COMMITTEE.

HC Deb 21 August 1860 vol 160 cc1649-74

Order for Committee read.

House in Committee.

Part 1. Clauses 1 to 39, "Articles of War."

On Clause 1 (Public Worship).

LORD CLARENCE PAGET

Mr. Massey, the House having indulgently permitted me for the public convenience 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 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 (Mr. Williams) 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. It is an ill wind that blows nobody good, and I cannot help being extremely rejoiced that this question of the New Zealand Bill should have called the right hon. Baronet (Sir John Pakingion) to town, so that I have the advantage of his advice and assistance. 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 alterations, 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 that Her Majesty's Government should 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 complete revision 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 superior officers are available as members of the court; and three of the five must be of higher rank than commander; this, of course, generally necessitates the presence of five ships, so that it has happened on many occasions that a fleet has been kept together to hold courts-martial when the services of the ships were required in various parts of the globe. 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 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 hold 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. By this proposal we shall greatly facilitate the holding of courts-martial. It is also proposed, when a large fleet is in presence, to authorize the holding of two or mare courts-martial simultaneously when necessary. 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 for 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 in 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 of all classes, often drawn from the very dregs of society, who too frequently enter the Navy without religious or moral principles, and with tainted morals, and who are rarely improved by being boxed up together, as it were, in a ship. 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, and that to this end the punishment must be swift, certain, and severe. The first class of crimes we deal with are those committed in presence of the enemy. Under the existing laws, the court-martial has, in some instances, only limited powers of sentencing, which has in many cases acted with undue severity on the prisoner, and in many more been the cause of his entire escape from the consequences of his crime—for whatever motives induced the crime, the sentence must be the same. Every one 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 do his utmost to take and destroy every ship of the enemy that it was possible to capture or destroy; or who does not assist to the Utmost of his power Her Majesty's ships or the ships of her allies. 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 the clause obliged them to sentence him to death, and they had no power whatever to mitigate the sentence they were compelled to pass upon him: but 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. After that cruel execution of Admiral Byng, a small modification was made, giving the Court power to mitigate the punishment, but unfortunately, it was not until twenty-two years afterwards. We go further. We not only give the power of mitigation, but do not permit the Court to award the extreme penalty unless the proved motives for the crime are such as to deserve capital punishment. 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 before the enemy, which may be in some cases susceptible of extenuation, we propose to give the Court-martial power to award the extreme penalty of death, or of imprisonment and dismissal from Her Majesty's service. For neglect of duty, which may arise from remissness, carelessness, drunkenness—which may incapacitate a man for discharging his duty, and for a variety of other offences, we proposed to inflict punishments of a lesser degree. My object is to show that we intend to define the crimes, and to take cognizance of 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 (Mr. Williams), in calling attention to the severity of the naval code, said 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, without power of mitigation of the sentence, 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 inflicting penal servitude, which would be commensurate with a grave offence short of a capital crime. We propose by this Bill to give power to courts-martial try inflict death or penal servitude, or other punishments of a lesser character. That I believe will be a great improvement. The next class of crime with which we deal is mutiny. Now, 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? In the original Bill, as drawn by the Admiralty, we defined mutiny to be the act of two or more persons combining to resist the authority of their superior officer. The Bill however was not only very carefully considered by the House of Lords itself, but by a Select Committee of the House, which was attended by some of the highest legal authorities in the realm, and before which men of the highest naval position were examined. The conclusion was that it would be better not to attempt any definition of mutiny in the Bill; and the clause containing that definition has been expunged; but it will be seen that every mutinous act which can he committed has been dealt with under the head of mutiny and insubordination. The next difficult point which we have dealt with is desertion. There is great difficulty in determining what is really 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. 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. By this Bill we define desertion to be the absenting himself from his ship or place where his duty requires him to be, without intention of returning to such ship or place. If it can he proved before a court-martial that a man has quitted his ship with the intention to desert, the Court will have the power to find him guilty of desertion, although he had been absent but a few hours. At present we have no power to deal with offences committed on shore within our dominions. If any officer, or sailor, or marine misconducts himself in a town, the captain has no power to bring him aboard ship and try him. This has frequently been the cause of great inconvenience; and we hare 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; in the same manner that a civil tribunal may find a man accused of murder guilty of manslaughter only, if they think the evidence warrants them. Courts-martial have no power of the sort now. For instance, if a man is charged with murder he must be found guilty or not guilty of that particular crime alone. Then, there conies 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. I am speaking the general opinion of the profession when I say that officers would give anything to get oft 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 of classification. Every soldier who goes into the army is placed in 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 the Duke of Cambridge, and I believe it has been attended with the very best effects. 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. Do not 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. I can assure the Committee that there is no general or rooted disinclination to enter the navy; on the contrary, the manner in which it has been recruited during the past year is most extraordinary—nearly 10,000 men hare entered—and considering the short time during which the fleet has been formed, the state of efficiency and discipline into which it has been brought is most creditable to the officers and men. By this Bill 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 duty 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 the report of a preliminary inquiry is that the man is innocent:—on the other hand, although the report be that the man is guilty of the offence charged to him, he, the captain, has full power to overrule the opinions of the officer or officers who have conducted the inquiry. 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. 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 of 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 pun- ishment—fey which I mean under the rank of petty officers—and of these 1,397 were flogged, being in the proportion of in 39. In 1857, the proportion of those flogged was I man in every 42; in 1858, out of 64,000 men liable to this punishment 951 were flogged, or in the proportion of 1 in 48; and in 1859, with 64,000 men liable to corporal punishment, 957 were flogged, being in the proportion of 1 to every 67. 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 have now stated the principal provisions of this most important Bill, and I shall be very glad to receive any suggestion on the details of the several clauses from any of the many eminent Gentlemen who are present, and can with their intimate knowledge of legal jurisprudence give me their assistance in making as full and complete as possible the code of discipline for the government of the navy.

