OBSERVATIONS. (Hansard, 10 March 1879)

§ MR. HOPWOOD
said, that he wished to call the attention of the House to certain objectionable provisions in the Naval Discipline Act, 1866; and he should seek to prove to the satisfaction of the House that, in the interests of the Navy and the country, the Act required speedy amendment. The Act of 1866 formed the Naval Criminal Code which was first collected in the Act of 1661, and after being amended several times, but especially in 1749, was brought down to the shape of the Act of 1866; but the whole body of that Act might be said to rest mainly upon the Act of 1749. There were some 50,000 or 60,000 persons in the Navy of various grades and positions who could be tried under this Code, and under it every year some thousands of offences were dealt with. This showed that the law ought to be exceedingly plain and clear, administered as it was not by 550 trained lawyers, but it was expected to be mastered by every officer who had served Her Majesty for a certain number of years, and who was liable to serve on courts martial. He, however, made bold to say that the Act was not what it ought to be, and that there were many persons in the Navy who would agree with him in this view. The language of the Act was antiquated, for throughout various ages articles had been added from time to time, the consequence being that there was a striking inequality in the punishments awarded for different offences. Although there were great numbers of courts martial held during the year, the proceedings were not, as he understood, read by any law officer connected with the Admiralty; and he would ask whether all the proceedings at those courts were so well done that they required no watching? Upon this subject he had put a Question to the First Lord of the Admiralty last Session and had received for answer that the proceedings were not, as a rule, laid before any legal officer. In the Army they had a Judge Advocate General, and he believed there was not a court martial whose proceedings were not laid before that gentleman. Why should it not be so in the Navy? There was, or used to be, a Judge Advocate of the Fleet. What was his function in this respect? There were, under every system of justice, instances where men were wrongly convicted; and it was a monstrous thing that matters of great complication, in which sentences of 10 or 12 years' penal servitude could be given, should be carried out without a guarantee that the sentence was proper, and without knowing who was responsible for it. He demanded that the Office of Judge Advocate of the Fleet should no longer be a sham in this respect but a reality, and that the person holding that post should be the Adviser of the Admiralty in all courts martial. He would now address himself to the text of the Act. The wholesale way of making death the penalty for offences was a very easy mode of getting rid of the difficulties in the Navy at one time; but it was time there was a reform. Matters with regard to the Army were about to be simplified, and why should there not be a reformed Code for the Navy, as was proposed for the Army? The Act was, in many re- 551 spects, inconsistent and insufficient. For instance, by Section 2, it provided that the punishment of death should be inflicted upon the officer who failed to do certain things when in sight of an enemy afloat; but there was no punishment provided in cases where the enemy, though not in sight, was close at hand, hidden behind a neighbouring cape, or in a land-locked harbour, or even on shore and firing his guns at our ships afloat. Again, there was no provision for a mutineer standing alone, such an offender being always treated by the Act as a ringleader. The punishment for mutineers other than ringleaders under Section 11 was less than that for persons guilty, under Section 14, of "uttering words of mutiny;" and he asked which it was intended to constitute the higher offence? Then, why should there not be a different scale of punishment for striking, or striking at, an officer during the course of active operations in the presence of an enemy, and when those active operations were not going on? There ought to be power to award a punishment according to the greater or less enormity of the offence. Now, whereas death was stated to be the punishment in all cases for striking, or striking at, an officer, it was a remarkable thing that as regarded the person of the Sovereign herself it was, by the Statute 5 & 6 Vict. c. 51, enacted that the punishment for such an offence should be transportation for seven years, or imprisonment for three years, with the addition of whipping. The Act, whilst professing to be a perfect Naval Code, was faulty in not providing any punishment for a number of offences, some of which must have been in the minds of the framers of the measure, although they were not expressed in the Act. His contention also was that the Act was to a considerable extent involved, complicated, and inconsistent, and therefore likely to throw difficulty in the way of those who had to expound it in distant parts of the