The Times on the 1860 Naval Discipline Act
The Times on the 1860 Naval Discipline Act

The Royal NavyPersonnelLegislation on naval discipline
The Royal NavyPersonnelLegislation on naval discipline

The following extracts from The Times newspaper concern the 1860 Naval Discipline Act.

Extracts from the Times newspaper
We 22 August 1860

HOUSE OF COMMONS, Tuesday, August 21.



The House went into Committee on this Bill.

On clause 1,
Lord C. PAGET said, - The House having permitted me the other night to read this Bill a second time without giving any explanation of the necessity of the measure or any account of its clauses, I wish to take this opportunity to give to the Committee some idea of the objects and provisions of the Bill. I confess that I cannot regret very much that it has not been in my power to present the Bill at an earlier period of the Session. I admit that its importance is very great; and, as my hon. friend the member for Lambeth has stated, I do not suppose that any measure has been laid on the table of greater importance than that which has to do with the wellbeing and discipline of the navy. (Hear, hear.) It is an ill wind which blows nobody good, and I cannot help being extremely rejoiced that this question of the New Zealand Bill should have called the hon. baronet (Sir J. Pakington) to town, so that I have the advantage of his advice and assistance. (Hear, hear.) The Act of Parliament which the present Bill is to supersede is a very old Act. It was passed originally in the reign of Charles II., amended somewhat in the reign of George II, and therefore, except trifling amendments, I may say that an Act two centuries old is still the text book for the government of the navy. I think everybody will admit that it is high time for Her Majesty's Government to consider whether this old Act may not be remodelled, whether something like a more merciful view may not be taken in many cases, and whether it is not desirable, in fact, to enter upon a reformation of the naval code. I will proceed to give to the Committee the general features of the Bill, and afterwards, if necessary, I will endeavour to explain any clauses which hon. gentlemen may find any difficulty in understanding. The first great defect which the present Act manifests is the extreme difficulty of holding Courts-martial. As the law at present stands no Court-martial can be held unless five ships are in presence, so that it has happened on many occasions that a fleet has been kept together to hold Courts-martial when the public service required that they should be dispersed. Another very great inconvenience which has for a long time been felt is that, however large may be the fleet in presence, there are no means of holding more than one Court-martial at a time, so that, although there may be 20 line-of-battle ships present, and although in such a large fleet many cases must necessarily occur, there are no means of trying a second offender until the first case has been disposed of. We propose to deal with both these inconveniences by a clause making the presence of three ships sufficient, and allowing lieutenants to sit as members of the Court from which they are now excluded. As lieutenants are placed in a very responsible position, and have often the entire discipline of a ship to manage, it is manifestly an anomaly that they should not be thought worthy to sit on Courts-martial. (Hear, hear.) By this proposal we shall greatly facilitate the holding of Courts-martial. It is impossible to overestimate the importance of this point, because not only is there the inconvenience to which I have alluded of fleets being kept together when they should be dispersed on service, but it continually happens that offenders are kept awaiting their trial for many weeks - I may say months. Having stated the facilities in holding Courts-martial which will be afforded if the Committee approve this measure, I will now endeavour to explain the clauses with regard to the crimes and punishments which are set forth to the Bill. And if any should think how Draconic they still appear I pray them to bear in mind that we have to deal with a great body of men shut up in a box, which a ship is - men of all classes, and some without religions or moral principles. (Hear, hear.) If any hon. gentlemen think the punishments too severe, I beseech them to bear in mind that, unless we maintain the discipline of our fleets, no longer will our fleets do honour to the country. (Cheers.) I have no fear whatever that the Committee will not support the Government in passing this Bill, which, while it deals with grave and terrible crimes with severity, at the same time gives to Courts-martial the power of mitigating punishments whenever they think they can do so without detriment to the public service. The first thing which we found necessary was to classify the crimes. The law at present deals with crime without reference to the motives under which that crime was committed. I will take the cases of crimes before the enemy. Everyone will remember the case of Admiral Byng. He was tried under the 12th Article of War, which declares death to be the punishment of every person in command who through cowardice, negligence, or disaffection, withdraws from action, or does not come into action, or does not take every ship of the enemy which it is possible to take. The Court-martial which condemned Admiral Byng acquitted him both of cowardice and disaffection, and found that he had only been guilty of an error in judgment; and thereupon, although the clause obliged them to sentence him to death, they recommended him strongly to mercy, and wrote a petition to the Admiralty of that day, conveying their sense of the enormity of the punishment for such an offence. Unfortunately, it was not until 22 years afterwards that a clause was introduced giving power to inflict a less punishment. After that cruel execution of Admiral Byng a small modification was made giving the Court power to mitigate the punishment. We go further. We not only give the power of mitigation, but do not permit the Court to award the extreme penalty unless the motives for the crime are such as to deserve capital punishment. (Hear, hear.) We deal with the class of offences before the enemy by dividing it into three categories. To the first - treachery - we award death, and I do not suppose that any hon. gentleman will think that too severe, For cowardice we propose that the offender shall suffer death, or be imprisoned and dismissed from Her Majesty's service, and for neglect of duty, - which may arise from remissness, carelessness, drunkenness, which may incapacitate a man for discharging his duty, or for a variety of other causes, we proposed to inflict a punishment of a lesser degree. My object la to show that we intend to define the crimes, and to define the motives which impelled the offender to commit a particular crime, and to deal with him according to the motives. My hon. friend the member for Lambeth says that everything is death in the Articles of War, but if he will look at this Bill he will see that there are only three cases in which the punishment of death is inflicted. There is an anomaly in the present law which we propose to do away with, and which I confess I am surprised has not been remedied long ago, and it is this, - you