft. Wm., Dec. 27, 1822. Upon which charge the court came to the following decision:
FINDING. Not Guilty of the 1st charge. Guilty of the rest (except of the words in italics).
On the 2d specification, that Lieut. W. did make use of certain money, but without any bad intention.
On the 3d specification, Guilty of having made use of opprobrious language ; but consider him to have sufficiently atoned for the offence by the reprimand which he received from, and by the apology which he made under the direction of his comg. officer, in the presence of all the officers of the 44th regt. on board.
On the 4th specification, Guilty of the 1st part ; Guilty also of the 2d part, for which, however, they consider him to have sufficiently atoned by his apology to Dr. D. on the following morning.
On the 5th specification, Guilty of the 1st part; Guilty also of using unbecoming expressions to Mr. I., 4th officer, under circumstances of extreme provocation.
Sentence-To lose one year's rank in the army and regt. Confirmed: (Signed) Edw. Paget, Gen. Com. in Chief.
REMARKS by H. E. the Com. in chief.—The Com. in chief confirms, though he regrets that he cannot entirely approve, the finding and sentence of the court ; neither is he of opinion that the proceedings themselves are altogether unexceptionable.
Lieut. Wi's conduct towards Lieut. M. was pardoned and overlooked conditionally, and the breach of that condition on his part, rendered him in every way liable to the consequence, to which he had subjected himself by the original offence.
The refusal of the court to allow Lieut. W. to call evidence to establish the character and tone of the society in which he was imme. diately living is objectionable, inasmuch as, though it would not justify a departure from the rules of good manners on his part, the proof of it might have gone greatly to palliate it.
The court was no doubt influenced, in the lenity of the sentence, by a conviction of this very point, which they denied the prisoner the chance of proving by evidence; and the Com. in chief grounds his own justification in confirming the sentence of the court in its present lenient form, on a fact which he notices with the greatest pain, of a field officer having so far forgotten himself for a moment, as to have waited at a late hour of the night the unseasonable exhibition of an amusement which, however innocent when accompanied by the proprieties of time and place, indisputably led to the fracas which shortly afterwards took place in the great cabin of the ship.
The procedure of the court in forwarding a document which they declined recording on the body of their proceedings, appears to be altogether irregular. The reference itself is in H. E.'s opinion entirely unimportant, and exclusive of the many general grounds of exception which may be urged against such a measure, no plea of necessity is adduced for a departure from the simple and regular mode of proceeding, by which all representations will readily reach Hd. Qrs.
Although Col. M. has, in the judgment of the court, failed to establish the facts to the extent which he had grounds to suppose he should be able to do, the Com. in chief cannot sufficiently extol the high sense of honour, and of moral principle, and the tender regard for the character of the corps under his command, which influenced him to undertake the arduous and painful duty of a prosecutor.
Lieut. W. to be released from arrest, and to return to his duty.
Case 2.) Court of King's Bench, Friday, July 16, 1819. Rhodes v. Leech.-" This was an action brought by a gunner's mate on board the E. I. C.'s ship Orwell (who had formerly been a midshipman in H. M.'s service), against the Capt. of the said ship for an assault. The pltff.'s case was this:-During the homeward voyage, the stock of provisions became exhausted, and nothing remained for the crew but rice and peas. When the ship arrived in Margate-roads, the ploff. wished to clean some of the guns; the men complained of weakness, owing to the want of proper food, and the pltff. himself then endeavoured to go on with the work, but was unable. He told the mate, that the species of food he had had, had reduced his strength so much, that he could not move the guns. The Capt. came on deck, charged him with mutiny, struck him, and made preparations for flogging him, when the pltff. jumped overboard. The Capt., when some of the crew wished to save him by putting the boat out, said, “ Oh, damn him, let him go.” A Deal boat, however, took him up, and brought him to the side of the ship, when the Capt. ordered him to be dragged up by a rope, and desired the boatswain to flog him.
Eighteen lashes were inflicted, while the Capt. stood by, and desired the officer not to spare him. Four witnesses on board the ship at the time, proved these facts.”
“ For the deft., two of the officers of the ship were called, who deposed that the conduct of the ploff. to the Capt. was very insolent; that the pltff. did not appear weak at the time; that the fogging was not severe, and that the pltff. had been previously mutinous."
