the great distance from England, and expense attending casualties, are of themselves circumstances of importance; but when European soldiers desert there, the consequences that may ensue, rise in importance, for if they are enabled to conceal their flight, they enter, perhaps, into the service of one of the native princes (and such a case has occurred), and thus give intelligence to our enemies (11), or assistance to them in some shape or other. The deserting and going over to, and entering in the service of the enemy (12), as in case 1, or a rebel chieftain, as in case 3, are cases that deserve nothing short of death. The deserting in front of the enemy, with horse, arms, &c. as in case 2; or during an action, as in case 4; or when on service, as in case 5, are all of them cases which would also appear to deserve death. In case 2, the intention to desert to the enemy was not made out clearly, though the act of desertion in front of the enemy was proved. If a soldier quits his ranks during an action, or his corps when on service, it must either be with an intention of deserting, through cowardice, with the design of assisting the enemy, or from disaffection to the service; and, therefore, from which ever cause, the case deserves the severest penalty. Those who join the enemy, besides subtracting from their own force, add so many to the strength of the former, with the means of giving that information which may be of the first consequence to them. If desertion alone were in view, they would keep away from the scene of action. Where a soldier deserts before or near the enemy, or on service, with his arms, &c. the criminal intention would seem clear. If going in the direction from the enemy, he would seek rather to disguise himself, than to shew his real character, by his dress and being armed. If going towards the enemy, he would naturally assume the appearance of a soldier, to prevent his being taken for a spy.

3. Deserting when Sentries, or on other Duty.] The desertion of a sentry is of more serious consequence than under any other circumstances. He is placed to guard a particular post, which, if deserted, is opened to the attack of the enemy, or the loss of that which he is placed to protect; and he is liable to suffer death for even quitting his post (13). The deserting from an escort in charge of a state prisoner, as in case 8, has been attended with very serious consequences, and properly punished with death. The carrying off money, &c. under their charge, as in cases 5 & 6, is the commission of two crimes, desertion and theft, and the latter itself, alone, entails a sentence of death. He who deserts from a guard, as in case 9, or when on any duty, is highly criminal, for his immediate services may be required as he is one of a party appointed to a particular duty.

4. Deserting when under Orders for Service.] This offence should

(11) Art. 15, sec. xxii.

rank

(12) After the battle of Laswanee, in 1803, Lord Lake hanged a deserter who had been made prisoner during the action, in which Scindiah was completely defeated. (13) Sec. xii., art. 10.

rank next to desertion on service, for the example set by soldiers who commit this crime, may lead to others doing the like, and thus there can be no reliance placed as to the number of men available for cases of public emergency. (See case 10.)

5. Deserting, having before deserted, &c.] The repetition of the act a few days after being pardoned for a similar crime, as in case 11, shews that no confidence can be placed in the services of a soldier under such circumstances, and a severe punishment is usually awarded, more so than in the case of a first desertion unattended with other aggravating circumstances, and transportation to a place where the offence cannot easily be repeated, would be a means of checking the propensity (14)-(See also cases 12, 14, 15.)

6. Combination, and Oath of Secresy, to desert, and deserting.] A combination to desert is a crime likely to extend its baneful influence very extensively in a regt., and death would appear to be the proper punishment for the principals concerned in such a conspiracy, particularly where oaths of secrecy are administered to prevent detection (see case 13). With respect to those who are concerned in the same, or are accessaries, a severe punishment is denounced. By the 37th Geo. III. c. 123, it is enacted "that whoever shall administer, or cause to be administered, or shall be present at, and consenting to, the administering of, or shall take any oath or engagement, intended to bind any person in any mutinous or seditious purpose, or to belong to any seditious society or confederacy, or to obey any committee, or any person, not having legal authority for that purpose, or not to give evidence against any confederate or other person, or not to discover any unlawful combination, or any illegal act, or any illegal oath or engagement, shall be guilty of felony, and may be transported for seven years. Compulsion shall be no excuse, unless the party within four days after he has an opportunity, disclose the whole of the case to a justice of the peace, or if a seaman or soldier, to his comg. officer. An offence against this act, committed any where, may be tried in any county, unless it be committed in Scotland; it shall then be tried in the criminal cts. in that country. A person acquitted under either of these statutes (37 Geo. III. c. 73 (15), and 123) shall not be prosecuted again for the same fact for high treason; but these statutes shall not prevent any person, not already tried under these statutes, from being prosecuted for high treason, in the same manner as if they had not been passed" (16).