SIR JOHN PAKINGTON

I am not quite sure that my noble and gallant Friend, in proposing the Bill for the discipline of the navy, has quite complied with the discipline of this House; but as you, Sir, have allowed him to enter into a lengthened statement in moving in Committee the 1st 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 and gallant Friend with the greatest pleasure, and I think it impossible that any observations on such a subject could possibly have been in better tone. My noble and gallant 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. 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 also has found leisure to direct his attention to their very defective and inconvenient constitution, with the view of providing a remedy. The noble Lord, I know, pays me the high compliment of supposing that during my fifteen 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 ease, 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 further, 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 Richard 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 to him for his anxious exertions and for the results of his great experience. I do not think my noble and gallant 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. I trust that the proposals of the Bill will be found to be satisfactory. Having said thus much, and the details of the mea-pure having been so fully explained by my noble and gallant 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 and gallant 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.

MR. W. WILLIAMS

expressed his regret at seeing so important a measure brought forward at so late a period of the Session. He considered the measure to be one of the utmost importance, and demanding the most serious consideration, as it involved the manning of the navy, which was the great defence of the country. He was sorry to find that the Bill provided for so many severe punishments, and that it did not abolish—or that it did not go further to abolish—the punishment of flogging in the navy. The only good he saw in it in that direction was, that the punishment of death could not be carried out without the sanction of the Sovereign. He contended that there ought to be a court-martial held in every case involving a serious charge, and that nothing ought to he left to the discretion of the captain. In France and in America there was not any such punishment as flogging carried out. Formerly that punishment existed in the American navy, but it had been abolished by an Act of Congress. He objected, too, to a majority of the officers determining the guilt of the accused, and thought there should be a unanimity of opinion to constitute a verdict of guilty. He thought, also, that the preliminary inquiry proposed to be established by the Bill, before corporal punishment could be inflicted, afforded no adequate security against the disposition of the captain of the ship. As to excepting cases of mutiny from the ordinary provisions of the law, he thought such a principle highly objectionable; for how difficult was it to define mutiny. He bad certainly expected that a measure emanating from the noble Lord would have contained more humane provisions. The noble Lord had given proof of his humanity when in command of a line-of-battle ship in the Baltic. During those two years' service of the noble Lord not a man was flogged. The same could not be said of the noble Lord's successor.

SIR CHARLES NAPIER

said, that twenty years bad 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 moat distinct contradiction to the noble Lord's statement, that the discipline of the navy had very much improved. He felt it his duty to state the truth about the matter, distasteful as it might be—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 not call them—which had taken place of late on board ship; but 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 the 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 objected, however, entirely to petty officers being subjected to such a punishment, believing that it would destroy in them that feeling of dignity which he considered essential to their position.

Clause agreed to.

Clauses 2 to 4 (Misconduct in the Presence of the Enemy) agreed to.

Clause 5 (Penalty for Misconduct of Subordinate Officers and Men in Action.)