give a Court-martial power to inflict death for almost any grave offence, but you give it no power of intermediate punishment, like penal servitude, which would be commensurate with a grave offence short of a capital crime. We propose to give power to Courts-martial to inflict death or penal servitude, or other punishments of a lesser character. That I believe will be a great improvement. The next point is, what is and what is not mutiny? I believe the highest legal authorities are divided on this point. Is mutiny the act of one man, or must it necessarily be the act of more than one? Legal opinions differ about that. In the original Bill as drawn by the Admiralty we defined mutiny to be the act of two or more persons - a combination, in fact. The Bill, however, was very carefully considered by a Select Committee of the Upper House, on which some of the most eminent law lords sat; a great deal of evidence was taken, and they came to the conclusion that we had better not define mutiny in the Bill. The definition, therefore; of mutiny has been expunged: but it will be seen that every mutinous act which can be committed has been dealt with under the head of mutiny and insubordination. The next difficult point in which we have dealt with is desertion. A man may desert from his ship with the intention of stopping away, and be caught and brought back in 24 hours, and another man may stop away 20 or 30 days and yet not intend to desert; yet both are desertions now. Under the present law there is really no definition of the crime, any more than in a mere general way - it has been dealt with according to the custom of the service, rather than according to any known law. At present we have no power to deal with offences committed on shore. If any officer, or sailor, or Marine misconducts himself in a town, the captain has really no power to bring him aboard ship and try him. This has frequently been the cause of great inconvenience, and we have taken powers in this respect which will be greatly to the advantage of the service. In addition to clearly defining offences, we propose to give power to Courts-martial to find a man charged with a greater offence, guilty of a lesser offence only if they see fit, and if they find him guilty of the lesser offence they will have power to award the lesser punishment. For instance, they may find a man accused of murder guilty of manslaughter only, if they think the evidence warrants them. They have no power of the sort now. Then, there comes the question of corporal punishment, which has always excited a great deal of attention in this country. I can assure the committee that there is not an officer in the navy who does not suffer the greatest possible pain in inflicting corporal punishment. (Hear, hear.) I am speaking the general opinion of the profession when I say that officers would give anything to get off flogging a man, and it is only because the punishment is a positive necessity in the service as at present constituted that it is inflicted. So long as there are men of bad character in the service, who can only be acted on by fear, so long will it be impossible to suppress corporal punishment altogether; but every Admiralty has endeavoured as far as possible to check the infliction of the punishment and to bring it under control. The Commander-in-Chief has recently established In the army a system o£ classification. Every soldier who goes into the army is placed la the first class, and is not liable to corporal punishment until he has forfeited his position by a series of misconduct and is degraded into the second class. The honour of establishing that system is due to his Royal Highness. (Hear, hear.) We have copied it in the navy and since last autumn we have classified the men in such a way that every man who goes into the navy goes in with the certainty that he is not liable to corporal punishment until he has forfeited the privilege by a series of misconduct. This has had the best effect. Don't let gentlemen run away with the idea that because we have had disturbances in our fleet that therefore the discipline is gone, and that there is a want of good feeling among the men. On the contrary, I can assure the Committee that, notwithstanding the marvellously short time in which our fleet has been formed (10,000 men have entered In the past year), the admirable state of efficiency and discipline to which it has been brought is most creditable to the officers. (Hear, hear.) We propose that whenever a sailor or Marine shall be accused of any offence which will make him liable to corporal punishment there shall be a preliminary inquiry by one or more officers into the circumstances of the offence. When they have completed their inquiry it will be their duly to report to the commanding officer, who. will either confirm their finding, or refuse to be guided by it; for we have thought it necessary still to leave in his hands the power of inflicting punishment, although the committee of officers may have reported against it. I am prepared to admit that this is not strictly in accordance with the usage of courts of justice, but it is impossible to divest the captain of the responsibility attaching to his position: and besides, we are but legalizing what is the practice in all well-regulated ships. I am positive that the clause will have a beneficial operation, as an officer who may be prone to award corporal punishment will hesitate to take on himself, unless under peculiar circumstances, the responsibility of ordering a man to be flogged when he knows that the circumstances and the justice of the sentence will be subjected to inquiry at the outset. The House will perceive that in cases of open mutiny the same undivided and unlimited power which the captain at present possesses is left in his hands. I cannot resist the pleasure of reading to the House certain statistics with regard to corporal punishment which I have been at some trouble to procure, as they show that year by year this degrading punishment is decreasing in a steady ratio, and is gradually dying out of the service. (Hear, hear.) I am positive that the necessity for its continuance will even more rapidly diminish if the House will continue, as it has hitherto done, to support the Government in its efforts for the maintenance of discipline, and for the improvement of the service by the training off a large number of boys, who, having entered at an early age, become attached to the service, and in the great majority of instances turn out skilful and valuable seamen. In 1856 we had In the navy 55,000 men liable to corporal punishment - by which I mean under the rank of petty officers, - and of these 1,397 were flogged, being in the proportion of one in 39. In 1857 the proportion of those flogged was one man in every 42; in 1858 it was one in 48; and in 1859, with 64,000 men liable to corporal punishment, 957 were flogged, being In the proportion of one to every 67. (Hear, hear.) The decrease has kept pace with the improved condition of the men, for whom the House of Commons has generously voted better pay, better food, and increased allowances of every description, I hope, therefore, that Parliament will not hesitate to grant us every assistance in making as full and complete as possible the code of discipline for the government of the navy.

