possibly of an inferior rank to the officer comg. the troops temporarily placed in, or passing through the garrison. The last mentioned officer would not be competent to hold or execute the sentence of cts.-mar., within the local limits of such especial command, without the permission of the gov." (21) "But whether the cases supposed be exactly similar or not, it has been directed, that cts.-mar. may not be holden by the comdt. of the King's troops on board ships of war, as matter of right (22). This was determined in the instance of Col. Talbot, who assembled a ct.-mar. on board the Niger, Capt. Larmour, in the year 1800, for the trial of a serjt., who was reduced to the ranks. The proceedings, however, were been confined, which is to be done by the capt. only; unless he be absent from the ship with leave from the Admiralty, or from the com. in chief, in which case it is to be done only by the senior lieut. comg. the ship in his absence.”—(Art. xxvi, p. 180.) The naval Arts. of War are more severe than those enacted annually for the army; but by 19 Geo. III, cap. 17, sec. 3, where a sentence of death is directed, the court may inflict "such other punishment as the nature and degree of the offence shall be found to deserve." In art. 3, holding correspondence with the enemy, and in art. 10, yielding or crying for quarter, his sentence must be death, as the 19 Geo. III, cap. 17, sec. 3, does not except these cases. "This discretionary power was introduced into the original art. 13, Charles II, cap. 9."--(McArthur, vol. i, p. 329.) (21) See sec. xiv, art. 12, and sec. xvi, art. 16, Ann. Arts of War, 1824. (22) "By the new regns. and instructions of 1808, a capt. or comr. of any of H. M.'s ships or vessels, has the power of inflicting punishment (23) upon a seaman in a summary manner for any faults or offences committed, contrary to the rules of discipline and obedience established in the navy: this power the framers of our naval articles and orders wisely considered preferable to establishing inferior cts.-mar. for trying trivial offences, as calculated less to obstruct H. M.'s service at sea, and as carrying more promptly into execution the rules and arts. laid down for its regn." (24) "Moreover, the prompt punishment of trivial offences is attended with salutary effects in the discipline of a ship, and from the public example makes a great impression on seamen's minds, thereby deterring them from committing greater crimes" (25). I understand that more than three dozen are not inflicted in a summary manner. It is said that such punishment frequently saves a man a more severe punishment, which would be inflicted by a ct.-mar. In the navy they hold no other than gen. cts.mar., so that the minor punishments are not usually inflicted. No officer, except the capt. or comr., can order any summary punishment. When any lieut., &c. thinks a man deserving of punishment, he makes a report to the capt., who inquires into the case, and orders punishment, if he thinks fit; or, in some cases, assembles his officers, and if they think the man deserves punishment, it is inflicted. All these punishments are entered into the log-book, and if more than three dozen are inflicted, the Admiralty would notice the case, by the removal, &c. of the capt. or comr.; and the capt. or comr. must enter the punishments into the book. Mc Arthur observes (26), "A seaman might be punished with three dozen for getting drunk, which offence falls under art. 2, and in that state might have disobeyed his officer, and quarrelled or fought with some person in the fleet, which would bring him under arts. 22 and 23." (23) See No. 10 of note 20. (24) Mc Arthur, vol. i, p. 162. were not approved by H. R. H. the Com. in chief (27). But offenders against the M. A. and the Arts. of War may be imprisoned and tried for the offences committed at sea, at the places where they may be disembarked, or elsewhere, according to the convenience of the service." "The latter arrangement must prevail until some more eligible system be happily formed, which may reconcile the difference and prejudices, attended often with embarrassments, in the several branches of the King's service" (28). The above principle was acted upon by the Lords Commissioners of the Admiralty in the case of the artily. men, in 1804, above quoted. And there is no good reason why it should not be applied to a case similar to that of Lieut. Fitzgerald, as well as to all cases, for it will be seen that that officer was tried on board, and dismissed the service, and consequently his duty as an officer ceased; but had he been placed in close arrest, or even in arrest, his duty as an officer would equally have ceased, and he could no longer have acted in contempt of the capt. There did not exist, apparently, any immediate necessity to justify the severe measure adopted. A case of daring mutiny may require the utmost exertion of the strong hand of power, but inferior cases have their legal remedies, though they may not be applied at the moment. In the case of a single ship, or even of less than five ships (29), the only alternative is to place the offender, whether naval or mily., in confinement, or in irons, as there are no cts.-mar. in the navy, other than gen. cts.