world away from books or legal assistance, or anything, in fact, which could throw light upon so confused and confusing an enactment. Another section of the Act to which he wished to call attention was Section 29, that which awarded "dismissal with disgrace" from Her Majesty's Service as a punishment for designedly or negligently, or by any default 552 Losing, stranding, or hazarding, or suffering to be lost, stranded, or hazarded any ship of Her Majesty or in Her Majesty's Service. Let the House compare the punishment thus provided with that to which the skipper of a merchant vessel would be subject. Some few years since a merchant captain losing his ship designedly would have had to suffer death. Under the present law his punishment would be penal servitude for life. It was, of course, absurd to suppose that any of Her Majesty's naval officers would designedly lose their ships; but the Act applied to "any person" in the Service doing so, and for so doing he was to suffer, not death or penal servitude for life, but dismissal from the Service, with disgrace, "or suffer such other punishment," &c, which, by Section 55, must be one inferior in degree to that specified. Surely a law, so inconsistent and unsupportable, ought at once to be amended? Then Section 33 dealt with the offence of "wasteful expenditure" of powder or other stores; but with what crime did the House think that offence was bracketed? With "embezzlement of, or the fraudulent buying or selling of, ammunition, provisions, or other public stores." Was it not manifestly absurd to join together and place on the same level offences so widely different in their nature? Then, again, Section 34 dealt with the crime of setting fire to any dockyard, magazine, stores, or to any ship, vessel, barge, or other craft not being the property of an enemy, for which the penalty of death was awarded; but it was not enacted that the vessel set on fire should be the property of Her Majesty, so that, for ordinary arson, a man subject to this Act might be condemned to death. He now came to the question of courts martial, to which the 53rd section applied. Where the number of the court did not exceed five, it required the verdict of four of the five to render the sentence of death lawful, and in other cases a majority of not less than two-thirds of the officers present must concur in the sentence; but the number of the members of the court might be five or any greater number up to nine. Now, how, he asked, could a majority of two-thirds be obtained if the number of the court happened to be eight? In such case it would require five and one-third to concur in the sentence of death, or of four 553 and two-thirds if the number was seven. Here, too, it was clear that an amendment of the Act was called for. The 45th section of the Act showed what offences might come before a court martial; it was headed—"Offences punishable by the ordinary law." It said that every person subject to that Act who was guilty of murder should suffer death, and it specially provided for certain well-known crimes. Then came the provision that if he was guilty of any other criminal offence, which if committed in England would be punishable by the law of England, he should be punished, whether the offence was committed in England or not, either under the first part of this Act, or as by any ordinary criminal tribunal competent to try the offence if committed in England. Thus they fell back on the first part of the Statute, and called every offence, not otherwise specified, an "act to the prejudice of good order and naval discipline." That seemed to be a very vague and monstrous clause to throw bodily at the heads of gentlemen not trained in the law. Very valuable suggestions might be offered if the subject were referred to a Committee. Among them would be this one—that there ought to be an officer of the Marines on a court martial which sat to try a marine. Then, the power exercised by courts martial of punishing men by penal servitude was excessive, and ought to be subject to some limitation. It was shocking that a man could be sent into penal servitude for 10 years with no more inquiry into his case than was furnished by a hasty court martial. Justice could not be rightly administered in a hurry; and even Judges and juries occasionally made lamentable mistakes, which could only be set right afterwards by the exercise of the Royal Prerogative. But penal servitude was dispensed by courts martial with an absence of proper safeguard. The farce was gone through of getting a Judge of the Court of Queen's Bench, the Exchequer, or the Common Pleas to endorse the order of the court martial which awarded penal servitude. He should like very much to know who was the Judge they employed to perform that unpleasant office. He understood that one Judge, when applied to in that matter, used to ask such inconvenient questions that the Admiralty ceased to trouble him about that busi- 554 ness. In conclusion, he urged that the liberty of the Navy and the interests of the country imperatively demanded a speedy amendment of that branch of the law.