Sir J. PAKINGTON. - I am not quite sure that my noble friend, in proposing the Bill for the discipline of the navy, has quite complied with the discipline of this House; but as you, Sir (addressing the Speaker), have allowed him to enter into a lengthened statement in moving in Committee the first clause of the Bill, I trust that I may be allowed, to some extent, to follow the same course. I listened to the statement of my noble friend with the greatest pleasure, and I think it impossible that any observations on such a subject could possibly have been In better tone. (Hear, hear.) My noble friend has expressed satisfaction that the opposition which I felt it my duty to offer to the New Zealand Bill led to my presence this evening. Now, I am not one of those who ever indulge In opposition for opposition's sake. It may be my duty to oppose Ministers on general grounds, and it has been my fortune to sit on these benches for the majority of my political life. But, at the same time, I feel that men who are charged with the responsibilities of office are undoubtedly entitled to support from all sides of the House whenever it can legitimately be extended to them. I believe that the present Board of Admiralty, in bringing forward this measure, are only discharging their duty to the country, and are at the same time conferring a great boon on the naval service. (Hear, hear.) One of the subjects dealt with in this Bill, to which when in office I gave considerable attention, is the constitution of naval courts-martial; and I am extremely glad that the noble lord has found leisure to draw the attention of Parliament to their very defective and inconvenient construction, with the view of providing a remedy. The noble lord, I know, pays me the high compliment of supposing that during my 15 months' tenure of office, it was in my power to have remedied all defects whatever; at least, whenever I feel it my duty to touch on any defect, he says, "Why, then, did you not remedy it?" In this case, at least, I have it in my power to show that I did attempt to do so. I had my attention drawn to the inconvenience, and I will go farther, and add, to the hardships and injustice consequent on the present constitution of naval courts-martial; and I requested my hon. and gallant and distinguished friend, Sir R. Dundas, then, as now, a member of the Board, to give his personal attention to the matter, and to draw up an altered and revised scheme, to be submitted to the Board, for the amendment of our system of naval courts-martial. That gallant and distinguished officer continues to be a member of the present Board, and I have no doubt that the noble lord will be able to state that he is much indebted for his anxious exertions and for the results of his great experience. I do not think my noble friend can, under those circumstances, with justice taunt me with having made no attempt in this direction when in office, while I sincerely trust that henceforward naval officers will not be exposed to those inconveniences and hardships under which they have hitherto laboured in consequence of the action of the old and inadequate system of Courts-martial, which it is proposed by the present Bill to amend. Having said thus much, and the details of the measure having been so fully explained by my noble friend, I shall not upon this occasion, when it is more in accordance with the rules of the House that we should discuss the proposal of the Government clause by clause, enter at greater length into the subject. I may, however, in conclusion, be permitted to say that, so far as I am acquainted with the details of the Bill, It appears to me the manner in which my noble friend, as he explained in a very interesting portion of his speech, means to deal for the future with offences on board ship is extremely judicious. The statement which he made with respect to corporal punishment I look upon as highly satisfactory, and shall not detain the Committee further than to add that I rejoice the Admiralty have thought proper to grapple with this important subject. (Hear, hear.)

Mr. WILLIAMS expressed his regret that a measure involving matters for such grave consideration should he brought under the notice of the House at so late a period of the Session; that it embraced within its scope so many severe punishments, and that it did not make provision to do away to a greater extant with flogging in the navy, in the infliction of which he contended no adequate protection against the disposition of the captain of the ship, however much it may bear towards the side of severity, was afforded by the system of inquiry which the Bill proposed to establish into the commission of an offence by the officers of a vessel.

Sir C. NAPIER said that 20 years had elapsed since he had brought the Articles of War under the consideration of the House. He came there to speak the truth, and he would not hesitate to do so. He must, therefore, give a most distinct contradiction to the noble lord's statement that the discipline of the navy had very much improved. The information he had received from many officers was to the effect that the discipline of the navy was very much relaxed indeed. The noble lord excused those irregularities - disturbances he should call them - which had taken place of late on board ship; bat he could not excuse them at all. They were unexampled. At no time since the conclusion of the last war had there been so many instances of irregularity and insubordination. Drunkenness had increased very much. The drunkenness which had gone on in Edinburgh was perfectly abominable. He had heard that statement from officers of high rank. With respect to the different clauses of this Bill he would reserve his opinion till they came consecutively under the notice of the Committee. But he must state one thing -that the Admiralty, in bringing forward these new Articles of War, would do more than had been done for years to improve the discipline of the navy. The establishment of different penal punishments would have an excellent effect. He hoped that when Courts-martial were ordered on men for desertion officers would carry out the penal punishment to the full extent, till desertion was entirely done away with. It was perfectly impossible entirely to do away with corporal punishment; no one detested it more than he did, and no one was more anxious to do away with it, but its abolition could only be brought about by establishing proper penal substitutes. He would not allow corporal punishment to be inflicted on a petty officer. There were some other points on which he would express his opinion as the various clauses came up for consideration.