SIR CHARLES NAPIER

moved to strike out the words, "shall suffer death," it being, in his opinion, an unjust and un-Christian-like provision. It was not to be supposed that every man who—if necessity ever arose for impressment—might be pressed into the service, should possess sufficient nerve to be able to fight in an action; and to condemn such a man to death, would, he thought, be a most unjustifiable proceeding. It was different with officers; if an officer was a coward he should give up his ship—he had no business there. Negligence, however, was a man's voluntary act, and could be avoided, if he chose; yet this, which was, in fact, the greater offence, was visited by a lesser punishment—namely, that of dismissal from the service only.

MR. W. 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 he retained in this case.

LORD CLARENCE PAGET

did not think that a court-martial would pass a sentence of death in such a case of cowardice as that described by the gallant Admiral. He did not, however, see how it would be possible to exclude the words suggested, because the clause ran, "Every Person subject to this Act, and not being a Commanding Officer;" and as the punishment of death for a similar offence was contained in the clause relating to commanding officers, surely the gallant Admiral did not mean that no officers, except commanding officers, should, under any circumstances, suffer death for cowardice.

SIR JOHN PAKINGTON

trusted the gallant Admiral would accept the answer of the noble Lord to his objection. In preparing such a code as that under discussion, it was manifestly necessary so to frame it as to meet the extreme cases that could arise;*and the clause was manifestly framed with that object. Some reliance ought to be placed upon courts-martial using the powers vested in them under this Act with wisdom and discretion.

Amendment negatived. Clause agreed to.

Clauses 6, 7, 8 (Communications with the Enemy), agreed to.

Clause 9 (Neglect of Duty. Penalty for abandoning Post.)

SIR CHARLES NAPIER

said, he was not anxious to increase the severity of punishments, but he thought the penalty awarded in this case was not sufficient. The desertion of a sentry from his post might be attended with the most frightful consequence. For instance, supposing a man stationed at the bowsprit bead, or at the cat's-heads, were to desert his post; if the vessel were one of a fleet, it might cause a collision between two line-of-battle ships, and the destruction of some 2,000 lives. He thought the punishment of death would not be too severe in an extreme ease.

SIR JOHN PAKINGTON

agreed with the Admiral in thinking that the greatest calamity might follow upon a man deserting his post; and therefore he questioned whether, in an extreme ease, the maximum punishment should not be retained for such an offence.

SIR FREDERIC SMITH

thought the clause ill-drawn; inasmuch as it provided the same punishment for offences of different degrees—sleeping on the watch, and deserting the post; the latter was a far more serious offence than the former.

SIR MICHAEL SEYMOUR

was disposed to adhere to the old code in this respect; it provided that this offence should be punished by death, or such other punishment, as the court-martial might determine.

LORD CLARENCE 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 5th 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 JOHN PAKINGTON

said, the explanation of the noble Lord was satisfactory to a certain extent; but desertion of post was not mentioned in the 5th 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 CLARENCE PAGET

admitted that desertion of post was not mentioned in the 5th 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 5th Clause referred to offences committed in face of the enemy. The words were "when ordered to prepare for action, or during the action." He suggested that some general words, such as "or shall be guilty of neglect of duty in presence of the enemy," should be added.

LORD CLARENCE PAGET

would con- sider the expediency of introducing those words at a future stage.

Clause agreed to.

Clauses 10 to 16, "Mutiny," agreed to.

Clauses 17 and 18, "Insubordination," agreed to.

Clauses 19 to 21 (Desertion and Absence without Leave) agreed to.

Clause 22 (Penalty for Absence without Leave).

MR. W. WILLIAMS

considered the punishment for this offence very severe. It was "imprisonment for ten weeks with or without hard labour, or such other punishment as the circumstances of the case may require." With regard to the latter alternative a great deal would depend upon the character of the officers who might try the man. The offence also ought to be clearly defined.

SIR CHARLES NAPIER

said, the offence of desertion was clear enough without definition. Desertion had got to such a pitch in the British Navy, that it was absolutely necessary some severe punishment should be imposed in order to correct the evil. Now that such a great outcry was made against corporal punishment, ha believed that nothing less than penal servitude would deter seamen from deserting, and enable officers to preserve discipline in their ships. He therefore hoped that Government would consent to that punishment being added.

LORD CLARENCE PAGET

said, it was proposed to mulct the offender of two clays' pay, and, in addition, for every twenty-five hours' absence, of a sum not exceeding six days' pay. That was exclusive of the charge for apprehending the man and bringing him on board. Moreover, by Clause 46, the power of imprisonment gave the Court the power of ordering corporal punishment. These punishments he considered sufficiently severe.