§ MR. A. F. EGERTON
said, that the hon. and learned Member for Stockport had complained of the method which was pursued with regard to the decisions of courts martial, and in particular that they were referred to no legal authority. But the practice was as follows:—When they came to the Admiralty they were referred, in the first instance, to a gentleman who had been considering the decisions of courts martial during the whole of his life, and who was thoroughly competent to deal with the subject. If a legal point of importance arose, it was referred to the Solicitor to the Admiralty or to the Law Officers of the Crown; but, in fact, it very rarely happened that points of law arose which it was necessary to refer to any legal authority. When the hon. and learned Member complained that the Admiralty were not treating this question as the War Office was treating the question of Army discipline, he (Mr. A. F. Egerton) must point out that the circumstances were quite different. The Army was devising a Code under the Army Discipline Act; but there was already such a Code for the Navy, and nothing further was required. With regard to the Naval Discipline Act, he admitted that there was some strange phraseology in the 29th clause; but the object of the enactment was clear—namely, that a person who lost a ship negligently should be subject to a certain punishment. He confessed that "designedly" was a strange word to use in such a clause, although he was by no means certain that the use of that word made it necessary to revise the whole Act. With regard to the supposed difficulty of defining mutiny, the ordinary cases of mutiny were so clear that there was never any difficulty about it. The real objection to revising the Act was that practically it formed a Code that naval officers very well understood. They had been accustomed to it for years, and administered it without injustice; and if they were to alter the Act, they might shake the basis of discipline in Her Majesty's Navy. He held that it was unwise to meddle with an Act mainly because its phraseology was 555 slightly antiquated. It was sometimes absolutely necessary that offences which otherwise would be tried by Civil Courts at home should be tried by Naval courts martial. Take the case of a sailor committing manslaughter as he went out of some English port. The ship sailed, and the only mode of trying him was by court martial at the station where the vessel arrived. If the law were otherwise, the commander of a ship who had started for the discharge of important duties might find it necessary to put back into the port from which he had started. The hon. and learned Member had suggested that warrant officers should be placed on courts martial. That would be a very grave and startling change which would affect the whole economy of the Navy, and he did not think that at present either the Lords of the Admiralty or the naval officers generally throughout the Fleet would accept such a change with equanimity. The hon. and learned Gentleman concluded his speech by adverting to the question of penal servitude. He himself was of opinion that it would be desirable to make a distinction between civilians who had been sentenced to penal servitude for degrading crimes and men in Her Majesty's Service, who were subjected to the same punishment for some grave dereliction of naval or military duty. In fact, it had long been under consideration whether such a distinction should not be made either by means of the erection of new prisons or by a classification of prisoners in those already existing. He did not intend to refer to all the matters which had been mentioned; but he thought he should have been wanting in courtesy to the hon. and learned Gentleman opposite if he had not answered several of the objections which had been raised.

§ MR. GOSCHEN
said, he must express regret that the hon. Gentleman who had just sat down should have said that an examination of the Act with the object of ascertaining whether it contained any obsolete clauses would shake the whole basis of naval discipline. His opinion of the capacity of naval officers was far too high to allow him to admit for a moment the validity of such an argument. It was, indeed, very possible that this Act required to 556 be looked into. He should have been very glad if the hon. Member who last addressed the House had fully described the great pains taken at the Admiralty to insure perfect justice to prisoners. The whole matter was, undoubtedly, one of great importance, and he thought the hon. and learned Member for Stockport (Mr. Hopwood) was perfectly entitled to call attention to it. It startled the civilian mind to see the way in which under naval discipline some cases had to be dealt with; but he could testify to the extraordinary care with which the decisions of courts martial were reviewed at the Admiralty during the time he was in Office. At that time the Secretary to the Admiralty was a trained lawyer, who was particularly conversant with martial law, and he thought that the practice of appointing legal gentlemen to the post, such as Mr. Romaine, and subsequently, Mr. Vernon Lushington, was a good one. He trusted whenever there was the slightest difficulty with regard to the law of evidence or matters of that kind, the question would be laid before competent legal advisers. Of course, there was no suggestion on his part that justice was not done at present.

§ MR. W. H. SMITH
I quite concur in the observations of the right hon. Gentleman (Mr. Goschen), as to the necessity of securing not only that justice is done, but also that legal justice is done in all cases; and I can assure him that the practice of the Admiralty is to secure the object he has so strongly enforced upon us. In the first place, as my hon. Friend (Mr. A. F. Egerton) has stated, the papers are carefully minuted by a gentleman who is known by the right hon. Gentleman himself to be one of the most experienced officers in martial law. He was the assistant to Mr. Romaine and Mr. Vernon Lushington. But these minutes of the head of the branch are most carefully considered, and if there is any legal question, no attempt is made on the part of the Admiralty to decide it; it is referred to the Judge Advocate General of the Fleet, and to the Legal Advisers of the Crown; so that every care is taken to secure justice.