§ THE EARL OF HARDWICKE
rose to put a Question to the First Lord of the Admiralty, in reference to Courts of Inquiry in Her Majesty's Service. The noble Earl said, that the matter was one of very considerable importance to the government of Her Majesty's navy—it involved a principle of public justice and morality especially bearing upon the naval service, and he was therefore certain that it would receive their Lordships' attention. He was not about to take this step in any spirit of hostility to the Government, and still less from any such feeling towards the Admiralty; he was actuated solely by his sense of duty as a naval officer, and by a desire to bring about an improvement in the system at present in operation. It was a most serious question. The administration of justice in the navy was fast verging upon despotism, in consequence of the manner in which the courts of justice were conducted in that service. The course pursued tended to sap the maintenance of discipline, by injuring the feelings of officers; whereas in these days, when public opinion was so free, and the whole question of public justice was open to the freest discussion, it was important, above all things, to take care that the administration of justice should be characterized by the utmost purity, and that there 382 should be no interference of a despotic description as to the free exercise of the powers of the courts. There were three modes in which justice had hitherto been administered in the naval profession. In the first place, it had frequently been the practice, where the supposed offence was not palpable, for the Admiralty to direct three officers on the spot to immediately institute an inquiry, and to ascertain if there was any ground for bringing the accused parties to a trial. These officers sat very much as a grand jury, taking one-sided evidence, and reporting to the Admiralty. That was the first mode of proceeding. There was then the court martial, the nature of which was well understood. A number of officers were appointed to form the court, and the accused was brought before them, and the case heard, the accused having an opportunity of examining and cross-examining witnesses, and offering his defence, and sentence was pronounced in accordance with the opinion of the officers forming the court. The Crown also possessed a power, which was never disputed in the navy, and was exercised of its own will and accord, in striking any officer off the list without being compelled to give any reason for that course. These were the modes in which the service had hitherto been managed. But of late a practice had grown up which appeared to him to require a check. It had become the practice to turn the preliminary court of inquiry into a court of trial and sentence, and for the Admiralty to take on themselves the power of setting aside the sentences of courts martial. A more independent tribunal than a naval court martial did not exist. The Admiralty, undoubtedly, had power to refer back the decision of a court martial; but to set aside its sentence, or itself to pronounce sentence where there had been no court martial, was a thing unheard of in law, though unfortunately not in practice. He felt quite certain that the high sense of justice entertained by the noble Duke at the head of that Department would not suffer him, where he was acquainted with the facts, to tolerate anything conflicting with individual right, or the interests of the service. In introducing this matter he felt he must place before their Lordships some case in which the objectionable practices had been pursued, and in which a despotic power had been exercised by the Admiralty, whereby the confidence of the ser- 383 vice in these courts martial had been destroyed, and which led to officers, when asked if they would be tried by a court martial, to answer differently to the manner in which they used formerly to do. He would therefore bring under their Lordships' notice one case, which would exhibit the defects of the present system of naval administration, and the necessity for making some change in the practice. On the 2nd of October, 1862, Her Majesty's ship Vigilant got ashore on the Gunfleet Shoal, at the mouth of the Thames, at the entrance of a very narrow channel, called the Swin. It was one of those accidents that would occasionally occur. A gale of wind was blowing at the time, and it was difficult, under the circumstances, to say whether any great blame attached to those in charge. The Admiralty directed a court of inquiry to be held at Sheerness, three officers of distinction being named for the purpose. They summoned the captain of the Vigilant before them; and having heard his statement, he was desired to withdraw, and never again appeared before the court, although the inquiry lasted five hours. He did not hear a single witness examined, nor was he permitted to cross-examine, or to put a question to, any of the ten witnesses who were examined. The investigation, in fact, was conducted without the presence of the officer whose conduct was to be inquired into. A few days after the inquiry terminated, Lord Elphinstone, the captain of the Vigilant, received what was called "a circular," which was a very short letter, not directed to himself, but conveying the following information, by way of memorandum: —1. The Vigilant is to be placed in the 3rd division of the reserve at Sheerness. 