cases; still, as gen. cts.-mar. have been held in some cases, they are inserted. The art. in question was first introduced into the Ann. Arts. of War for 1818.

2. Satisfactory Explanation.] Sickness, or any accident which may happen to the officer, or other urgent occurrence, so as to prevent his joining in time, would, no doubt, be deemed sufficient; but before the expiration of the leave, an application should be made for an extension in such time, that, if it be refused, the officer may still have time left to enable him to rejoin; though cases may occur, in which there may be no possibility of so doing, and which would require explanation (66).

at

— till

Or, did not,

3. Charge.] See Forms, Nos. 39 and 40, Chap. I. That A. B. did, onabsent himself without leave from Or, did overstay his leave from till on his promotion, removal, or appt., (as may be,) join his corps or office, (as may be,) within the period directed. The same being in breach of the Arts. of War (or in disobedience of G. O.'s of - -).

4. Evidence.] Nos. 1 and 2, as at Chap. III. sec. ii. art. 1. 3. Prove that no leave of absence was given. (Or, that the leave of absence expired on -; or the time directed to join in G. O.'s, by a copy of the G. O.'s on the subject.) One witness to prove that leave was not granted. A copy of the G. O.'s giving leave or directing to join; and one witness to prove the time of joining.

5. Punishment.] Discretionary.-(See Punishment, at Chap. XXIV.) CASE 1.] G. O. H. G. 30th July, 1808. At a gen. ct.-mar., Ens. N. F., of the 50th regt., was arraigned on the following charge, viz. "Disobedience of orders, in not embarking in the Harlequin transport, on the 28th day of May, 1808, which order was repeated on the following day, and again on the 10th day of June; and for absenting himself from the army depôt, without leave, some time between the periods of the 11th and 29th of June, 1808."

FINDING-Guilty. SENTENCE-To be dismissed.

Which finding and sentence was approved of by H. M.

(Signed)

H. CALVERT, Adj.gen.

By command: CASE 2. G. O. H. G. 7th Sept. 1814. At a gen. ct.-mar., Ens. G., of the 4th regt. of foot, was arraigned upon the undermentioned charge, viz.

"For absenting himself from the army, and quitting this country about the month of Dec. 1813, without leave, and not joining his batt. until about the 5th of April, 1814, to the prejudice of good order and mil. discipline, and in breach of the Arts. of War."

FINDING-Guilty. SENTENCE-To be dismissed.

RECOMMENDATION.-The court cannot close its proceedings, without strongly recommending the prisoner to the clemency of theCom. of the forces, in consequence of his youth and inexperience, having only joined

(66) The leave must be extended by the authority granting it, therefore, leave from any other authority, would not protect the officer from the forfeiture of his pay, &c.

joined the 4th regt. three weeks prior to the action of the 10th and

11th Dec., in which he was severely wounded. Approved and confirmed by H. R. H. the P. R.

By command:

(Signed) H. CALVERT, Adj.gen.

Soldiers absenting themselves without Leave, to be punished at the Discretion of a Court-martial.

ART. 6.] (67) Any non-com. officer or soldier who shall, without leave from his comg. officer (68), absent himself from his troop or comp., or from any detacht. with which he shall be commanded, shall, upon being convicted thereof, be punished according to the nature of his offence, at the discretion of a gen. or regtl. ct.-mar.

1. Absence without Leave from his Commanding Officer.] The native com. officers, non-com. officers, and soldiers, obtain leave of absence at a certain period of the year (69), in equal proportions from every regt. in the service, according to priority of right to that indulgence from length of service, and no one obtains it a second time till all have once enjoyed such benefit. The leave is granted by comg. officers of regts. (70), under the authority of a G. O. issued annually bythe Com. in chief, and, between muster and muster, leave is authorized to be granted by comg. officers of regts.; but, for any greater period, the sanction of comg. officers of stations is required (71). In cases of sickness, where it becomes necessary, the medical staff of the regt. certifies the propriety of the grant of leave; so that there isnot any want of indulgence, when the exigency of the service does not preclude its being granted, whether for the general purpose of seeing their families, or on account of their private affairs; while cases of sickness are governed by no other rule, than the necessity of the measure duly certified. The power of granting leave being vested in the comg. officer, no other officer of the regt. can give leave, beyond the usual leave between sun-rise and sun-set, to those not on or warned for any duty within such time-the same being reported to the adjt. Sometimes a charge of desertion is only proved to be absence without leave.(See case 1.)