By sec. vi. of the above act it is provided, that if the offence be commited on the high seas, or out of the realm, it may be tried in any county in England. The words, on the high seas, or out of the realm, include

India,

(14) It is usual in all cases of a second desertion to state the having before deserted, and to state the number of times of former desertions.-(See M. A., sec. vi., which contains the same words as the 4th art. of this sec.)

(15) See note 23, p. 71.

(16) Blackstone, vol iv., p. 102, note 5.

India, and the statute therefore extends to that country; i. e. a person be tried in England for the offence committed in India.

may

7. Deserting, having before been Absent without Leave.] Cases of this kind likewise deserve a severer punishment than common and ordinary cases of a first offence; depending, however, upon the circumstances under which they are committed, whether of an aggravating nature or otherwise. (See case 16.)

8. Deserting and maiming themselves.] Desertion of itself is an offence intended to derive the govt. of the soldier's service, and in furtherance of such intention is maiming resorted to, that if the one fails in effect, the other shall make certain of the object in view, by rendering himself unfit for further service, as in case 17; transportation for life, in such a case, is very properly awarded.

9. Deserting with Arms, regimental Coats, &c.] The deserting and taking away arms or clothing, in wear, &c. being the property of the govt., deserves a severe punishment. The making away with the regtl. coats, &c., as in case 18, is punished by making weekly stoppages from the soldier's pay, not exceeding the half of his pay and allowances (17), in addition to the punishment for desertion.

10. Deserting and proceeding to another Country.] The simple circumstance of being found in another, and distant, country, can leave no doubt as to the crime being that of desertion, and there can be no intention in the soldier to return to his duty.-(See cases 19 and 20.)

11. Deserting, and not returning till brought back a Prisoner.] When a soldier quits his regt. it may not, at first, be known, whether he has actually deserted, unless some circumstances make it evident that he has done so; but if several days elapse without his return, all doubt as to the fact would appear to be removed; except in cases of sickness, or some accident that may have prevented his return, and which circumstance he would have to prove in a satisfactory manner. At all events, absence without leave is proved by the simple facts of his absence, and no permission for such absence having been granted. When European soldiers quit their corps a party is sent to seize them, and the police have strict orders to seize any European who is found away from his regt., without a leave of absence certificate. The sum of 50 Sa. Rs. is allowed for the apprehension of any European deserter (18). (See cases 21, 22, 23, 24, 25.)

12. Deserting and enlisting in another Regt.] It is declared by sec. v. of the M. A., and 4th art. of this sec., that such subsequent enlisting

(17) Art. 3, sec. xi, 4 Geo. IV., cap. 81.

(18) M. C. Bengal, 27th May, 1793, (and 20s. by the Ann. M. A., sec.cxviii., 1824.) "When sepoys desert from the battn., a description roll of them and an account of the period of their desertion are to be sent to the comg. officers of the troops nearest the spot which shall be conjectured as most likely for the deserter to have resorted to." M. C. Bengal, 16th June 1786. Henley's Bengal Mil. Regs., p. 241. For application for deserters whether Europeans or natives, taking refuge in foreign settlements. (See G. O. 15th Feb. 1787. Do. p. 174.)

enlisting shall not exempt the soldier, &c. from the pains and penalties of the act, but that he shall be deemed a deserter and be punished accordingly. The deserting in this case, would appear to be to obtain the bounty. It is very necessary, to prevent the repetition of the crime, that the deserter should be marked (D) as authorized by sec. xi. of the M. A.; for as recruits are examined before enlistment by a medical officer (19) such proof would be obvious on inspection. Nothing would so much tend to the apprehension of deserters were sec. xi. of the M. A. made imperative instead of being permissive, by directing (D) to be marked in all cases of desertion.—(See case 26.)

13. Deserting, and giving themselves up.] If a deserter gives himself up willingly, within a few days after he has quitted his regt. such circumstance would, perhaps, be taken into favourable consideration by the gen. ct.-mar., as it shows that there was no intention to desert the service altogether; but, if, as in case 27, he does not give himself up till nine months have elapsed, the act must be presumed to have been the result of necessity-want of the means of subsistence, or the purpose for which he deserted not turning out according to his expectations; and, therefore, his return is most likely his last resource: after such a period of absence, and loss of service, he cannot expect to be treated with any consideration, but to be punished as a deserter usually is (20).

