CHAPTER III.

THE NAVAL CODE, GOVERNMENT, AND PROCEDURE.

1. THE history of the Naval Code is written in a few sentences, because it has never been made the subject of parliamentary conflict. Originally the discipline of the Navy rested in the hands of the Lord High Admiral, who, through his Court of Admiralty and the Judge presiding there, exercised Jurisdiction in respect of all Crimes and Offences committed "either upon the Sea or on the Coast, out of the body or extent of any English County, or (as the 15 Rich. II. c. 3 defined it) in great ships being and hovering in the main stream of great rivers, below the bridges of the same rivers." Such a Jurisdiction was as obnoxious to Parliament as that of the Constable's Court, and having failed of redress in the Reign of Henry VI., they secured it in that of Henry VIII. by transferring this Jurisdiction, as affecting ordinary crime, to Commissioners of Oyer and Terminer appointed as Judges of Assize under the Great Seal. Martial Law was then resorted to by the Crown for the Government of the Navy, until these Commissioners were (as we have seen) denounced in Parliament and presented to Charles I. as a grievance by the Petition of Right. Later in the same reign, and after the necessity of "Martial Law" for the Government of the Army had been admitted by Parliament, a similar Ordinance was passed in 1645 for the Navy.2 At a later period, "the Generals at Sea" (for such was the adjunct to the title of Admiral) sent forth by the Commonwealth of England issued instructions, dated the 16th of December, 1653 (which are still extant),3 directing the Commanders of each

1 Chap. VII. par. 3, post.

24 Com. Jour., pp. 89-110 and 118. 3 Printed in extenso in Mr. Thring's Work.

Squadron to form a "Council of War" for the trial of offences against the "Articles of War and Ordinances of the Sea," but reserving the execution of all sentences affecting life or limb, or cashiering of officers, until they had been confirmed by the Generals.

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2. At the Restoration, the principal Ordinances then in use in the Navy were collected and issued as "the Duke of York's fighting instructions," and the sanction of Parliament having been given to them by 13 Car. II. c. 9, they remained in force without amendment for eighty years and upwards.2

3. After the Revolution, Parliament secured a far larger

1 Admiralty Orders in Council, 1856, p. 3 (note).

2. Offences against the discipline of the Navy (wrote Lord Thurlow, when Attorney-General), were punished in former times according to the order of the King in Council, and even of the Admiral of England. They were so in fact, but the declaration which had been made in the former reign against Martial Law, occasioned that authority to receive the sanction of Parliament by the Act of 13 Car. II. c. 9. That Act was a general collection of the ordinances in use before. It sometimes expressly refers to the usage of the Navy, and in the execution of it that usage must be frequently applied and properly to doubtful phrases. Soon after the Act passed, the Duke of York published rules and orders which many of them directed, the execution of that law, and the Orders in Council of the 7th January, 1730 (amongst other things), presented the manner of holding and proceeding in Courts-martial. The 22 Geo. II. c. 33, though it proceeds upon recital that the former laws were not sufficiently clear, expedient, and consistent, seems to have improved but little upon them."*

The Regulations of 1731 contain ten paragraphs in relation to Courts-martial, providing (1) That these Courts should be held in the forenoon in the most public place of the ship, and all captains of ships in company should assist thereat (par. 3). (2) That all complaints should be made in writing, setting forth the facts, with the place, the time, and the manner of commission; but that no captain personally concerned in the matter to be tried, should be admitted to sit at the trial (par. 4). (3) That the Judge-Advocate should examine the witnesses upon oath, take down their depositions, and send the same with the charge or accusation to the prisoner, for the preparation of his defence (par. 5). (4) That the Judge-Advocate should attend the Court to record the proceedings -advise on the proper forms, and deliver his opinion in any doubts arising during the trial (par. 6). (5) That the President should frame and put the questions, and the majority of voters should decide these, the youngest captain first voting (par. 7). (6) That the sentence should be drawn up in writing by the JudgeAdvocate, and signed by all the members, and then all persons being readmitted to the Court, the Judge-Advocate, by the direction of the President, should pronounce the same (par. 8). (7) All capital sentences should be executed in

Vol. I. Ad. Opin. p. 165-9.

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control over the affairs of the Navy than of the Army. This was mainly effected by the 2 W. & M. (Sess. 2) c. 2, which conferred upon Commissioners appointed by the Crown for managing the affairs of the Navy "all authorities, jurisdictions and powers which by any Act of Parliament or otherwise had been and were lawfully vested, settled, and placed in the Lord High Admiral of England." As resulting from this enactment, all appointments and promotions in the Royal Navy are made not by the Crown direct, but through the channel of the First and other Lords of the Admiralty, while, as incident to command, all matters of discipline, as Court-martial Warrants and Proceedings, originate from and are confirmed by the Admiralty Commissioners when such confirmation is necessary.

4. The government of the Navy rests, therefore, so far as the Lords Commissioners of the Admiralty exercise power, upon statutory authority, supplemented in matters of detail by Orders in Council; and the manner of holding and of proceeding in Naval Courts-martial was so regulated by Order of the 7th 2 January, 1730. After the peace of Aix-la-Chapelle, to remedy3

public (par. 9). (8) That the Judge-Advocate should always send the original charge and affidavits, with the subsequent minutes of the Court, to the Secretary to the Admiralty (par. 10).