-mar. Sec. xix, art 19, Geo. III., declares: "and in cases where sentence of death shall be passed in any ct.-mar. held by the senior officer of five or more of H. M.'s ships which shall happen to meet together in foreign parts, pursuant to the power herein before given (secs. ix and xiv), then such sentence of death (except in cases of mutiny) shall not be carried into execution, but by order of the Lord High Admiral, or commissioners for executing the office of Lord High Admiral." On the expedition to the Mauritius, in 1809, some of the troops went from the Cape of Good Hope. A capt. of one of the regts., with 100 men, went to the former place, on board one of H. M.'s ships of One of the non-commissd. officers committed some offence, but the capt. of the ship did not punish him any further than by plac war. ing "All (27) Ext. letter to Maj.gen. Figot, Torbay, H. G., 19th April, 1800. measures of that nature must be suspended until the disembarkation of the troops: and in cases when immediate punishments are absolutely necessary for the support of due subordination, it will be advisable, that recourse be had to the discipline of the ship on board of which troops are embarked, to be inflicted under the authority of the respective capts.”—(Mc Arthur, vol. i, p. 413.) See the case of the artil, men in 1804, in which the summary punishment of those men was prohibited. (28) Samuel on the Arts. of War, p. 683. (29) By sec. ix, 19 Geo. III, a court may, in such case, consist of five members, the senior officer presiding; and by sec. xiv, two of the five members may be comrs. ing him in confinement, and desiring that he should be tried on the disembarkation of the troops. The above men were afterwards sent on board another ship of war, and one of the privates, for some trivial offence, was tied up, and received two dozen. Supposing, with respect to cases inferior to actual mutiny, the private soldier can, at pleasure, be tied up, and receive two or three dozen, still, if the offender be a non-commissd. officer, he cannot be flogged till he is reduced; and M'Arthur observes (30)," by the royal marine regns. and instructions, established 19th July 1804, art. 9, it is ordained, that "no serjt. or corporal shall be disrated by the capt. of the ship without directions from the Board of Admiralty, if the ship is upon home service, or the concurrence of the marine officer comg. the detachment, in case the ship is abroad." He adds, "It would be desirable for the further government of capts. and commanders in the navy, to have the regulations and instructions relative to the royal marines serving on board H. M.'s ships, bound up as an appendix to the general printed instructions issued by the Admiralty." As, therefore, a non-commissd. officer of marines cannot, if the ship is abroad, be disrated, or, in other terms, reduced, without the concurrence of the marine officer comg. the detachment, so it follows, as a consequence, that no non-commissd. officer can be reduced without the concurrence of the mily. officer comg. the detachment. Again, by art. 22, sec xvi, (31) no non-commissd. officer can be reduced except by the sentence of a ct.-mar. or by the col. of the regt. ; and, supposing the naval commanders to be authorized to try soldiers, still, unless there be five ships, with three post-captains and two commanders (the senior officer presiding), no ct.-mar. can be held. There are two alternatives-to confine the soldier, or to give him two or three dozen without a trial. But the giving a soldier two or three dozen without trial, is so contrary to the practice of the army, and the repeated strong injunctions to officers not even to touch a man without trial (32), that the existence of the custom, when applied to the mily., is calculated to weaken their attachment to a service, which they enter with perfect ignorance of their being subject to such a summary mode of punishment; indeed, except in cases of mutiny, &c. requiring an immediate example, the 11th art., sec. xvi (33), prohibits "trials being carried on, excepting between the hours of eight in the morning and four in the afternoon ;" the clear intent of which is, to prevent the members of the court having their minds exhausted by too long a sitting; and thus to ensure the prisoner the full benefit of a trial, unattended with hurry or precipi tation. 4. Officers and Men of Ships carrying Letters of Marque, and Privateers, (30) Vol. i, p. 169. (31) Sec. xiv, art. 18, Arts. of War, 4 Geo. IV, cap. 81. (32) See case 1, p. 400. (33) Sec xiv, art. 7, Arts of War, 4 Geo. IV, cap. 81, p. 376. vateers, subject to be tried by Naval Courts-Martial.] M'Arthur also observes (34), "Mr. H. A. R., second mate of the King George, E. I. ship (carrying a letter of marque), was tried by a naval ct.