2. The Lily is to be commissioned on the day following that in which the Vigilant may be put out of commission. 3. The lieutenants, officers of the civil branch, subordinate and warrant officers of the Vigilant will be turned over to the Lily.Not a word was said about the captain; but as a new captain was appointed to the Lily, the effect of the memorandum practically was to dismiss Lord Elphinstone from his ship without any appeal whatever. Nor was this all. In nine days afterwards this officer received a very severe censure, couched in the following terms: —I am commanded by the Lords Commissioners of the Admiralty to acquaint you that they have had under their consideration the circumstances under which Her Majesty's ship Vigilant was run on shore on the Gunfleet Sand, 384 on the 22nd ultimo, with the various reports made to them on the subject. My Lords observe, that in a well-known channel, within a mile of the Gunfleet Light, and in the immediate neighbourhood of two buoys, the Vigilant was run upon a dangerous shoal, and narrowly escaped being totally lost. My Lords are aware that there was a pilot on board, but his presence did not absolve the commander and master of the ship from the duty of ascertaining by bearings and by reference to the sailing directions that the ship was not hazarded. I am therefore in receipt of their Lordships directions to signify to you and to Mr. Phillips, the master of the Vigilant, that my Lords consider your respective conduct in this matter to have been highly reprehensible, and deserving of their Lordships' severe censure.A more severe censure could not well be inflicted; yet the officer whose conduct was thus impugned had been tried, sentenced, and, he would add, executed in a manner unheard of in British jurisprudence. It would be said in reply, no doubt, that the Lords Commissioners of the Admiralty believed him guilty of certain omissions, which he utterly denied; that he had not taken sufficient charge of the ship out of the hands of the pilot, and had not watched him sufficiently, which he also denied; and that they had given him the opportunity of a further trial by court martial if he desired it. That was quite true; but in what manner was the offer made? Lord Elphinstone, deeply wounded in his feelings, replied as follows: —I have the honour to acknowledge the receipt of your letter of this date, in which is stated the opinion of the Lords Commissioners of the Admiralty as to the circumstances attending the stranding of this vessel, in which they consider the conduct of Mr. Phillips, master, and myself to have been highly reprehensible, and deserving of I their Lordships' severe censure. As the reasoning by which this opinion was arrived at is unknown to me, I not having been allowed to be present at the court of inquiry (further than to give my own statement), am therefore not only totally ignorant of the statements made, but had no opportunity of questioning witnesses or of making any; defence, I must request you to move their Lordships to be pleased to grant that a court martial may be assembled to investigate the matter, feeling, as I do most strongly, that the severe reproof received is unmerited.The answer, which was conveyed in a memorandum—a system most painful and wounding to the feeling of an officer, was to this effect—The Lords Commissioners of the Admiralty having had under their consideration your request for a court martial to be held to inquire into the circumstances under which Her Majesty's ship Vigilant, under your command, was run aground on the Gunfleet Sand, I am commanded by their Lordships to acquaint you, that before deciding upon your request, they forward for your perusal copy of the proceedings of the court of inquiry; 385 and they will receive from you any observations which you and the master of that ship may have to make on them, if, after a perusal of the evidence, you are of opinion that you can materially alter the facts proved, and that you are still desirous of being tried by court martial,Thus, they offered a trial by court martial of the facts which they said had been proved. But what was an officer to do who knew that a court martial was as rotten as a court of inquiry? This arose from the Admiralty now undertaking to set aside the sentences of courts martial as useless and of no value. What had occurred only the other day? In the case of the Conqueror Captain Sotheby, the officer in command, was tried by court martial and acquitted; but the Admiralty set aside the finding, said that they would not acquit him, and that the court martial on the evidence ought to have found him guilty, and in addition the Admiralty censured him. So much for the respect in which a court martial