SIR CHARLES NAPIER

said, he wished to put a stop to corporal punishment; it would not be necessary. But unless the noble Lord added penal servitude, all the Articles of War and all he was doing would be as nothing. He should, therefore, move that penal servitude be added to this Article.

LORD CLARENCE PAGET

said, if the gallant Admiral looked to the 19th Clause, he would see that if a man deserted to the enemy there was power to punish him with death, and if he deserted under other circumstances, then there was power to inflict penal servitude; but this clause applied merely to the ordinary case of absence without leave.

SIR GEORGE LEWIS

said, it was only in accordance with the true principles of legislation to graduate the punishment to the offence. 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.

SIR CHARLES NAPIER

said, the Admiralty must deal with a strong hand in this matter, or else the discipline of the navy could not be maintained. Unless the sailors knew that there was a heavy punishment attached to it, their absence without leave would never be prevented. He knew the sailors well.

SIR GEORGE LEWIS

said, sailors were human beings, and they ought to be trented as other offenders were, that was, according to the degree of their offence.

SIR CHARLES NAPIER

said, power to inflict penal servitude might be given to the Court without absolutely requiring that in all cases it should be inflicted.

MR. W. WILLIAMS

said, he thought the clause as it stood was sufficiently stringent.

Amendment negatived: Clause agreed to

Clauses 23 to 37, (Miscellaneous Offences), agreed to.

Clauses 38, 39, (Offences punishable by ordinary Law.)

Clause 38 agreed to.

Clause 39 (Offences when punishable),

MR. AYRTON

said, this Bill extended the authority of the naval tribunals 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 he 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 CLARENCE 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.

SIR GEORGE LEWIS

observed, that a similar question might arise in foreign countries with respect to consular jurisdiction; but if any other than military offences were committed by a sailor on land, of course the tribunals of the country would have jurisdiction.

Clause agreed to.

Part III. Clauses 40 to 44, "General Provisions."

Clauses agreed to. Part III. Clauses 45 to 49, "Regulations as to Punishments."

Clause 45 (Punishments).

MR. BRADY

said, he should like to have some assurance that corporal punishment would be limited to a certain number of stripes, as it was in the army.

LORD CLARENCE PAGET

said, he would agree to limit the punishment to 50 lashes.

MR. BERNAL OSBORNE

said, that in the army the limit was 48.

MR. W.WILLIAMS

understood, that by the existing rule it was limited already to 48 lashes in the navy, but from the mode in which the lashes were laid on, it was much more severe than in the army. It was usual to strike with greater force, and take time between the lashes. He had been told that 50 lashes in the navy were equal to 200 in the army.

SIR CHARLES NAPIER

did not see why two more lashes should be added to the 48. It was true, as the hon. Member for Lambeth had said, that the flogging was much more severe in the navy.

Clause agreed to.

Clause 46 (Regulations as to Punishments).

SIR JOHN 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

expressed his opinion that severe corporal punishments did not promote discipline, and that public opinion was much against such punishments. In the persons in Yorkshire the "cat" had been abolished, and with advantage. The punishments under this clause included "hard labour," and "corporal punishment might be awarded in addition to any sentence of imprisonment." lie understood that there was to be only one flogging for one offence, and he should like to see words to that effect introduced into the Bill. He disapproved of flogging entirely, both in schools and in the military services, and he contended that as the discipline of neither service had been relaxed by the relaxation of corporal punishment, it might safely be dispensed with altogether.

MR. W. 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, as was the principle of the law in respect of civil tribunals, and moved an Amendment to that effect.

LORD CLARENCE PAGET

said, it was a mistake to propose, with the most philanthropic views, to strike out this part of the clause, for then the matter would be left as it now stood, and sentence of death might be given by the decision of a bare majority of the Court. It was therefore from motives of humanity that this clause, as he proposed it, required that where the court-martial did not exceed five members, four of them should concur in the judgment of death, or five if the Court consisted of seven. With regard to flogging, the intention of the Admiralty was to check and control it. He was willing to insert a proviso that the maximum number of lashes to be awarded by a court-martial should be forty-eight.

Amendment negatived.

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. Proviso, that in any case of corporal punishment the number of lashes to be inflicted shall not exceed forty-eight, inserted.

Clause, as amended, agreed to.

Clauses 47 and 48 agreed to.

Clause 49 (Authorities having Power to try Offences.)