Clauses 1 to 5 [sic] were agreed to.

On clause 5,
Sir C. NAPIER thought it very hard, unjust, and contrary to religion, to hang a seaman for cowardice. The man might be impressed the very day before, and might not have nerve to fight. It was different with officers; for if an officer were a coward he should give up his ship. He had no business to be there. He moved that the word "death'' for cowardice should, in this clause, be left out.

Mr. WILLIAMS thought, as it would be difficult to decide whether a man, in abstaining from doing a certain act, was influenced by cowardice or other motives of a prudential character, that the punishment of death ought not to be retained in this case.

Lord C. PAGET said that the punishment of death for a similar offence was contained in the clause relating to commanding officers, and he, therefore, did not see how it could be excluded from the present clause. Practically, It would be only in extreme cases that the punishment of death would be inflicted.

Sir J. PAKINGTON maintained that, in arranging a code such as the present, care must be taken, to frame it so as to make it meet extreme cases, and it was obvious that the provision in the Bill was only intended for that object.

The amendment was then put and negatived, and the clause was agreed to.

On clause 9, declaring that every person deserting his post or sleeping upon his watch, &c., shall be dismissed from the service, with or without disgrace, or shall suffer certain other specified punishment,
Sir C. NAPIER was not anxious to increase the severity of punishments, but the loss of a fleet might follow upon a man deserting his post or sleeping upon his watch, and he was disposed to think that the punishment of death should apply to such an offence.

Sir J. PAKINGTON agreed with the gallant admiral in thinking that the greatest calamity might follow upon a man deserting his post, and therefore he questioned whether, in an extreme case, the maximum punishment should not be retained for such an offence.

Sir M. SEYMOUR was of opinion that something more should be embodied in the clause than it contained at present.

Lord C. PAGET said the Committee were not now dealing with the case of a man who deserted his post in face of the enemy. That offence, which he admitted to be a very grave one, was included in the fifth clause, where the punishment of death was awarded. The present clause was directed against desertion of post when committed under ordinary, circumstances. He thought the punishment, severe enough.

Sir J. PAKINGTON said the explanation of the noble lord was satisfactory to a certain extent, but desertion of post was not mentioned In the fifth clause, and that fact, coupled with the other fact that it was specifically mentioned in the present clause, might lead to the inference that it was not an offence which was to be punished with death, even when committed in presence of the enemy.

Lord C. PAGET admitted that desertion of post was not mentioned in the fifth clause, but he held it was included under the words "any person who shall not do his utmost exertions to carry the orders of his superior officers into execution."

Mr. AYRTON doubted whether the fifth clause referred to offences committed in face of the enemy. The words were "when ordered to prepare for action, or in action." He suggested that some general words, such as "or shall be guilty of neglect of duty in presence o£ the enemy," should be added.

Lord C. PAGET would consider the expediency of introducing those words at a future stage.

The clause was then agreed to, as were clauses 10 to 21, both inclusive.

On clause 22, fixing the penalty for absence without leave,
Mr. WILLIAMS said that the punishment to be awarded - imprisonment with loss of pay - was too severe for the offence.

Sir C. NAPIER said that desertion was so common in the navy that nothing short of penal servitude, or some punishment equally severe, would put a stop to it.

Lord C. PAGET thought that the clause as it stood was quite sufficient.

Sir C. NAPIER was convinced that it was not, and therefore moved the insertion in it of the words, "penal servitude."

Sir G. LEWIS said that the application to absence without leave of the same punishment as was inflicted for desertion would remove from men who were so absent all inducement not to desert.

After a short conversation the amendment was negatived without a division, and the clause was agreed to.

Clauses up to 38 Inclusive were agreed to.

We 22 August 1860On clause 39,
Mr. AYRTON said this Bill extended the authority of the naval tribunal over seamen who were for the moment ordinary subjects of Her Majesty - namely, when they were on shore, and beyond the limits of their vessels or the dockyards. That was a serious alteration of the law, and one that ought to be carefully considered. It would enable a captain on a naval station to issue a warrant for bringing back to his ship and subjecting to his summary jurisdiction any seaman who might have committed an offence against any of the resident inhabitants, although such offence was properly cognizable by the civil tribunals. Naval officers were sometimes rather impetuous persons, who were fond of exercising authority, especially abroad; and they ought not to be empowered to supersede the ordinary action of the civil courts. He would propose, therefore, that a proviso should be inserted declaring that nothing in the Bill should be held to prejudice the jurisdiction of the civil tribunals over offences punishable by ordinary law.

Lord C. PAGET was much obliged to the hon. member for his suggestion, the value of which he fully recognized, inasmuch as it would make the intention with which the clause was framed much clearer.

Mr. AYRTON said it would, perhaps, be more convenient that he should move the proviso on the bringing up of the report.

The clause was then agreed to, as were also clauses up to clause 45.

On the next clause,
Mr. BRADY recommended that the maximum number of stripes given to offenders in the navy should be reduced to the number inflicted in the army.

Lord C. PAGET was willing to adopt the limit of 50 lashes.

Mr. B. OSBORNE said that in the army the limit was 48.