was held by the Admiralty, and to which Lord Elphinstone was asked to appeal after he had been removed from his ship and severely censured by the Admiralty. It was no wonder, then, that Lord Elphinstone, under such circumstances, did not feel disposed to put himself to the additional torture of being tried by a court martial in which he could have no confidence. In this case of the Vigilant they had damaged a most valuable officer in the service—a man of unimpeachable character, who had served through the whole of the Crimean war with distinction to himself and honour to the service—an officer and a gentleman, who had displayed a mildness of temper and the most perfect forbearance throughout the correspondence he had had with the Admiralty. He knew it would be said that Lord Elphinstone was liable to severe censure because he had not followed out certain printed instructions which throw the responsibility on the captain, even though there was a pilot on board, and required him to watch the pilot and in some cases to interfere. What were those duties? According to the Articles of Instruction, chapter 19, article 7—The captain is to order everything that relates to the navigation of the ship to be performed as the pilot shall require. But nevertheless he and the master are to attend particularly to his conduct; and if from his or the master's observations he shall have reason to believe the pilot not qualified to conduct the ship, or that he is running her into danger, he is to remove him from his charge, and to take such measures for the safety of the ship as circumstances may require.In this case nothing of the sort appeared. 386 The pilot was a man who had seen twenty years' service in the Thames and the channels leading to it, and the captain had no reason to suppose that he was not a competent man. He (the Earl of Hardwicke) himself commanded a frigate in the North Sea a few years ago, and he knew that the difficulties of this channel were such that when a ship was under canvas accidents might occur for which no blame should attach to any one; and it was because be knew this that he complained so much of the course which had been pursued towards Lord Elphinstone. Lord Elphinstone wrote again to the Admiralty, begging that some of the questions might be re-examined, and, in reply, he received this answer—I am commanded by their Lordships to acquaint you that they do not consider any further investigation necessary to enable them to form a correct judgment in this case, since your statement leaves the material points of the ease unaltered.… My Lords, therefore, can see no cause for modifying their censure, or altering the opinion expressed by them Should you, however, after receiving this expression of their Lordships' opinion still desire a further investigation, my Lords will order you to be tried by a court martial.He could not conceive anything less encouraging than this letter or less likely to induce Lord Elphinstone to place himself in the hands of a court martial. Lord Elphinstone replied —I regret, for the sake of the profession, that their Lordships deem it right to deprive an officer of his command, and to censure him severely, upon the private opinion of a court of inquiry, which refused him any opportunity of vindicating his reputation. A court martial can neither restore me to my ship, nor remove their Lordships' censure, and I shall therefore not deem it necessary to apply for further trial,One would have supposed that a great Department would have been anxious to vindicate the character of an officer rather than to oppress him; but that was not the tone of the letter with which the Admiralty concluded the correspondence. Instead of adopting a high and dignified tone, they made this a quarrel with the officer. The answer sent to Lord Elphinstone by the Secretary was to this effect—Admiralty, Dec. 3, 1862.My Lord,—I have received and laid before my Lords Commissioners of the Admiralty your Lordship's letter of the 22nd ult.; and I am directed to acquaint you that they have read the same with much surprise and regret; since, after having been informed by their Lordships that they had formed their opinion after a careful review of all the facts of the case, you now assume that 387 their judgment has been based on a private opinion of a court of inquiry, which refused you any opportunity of vindicating your character. My Lords consider your letter as highly objectionable in its tone. I am, my Lord, your Lordship's most obedient servant.C. PAGET.Objectionable in tone ! Why, Lord Elphinstone had throughout conducted his correspondence with temper and courtesy, and in a manner which was honourable to him in every way. The man who had been so treated was, he contended, an insulted man and an ill-used officer. He should therefore call upon the noble Duke at the head of the Admiralty, who he was well aware entertained a high sense of justice, to vindicate the course which his Department bad thought fit to adopt in the case. The character of the officer he would leave in the hands of the public.
