Page images
PDF
EPUB

or the said United Co., or any of H. M.'s subjects : Provided always, that nothing herein contained shall anywise oust the said Supreme Courts of Judicature of Ft. Wm. and Madras, and the said court of the Recorder (19) of Bombay respectively, of any jurisdiction over any natives of India, which such courts may now lawfully exercise ; but such Supreme Courts of Judicature of Ft. Wm. &c. respectively, as well as the provincial courts herein referred to, according to their several jurisdictions, shall have a concurrent jurisdiction over natives of India, employed by or in the service of the said United Co., or any of H. M.'s subjects.” And it is further enacted, by sec. cxiii. of the said 53 Geo. III, cap. 155, “ That it shall and may be lawful for the said court of Sudder Dewanny and Nizamut Adawlut (20), or other provincial courts aforesaid, to execute or cause to be executed, upon all persons subject to the jurisdiction of such courts respectively, all manner of lawful process of arrest, within the respective limits of the towns of Calcutta, and Madras, and of the town and island of Bombay, in the same manner as the said courts respectively may, by virtue of any power now vested, or hereafter to be vested in them, lawfully execute, or cause to be executed, such process in any place situate without the said limits (21): Provided always, that all such process which shall be executed within the limits aforesaid, shall be in writing, or shall have under-written or indorsed thereon, or otherwise annexed thereto, a translation thereof, or of the substance thereof, in the English language and character, signed by one of the judges of the court from whence the same shall issue."

If a native soldier were accused of any capital crime, &c. he would, if committed within the limits of the town of Calcutta, or Madras, or town or island of Bombay, be delivered over to the judge and magistrate for the town of Calcutta, to be tried by the provincial court for the division of Calcutta, &c. &c. (22). If the crime were committed

in

(19) Now the Supreme Court, 4 Geo. IV, cap. 71, sec. vii.
(20) The Chief Civil and Criminal Court.
(21) More than 10 miles from Calcutta, Madras, and Bombay.—(Sec. cvii.)

(22) By sec. cix, 53 Geo. III., cap. 155, the Supreme Court is declared to have a concurrent jurisdiction with the Provincial Court, according to their several jurisdictions. The jurisdiction of the Supreme Court over nalives of India, only extends to those residing in the town of Calcutta, or within the limits thereof, and not beyond those limits. Such concurrent jurisdiction, gives an authority to the Supreme Court to try natives accused of any capital crime, and only where a native soldier is apprehended by one of the police of the magistrates for the town of Calcutta, would such court, it is presumed, proceed to try him; but as the Provincial Court has a concur. rent jurisdiction, it is presumable that he would be made over to be tried by the latter. In the one case, he would be punished according to the law of England ; and in the other, by the Mahommedan law, as modified by the British Governments. In . the latter case, the sentence is confirmed by the Court of Nizamut Adawlut, the chief criminal court, which does not try criminal cases. Were the crime committed within the fort, the Provincial Court would have no jurisdiction over the accused; but there is a judge and magistrate for the town of Calcutta.

in any cantonment or station beyond Calcutta, the accused would be delivered over to the judge and magistrate of the district in which the regt., &c. was stationed, by whom he would be confined in gaol, and be tried by one of the judges of the court of circuit (23); and therefore, though the above article does not regard the native troops (24), still, any native soldier, accused of any capital crime, &c. which not triable by a native gen. ct.-mar., should be delivered over to the judge and magistrate of the district. But native soldiers and others, amenable to mil law, regs., &c. are triable by a native gen. ct.-mar., where the crime has been committed at places out of the Co.'s provinces or dominions.

7. Charges.] See Forms, Nos. 39 and 40, Chap. I. That A. B., çomg. the regt. of — (or other officers of the regt., &c.) on due application being made to him by C. D. (or others in behalf of C. D), on — , at — , against E. F., a soldier, &c. under his command, accused of (insert crime, &c. and particulars), did not use his best endeavours to deliver over such accused, &c. to G. H , the judge and magistrate of — ; (ors aid and assist the police in apprehending the said E. F.; or, did wilfully neglect to use his best endeavours to deliver over, aid, and assist in apprehending and securing, the said E. F., by which neglect he escaped.) Or, That the said A. B. (or other officer) did, upon due application being made to him by the said G. H., on , at , wilfully neglect or refuse to deliver over the said E. F. to the said G. H. The same being in breach of the Arts. of War.