Verdict for the pltff.—Damages £500 (40).
Case 3.] Court of Com. Pleas, Thursday, Dec. 23, 1819. Schennel v. Smith.—“ This was an action brought to recover damages for an assault. The deft. was Capt. of a ship called the Lady Melville, in the service of the E. I. C.; and the pltff., his cooper's mate on board the same vessel. The assault complained of was a severe, and, as the pltff. maintained, an unnecessary starting, which he received at Canton, in China."
“ Witnesses called on the part of the pltff., proved the fact of the flogging, by order of the deft., three several times on the same day, while taking in water at Canton.”
« On behalf of the deft., several seamen belonging to the ship were called, not for the purpose of showing a justification, for no such plea was on the record, but to lessen the damages to be awarded by the Jury. It was proved by the capt. of the forecastle, that the pltff. was an insolent, inattentive, and drunken man, and often disobeyed the orders of the Capt. The case of the first starting was disobedience to orders. As the pltff, was proceeding to the fore part of the ship, after the first flogging, he threw down his hat, and said, “den the b—-r, he may thrash away as long as he likes, my back is able to bear it all.” For this language he was brought back again, and received a second starting. By subsequent witnesses this language was varied, and the Boatswain proved that the pltff. with an oath said, that he would be paid for it yet. The third starting was in consequence of the pltff. throwing stinking fish over the bows of the vessel, and the anchor, against orders. Upon the cross-examination, it appeared that the Capt. did not hear the pltff. utter the words after the first flogging, but only distinguished a muttering. In consequence the pltff. was ordered another dozen lashes."
The Lord Chief Justice observed, that the assaults complained of were proved, and the only question was, what damages should be awarded. Whether it be on board a King's ship, or a vessel belonging to the E. I. C., or to the merchant's service generally, authority
must (40) An assist. surgeon on the Bengal establishment, a passenger to India on one of the E. I. ships, was about seven years ago assaulted by the capt., and lost one of his eyes in consequence. He prosecuted the capt. in the Supreme Court at Calcutta, and obtained damages amounting to Cal. Sa. Rs. 6,000, or more than £700.
An officer of H. M.'s 67th regt., brought an action against the capt. of the E. I. ship on which he proceeded to England, for false imprisonment, and obtained den mages amounting to £500.
must be supported, and discipline maintained, and officers, from necessity, by the exercise of their power, were often placed in difficult and delicate circumstances, and therefore their conduct ought to be looked upon by the law with indulgence. But, on the other hand, power so entrusted should be strictly watched, because it was the nature of man, that all power tended to abuse; and whenever a British subject suffered under the lash of power unjustly, in bringing his case before a jury of his country, he would in all cases obtain damages proportionate to the injury sustained. The jury should recollect, that in this instance there was no justification on the record, and by that the deft, admitted that he had no justification. Damages, therefore, would of course be awarded for pltff. ; the amount of them was the only consideration.
The Jury retired for some time. On their return, a verdict was found for the pltff.—Damages, one shilling.
No Officer or Soldier to be punished with loss of Life or Limb, except in
the Cases so expressed in these Articles. ART. 1.)(1). No officer, non-commissd. officer, or soldier, shall be adjudged to suffer any punishment extending to life or limb by virtue of these our rules and arts., within the Co.'s possessions, except for such crimes as are herein expressly declared to be so punishable within the
1. Explanation.] This art. is founded upon a clause in sec. xxxv of the M. A., 4 Geo. IV, cap. 81, by which it is enacted, “ provided always, that no person shall, by such Arts. of War, be subject to any punishment extending to life or limb (2), within the dominions of H. M., or the possessions or territories which are, or may be, under
govt. of the said United Co., for any crime committed within 120 miles distance from either of the presidencies of Bengal, Madras, or Bombay, which is not expressed to be so punishable by this act."
There is a variance between the above clause of the M. A. and the Art. of War above recited. The former extends the power of
gen. ct.-mar. by the words “ for any crime committed within 120 miles dis
tance (1) Sec, xxiv, art. 1, Ann. Arts. of War, 1824.
(2) The term limb is found in all the old statutes, but is not applicable to modern times, and even in the only cases wherein it stands as law, it lias in recent times no been carried into execution. (See No. 4, p. 444.)