§ THE DUKE OF SOMERSET
said, he would go at once to the main point of the case of the Vigilant, and the conduct of Lord Elphinstone. He must utterly dissent from the statement of the noble Earl that the Admiralty had made a quarrel with Lord Elphinstone, So far from having any inclination to quarrel with Lord Elphinstone, he entertained towards him, from what he had seen of his gentlemanly conduct and bearing, no other feeling than one of prepossession in his favour. Their Lordships, too, might easily imagine that he would not be the less disposed to do justice to an officer because he happened to have influential connections, by whom any wrong done him might be pressed upon the attention of the House. The fact was that the Admiralty had dealt with Lord Elphinstone as they would have, under similar circumstances, done with any other officer in the service, and had not deemed him, because of his social position, entitled to any especial favour. The facts of the case, as it had been submitted for the decision of the Admiralty, were very simple. On the 22nd of October the Vigilant ran aground on the Gunfleet Sand, which was so well known to be a dangerous spot that the Trinity House had placed a light on it, as well as buoys in its vicinity. Nowithstanding the warning furnished by the light-house and the buoys, however, the vessel was run on the sand. He had a chart which showed exactly where the Vigilant was, and how she ran aground. The sailing directions, he might add, were most explicit in the cautions which they supplied with regard to the place. They pointed out the proper anchorage, and in short gave all the requi- 388 site information to enable the commander of a ship to avoid danger. It was quite true, as the noble Earl had stated, that there was a pilot on board the vessel in question; but the pilot could neither read nor write. The commander and the master of the ship nevertheless trusted implicitly to his guidance, and never consulted either the chart or the sailing directions. If they had done so, and had taken the hearing of the light-house, it would have been impossible for them to have run upon the shoal. It was often said of yachting men that they were very careless on the coast, and that they went about knowing nothing and fearing nothing, but he did not believe any yachting man sailing his own yacht would sail so close to the light-house as to run on the Gunfleet Sand. Such as he had stated were the facts of the case as they had been laid before the Board of Admiralty, and they had taken the course which seemed to them to be the proper one under the circumstances. In grave cases in which a vessel happened to be lost, it was usual to appoint a court martial, and in ordinary cases it was the practice to institute a court of inquiry. Nor was the practice, as the noble Earl seemed to think, a new one, as he would find by a reference to a book relating to naval and military courts martial, a fourth edition of which was published be long ago as 1813. This book was entitled The Principles and Practice of Naval and Military Courts Martial by John McArthur; it contained a long chapter on courts of inquiry. There was, besides, A Treatise on the Criminal Law of the Navy, which was published in 1861, and which made mention of courts of inquiry as sanctioned by judicial recognition in the courts of common law. The courts of inquiry were of two kinds—one preliminary, to see if there was any ground for summoning a court martial; and when the result of the preliminary inquiry was thought sufficient for the purpose of the case, it was not always deemed necessary to order a subsequent court martial. He could quote a number of instances to show that on distant stations courts of inquiry had been summoned in the smaller class of cases, and that having examined into the matters brought before them, they pronounced an opinion upon them upon which the Admiralty came to a decision. Proceeding upon that principle, a court of inquiry had been held on board the Formidable on the 27th of October, 389 which was composed of three captains of high standing. They heard the evidence of the commander of the vessel—Lord Elphinstone—of the master, the pilot, and others; and having heard them, they made up their mind upon the subject of the investigation, and reported that they considered the commander as well as the master deserving of blame. The Admiralty, having gone into the question with the chart before them, which clearly showed how the case stood, were satisfied with the finding. The evidence of Lord Elphinstone himself, indeed, went to show that he had not given that attention which an officer should give to the course which his vessel was pursuing. There could not be a clearer case of neglect. Lord Elphinstone had been to some extent tried, and he therefore knew exactly the charge against him; and after receiving the letter from the Admiralty blaming him, he, in the first instance, demanded a court martial. The Admiralty then sent him the whole proceedings, and the evidence, and everything that had been said against him; and they said to Lord Elphinstone, that if, after the perusal of the evidence and the proceedings, he was still desirous of having a court martial, the Board would order it at once. What did Lord Elphinstone do? Immediately he received this information he withdrew his demand for a court martial, and, with more judgment than he showed with regard to the shoal, he declined further investigation. He said he did not wish to have a court martial; but not satisfied with that, he now appealed to the House of Lords. He (the Duke of Somerset) did not think that that House was a convenient place for officers who had been censured to come and have their characters whitewashed. He knew that in former times it was said to be the practice at the Admiralty to take all blame off captains because they were gentlemen of position in society, and to throw it upon the masters; but although that was the common practice in years past, he did not consider it a just one, because clearly the proper course was for captains to bear their fair share of responsibility as to the management of the ship. He considered that the captain, as well as the master, was responsible where there was any case of gross neglect; and, in his opinion, this was a case of gross neglect, for the misfortune happened in open day, within half a mile of the light-house, and on a well-known shoal. The consequence was, that 390 the Vigilant was eleven hours ashore, and was so much injured that when taken to Sheerness the Admiralty was informed she was not fit to go to sea. He thought, that when they had to send a vessel in place of, the one which had been damaged by the carelessness and neglect of her captain, they did quite right in appointing another captain, and that was a course which he was prepared to defend. The noble Earl (the Earl of Hardwicke) said they had over ruled the decisions of courts martial and referred to the case of the Conqueror, where the court decided that the blame attached to the master, and not to the captain. The, Admiralty looked at the Instructions, and finding that in the last edition some words were left out, which did not leave it as clear as in the old Instructions that the captain was deemed responsible for the conduct of the vessel, they had the Instructions reprinted, thus giving all captains notice that they were held responsible for the safety of their ships. He could only say, that if the Admiralty were bound to take care of Her Majesty's ships, they could not allow captains to go about as if they were irresponsible, and when an accident happened, to throw all the blame on the master. That was what happened in the case of the Conqueror, and the Admiralty did well to point out that captains were responsible for the safety of their ships. As the noble Earl had brought the case of Lord Elphinstone before the House of Lords, he was obliged to repeat, that when he looked into the case most carefully, with the assistance of a number of officers, there was no difference of opinion that there had been great neglect and great inattention on the part of Lord Elphinstone in running the ship on this shoal, and putting the country to the expense of repairs, and to the inconvenience of sending another vessel, at a moment's notice, in consequence of that miscarriage.