N. B. By sec. xvii. M. A., may be proceeded against in the Supreme Court, for refusing to deliver over.

8. Evidence.] Nos. 1 and 2, as at Chap. III, sec. ii, art. 1. 3. Prove C. D. to be a person entitled to the Co.'s protection. 4. Prove the accusation made by C. D. against E. F., and that the best endeavours. were not used to deliver over E. F. to G, H., judge and magistrate; or, that A. B., &c. did not aid and assist the police in apprehending and securing E. F.; or, prove the wilful neglect or refusal to deliver over the said E. F.-One witness to prove the complaint was duly made; one witness to prove the refusal to assist, aid, &c., or the refusal to deliver over. The wilful neglect is established by the proof

of the above fact. .. 9. Punishment.] For refusing to deliver over to the magistrate, by

sec. xvii. M. A., in the case of a comg. officer,_shall be cashiered, and utterly disabled to have or hold any civil or mil. office or employment in the said Co.'s service in the East-Indies, if proceeded against in the

Supreme Court. By the art., all officers shall be cashiered for any dislnobedience of the art. . . . . . . . : il Delta

(23) Or Court of Appeal, as appeals lie from the Judge and Magistrate's Court to them.

(24) M. A., sec. Ixiii.

Penalty if an Officer protect any from his Creditors. Art. II.) (25) No officer shall protect any person from his creditors on pretence of his being a soldier ; nor shall he protect any non-com. officer or soldier who does not actually do all duties as such, and no farther than is allowed by the act of Parliament for punishing mutiny and desertion of officers and soldiers in the service of the E. I. Co., and according to the true intent and meaning of the said act: any officer offending herein, being convicted thereof before a gen. ct.-mar., shall be cashiered.

1. Non-commissioned Officers and Soldiers protected from Arrest, where the Debt does not amount to 200 Sa. Rs.] It is declared by sec. Iv. of the M. A., that no soldier shall be arrested, except for a real debt, amounting to 200 Sa. Rs.; and “ if any person shall nevertheless be arrested contrary to the intent of the act, it shall be lawful for one or more judges of the Supreme Court, upon complaint thereof made by the party himself, or by any of his superior officers, to examine into the same, by the oath of the parties or otherwise, and, by warrant under his hand and seal, to discharge such soldier so arrested contrary to the intent of this act, without paying any fee or fees, upon due proof that such soldier was legally enlisted in the Co's service, and arrested contrary to the intent of this act.” An affidavit is required by the same sec., to be made before one of the judges of the Supreme Court, out of which the process or execution issues, that the debt amounts to 200 Sa. Rs.; a memorandum of which oath shall be marked on the back of such process or writ (26). And therefore, until the comg. officer is shown such process or writ, he would not appear to be compelled to deliver over any non-com.officer or soldier under his command, to the officer who served the process or writ ; and that if the memorandum of the oath, on the back of the same, should show the debt sworn to, not to amount to 200 Sa. Rs., he would be justified, according to the true intent and meaning of the act, in refusing to deliver over such non-com. officer or soldier: for the art. in question, only prohibits protection being given to those who are not soldiers. Sec, Ixv. of the M. A. protects officers acting according to the intent of the M. A., and would appear to warrant such refusal, in the case of bona fide non-com. officers and soldiers, where the amount is under 200 Sa. Rs. (27), or “ in case the process or writ was served on a Sunday." But it may be executed in the night-time, as well as by day” (28).

2. Oficers shall not protect any Person from his Creditors, on the pretence of his being a Soldier, &c.] The term officer " is included in the general term of any person.” The words “nor any non-commissioned officer or soldier, who does not actually do

all

(25) Art. 2, sec. viii, Arts. of War for Bengal Native Troops.
(26) See M. A., sec lv, No. X, p. 13.
(27) See sec. Ixv, M. A., No. XV, p. 18.
(28) Russell on Crimes and Misdemeanors, vol. I, p. 743.

bor by the aboveanwhere the debt than is allowed

all duties as such, and no farther than is allowed by the Act of Parliament, &c.” mean, where the debt is under 200 Sa. Rs.; as provided for by the above-quoted sec. lv, of the M. A. Officers are forbidden by this art. to give protection to any person from his creditors, under the pretence of his being a soldier, when in fact he is not so ; or to any non.com. officer or soldier who does not actually do all duties as such, as those who may have been enrolled as such, but who have never done, or ceased to do duty,-have deserted or been discharged the service, invalided, &c.—or who, having been tried and convicted of any crime, are in gaol, and the term of imprisonment has not expired.

