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SECTION XII.

Miscellaneous.

The discussions that occurred a few years ago induced Duelling. the then Secretary-at-War (Lord Palmerston), to draw the attention of the Judge-Advocate-General to the subject of Duelling in the Army. In answer to the questions put to him, he stated, that an erroneous notion, to a limited extent, obtained, that an officer can be brought to trial and punished for not challenging, or for refusing to accept a challenge or to fight a duel; and in charges upon which officers have been cashiered, or otherwise punished, expressions may possibly be found, which, if detached from the context, and considered without reference to the undoubted Law of England and to the clear and unambiguous language of the Articles of War, might afford colour to this error. But it must be remembered that, by the common law of England, duelling, unattended by any injury to either party, is an aggravated offence against the public peace, punishable by fine and imprisonment. Thus, Mr. Justice Blackstone says, "The punishment of common affrays is by fine and imprisonment. Where two persons coolly and deliberately engage in a duel, this being attended with an apparent intention and danger of murder, and being a high contempt of the justice of the nation, it is a strong aggravation of the affray, though no mischief has

actually ensued." Under a recent statute, such persons may become liable to transportation: if death ensues, the parties implicated may be tried for murder. The military code has been, and will continue, consistent with this.

The 107th Article of War, 1844, renders all parties, principals as well as seconds, implicated in duelling, liable to be cashiered. The 103rd and 104th Articles prescribe to a Commanding Officer the duty of preserving order in his regiment, and of placing under arrest all who use reproachful speeches and gestures; a duty enjoined with the view of preventing duels, and of bringing to trial by court-martial parties who offer insults, and who will not afford redress by apology and acknowledgment of their error. Moreover, officers in command of guards are, under the 60th article, punishable for allowing persons to go forth to fight a duel.

By the 104th article, officers of inferior rank may place under arrest those who are engaged in quarrels, frays, or disorders; and by articles 35 and 104, any officer, though of superior rank, who refuses to obey, is liable to be cashiered. In the 105th article, Her Majesty points out to the Army that those officers who, (being willing to make or accept frank apologies, explanations, or redress,) refuse challenges—act is as becoming to the character of honorable men,-do their duty as soldiers, and are not only acquitted of all disgrace, but of all opinion of disadvantage. It is manifest, then,

that an officer cannot be subjected to trial and punishment for leaving undone that which the law expressly forbids; or for doing that which is thus distinctly declared, not merely to be conformable to military duty, but to be conduct above all blame and reproach.

Yet an officer who allows the stigma of dishonourable conduct to rest upon him, or passes over without notice an insult offered to him, is liable to be brought to trial by a

court-martial; not because he declines to fight a duel, but because, having failed to obtain speedy atonement through the intervention of common friends, or by other lawful means, he neglects to report the matter to his Commanding Officer, and thereby to invite a searching investigation into his character and conduct. By such neglect he seems either to acquiesce in the justice of the imputation cast upon him, and to admit that there is something in his conduct which he fears to lay bare before honourable men; or to show that, regardless of his own reputation and honour, he knows not what is becoming the character of an officer and a gentleman; and that, indifferent to the peace and order of the regiment, he is unmindful of the rules of military dicipline: his conduct then becomes the proper subject of enquiry and adjudication before a court-martial.* To this may be added the opinion of Lord Hardinge, whose judgment, undoubtedly, both as a soldier and a man of honour, is worthy of the highest respect. "The officers of the Army should recollect that it is not only no degradation, but it is meritorious in him who is wrong to acknowledge and atone for his error; and that the momentary humiliation which every man may feel upon making such an acknowledgment, is more than atoned for by the subsequent satisfaction which it affords him, and by avoiding a trial and conviction of conduct unbecoming an officer."+

Marshal.

There is, in every camp, for the purpose of regulating the Provostcamp-police, an officer, whose duties might properly have been described in another portion of this work; this officer is called the Provost-Marshal. He has the rank of Captain. His appointment is one of great responsibility, and requires

* Opinion of Hon. T. Nichol, cited in Hughes, 217.
† Hughes, 217.

the utmost vigilance and activity. It is the particular duty of the Provost-Marshal to take charge of prisoners confined for offences of a general nature; to preserve good order and discipline; and to use every possible means to prevent the commission of crime, by frequently visiting those places at which breaches of order and discipline are likely to be committed. He is also to take cognizance of the conduct of all followers and retainers of the camp, as well as of the soldiers of the Army. With this view, he is frequently to make the tour of the camp and its environs, in order to prevent and detect persons committing acts of disorder, or depredations.

The Provost-Marshal is entrusted with authority to inflict summary punishment on any soldier or individual connected with the Army, whom he may detect in the actual commission of any offence against order and discipline; but a recourse to the exercise of this part of his authority is to be limited to the necessity of the case, when the prevalent and continual commission of any particular offence may call for an immediate example.

Plundering and marauding, at all times highly disgraceful to soldiers, under any circumstances in which the Army would take the field in the United Kingdom, and when committed against the persons and properties of our own countrymen, (which it is our duty to protect), become crimes of such enormity as to admit of no remission of the awful punishment which the military law awards against offences of this nature; and the Provost-Marshal, in making his rounds, will be authorized to execute it immediately, and in its greatest rigour, against all such as are detected by him in the fact.

General Officers commanding divisions and brigades, and the staff officers attached to them, are to give their particular attention to the conduct of the Provost-Marshal and of his

assistants, and to take care that every requisite aid be given to enable them to discharge their duties with proper effect; at the same time see that no abuse or improper application may be made of the authority intrusted to them.

Officers in the command of guards or detachments are to give assistance to the Provost-Marshal in the execution of his duty; and any officer or soldier impeding him in the same, or offering him any insult, will receive the most exemplary punishment.

The regiments encamped near villages are to send frequent patrols into them, to apprehend such persons as may be there without passes; or who, having passes, may behave improperly.

Followers.

The Followers and Retainers of the camp are equally Campsubject, with soldiers, to the provisions of the Mutiny Act and Articles of War.*

As a question may arise under this regulation, as to who are followers and retainers, it may be observed that, when in the field, not only the Army, but its appendages, must be under the immediate control of the officer commanding it, according to the rules and discipline of war. So situated, the sutler, who chooses to follow the camp, identifies himself in a manner with the soldier's purpose in almost everything but that of fighting. At that time, the sutler is liable to be arrested, or otherwise controlled, under any military regulations made for the good of the camp. But this does not seem to apply to cantonments; and if an officer in command were to act towards him as if the force were in the field, he would act under a mistake of his authority, for which he is liable to answer, if it be productive of injury to the other party.†

* Queen's Regulations, 275, 276; Articles of War, 101.
† Smith v. Gore, Strange's Madras Reports, p. 435.

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