-mar. at the Cape of Good Hope, in Table Bay, on the 16th Jan. 1798, "For mutinous behaviour, disobedience of orders, and contempt to Mr. R. C., the commander of the said ship; and also for having insulted the said Mr. R. C., when in the execution of his duty on shore at Cape Town, by using reproachful and provoking speeches, and for striking him." The court remarking (35), "But as the clause of the act of parliament which subjects the officers and men serving in letters of marque, or privateers, to naval discipline, expressly states, that all offenders shall be confined on board such ships until application can be made for a ct.. mar., the court consider themselves restrained from passing the sentence of death, positively annexed to a breach of the 22d art. of war (22d Geo. II.), and Mr. R. having been permitted, when a prisoner, to quit the ship, and remain on shore, the court doth therefore only adjudge the said Mr. H. A. R. to be imprisoned two years in the prison of the Marshalsea court." 5. Observations upon the Article.] As there has at various times existed a misunderstanding between the naval and mil. commanders on an expedition, though there has, of late years, subsisted a cordiality between the two services, it would appear to be advisable that the question should be decided, whether the navy do possess the right to try any officer or soldier belonging to the army, or to inflict summary punishment; or whether the question should remain undecided, leaving it to the discretion of the comg. officers of H. M.'s ships and vessels, to inflict summary punishment; or for the Admiralty to avert the possible and serious consequences which might attend the infliction of such a punishment, by restrictive and private instructions. Sec. v, 19 Geo. III. c. 17, enacts, "Nothing in this act contained shall extend, or be construed to extend, to empower any ct.-mar. to proceed to the punishment or trial of any land officer or soldier, on board any transport ship, for any offences specified in the several articles of this act." This act is an act to amend the 22d Geo. II. c. 33, in which the terms " If any officer, mariner, or soldier, or other person in the fleet," are used in several articles. Thus, in art. xxii, striking a superior officer, quarrelling, or disobedience. But in art. iii, the "If any officer, mariner, soldier, or other of the fleet," shall hold correspondence with the enemy, &c." terms are, The act, I apprehend, as a penal act, is to be construed strictly (36) with reference to its general tenor, meaning, and import. The word of is used in the first article alluded to, and the word in, in the subsequent article; they both bear the same meaning. Residing in, or resident of the parish of -, convey the same meaning; and in or of (34) Vol. i, p. 186. (35) McArthur, vol. i, p. 404. the the navy, conveys the meaning that the person so described is, of or belonging to the navy, and cannot be construed to person. mean a mil. Nor, looking at a penal statute, can a prohibition against doing a certain act, be construed to intend the allowance of an act not specified to be lawful; nor can you surmise an intention on the part of the legislature, where there are no words used from which you can draw such an inference. Therefore, the prohibiting the punishment or trial of land officers and soldiers, when on board transports, as enacted by sec. v, 19 Geo. III. c. 17, does not legally authorize their punishment or trial, when on board ships of war. The sec. would appear to have been framed to prohibit a practice which had obtained, and which was deemed an improper act, or the provision against it would not have been passed by parliament. If, then, the practice rests upon custom, it will be seen that a custom, unless the act be legal, is against law. The requisites of a custom are, 1st. "That it has been used so long, that the memory of man runneth not to the contrary; so that, if any one can shew the beginning of it (37) is no good custom. For which reason, no custom can prevail against an express act of parliament; since the statute itself is a proof of a time when such a custom did not exist " (38). That the custom has prevailed there is no doubt: the question is, whether it should continue. If any officer or soldier is mutinous, riotous, or otherwise misbehaves, if he be placed in arrest or confinement, he cannot repeat such conduct. If it be contended that the not immediately punishing the offender, may encourage the ship's company to misbehave, let it be remembered, that neither an officer, non-commissd. officer, or soldier, can be tried, unless there be five ships in company; and with respect to a non-commissd. officer, he cannot be summarily punished; for he must be reduced before he can be flogged. The non-infliction of immediate punishment, therefore, could only affect the minds of a ship's company, if they knew the capt. to possess an authority which he did not exercise; the non-exercise of which might lead to the supposition that he would, with respect to themselves, pass over mutinous or riotous conduct. But the moment the act is declared to be illegal, the true situation in which he stands will be seen and to clear up this matter, such a provision should be inserted in the section now under consideration, and in the naval Arts. of War; which code should be annually revised. I understand that the regns. and instructions for H. M.'s navy are to be revised; but still the act of parliament relating to the navy, should (37) Mr. Christian observes, in his note, "If any one can show the beginning of it within legal memory, that is, within any time since the first year of the reign of Richard I. (1189), it is not a good custom." (38) Blackstone, vol. i, p. 76. |