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judged necessary, be associated with officers in the service of the said Co. to sit in conjunction at cts.-mar., and may proceed to the trial of any officer, non-commissd. officer, or soldier, in like manner as if such cts.-mar, were composed of officers of our forces, or of officers in the service of the said U. Co. only, with this distinction, that upon the trial of any officer or soldier of our forces, regard shall be had to the regulations and provisions contained in the act for punishing mutiny and desertion, and the Rules and Arts. of War, made by us, for the govt. of all our forces; and the oaths administered to the several members of the cts.-mar. shall be in the terms therein prescribed; and upon the trial of any officer or soldier in the service of the said U. Co., regard shall be had to the regns, and provisions made by or in pursuance of an act passed in the 4th year of our reign, entitled An Act to consolidate and amend the Laws for punishing Mutiny and Desertion of Officers and Soldiers in the service of the East-India Co., and to authorize Soldiers and Sailors in the East-Indies to send and receive Letters at a reduced rate of Postage ; notwithstanding any officer in the service of the said U. Co. may also have a commission from us; and the oaths administered to the several members of the ct.-mar. shall be in terms prescribed by the same act.
1. Explanation). This article is founded upon sec. xxix. of the M. A., 4 Geo. IV. cap. 81, and sec. xxxi. Ann. M. A., 1824.-See also note 187, p. 48. It is the same as art. 1, sec. xxii. Ann. Arts of War, 1824. It is further enacted by sec. xxxvii. M. A., 4 Geo. IV. cap. 81, “ and whereas it may sometimes happen that officers in the service of the said U. Co. cannot conveniently be had to compose the whole or part of a ct.-mar., for the trial of offenders liable to be tried by ct.-mar., by virtue of this act; be it further enacted, that in any such case any officer or soldier, or person, subject to the provisions of this act, may and shall be tried by a gen. ct.-mar composed of officers in H. M.'s service alone; provided always, that in every such case, the officer convening such ct.-mar. shall specify in his warrant, that no officer in the service of the said Co. could conveniently be had.”
The trial here alluded to is by gen. ct.-mar., and not by regtl. ct.-mar. There is no authority in the M. A. for a gen. ct.-mar. for the trial of any of H. M.'s officers or soldiers, being wholly composed of the H. E. I. Co.'s officers. For the relative rank of officers of the two services, see art. 2, sec. xxii. Ann. Arts. of War, 1824, and note 2, p. 366, also note 5, p. 367.
Section 20.-TROOPS ON BOARD Ships OF WAR.
Company's Forces, while on board any Ship of War, fc. to conform to the established Regns., and be under the command of the senior Officer of the Ship.
Art. 1] (1). Whenever any of the Co.'s forces shall be embarked on board our ships of war, or any other ships which may have been regularly commissioned by us, and which may be employed in the transportation of troops; our will and pleasure is, that the officers and soldiers of such forces, from the time of embarkation on board any ship as above described, shall strictly conform themselves to the laws and regns. established for the govt. and discipline of the said ship, and shall consider themselves, for these necessary purposes, as under the command of the senior officer of the particular ship, as well as of the superior officer of the fleet (if any) to which such ship belongs.
1. Explanation.] This article is the same as sec. xxiii. Ann. Arts. of War, 1824, substituting the words “ of the Co.'s forces,” for “ of our forces," and " in the transportation of troops” for “ of our troops." This article refers exclusively to the conduct of the H. E. I. Co.'s European (2) troops while embarked on board H. M.'s ships of war, or transports for the conveyance of troops.
With respect to the conduct to be adopted by H. M.'s or the H. E. I. Co.'s troops when proceeding to India, &c. or returning therefrom, &c. on board the regular Indiamen, see No. vii. p. 10, and No. viii. p. 12, and No. ix. p. 13.
2. As to the right of Naval Comrs. to punish Soldiers embarked on board Ships of War, &c.] “ The Arts. of War, of which this constitutes a part, are framed by the King, of his prerogative, or by virtue of an authority, delegated by the M. A.”(3).
“ If it be rightly stated, that this article contains a common mil. regn., made in the course of an original or delegated power of H. M., and promulgated as such, as among the ordinary Rules and Arts. of War, it would seem impossible to conclude, that it can be taken notice of in any light other than in that in which it has been contemplated. For mil. crimes can only be declared by the M. A., or by H. M. through the authority vested in him by that act, or of his own prero
gative; (1) Sec. xxxii, Ann. Arts of War, 1824.
