DESERTER, an officer or soldier who either in time of peace or war, abandons the regiment, battalion, or corps to which he belongs, without having obtained leave, and with the intention not to return.
The word deserter is from the Roman Desertor, which had various meanings. A soldier who did not give in his name (dare nomen) when duly summoned to service might be treated as a Desertor. (Liv. iii. 65.) The soldier who fled in battle and left the standard was called Desertor, and the punishment was death : sometimes every tenth man was taken by lot and put to death. (Livy. ii. 59; Plu tarch, Crosses, c. IV.) Desertion among the Romans was a general term fur any evasion of military duty : the old punishment was death, or loss of citizen ship, as the case might be. He who went over to the enemy was transfuga or per fuga, and was always put to death. Under the Empire there were various classifications of desertion with their several punishments. (Dig. 49, tit. 15, " De Re Militari.") As the last-mentioned circumstance dis tinguishes the crime of desertion from the less grave offence of being absent without leave, it becomes necessary, be fore the conviction of the offender, that evidence should be apparent of such in tention. This evidence may be obtained generally from the circumstances under which the deserter is apprehended ; for example, he may have been found in a carriage or vessel proceeding to a place so distant as to preclude the possibility of a return to his corps in a reasonable time ; or letters may have been found in which an intention to desert is expressed ; or some offer may have been made by him of enlisting in another corps, or of entering into some other branch of the service.
The civil courts of law in this country have ever had authority to try offenders accused of desertion ; but they have long since ceased to exercise such authority, and they now interfere only in the rare case of an appeal from the decision of the court-martial which is held for the purpose of investigating the charge and awarding the punishment. The courts martial exercise, to a certain extent, a discretionary power in proportioning the punishments to the criminality in the ac cused ; and this power is generally con sidered as more likely to promote the ends of justice than the inflexibility of the law in civil courts, where, since uo middle course can be taken between con demnation and acquittal, the criminal frequently escapes through the compas sion of the jury, when the punishment which by law must follow a verdict of guilty appears disproportionate to the crime. The leniency which has invari
ably characterised the sentences of courts martial, and the custom of not awarding the punishment in its full extent till after a repetition of the crime, sufficiently jus tifies the confidence reposed in those courts.
The practice of desertin* from one regiment or corps, and of enlisting in an other, either from caprice or for the sake of a bounty, having been very frequent, a particular clause has been inserted in the Articles of War, in order to prevent this abuse. It declares that any non commissioned officer or soldier so acting shall be considered as a deserter, and punished accordingly ; and that any offi cer who knowingly enlists such offender shall be cashiered. It is also declared that if any soldier, having committed an offence against military discipline, shall desert to another corps, he may be tried in the latter corps, and punished for such offence ; and his desertion may be stated before the court as an aggravation of his guilt. Any officer or soldier who may advise or encourage another to desert is also punishable by a general court-mar tial.
Absconding from a recruiting party within four days after having received the enlisting money is also considered as desertion ; and an apprentice who enlists, representing himself as free, if he after wards quits the corps, is esteemed a de serter unless he deliver himself up at the expiration of his apprenticeship. Va grants also, who, pretending to be desert ers, give themselves up as such with a view of obtaining money or provisions, are, by a clause of the Mutiny Act, to be con sidered as soldiers whether enlisted or not.