Mr. WILLIAMS was informed by naval officers that 50 stripes in the navy were equal to 200 in the army.

Sir C. NAPIER admitted that the lashes were a great deal more severe in the navy than in the army.The clause was agreed to.

On clause 46,
Sir J. PAKINGTON suggested that the term of penal servitude in the navy should be assimilated to that adopted on shore. The minimum period proposed by this clause was four years; on land it was three years.

Mr. HADFIELD deprecated the system of flogging, whether in schools or in the navy, and contended that as the discipline of the service had not suffered from the gradual decrease of corporal punishment, it might safely be dispensed with altogether.

Mr. WILLIAMS said that by the clause as it stood, judgment of death might be passed by four officers out of five, if the Court-martial consisted only of five, and in other cases by a majority of two-thirds of the officers. He thought that on such occasions the Court ought to be unanimous, and moved the omission of words by which he supposed the result would be insured.

Lord C. PAGET said, that if the words in question were omitted judgment of death might be passed by a bare majority, which could not be the wish of the hon. gentleman. With regard to flogging, the Admiralty were not endeavouring to extend its use but to control and define it. He intended to propose that no corporal punishment should exceed 48 lashes.

The amendment was then negatived, and the following-addition was made to the clause:- "In any case of corporal punishment, not more than 48 lashes shall be inflicted."

Mr. WHITE thought some reason should be given why in judgments of death a Court-martial, like a jury, was not required to be unanimous.

The ATTORNEY-GENERAL said it had never been a principle in the criminal law of the navy that a court-martial should be unanimous, and it would be a dangerous principle to introduce. All sentences must be confirmed by the Crown, and therefore there was a check upon the decisions of courts-martial.

The clause as amended was then agreed to, as were also clauses 47 and 48.

Upon clause 49,
Sir J. GRAHAM said, - I have hitherto abstained from discussing the clauses of this Bill, as I am very much of the opinion of the right hon. baronet the member for Droitwich [Pakington]; that this is a matter upon which professional experience and legal knowledge are the safest guides, and this Bill being brought forward by the Executive, they have no doubt availed themselves of the excellent authorities it is in their power to consult. I have, therefore, refrained from giving any opinion upon the details of this Bill, but having been conversant with naval affairs, and taking a deep interest in the welfare of the naval profession, I, entertaining an opinion upon a portion of this clause, feel it my duty to state that opinion. I need hardly say that as far as my sympathies are concerned they are with those who wish to see the utmost limit placed upon the infliction of corporal punishment, I will not discuss that punishment in the abstract, because the committee has already adopted that principle and ratified the opinion that the infliction of that punishment is necessary in the navy. This clause, however, is a most important one. I think the late Lord Melville and Sir G. Cockburn did introduce most excellent and salutary checks against the abuse of corporal punishment. It is due to them that corporal punishment, except in cases of mutiny, cannot now be inflicted in hot blood by any officer; 24 hours must elapse between the commission of the offence and the infliction of the punishment. There must be a written record in the shape of a warrant signed by the officer commanding, at whose discretion the punishment is inflicted, a copy of which is sent to the Admiralty. One of the most important duties of the Admiralty is to revise those lists. If there be any ground for supposing that the punishment has been inflicted unnecessarily, oppressively, or cruelly, the Admiralty calls for an explanation. As a general rule the Admiralty judges most favourably of an officer whose ship is kept in good order without the frequent infliction of corporal punishment; but my experience leads me to think that there is a check against the abuse of power which the Admiralty possess, but which they have not exercised. The Admiralty have the power, if the explanation of the commanding officer be insufficient, to supersede him at once without paying off the ship, although I do not think there is an instance of that power having been exercised. The infliction of that summary mark of their displeasure would have a most salutary effect. Saving the non-exercise of that power, I do not think there is any check that is wanting against the abuse of power on the part of the commanding officer. But the 3d section of this clause does introduce a novelty. The effect of the law as it now stands is to make the commanding officer solely responsible for the infliction of punishment. In many cases it proceeds upon the report of a junior commanding officer, but upon that report he is entitled to exercise his own undivided power. By the clause in this Bill, however, it is not upon the simple report of a junior officer that the commanding officer is to proceed, but it requires that an investigation shall - excepting in cases of mutiny - be made by one or more officers appointed by the commanding officer. I think the effect of this will be found inconsistent with the maintenance of discipline. If a captain with his own eyes sees an offence other than mutiny committed, by this clause he cannot decide upon the matter upon his own judgment and in conformity with what he has seen, but he must delegate an inquiry to his inferior officers.

If those inferior officers should be at all disposed to pander to the goodwill of the crew at the expense of the commanding officer, he having come to the opinion that punishment is necessary, those inferior officers may record their opinions against his judgement and he will have to inflict the punishment upon his own responsibility, and against their recorded opinions. The effect of that will naturally be to destroy his influence over his crew, who will become his enemies and the friends of his inferior officers. But, on the other hand, if these officers, not seeking popularity, are subservient to him, even in doubtful cases, recommend the infliction of punishment, the responsibility for the punishment is shared by the inferior officers. This is a question of the highest importance. It may be a most material alteration. At present the power of the commanding officer is undivided, subject to no responsibility, and if you make this concession once it may have a fatal effect. As I said before this is a question upon which we must trust a good deal to the Executive. I have the greatest confidence in the judgment, benevolence, and sound discretion of my noble friend at the head of the Admiralty, who is most fortunate in the Board by whom he is assisted, and the ability and the humanity of the noble lord below me (Lord C. Paget). The House is able to form a due appreciation. They have the power of bringing the best judgment to bear upon this question, but with my doubts upon this clause I do not think I should have done my duty if I had not raised this question in the presence of the distinguished admirals who are members of this House. I confess that my judgment will be materially influenced by what the two gallant admirals near me shall say on this subject.