(2) The native troops of the H. E. I. Co. are not subject to these Arts. of War. --(See No. xiv, p. 17.)
(3) Samuel on the Arts, of War, p. 670.
gative ; and in either case can only be tried by courts constituted for the cognizance of such crimes."
“In any breach, therefore, of the duty prescribed by this article, the same must be prosecuted in the mil. court, and no other, and by force of this article. If the cognizance of such offence could be assumned by any other court, it would divest the members of the mil. body of the law expressly made for their govt. (4); of the courts appointed for the due administration of such law; and subject them, in its stead,
(4) With respect to the royal marines, a particular provision is made by the M. A. 5 Geo. IV., chap. xiv.,'“ an act for the regulating of H. M.'s royal marine forces while on shore," sec. i. of which states, and “ whereas the said royal marine forces may frequently be quartered on shore, or sent to do duty on board transport ships or merchant ships or vessels, or ships or vessels of H. M. not being in commission, or any convict hulk or ship where they will not be subject to the laws relating to the govt. of H.M.'s forces at sea." It then enumerates the crimes and punishments as specified in sec. i, M. A., 1824, and applying them to the above cases, and when on shore. But when on board H. M.'s ships or vessels, sec. lxxxii. provides, " and it is hereby declared, that all H. M.'s royal marine forces, as well officers, as private men, shall from time to time, during their being respectively borne as part of the complement of any of H. M.'s ships or vessels, or as supernumeraries on board the same, be subject or liable, in like manner, in all respects, as any officers or seamen employed in H. M.'s sea service are subject and liable to be governed and proceeded against, and punished, for offences committed by them during the time they shall be borne as part of the complement of such ships or vessels, or as supernumeraries on board the same, according to the purport, tenor, effect, and true intent and meaning of an act of parliament made in the 22d Geo. II. chap 33, intitled an act for amending, explaining, and reducing into one act of parliament, the laws relating to the govt. of H. M.'s ships, vessels, and forces by sea ; this present act, or any thing herein contained, notwithstanding.”
Here it is clear that the royal marines, while part of the complement of H. M.'s ships or vessels, i.e. ships or vessels of war (for sec. i. above quoted, provides for the case of their being on board transports, &c.), are made subject to the naval Arts. of War. It also seems, that though serving on shore or on expeditions, &c. they are still subject to the naval Arts. of War, if they form part of the complement of any ship or vessel. But the case with the army is very different, and I do not perceive that, if any detachment of the army were employed as marines, how they could be made subject to the naval Arts. of War. It is singular that there should be a limitation of time for punishing offences committed by the royal marines, more favourable to them than allowed to the army. Sec. lxvi. of the act (5 Geo. IV, cap. xiv), provides, “ that no person shall be liable to be tried or punished for any offence committed against any of the said former acts, which shall appear to have been committed more than three years before the issuing of the commission or warrant for such trial, except only for the offence of desertion.”—(See No. xvi, p. 19.) With regard to the army, they may be tried after three years, if there has been any manifest impediment ; whereas, in the case of the royal marines, except in the case of desertion, there is not any impediment stated, by which a trial may take place after three years. The words are, “ against any of the said former acts." The acts are annual.
The naval Arts. of War (22 Geo. II, cap. 33) contain the following sweeping clause, sec. Xxxvi, “ All other crimes not capital, committed by any person or per. sons in the fleet, which are not mentioned in this act, or for which no punishment is inflicted, shall be punished according to the laws and customs in such cases used at sea."-(M·Arthur, vol i, p. 336. See note 35, &c.)
to foreign laws, so far as it regards them, of which they could not be supposed to have any accurate idea, and to judicial proceedings, to the course of which they might be utter strangers (5).
“ But if, contrary to the foregoing statement and conclusion, it should be supposed and maintained, that the article, by placing officers and soldiers of the land service, whilst at sea, under the command of the senior naval officer of the ship, on which they are embarked, they are necessarily placed under the naval laws for the enforcement of such govt. and discipline, it will be for those who maintain that position, to prove not only that the article is competent to take the mil. officers and soldiers from without the authority and protection of the laws provided for them, and to place them under laws, especially framed for a peculiar and distinct class of men, but particularly to shew the power of the naval courts over the new subjects, supposed to be submitted to their jurisdiction. If the full competency of the article could not be clearly made out in all these particulars, the naval courts would have to exercise a very doubtful, if not a very hazardous jurisdiction in the premises (6).