14. Quitting a Corps with an Intention to desert.] The intention of a soldier to desert when he has once quitted his regt. cannot only be known from the circumstances under which he leaves his corps, the time he is absent, and his conduct during his absence and previous to his return (21). If a soldier had absented himself without leave to go on a party of pleasure, &c. or through a drunken frolic, &c., he would, having no intention to desert, give himself up immediately to any party sent to apprehend him, or return in the course of a few days; his not so doing, but remaining absent a long time, as in case 27, though he ultimately gives himself up, would clearly be desertion. The intention to desert would also appear evident where the soldier, as in case 28, quits his corps and is seized on the banks of a river, which is distant from

(19) M. A. sec. xlvi., Ann. M. A. sec. xcvi., 1824. (20) By sec. liv. of the M. A., it is enacted, "that any person who shall voluntarily surrender and deliver himself up as a deserter from any regt. or corps of the said Co.'s forces, or who upon being apprehended for desertion or any other offence shall, in the presence of the magistrate or of the comg. officer of the place, confess himself to be a deserter from any such regt. or corps, shall be deemed to have been duly enlisted, and to be a soldier, and shall be liable to serve in any such regt. or battn., or corps of the said Co.'s forces, as the com. of the forces of the said co. shall think fit to appoint, whether such person shall have been ever actually enlisted as a soldier or not; the 119th sec. Ann. M. A. 1824, corresponding with the above, adds, and if the person so confessing himself to be a deserter shall be serving at the time in any regt., battn., or corps of H. M.'s forces, he shall be deemed to be and shall be dealt with as a deserter."

(21) See No. I. p. 136.

from it, or proceeds to the frontier of the Co.'s possession; in such cases no doubt would appear left as to the intention of the soldier to desert.

15. Quitting a Post, when Sentry, with an Intent to desert.] A soldier must be perfectly well aware, that for the bare quitting his post before he shall be regularly relieved, he is subject to the punishment of death, or such other punishment as may be awarded; (22) and, therefore, he would not quit his post merely to enjoy the absence of a few days, with the intention of returning, since he would subject himself to a double penalty, for two breaches of duty, the former of which is always considered a high aggravation of the latter offence. He would, therefore, not select such a time for absenting himself, if he does, as in case 29, there would appear to be a clear intention to desert. The being sentry and alone on duty, away from the barracks where the other men are, offers to him the opportunity, particularly on a dark night, of committing the crime unobserved, with the facility of quitting the place without the danger of an immediate pursuit, and of being able, in the stillness of the night, to escape to a distance without the same prospect, as in the day-time, of his flight being arrested by the inhabitants as he passes through or near their villages, &c.

16. A Soldier specifically enlisted for the Arty. transferred to the Infy. without his Consent, and deserting from the Latter, freed from the Charge of Desertion and sent to the Former.] By sec. xciii. of the Ann. Arts. of War, 1824, recruits enlisted for the special purpose of serving in the E. I.'s in the forces of the E. I. Co. only, in pursuance of the 50 Geo. III., c. 87, are not enlisted either for the infantry or artillery, but specifically for each. The oath they take states, "I being enlisted to serve in the (infantry or artillery, as the case may be) of the E. I Co., do swear, &c." (23). But in the case of recruits enlisted under the 39 Geo. III., c. 109, to serve either in H. M.'s troops or in the forces of the E. I. Co., according as H. M. shall think fit, then the oath they take states, “I— being enlisted to serve, either in H. M.'s troops, or in the forces of the E. I. Co., according as H. M. shall think fit, do swear, &c." (24). It may often happen that recruits enlisted for the artillery, in England, may not, on their arrival in India, be found to be fit for that particular branch of the service. The consent to a transfer may be easily obtained, but the recruit should not, against his consent, be transferred, as in case 30. He may have chosen that branch from the circumstance of a brother or other relation being in it, and as the pay in the artillery is greater than in the infantry (25), and also the pay when invalided superior to that of the latter (26), the recruit ought not, in strict justice, to be compelled

(22) Art. 10, sec. xii.

(23) Schedule (C), Ann. M. A. 1824, p. 241.

(24) Schedule (E), p. 238.

(25) Henley's Bengal Mil. Regs., pp. 167, 168, 188.

(26) Henley's Bengal Mil. Regs., p. 490.