THE MARQUESS TOWNSHEND
said, he was very decidedly of opinion that Lord Elphinstone had received very hard treatment. He knew Lord Elphinstone, and he knew him to be a most deserving and very excellent officer. The ship was run ashore when in the hands of the pilot; and if, having a qualified pilot on board, Lord Elphinstone had taken the command out of the pilot's hands, he would deserve to be broken—at least, that was what was understood to be the old rule of the service.
§ LORD COLCHESTER
differed from the 391 noble Duke at the head of the Admiralty in reference to what he had said about Courts of inquiry, he said that courts of inquiry were of old standing; and so they were, but only for the purpose of conducting preliminary investigations. He had himself sat upon a court of inquiry, and he did not think that the tribunal was one very well qualified to bring out the whole truth. There was considerable difference between a court of inquiry and a court martial. In a court of inquiry the witnesses were not examined upon oath, and were not cross-examined. In courts martial the witnesses were examined upon oath and cross-examined, the proceedings were conducted in the presence of the accused; and the trial was as fair as a trial in a court of law. The officers composing them were the senior officers who by chance were on the station, and were not chosen, as those who composed courts of inquiry, by the Admiralty. He was very much opposed to any officer or man being tried by a court of inquiry, instead of by court martial.
§ THE EARL OF HARDWICKE
said, that in pilot water, where captains were not expected to have local knowledge, the charge of the vessel was given to the pilot, and the captain was bound not to interfere, unless he was convinced that the pilot was unfit for his duty. In this case the pilot in charge was one of a select body, who had undergone the strictest examination, and it would be a bold captain indeed who would take the command out of such a pilot's hands at the mouth of the Thames. The noble Duke had gone into the whole case of Lord Elphinstone in replying to general observations upon certain tribunals and had thought proper to condemn that officer as having been guilty of impropriety and misconduct as a naval officer. In meeting a charge of mismanagement of courts of justice, the noble Duke had condemned the unfortunate officer who had been convicted before an incompetent tribunal. He knew very little of the case of Lord Elphinstone, and in using an illustration in his speech he never meant to draw upon Lord Elphinstone's head the censure of the First Lord of the Admiralty before the House of Lords. Had he imagined such would be the result, he certainly would never have mentioned it at all; but now be confidently appealed to their Lordships for their opinion whether justice had been done to Lord Elphinstone. ["Hear!"] If that cheer was intended to assert that justice had been done, he was quite sure that 392 it did not come from the heart of the noble Lord who uttered it.