“ I have been, perhaps, unnecessarily minute in considering this article, from a confused notion which prevails, and to which the article appears to have contributed some weight, on the applicability of the naval articles, in general, to officers and soldiers of the land service, while embarked on board ship. A notion of this kind seems to have been entertained by the writer immediately referred to (7), grounded on an opinion formed by several eminent and distinguished characters in the navy, and, it may be added, very universally prevailing therein."
McArthur having noticed an attempt of the Com. in chief of H. M.'s forces, to introduce some new regn. in the year 1795, relative to the govt. of the troops at sea, and that H. R. H. had been induced to forego it, on account of the representations of certain naval officers of high rank and consideration (8), takes occasion to remark :
“ The law therefore (intending the naval law) stands as heretofore; and, by virtue of the statute above-mentioned (viz. 22d Geo. II.) all officers and soldiers serving on board H. Mis ships, are amenable to a naval ct.-mar. for any
offences specified in the Naval Arts. of War." McArthur observes (9), “ an instance occurred in the Mediterra.
(5) On Sir J. Murray's trial (see case 10, p. 358), Admiral Hallowell, in his reply, observed, “The very different mode of carrying on naval cts.-mar., will, I Irust, account satisfactorily to this court, for some of the apparent irregularity of the examination of the witnesses, being the first mil. ct.-mar, at which I was ever present."-- See printed Trial, p. 544.)
(6) Samuel on the Arts. of War, p. 672.
(8) (Signed) P. Parker, W. Cornwallis, C. Thomson, W. Waldegrave, R. Curtis, R. Rodney, B. Hugh, C. Christian, C. M. Pole.
(9) Vol. I, p. 202.
nean (July 1795): an officer of the 11th regt. of foot, serving on board H. M.'s ship Diadem, with part of the regt. embarked for marine duty, being brought to trial by C. Tyler, Esq. capt. of the said ship, for having behaved with contempt to him when in the execution of his duty. Lieut. Fitzgerald, the officer alluded to, denied the legality of the court, and refused to make any defence. The court, composed of four admirals and nine post-captains, over-ruled his objections to their competency to try him ; and, having proved the charge, Lieut. F. was adjudged to be dismissed from H, M.'s service, and rendered incapable of ever serving H. M., his heirs and successors, in any mil. capacity.
“ The above-mentioned trial of Lieut. F. was the foundation of an addn). Art. of War, being signed by H. M. (10) to be annexed to the code for the army, in the latter end of 1795; on which F. M., H. R. H. the Duke of York, ordered certain regns. to be adopted for the govt. of H. M.'s troops under the said article, who might be serving on board H. M.'s ships of war. On these orders being communicated to Lieut.gen. Sir R. Abercromby, and made public to the fleet at Portsmouth, by an order from the Lords Commissioners of the Admiralty, enjoining the strictest attention to be paid thereto by the respective officers of the navy; the admirals and captains then present wrote a letter to their Lordships, expressing their concern thereat, and giving their decided opinion, that the proposed regns. militated against the principles of the naval service, inasmuch as they appeared to them to be in direct contradiction to the statue for the govt. of H. M.'s ships, vessels, and forces by sea, and must, if endeavoured to be carried into execution, inevitably cause the total destruction of the navy of this country. That, by virtue of the said statute, all officers and soldiers serving on board H. M.'s ships are amenable to a naval ct.-mar., and that they could not imagine that any regns. made by F. M., H. R. H. the Duke of York, could have any authority in the fleet, more especially when they are at variance with an act of Parliament (11). • “In consequence of these strong representations, orders were received for the disembarkation of the troops in the several ships, and for replacing them by marines (12).
Mr. Samuel observes, (13) “ That being on marine duty it brings Lieut. Fitgerald's case within the meaning and spirit of sec. iv. of
the (10) “ Intended to be annexed."--(McArthur, vol, i, p. 213.)
(11) Lord Nelson, in his letter to Sir T. Troubridge, one of the Lords of the Admiralty, on the subject of the artil, men, observed, “ But thank God the King himself cannot do away the act of parliament."-(McArthur, vol. i, p. 211.)
(12) The admirals and capts. in their last letter, on this subject, to the Lords of the Admiralty, concluded with these words : “ We beg leave to express our satisface tion at the orders received by Sir P. Parker, and which he has communicated to us, for the disembarkation of the troops in the several ships, and replacing them by ma. rines.”-(McArthur, vol. I, p. 411.)
(13) P. 681.