Sir C. NAPIER said that if the First lord of the Admiralty saw that a great number of corporal punishments had been inflicted he would be apt to make inquiry, and to conclude that the captain was an injudicious commander. It did not, however, follow that a ship was in a good state of discipline because few corporal punishments were inflicted. (Hear.) There was a natural feeling on the part of a captain in favour of an officer when the latter made a complaint. His feeling was that discipline must be supported; and if he did hot take the part of the officer his men believed he did, and could not be got to believe that justice was done. He believed that a clause of this kind would give satisfaction not only to the captain but also to the officers. At present men often refused to call their witnesses, because they thought it of no use, and they never came forward with the same confidence as at a Court-martial. He believed he had first suggested this matter to the Admiralty, and started it in the House. When a complaint was made the captain ought to order a ship's Court-martial to assemble, composed of the senior officers of the ship. The president of the Court-martial should be the second in command, the witnesses should be sworn, and the inquiry should be public. He would not trust the officers to adjudge the punishment; their duty would be to find the prisoner guilty or not guilty, and the punishment should be awarded by the captain. He knew there was danger in the alteration, but still he thought it well worthy of a trial. He would never allow the captain to be present at the infliction of corporal punishment. If a man had a thin skin and suffered great pain and agony, the ship's company heard him calling upon the captain for God's sake to forgive him, for he could not bear it, and making use of every supplication; and if the captain were obdurate and carried out the punishment, the crew could not help saying, "What a brute the captain is to stand by and see a man suffer like that!" Whereas, if the second in command were ordered to be present in the captain's place, the culprit might appeal to him as much as he pleased. The crew would know that the first lieutenant had no power to forgive him, and there would be no feeling that the commanding officer was a brute. It would be one of the greatest boons that could be conferred on the captain if he were forbidden to be present at the infliction of corporal punishment.

Sir M. SEYMOUR asked whether the new system was to be accompanied by any regulations to guide officers in carrying it out? He did not think it. would be productive of greater advantage than the system which existed under the Queen's Regulations. In small craft, such as gunboats, where the choice of officers was limited, there would be considerable difficulty in making an inquiry, as directed by the clause.

Sir J. GRAHAM said the gallant officer, the member for Southwark, appeared to contemplate an arrangement quite distinct from that for which the clause provided. The clause as it now stood did not contemplate a Court-martial, nor did it provide for any sworn testimony, and, so far from its rendering the decision of the one or more officers, as the case might he, binding on the captain, It left him to act according to his own discretion after they had made their report. An offence might be committed under the eyes of the captain; in a gale of wind, for instance, he might see a man skulking and not laying out the yard. Surely he was more competent to judge of such an act than any of his officers, who possibly had not witnessed it, and ought not to be bound to refer it to one or more inferior officers. He decidedly objected to the proposal of the hon. and gallant officer that, out of consideration to the feelings of the captain, he should be relieved from all attendance while punishment was being inflicted. He thought that the feelings of the captain were altogether secondary to the feelings of the man who was bearing the punishment and of the crew who were looking on. If the severity of the order was to he fixed by the captain, he should be allowed to be present at the punishment, and to retain the merciful dispensation he now possessed, if he thought the suffering which the man endured was greater than the crime deserved. He understood the argument of the gallant officer to be that the punishment should be delegated to the second in command, so that there might be no appeal to the chief who ordered it, and who, if a witness of the man's agony, might deem it cruel to proceed. That could not, unless he were much mistaken, be the one entertained by the Admiralty, (Hear, hear.)

Sir J. PAKINGTON acknowledged the force and importance of what had been stated very fairly by the right hon. baronet, whose opinion on such a question was entitled to great weight. He had also listened with attention to the remarks of the gallant officers the members for Southwark [Napier] and Devonport [Seymour]. On the other hand, he could not forget that the proposal emanated from a Board of Admiralty composed of experienced naval officers, and that it had been proposed to the House by the noble lord who was himself a very distinguished officer. The right hon. baronet would concur with him in holding that there .were two objects which they ought primarily to keep in view in dealing with this question. The one was to afford to the captain of a ship every possible moral support in discharging his difficult arid important duty in regard to punishment; and the other was to hold out to the crew the most ample guarantee that they would be dealt with justly. (Hear, hear.) These objects were no doubt contemplated by the Board of Admiralty when they proposed this change, and would, he believed, be greatly promoted by the proposal contained in the clause. At the same time he felt the force of the observations which had been made as to the difficulty of instituting an inquiry in very small vessels, and the necessity of providing for a case where an offence was committed under the eyes of the captain. He therefore suggested that, without abandoning the valuable principle involved in the clause, it should be reconsidered as to its details, with the view of correcting them upon the report. (Hear.)