The protecting a debtor from his creditors may be, by affording him an asylum or place to conceal or secrete himself in, or when it is ascertained by the bailiff or other officer sent to arrest him, that the debtor is in the house of the party concealing him, by knowingly and designedly shutting the outer door to prevent the access of the bailiff, &c., and pretending that the person in question is a soldier.

3. Charges.] See Forms Nos. 39 and 40, Chap. I. That A. B. did on- at - protect C. D. from his creditors, and from the serving of a process or writ to arrest the said C. D., by E. F., duly authorized so to arrest, and sent to serve a writ issued from the Supreme Court, on the pretence of the said C. D. being a soldier, whereas the said C. D. was not a soldier, enlisted, or in pay, or entitled to the protection of the M. A. or Act of Parliament relating to debtors.

The same being in breach of the Arts. of War.

4. Evidence.] Nos. 1 and 2, as at Chap. III. sec. i. art. 1. 3. Prove C. D. not to be a non-com. officer or soldier, enlisted or in pay, or entitled to protection. 4. Prove the writ to have been shewn to A. B. 5. Prove that A. B. did protect C. D., &c. · One witness to prove that C. D. was not entitled to protection, whether the amount of debt be above or under 200 Sa. Rs. One witness to prove the attempt to arrest, and the protection given; the production of the writ or process will shew the amount.

5. Punishment.] Shall be cashiered.

CHAPTER XI.

Section 10 (1).--OF REDRESSING WRONGS.

What an Officer must do if he thinks himself wronged. Art. 1.] If any officer shall think himself wronged by his col., or comg. officer of the regt., and shall, upon due application made to him, be refused to be redressed, he may complain to the gen. comg, in chief

the

(1) Sec. xii, Ann, Arts. of War, and sec, ix, for Bengal Native Troops.

the forces, in order to obtain justice, who is hereby required to examine into such complaint.

1. Penalty of addressing anonymous Complaints to the Public, through the Newspapers, respecting professional Grievances.) Ext. G.O. by H. E. the Com. in chief, 8th June, 1822. “ The Com. in chief has observed with great dissatisfaction, a practice, indulged by officers or by persons assuming that character, of addressing anonymous complaints to the public, through the newspapers, respecting imagined professional grievances. It is visible the reader cannot assure himself that any particular case so stated, is not fallaciously represented, through the inexperience, the miscomprehension, or the perverse views of the writer; consequently, the appeal is essentially devoid of any possible utility. But it is obvious, that in this procedure, the legitimate sources, of redress are neglected : so that the purpose must be to give a general impression of inattention, oppressiveness, or injustice, in those with whom the superintendence of such concerns is lodged. The extreme mischief and improbity of these endeavours have probably not been perceived by the writers; whom the Com. in chief is willing to regard as having yielded only to a momentary inconsiderateness. The habit, however, of an officer's thus casting off his just and requisite dependence on his mil. superiors, must not be permitted. The Com. in chief, therefore, in the strictest manner, prohibits officers from sending to the newspapers any such anonymous representations as are above described. Should a letter of that nature henceforth be traced to any officer (and means will be taken to make the discovery almost inevitable), the Com. in chief will immediately submit to the Gov.gen. in council, the necessity of suspending the individual from duty and pay, while a solicitation is made to the Hon. Court, for his entire removal from the service."

2. If an Officer shall think himself wronged by his Col. or Comg. Officer.] It appears to be clearly the intention of the article, that if any officer thinks himself wronged by his comg. officer, in any way, whether relative to matters of a professional or private nature, he should represent the case to his comg. officer, or address a statement to him, in writing, if the case requires it. If it is on a subject relating to professional duties, it should, if in writing, be addressed by a letter, through the adj. ; and it would appear to be better to be in writing, that no question may subsequently arise, as to a supposed mis-statement; or the original cause or nature of the complaint. This would be a due application, complaining against a comg. officer to his superior officer; but if not through the former, or without his knowledge (2), it would not be a due application as intended by the article. Such

comg. (2) This is in accordance with the mode of proceeding against a magistrate, as provided for by 24 Geo. II, c. 44, sec. i, which enacts, that “no writ shall be sued out against, nor any copy of any process, at the suit of a subject, shall be served on any justice of the peace, for any thing by him done in the execution of his office, until

Q3

notice

« PreviousContinue »