§ EARL GRANVILLE
said, he was not acquainted with the particulars of the case before he came into the House; but having heard the discussion that had taken place, he was of opinion that Lord Elphinstone was an ill-used man—but that he was ill-used not by the Admiralty, but by his noble and gallant Friend who had brought the case before their Lordships, and who brought it forward, not in a singularly moderate or temperate speech, but in a speech in which he had almost exhausted vituperative epithets against the Admiralty, accusing them of despotism and injustice. The noble Earl made these charges, too, upon a case which he afterwards told their Lordships he knew nothing about. Speaking not as a professional man but as a civilian, he (Earl Granville) could conceive nothing more fair, more courteous, and he would say more considerate than the conduct of the Admiralty in this matter. The noble Earl said it was wrong to refer the case to a court of inquiry. That was an attack against the institution, but the noble Duke had stated, and no one had disputed the fact, that courts of inquiry had existed, and had been constantly employed for years past. It appeared, upon the evidence of Lord Elphinstone himself, that that officer had been guilty of neglect in running his ship upon the shoal and when the noble Earl said that a great deal of harm was not done to the ship, surely that was not a point that affected the question in the slightest degree. A censure was accordingly passed upon him by the Board of Admiralty. Feeling hurt at this result, the noble and gallant officer demanded a court martial, as he had a perfect right to do if he thought he had suffered an injustice. He thought that part of the noble and gallant officer's letter which the noble Earl had read to their Lordships showed very clearly the considerate conduct of the Admiralty, for they sent the evidence on the subject to the noble and gallant officer, and asked him to peruse it before he pressed his request for a court martial. It was not insinuated that the noble Duke had any objection to granting a court martial, and in suggesting a reason why the noble and gallant officer did not continue his application for one, the noble Earl opposite cast something like an aspersion on the members of a most honourable profession. He always understood that a court martial 393 administered justice, and he did not know to what other court such a case could be referred. The noble and gallant officer, on reflection, did not deem it advisable to pursue his request for a court martial; and if he had any reason for complaint, it was nut against the Admiralty, but against his zealous and extremely injudicious Friend, who had brought forward the case in such a way as to compel the noble Duke the First Lord to make disclosures which certainly told against an officer who otherwise held a high character in the service.
§ THE EARL OF DERBY
said, he had no personal acquaintance with Lord Elphinstone, and knew nothing of any of the parties concerned, nor was he able to judge of the degree of responsibility which, under the circumstances described, attached to the gallant officer the captain, the master, or the mate of the Vigilant. But the noble Duke and the noble Earl who had just spoken had passed over that which seemed to him an important part of his noble and gallant Friend's complaint, and that which seemed to him the pith of the whole grievance—namely, that Lord Elphinstone had been tried, condemned, and censured, and the censure had been carried into effect, by a tribunal before which he had no opportunity of confronting or cross-examining witnesses. The noble Duke said there was nothing new in courts of inquiry, and upon that subject the noble Duke spoke with more authority than he could; but be apprehended, that while there was nothing unusual in appointing a court of inquiry as a preliminary measure, there was a great deal that was unusual in condemning upon the evidence taken before a court of inquiry, and not upon oath, a person who had had no opportunity of asking questions of the witnesses or making observations on the case. There was something wholly inconsistent with the popular idea of justice and fair-pay in such a course. Nothing could be closer or more correct than the analogy which had been drawn between a court of inquiry and a grand jury. Both proceeded on ex parte evidence, but no one ever proposed that a man should be convicted on the finding of a grand jury without being sent to a petty jury, where he could cross-examine witnesses and make his defence. The noble Duke said it frequently happened that the Admiralty were satisfied with the finding of a court of inquiry, and did not press the matter further. In the same way, when a grand jury ignored a Bill, the prisoner was 394 not put upon his trial; and in a case where the court of inquiry negatived the charge brought before them, there was no occasion for further proceedings. But in this case the Admiralty had upon an ex parte statement proceeded to dismiss an officer from his command with a severe censure. Upon this, the officer expressed surprise and regret that such a hasty decision should have been formed with regard to his conduct, and requested a court martial. Was this request acceded to? No; but the Admiralty met the complaint that the accused had not had an opportunity of cross-examining witnesses by sending him a report of the proceedings of an inquiry at which he had not been present, and calling upon him, in the first instance, to give his explanation upon that case. Part of the answer of Lord Elphinstone was a vindication of his conduct; but in another part he absolutely denied some of the material facts which appeared to have been stated by some of the witnesses. The Admiralty wrote buck that they had received the answer, that they found no sort of reason for altering their opinion, that they still considered his conduct open to the censure they had passed; but that if, alter that expression of opinion, Lord Elphinstone chose to be tried by a court martial, having been already tried, convicted, and condemned, he was at liberty to have a court martial, with the weight of the decision of the Board of Admiralty against him. He (the Earl of Derby) did not wonder that, under these circumstances, the offer was refused. He agreed with the noble Marquess (the Marquess of Townshend), and he believed the opinion was shared by nine-tenths of their Lordships' House, that Lord Elphinstone had in this case been hardly dealt with, and that it was contrary to the principles of British justice to condemn a man upon the finding of a tribunal before which he had had no opportunity of defending himself.