Sir C. NAPIER, referring to the observations of the right hon. baronet the member for Carlisle [Graham], put the case of two men sentenced to the same degree of punishment for similar offences, and asked whether it would be right that the one who made a great outcry should be spared, while the other who, with more nerve and spirit, bore his punishment without a murmur, the full measure of his sentence? In former days punishment was ordered by a Court-martial, and the officer who was appointed to see it carried out had no power of limiting it. In the army, if the colonel of a regiment saw an offence committed, he could not order the offender to be flogged off-hand, but was obliged to submit the matte; to a drumhead Court-martial. A captain in the navy should be placed in the same position. Sailors ought to enjoy the same privilege as soldiers, of being tried by a regular Court-martial, instead of being placed at the mercy of the captain.

Sir J. GRAHAM said he never saw a clause more ambiguously worded. The word "his," in one place, made it appear as if it were the offence of the commanding officer, when it was the offence of the man which was intended. The same word occurred twice subsequently, and left the meaning extremely doubtful.

Lord C. PAGET freely admitted the very grave difficulty which had been pointed out by the right hon. baronet the member for Carlisle, with respect to a commanding officer who saw an offence committed and was naturally the best judge of the amount of punishment. He should be very sorry to take from the captain the least responsibility, because, if they did, there would be an end to the discipline of the ship. But still he believed that if a captain saw such an offence as had been mentioned - a man not laying out the yard as he was told - the proper course would be for him to send for the next officer in command, tell him the circumstance, and direct him to inquire whether the captain of the top had given the order, and to let him know what was his opinion of the case. The commander or lieutenant would then ascertain whether the offence had been committed wilfully, or whether the man was suffering from pain or illness at the time. The right hon. baronet had led the Committee to believe that it would be taking away the responsibility of the captain to desire one or more officers to report, but he did not think that it would detract in the least from that responsibility. The officers referred to would merely find the man guilty or innocent, and then it would be for the captain to award the punishment, if he were guilty. Moreover, if the finding of the officers was not correct, the captain had power to overrule it. He was willing to admit that there might be a difficulty if the second officer was a very bad officer, and wished to set aside the captain and curry favour with the men, but that would be mutinous conduct on the part of the officer, and he did not know any statutory enactment which would be applicable to the case of such a lamentable want of discipline. (Hear, hear.) He thought the clause would very much tend to improve discipline; in fact, would make general that which was now done in every well-regulated ship. There were in the service, as there always had been, captains who did not sufficiently inquire into these matters beforehand, and upon them this would impose a very salutary check. (Hear, hear.) The Committee would also observe that this had reference only to the infliction of corporal punishment summarily - that the captain would still have power to inflict minor punishments, or to bring the offender to a court-martial, and that in anything like mutiny the preliminary inquiry was set aside altogether. (Hear, hear.) He did not deny that there was difficulty in the case, but it was his conscientious conviction that the advantages of the provision outweighed the disadvantages. (Hear, hear.)

Mr. WILLIAMS moved the omission of the end of the clause, in order that a clause might be brought up rendering courts-martial necessary in all cases of corporal punishment.

Sir G. LEWIS thought the proper way was for the hon. member himself to propose a clause on the report, and not to ask the Committee now to reject a mitigation of the existing law, which, he admitted, as far as it went, was an Improvement. (Hear, hear.)

Mr. AYRTON said that the proposition of the hon. member was impracticable. They could not have courts-martial in every vessel to investigate these offences. (Hear, hear.)

The amendment was negatived without a division, and the clause, as amended, was agreed to.

On clause 50,
Lord HOTHAM asked how it was intended to carry out the provision for holding courts-martial In cases where there were only two or three ships together on a station.

Lord C. PAGET said that every commander of a fleet would be enabled to give power to the senior officer of every small squadron which he might send out on detached duty to hold courts-martial.

The clause was agreed to, as were the following clauses up to 70 inclusive.

On clause 71, some discussion arose with reference to the meaning to be attached to the words "superior officer."

Lord C. PAGET explained that the words were intended to refer not to officers of superior rank, but to any officer of however petty a grade, as long as it was superior to that of the person committing the offence.

Words were added to the clause, by which it was declared that whenever the words "superior officers" were used they should be taken to include all officers, whether of superior or petty rank.

The remaining clauses were agreed to, and the Bill was reported with amendments to the House.
Fr 24 August 1860Considering that the discipline of HER MAJESTY's Navy has been regulated up to this very day by the provisions of an Act passed in the reign of CHARLES II., it will readily be conceded that the time had arrived for a revision of so antiquated a code. The truth is, however, that in this, as in many other cases, the progress of opinion has been reflected in practice, although the letter of the law has remained unchanged. The customs of the 17th and even the 18th century have become gradually obsolete, though still sanctioned by statute, and the necessary mitigation of the original code has been anticipated by an authority as irresistible as that of Parliament itself. For many years past the discipline of the Navy has been administered, on the whole, with lenity as well as justice, and the Act now under discussion will operate rather in facilitating procedure and extinguishing apprehensions than in introducing any more radical revolutions. Still, the measure is a beneficial one. It is always desirable to bring law into conformity with practice, and there is something gained by the actual abolition of powers which, though long fallen into desuetude, might be once more abused. Moreover, the position of the seaman in one important respect especially will be really improved by the New Articles of War, and we have the testimony of Sir CHARLES NAPIER to the fact that the measure before the House will do more for the discipline of the Navy than has been done for years.