In the same Order "The rules of discipline and good government to be obtained on board His Majesty's ships of war' are contained in seven paragraphs. They are styled Articles of War,' and were to be read to each ship's company once a month (par. 7). They assume the right of summarily punishing the men to exist in the officers; but limit the power to a captain (par. 6), and its exercise "to twelve lashes upon the bare back, with a cat of nine tails, according to the ancient practice of the sea" (par. 4). The officers are enjoined to shew a good example (par. 1), to have Divine Services performed twice a day, with a sermon preached on Sundays (par. 2), to punish profaneness (par. 3), but not to punish an officer, only to suspend him for trial by Court-martial (par. 5). Although this Order in Council recited, and was passed to carry out the 13 Car. II. c. 9, it was never altered (even by the substitution of the 22 Geo. II. c. 33), but continued to be issued by the Admiralty in many (13) successive editions until repealed by the Order in Council of the 25th January, 1806, which enlarged the "Courtsmartial" and "Discipline" into sixteen paragraphs for the first, and forty-seven paragraphs for the order subject. The later editions of Admiralty Regulations are 1808, 1813, 1815, 1824, 1825-6, 1833 and 1844.

1 As to these, see Nicholas' 'History of the Royal Navy,' and 'Report on the Admiralty, 1861.'

2 Lord Thurlow's opinion on Lord Howe's Letter of 1777. Vol. i. (A. R.) pp. 168-9 quoted ante.

3 Black. Comm. vol. i. p. 420, and 14 Parl. Hist. pp. 419-25.

some defects which were of fatal consequence in conducting the preceding war, Articles of War, remodelled and altered, were incorporated in and enacted by the 22 Geo. II. c. 23, which Act continued in force (with comparatively few amendments) for upwards of a century, until repealed by the 23 & 24 Vic. c. 123. The Code at present in force is "The Naval1 Discipline Act, 1866," and those Regulations and Instructions, which are established by Her Majesty's Orders in Council of the 6th of August, 1861, and of later dates published by the Admiralty on the 1st of March, 1868.

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5. Under this Code the discipline of the Navy 2 is maintained (1st) by general Courts-martial for the punishment of officers and for the severer punishments of the men, and (2ndly) by the summary punishment of the men by the "officer in command of the ship." The Courts-martial, with power to try and punish any offence made triable under the Act, have exclusive jurisdiction over all the offences of officers and the capital offences of the men, and the "officer in command of the ship" has power to punish (subject to limits prescribed in the Act and in the Admiralty Regulations) any other offence triable under the Act. As a very large proportion of the disciplinary are also summary punishments, Courts-martial are seldom resorted to in the Navy-though, when resorted to, the method of procedure in Naval is closely analogous to that in Military Courts-martial; indeed the law and practice of both are the same, except so far as the Statute Law and Regulations may have varied the Jurisdiction or methods of procedure in either of them. These variations I shall endeavour to point out, first by noticing upon the text the distinguishing characteristics of Naval Courtsmartial in their authority and jurisdiction, and afterwards by referring in the footnotes when treating of the Military Courts to the Statutes and Regulations which govern the procedure of Naval Courts.

6. The Government of the Navy is, as I have before noticed, entrusted to the Admiralty, and all Judicial authority for the trial of Naval offences is supposed to emanate from that Board.

129 & 30 Vic. c. 109.

2 Sec. 56.

3 The manner in which this Court shall be constituted is laid down in Sec. 58. Steph. Comm. bk. 4, part i. ch. viii.

"Any Officer on full pay" may be authorised under Admiralty Commission to order Courts-martial, though this authority always flows upwards through him to his superior officer (though uncommissioned for this purpose) whenever the latter is present at the place where such Court-martial is to be held.1 In like manner this power, on the death or absence of such Commissioned Officer, devolves on the next senior, who (though uncommissioned to do so) may summon the Court.2 An authority derivative from the Admiralty Commission may be conferred by any Officer holding it and commanding a Fleet in Foreign Parts, whenever he shall (a) detach any, or (b) separate himself from any part of the Fleet; the Commanding Officer of the detachment in the first case (a), and the Senior Officer of the division left on the Station in the other (b) being the Officers designated to convene Courts-martial. The Officer ordering the Court may not sit thereon, but the President should be named by him or under his authority.3

7. The legitimate purpose of the Admiralty Court in former days was, and of the Naval Court in the present time is, the discipline and, if need be, the punishment of mariners upon the open sea, when no other tribunal save that within the Ship can exercise Jurisdiction over these offenders. A Naval Court can therefore only be held under two conditions: First, That three ships at least of Her Majesty's Navy, commanded by Captains, Commanders, or Lieutenants on full pay, be together at the time when the Court is held; and, secondly, that the place of its procedure be on board one of Her Majesty's Ships of War, adjourning, if the Court should see fit, from one to another Ship.

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8. The Jurisdiction over persons is extended to,— (1.) Every person in or belonging to Her Majesty's Navy, and borne on the Books of one of Her Majesty's ships in Commission-a definition which is made to include, by Sec. 6 of

2 Ib. (11).

5 Sec. 59.

1 Sec. 58 (9 and 10). Ib. (13 and 14). • Sec. 58 (3). 6 Vol. iv. Ad. Opin. p. 310. Sec. 87. The Masters and Seamen of ships under Convoy, or used as transports are to a limited extent only-under the Act. Secs. 31 and 90.