§ EARL RUSSELL
said, the noble Earl had omitted what appeared to him a most material point in the case. The noble Earl had complained of the, hardship of condemning a man unheard upon statements made before a court of inquiry; but had admitted that the whole of the objection would have been met had a court martial been granted by the Admiralty. The only complaint, therefore, in this case was that the Board of Admiralty, instead of granting the court martial at once, had said to the gallant officer, "It may not be for 395 your interest to have a court martial, and we send you the proceedings before the court of inquiry,"
§ EARL RUSSELL
said, what they actually did was to send the proceedings before the court of inquiry for Lord Elphinstone to read in order to judge whether, having the evidence before him, he still thought It for his interest to be tried by a court martial. This put an end altogether to the charge that the gallant officer was condemned without having an opportunity of seeing, or cross-examining, the witnesses, for he might have had that opportunity had he chosen. But Lord Elphinstone deliberately, and perhaps very judiciously, having read these proceedings, said he would not ask for a court martial. The only conclusion that he (Earl Russell), under the circumstances, could draw, was, that Lord Elphinstone did not think it for his interest to proceed further with the case—that he felt that the evidence would go against him, and that the sentence of a court martial would be more injurious to his reputation than the sentence of the court of inquiry. Had he gone before a court martial, he would, of course, have been able to cross-examine witnesses, and to bring forward evidence on his own side. He did not dispute the analogy between a grand jury and a court of inquiry; but he might remind their Lordships, that if, after the finding of the grand jury, a prisoner thought proper to defend himself, he pleaded not guilty, and was tried before the petty jury; but if, feeling that the evidence before the grand jury was sufficient to convict, he preferred pleading guilty, no proceedings were taken before the petty jury. It seemed to him that there was something like pleading guilty in withdrawing a request for a court martial after an adverse decision from a court of inquiry.
§ LORD CHELMSFORD
said, that the analogy drawn between courts of inquiry and grand juries was perfectly correct; but he would ask the noble Earl who had last spoken in what a position would a man he placed when brought to the bar to be tried, after having a true bill returned against him, if the Judge were to say to him, "I have read over all these depositions, and I am clearly of opinion that the accusation is made out completely against you; but if you like, after this expression of my opinion, you may plead 'not guilty,' and take your trial?" That was just the 396 position of Lord Elphinstone. When that noble Lord demanded a court martial, it was quite clear that the demand ought to have been immediately complied with; but, instead of that, the Board of Admiralty sent to the noble Lord the proceedings of the court of inquiry, the greater part of which took place in Lord Elphinstone's absence and without his having an opportunity of examining any witness, and asked for the noble Lord's observations with respect to them. Lord Elphinstone made his observations and forwarded them to the Admiralty, and then an answer was returned stating that the Lords of the Admiralty saw no cause for modifying their censure; but that if Lord Elphinstone, after receiving this expression of opinion, desired further investigation, the Lords of the Admiralty would order him to be tried by court martial. What must have been Lord Elphinstone's impression of the probable result of the proceeding, especially when it appeared that in one instance which had been mentioned in the House the Admiralty had thought proper not to adopt an acquittal pronounced by a court martial? He thought Lord Elphinstone was perfectly justified in saying, "A court martial can never restore me to my ship, nor remove their Lordship's censure, and I shall, therefore, not feel it necessary to apply for another trial." He thought that a very harsh course of conduct had been pursued towards an officer who appeared to be highly deserving, and he did not think that the noble Duke had given a satisfactory explanation when challenged to justify the proceedings of the Admiralty.
§ LORD CRANWORTH
said, that as regarded the general question, he was of opinion, that although personally perhaps Lord Elphinstone had no right to complain of the course pursued, the system was such that the sooner it was abandoned the better. It was idle to suppose, that after the decision against him in a court of inquiry, an officer could be fairly tried by another tribunal. The finding of a grand jury did not, in any way, prejudice the accused, because it was known to be come to upon ex parte evidence; but when a person had been allowed to make his defence and a judgment had been pronounced against him, it was impossible that his case could come to a fair investigation afterwards. Having expressed his disapprobation of the general system, he must say in justice to the noble Duke at the head of the Admiralty that all 397 he had done had been done in mercy and kindness to Lord Elphinstone.
was understood to express his belief, that if Lord Elphinstone now desired a court martial, the inquiry would, after the discussion which had just taken place, be conducted in a manner different from that in which it otherwise might have been.