The first object of the new Bill is to provide for the readier convocation of Courts-martial and for the extension of their powers, not in the way of severity, but in that of mitigation. It seems almost incredible that under the terms of the existing law no Court-martial should be possible unless five ships are assembled, so that fleets have sometimes to be kept together for this purpose when the public service requires that they should be separated. Only one Court-martial, again, can be held at a time, though a score of ships may be in company, and lieutenants cannot sit on such Courts, though it is on these officers that the administration of naval discipline mainly devolves. In these directions the course of reform was obviously clear. But there was a more serious defect to be remedied. Of all the principles of justice none is more fundamental or notorious than that the quality of a crime depends upon the motive. Even in the highest offence of all - that of taking away life - there can be no murder without malice. This natural discrimination, however, had no place in the law of Naval Courts. Those Courts dealt with crimes without reference to motives, and it was in this manner, to take the most famous example, that Admiral BYNG was sentenced to death, although in the recorded opinion of the Court he was guiltless of any worse crime than an error in judgment. He was charged with having "not done his utmost" in performing the duties before him, and, as the mere fact was established, the conclusion became inevitable, apart from any reference to the circumstances under which the default had occurred. So strong did the necessity for discrimination appear that as the proceedings drew towards a close the Court sent an express to the Admiralty with the desire to be informed whether this particular article of war could not be mitigated by their decision. They were told that no such distinctions were possible, and that for neglect of duty, however originating, there was no alternative but death. A similar principle established in the Civil Courts would consign every man to the gallows who by any accident whatever had caused the death of another. Certainly, it is time that such law as this was expunged from our statute-books.

The great feature, however, of the new Bill consists in the regulations it applies to corporal punishment on board HER MAJESTY'S ships. This is the particular part of the measure which will be most keenly scrutinized, - these the provisions from which practical and immediate results are anticipated. We have already observed that the discipline of the Navy has long lost its most sanguinary characteristics, and Lord CLARENCE PAGET made a statement to the House which showed how corporal punishment was going out of use by the mere operation of time and opinion. In the last four years there has been a steady decline in the number of these sentences. In 1856 the proportion of floggings to the whole number of sailors gave one man in 39 as having suffered this punishment; in 1857 the rate was one in 42; next year one in 48; and last year only one in 67. The regulations, however, now proposed will certainly go as far as any ordinances short of abolition could go in exempting the seaman from liability to this species of penalty. In the first place, the classification recently introduced into the Army will now be followed in the Navy. Every sailor on entering the service will enter it with the certainty that until by some misdeed of his own his immunity has been forfeited he will not be liable to the punishment of the lash. Next, the number of lashes will be limited to a maximum of 48, so that any barbarity of punishment will be impossible, and, finally, a step will be taken in that particular direction to which the recommendations both of officers and civilians have so often pointed.

It has been repeatedly affirmed that what sailors object to most in this matter is the absolute power lodged in the hands of a single man, who may be violent, vindictive, or tyrannical. We have been told that everything depends upon the captain; that with a good captain all will go smoothly, while with a bad captain, under the same Articles of War, the administration of discipline may be intolerable. Some check had been imposed upon capricious excesses of power by the regulation which provided that 24 hours should always be allowed to elapse between the commission of the offence and the infliction of the punishment, but it was still argued that there ought to be some species of Court or tribunal of inquiry interposed between the captain and the men for the protection of the latter. The reply was, that while the captain was charged with undivided responsibility, he must needs have undivided authority too, and that you could no longer exact from him an account of the ship's discipline if you deprived him of the means of maintaining it. If, in short, you divided the power, you would be dividing the command -a proceeding which would strike at the very root of naval administration as hitherto regulated. That this objection is still regarded as formidable will have been seen from the speech of Sir JAMES GRAHAM and the confessions of Lord CLARENCE PAGET, but it has been decided that the probability of advantage will outweigh the risks, and the Act ventures on the experiment. After this Bill becomes law no captain will be enabled to order the punishment of an offence entailing the penalty of the lash, even if it has been, committed under his own eyes. He must remit the consideration of the case, in the first instance, to one or more officers for preliminary inquiry, and from their hands he must receive a report. It is true that he may overrule their finding, and that with him alone will rest the measure of the punishment; but, excepting in cases of open mutiny, which are withdrawn from the operation of this and other clauses of the code, there will now be always a certain check upon the absolutism of a commanding officer which cannot be disregarded, except at s considerable increase of responsibility and risk.

We sincerely trust that this new measure may be followed by the effects which it is intended to produce, and that the terms of service in the Royal Navy may be regarded in future with more universal satisfaction by our seafaring classes. In reality, this service has always been preferable as regards humanity of discipline to that of the Merchant Marine. The cruel severities which once seemed inseparable from service at sea have been more speedily and surely extirpated from the discipline of the Navy than from that of merchantmen in general, for the obvious reason that the affairs of the fleet were more completely under the cognizance, and therefore under the control, of public opinion. It is long since we have heard of any such stories in the Royal Navy as every month brings still to light in the merchant service of the country. The old naval code had, indeed, some ugly features, but they have not of late years been realities. They had become mere scarecrows, without vitality or substance, but, as even scarecrows may terrify, it is as well that they are now to be removed.


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