2. Absent without Leave, by overstaying Leave.] Native soldiers, when going on leave of absence, should be informed of the penalty of not returning at the expiration of their leave; and that in case of their corps being ordered on service whilst they are on leave, that it is their indispensable duty to rejoin immediately (72), without waiting the expira

(67) Sec. v, art. 2. Arts of War for Bengal Native Troops.

tion

(68) of the regt.-Officers comg., &c. companies grant leave to their men under the authority of a regl. order issued by comg. officers of regts., and, annually, in pursuance of the G. O. issued by the Com. in chief; but they cannot give leave of their own authority.

(69) See G. O. C. C. 4th April 1806.—(Henley's Bengal Mil. Regs., p. 238-9.) (70) Sec. iv, art. 5, Ann. Arts. of War, 1824. Furloughs.

(71) G. O. C. C. 5th Jan. 1797.-(Henley's Bengal Mil. Regs., p. 237.)

(72) See note 69.

tion of their leaves; and that failing to do so within a reasonable time, they will be considered to have forfeited all claim to a similar indulgence in future: or in case of being sick, to apply at the nearest station, &c., to the comg. officer, with the view to obtaining an extension of leave, which, if granted, is directed to be reported to the regt. to which the soldier, &c. belongs (73); or if there be no mil. near, then to the nearest civil station, to the judge and magistrate (75). It sometimes happens that a native soldier, having fallen sick on the road or at his village, by which he has overstaid his leave, is afraid to return under the apprehension of being tried for having overstaid such leave, -hence they are induced not to return at all, and thus to desert the service; and therefore they should be instructed to desire the police officer, at any place where they fall sick, to report the circumstance to the magistrate of the district.

3. Charges.] See Forms, Nos. 39 and 40, Chap. I. That A. B. did, on —, absent himself from his troop or comp., (as the

at

case may be,) without leave from his comg. officer, from

&c. (See also Charges to art. 1st of this sec.) 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 the absence as stated in the charge. 4. Prove that no leave was given. 5. Prove the return of the soldier, &c. One witness to prove that leave was not given; the same can prove the return to the regt. 5. Punishment.] Discretionary.-(See Punishments, at the end of Chap.

(73) G. O. C. C. 1st Feb. 1820. Rutton Sing, of the 4th battn. co., 1st battn. 27th regt. N. I. who was struck off the strength of that battn. on the 8th Dec. 1819, for having exceeded his leave of absence, having since returned to his corps, and produced a certificate signed by Surgeon Phillott, of the 23d regt. N. I., and countersigned by Brigade Maj. Conroy, setting forth that he had been discharged from the hospital of the above corps, on the 1st ulto., cured of his complaint, the Com. in chief is pleased to direct, that the name of the above sepoy be restored to its place on the rolls of his corps and co., and his arrears drawn in the same manner, as if he had not been struck off."

"H. E. takes this occasion to call the attention of all officers concerned, to the very great inconvenience and detriment to the service, experienced by their not reporting, in all cases of this nature, the situation of the soldier to his comg. officer, as directed in G. O. 19th Dec. 1814, and 17th March 1817, and to impress on them, the necessity of being more observant, in future, of the injunctions therein given."

(74) He need not be re-enrolled to be tried.-(See G. O. C. C. 6th Oct. 1817. No. 19, p. 144.

(75) By sec. cxxi, Ann. M. A. 1824. Inspecting field officers on the recruiting service, or any officer of the rank of capt., or of superior rank, or adjts. of regular militia within the district, or any justice of the peace (if there be no officer within a convenient distance) are authorized to grant extension of leave, on account of sickness, or other casualty which shall, on due inquiry, appear to be necessary; and to certify the same, with the cause of its being so granted, to the corps, &c., to which the man belongs; and, by sec. cxxii. such extension of leave shall protect the soldier, &c. from being apprehended as a deserter, unless the leave so granted be obtained under a false representation; but such an extension is not to exceed one month, unless with the approbation of the genl. or other officer comg. in the district, or of the officer comg. the corps, &c., to which the soldier, &c. belongs.

Chap. XXIV. He would not receive his pay during such absence.M. A. sec. xliv.)

CASE 1.] G. O. C. C. 10th April, 1819. Gunner F. Thomas, of the regt. of artil., was arraigned on the following charge:

"For [desertion] on or about the 20th of March, 1819, after repeatedly absenting himself from his corps without leave."

FINDING-Not guilty of desertion, but of being absent from his corps without leave, after repeated commissions of the same offence. SENTENCE-To receive 500 lashes (76).

Approved and confirmed:

The above sentence to be carried into effect at such time, and in such proportion, as the comdt, of artil. may direct.

(Signed)

J. NICOL, Adj.gen. of the army.

Penalty of persuading any one to Desert.