SIR JAMES GRAHAM

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, 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, in some respects, with: naval affairs, and taking a deep interest in the welfare of that noble 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 the 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 the late Sir George 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; twenty-four 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. The Returns are sent quarterly; and it is one of the most important duties of the Admiralty to revise the lists of punishment. If there be any ground for supposing that 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 who shows his command over his crew and 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 this power which the Admiralty possess, but which they have not frequently 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 lately 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 3rd 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 he 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 judgment, 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, and, 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 of the difficulty; 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 CHARLES NAPIER

said, he concurred with the right hon. Baronet that the regulations introduced by Lord Melville and Sir George Cockburn were salutary and judicious; but that was not conclusive of the question. 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. 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 not take the part of the officer his men believed he did, and could not be got to believe that justice was done. He considered this clause the most important in the whole Bill. At present the captain was judge, jury, and executioner. 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 the 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. There would be a solemnity about the system of court-martial on the open deck which could not accrue while the captain was the only person who could inquire, and in a different manner. 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. He approved of the clause and believed it would be satisfactory to the men, officers, and captain.

SIR MICHAEL 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 he 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 JAMES 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 be, 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 on 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 be 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 hon. and 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 a man's agony, might deem it cruel to proceed. That could not, unless he were much mistaken, be the idea entertained by the Admiralty.

SIR JOHN PAKINGTON

acknowledged the force and importance of what had been stated very fairly by the right hon. Baronet, whoso 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 and Devonport. On the other hand, he could not forget that the proposal in the clause 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 and important duty in regard to punishment; and the other was to hold out lo the crew the most ample guarantee that they would be dealt with justly. 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 by the gallant Admiral (Sir Michael Seymour) 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.

SIR CHARLES NAPIER,

referring to the observations of the right hon. Baronet the Member for Carlisle, 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 matter, at all events, 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.

MR. W. WILLIAMS

thought that if flogging, the abominable, brutal system of flogging, was to be continued, it ought never to be inflicted without a court-martial; and he moved a modification of the clause accordingly.

LORD CLARENCE 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 neglect of duty was owing to illness or some other physical cause. 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 fur 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 authority of 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 except the ordeal of a court-martial, which be it remembered it was always in the power of the captain to obtain, and which would be applicable to the case of such a lamentable want of discipline. 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 before-hand, and upon them this would impose a very salutary check. 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 court-martial, and that in anything like mutiny the preliminary inquiry was asked altogether. He did not deny that there was difficulty in the case, but it was his conscientious conviction that the advantages of the provision out-weighed the disadvantages.

MR. W. 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 GEORGE 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 ad- mitted, as far as it went, was an improvement.

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.

Amendment negatived.

Clause, as Amended, agreed to.

Part IV. Clauses 50 to 59, "Courts-martial,"

Clause 50 (Constitution of Courts-Martial).

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 CLARENCE 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.

Clause agreed to.

Clauses from 51 to 59 (Proceedings of Courts-Martial) agreed to.

Part V. Clauses 60 to 73, "Penal Servitude and Prisons."

Clauses 60 to 63 (Penal Servitude) agreed to.

Clause 64 (Term and Place of Imprisonment) agreed to.

Clauses 65 to 67 agreed to.

Clause 68 (Time of Detention in Naval Custody).

SIR JOHN PAKINGTON

said, he was glad the Government were taking power by it to establish naval prisons, and he hoped the power would not be a dead letter. He rather thought the noble Lord had spoken a little more favourably of the discipline of the navy than the facts justified.

SIR GEORGE LEWIS

said, that the Admiralty had been already in communication with the Home Department in regard to the transfer of prisoners, and the subject had been referred to the inspector of prisons.

MR. HENLEY

said, it was a remarkable fact that there was no power reserved for the protection of the prisoners, though all the powers of punishment were carefully preserved. He thought the regulations which affected other prisoners ought to apply to these.

Clause agreed to; as were also Clauses 69 to 71.

Clause 72 (Penalty as regards Gaolers, &c).

MR. HENLEY

hoped some limit would be put to the number of the prisoners confined in any particular gaol.

MR. EDWIN JAMES

said, that there should be some provision of that sort, and also to give some protection to the prisoner. He thought, too, that there should be words added to protect the gaoler of a gaol, which was crowded, against being liable to a fine of £100 for refusing to take the prisoners in. He moved the insertion of the words "who shall wilfully refuse."

Clause agreed to; as was also Clause 73. Part VI. Clauses 74 to 85, "Supplemental Provisions."

Part VII. Clauses 86 to 88, "Repeal of Acts, and Saving Clause;" also Schedule, agreed to.

House resumed.

Bill reported, with Amendments; as amended, to be considered To-morrow.