ART. 7.] (77) Whatsoever officer, non-com. officer, or soldier, shall be convicted of having advised or persuaded any other officer or soldier to desert the Co.'s service, shall suffer such punishment as by the sentence of a gen. ct.-mar. shall be awarded.

1. Persuade or procure to Desert.] Sec. Ixviii. of the M. A. further enacts, “That if any person or persons shall, in any part of the territories which are or may be under the govt. of the said Co., directly or indirectly, persuade or procure any soldier or soldiers, in the service of the said Co., to desert or leave such service as aforesaid, and being thereof lawfully convicted, shall, for every such offence, forfeit to the said Co., or to any other person or persons who shall sue for the same, the sum of 800 Sa. Rs.; and if it shall happen that any such offender so convicted as aforesaid, hath not any goods and chattels, land or tenements, to the value of 800 Sa. Rs., to pay and satisfy,— or if, from the circumstances or heinousness of the crime, it shall appear to the court before which the said conviction shall be made as aforesaid, that any such forfeiture is not sufficient punishment for such offence,-it shall be lawful for such court to commit any such offender to prison, there to remain for any time not exceeding 12 months, without bail or mainprize" (78). Sec. Ixix. directs the penalty “to be sued for and recoverable in H. M.'s court of record at the Presidency under which such offender shall be resident." Sec. lxx. provides, "That no action shall be brought or prosecution carried on by virtue of this act, for the penalties aforesaid, unless the same be commenced (79) within six months after the offence is committed" (80). The above sec. applies to persons in a civil capacity, who are not amenable

to

(76) Others for absence without leave have been sentenced to 400 lashes, one months' soly. confinement, &c.

(77) Sec. v, art. 4, Arts. of War, for Bengal Native Troops.

(78) See explanation at sec. xiv, art. 20.

(79) Issue of the warrant for apprehending the offender.

(80) The penalty of harbouring and concealing deserters.-(Sec. lxvii. M. A., at art. 2, of this sec.)

to a mil. tribunal. If the offender be an officer or soldier, &c., the gen. ct.-mar. would have nothing to do but to attend to the art. in question. The art. does not allude to the penalty which is awardable against those in a civil capacity.

2. Having advised to desert.] This may be done by recommending a soldier to desert, by pointing out some advantage to be obtained by sodoing, as in case 2,-the bettering his condition in life. Or, if a soldier be dissatisfied with the service, and he be advised to desert it; such advice would come within the intent of the art., whether the soldier, &c. did actually desert or not: the simple advising is sufficient, without looking at the consequence, which depends not on the will of the party counselling the act; what may be the effect of such advice, is to be seen by the conduct of the party to whom it is given. The soldier may not desert, but still the person "having advised" him to desert is required to be punished.

3. Having persuaded to desert.] There is this difference between having advised" and "having persuaded" to desert-that the one is an advice to another to do an act, which he may or may not consent to commit; the other a persuasion, by which the act is done (81). A man may endeavour to persuade another to commit an act, and not succeed in his endeavour; but when he has persuaded him to commit it, the party persuaded, is brought over to his purpose, and commits the act. The persuasion may be by mere words-promise of promotion or other advantage, offer of a high bounty or other valuable consideration, pecuniary or otherwise; in fact, any thing that shall persuade a soldier to desert.-(See case 1.)

4. Inciting to desert.] The inciting men to desert, by holding out promises of being otherwise provided for, as in case 2, is also the effect of persuasion; for no one can be incited by promises to commit an act, unless persuasion be used. It would be better that the words of the art. were in all cases used; and, if it be necessary, to charge an attempt to seduce from their duty, &c. as in case 3, in an additional charge. In case 1, had there been an additional charge, stating "that the said Serjt. Grant did further promote or was instrumental towards the enlisting, &c." the court would have acquitted him of the original, and found him guilty of the additional charge; and the question, as to their sentence, would never have been agitated.

at

5. Charges.] See Forms, Nos. 39 and 40, Chap. 1. That A. B. did, on advise or persuade (as may be) C. D. to desert the Co's service. The same being in breach of the Arts. of War. N. B. In H. M.'s service, a gen. regtl. ct.-mar. may try the crime. -(See Warrant, sec. xiv. art. 14.)

6. Evidence.] Nos. 1 and 2, as at Chap. III. sec. ii. art. 1. 3. Prove that C. D. did desert. 4. Prove that A. B. did advise or persuade C. D. to desert. [It does not signify whether he deserted or not, the advising

(81) Unless the soldier deserted, it is not likely that the having advised or persuaded to desert would be known, but in either case the art. commands a punishment.