Reflections on naval discipline. with the law of the land: a necessary distinction must always exist; for the strict maintenance of discipline, among bodies of men massed together in ships of war, demands for the most part absolute authority in the commander, and absolute subordination in the seamen. "The salvation of the country depends upon the discipline of the fleet; without discipline they would be a rabble, dangerous only to their friends, and harmless to the enemy."1 But discipline is not a power that can stand by its own strength alone: the abuse of the name has often been the bane of the service. In times past many captains broke the spirit of their crews by petty tortures and petty persecutions-punishment in fact, where no punishment was due: there was no escape from tyranny within the narrow confines of a ship.2 The well-being of the navy depends on the good feeling and attachment of the sailor. Martinets may say that without rigour of discipline, there can be naught but laxity of discipline; yet there is a mean, known to officers with the faculty of command: ships, in which duty is well carried out by willing men, and certainty of punishment the unfailing doom of the disaffected, and real criminal. 1 Sutton v. Johnstone, 1 T. R. 549. Per Lords Mansfield and Loughborough. 2 Aggravated cases of cruelty are now only to be found in the merchant service, in which crews are occasionally most inhumanly treated by their captains. The men retaliate somewhat by a licence both of language and conduct, which would never be allowed in the navy. CHAPTER II. OF COURTS OF INQUIRY. Courts of Inquiry THE power to institute Naval and Military Origin of Courts of Inquiry is a prerogative of the Crown, delegated by the Crown to the Board of Admiralty and Commander-in-Chief of the Army. The practice of holding such courts is a very ancient and beneficial usage, sanctioned by the judicial recognition of the courts of common law.1 The object of a Naval Court of Inquiry is to investigate, in the first instance, charges affecting the conduct of officers. The Commissioners who hold the Court are bound to report the result for the information of the authority that issues the commission: to give their reasons for the dismissal of the charges, should they turn out groundless; to censure the accused, and add any further recommendations suggested by the nature of the case, if the proof be of conduct derogatory to the character of an officer and a gentleman; to advise a trial by court-martial, if warranted in their opinion by sufficient evidence of an offence against the articles of war. The report is in its nature a confidential and 1 Home v. Bentinck, Judgment in Court of Error, 2 B. & B. 160. Objects of Inquiry. Court of Case of the Sir John Mordaunt's case, A.D. 1757. privileged communication, protected from the process of the courts of law.1 There are many instances that illustrate the action of a Court of Inquiry, and its consequences. In 1690, a Court of Inquiry was held by direction of the Privy Council, to investigate the conduct of the Earl of Torrington as Commander-in-Chief in the Channel: the Commissioners reported, "that he had, in the engagement with the French off Beachy Head, through treachery or cowardice, misbehaved in his office, drawn dishonour on the English nation, and sacrificed our good allies, the Dutch." After some constitutional objections, which were ultimately removed by Act of Parliament, Lord Torrington was tried by a courtmartial, and, notwithstanding that the court unanimously acquitted him from any imputation whatever on his conduct in the engagement in question, his commission was suspended, and he was never afterwards employed. In 1757 the King, by a warrant directed to the Judge-Advocate-General, nominated the Duke of Marlborough, and Major-Generals Lord George Sackville and Waldegrave commissioners, to hold a Court of Inquiry on the general and other officers employed on the Rochefort expedition; and they were directed to make the necessary inquiry, and report the causes of failure, with their opinion thereon, to his Majesty. Sir John Mordaunt, the commander of the expe 1 Home v. Bentinck, 2 B. & B. 162. 3 McArthur, i. 109. dition, was afterwards tried by a general courtmartial, on charges which were founded on the report of the Court of Inquiry.' In 1819, a Court of Inquiry was appointed to inquire into the conduct of Lieut.-Colonel Home in some transactions with respect to a mining adventure: the Court, in their report, censured the conduct of Lieut.-Colonel Home very severely; and, in consequence, he was deprived of his commission. But in his case there was no court-martial, as the Judge-Advocate was of opinion that the matters alleged against Colonel Home were not cognizable by a military tribunal. 2 A Court of Inquiry has often been compared to a grand jury, an institution which it resembles in some respects; but the proceedings before a Court of Inquiry are much more like the preliminary investigation before a magistrate in criminal cases, where the accused is discharged at once if there be no adequate case against him, but committed for trial, if there be sufficient evidence of guilt. There is no further analogy in either case; for all criminal proceedings before the ordinary tribunals are compulsory and on oath, whilst proceedings before Courts of Inquiry are neither compulsory or on oath. It is usual for the Commissioners in a Court of Inquiry to examine the person whose conduct is impugned as well as the witnesses who may be brought forward on either side; but no person is 1 McArthur, i. 113. 2 Home v. Bentinck, 2 B. & B. 159. Members to sit on a court martial. Advantages of Courts of Inquiry. compellable to give evidence. The accused is not bound to answer any questions that may tend to criminate himself, and ought to be under the peculiar protection of the Court; for his answers may form a foundation for future charges, and be produced in evidence against him on a subsequent trial by court-martial. The members of a Court of Inquiry are not disqualified from becoming members of a court-martial afterwards assembled to try an officer on the same charges that had previously been the subject of inquiry; but they ought not to sit on the courtmartial, if objected to by the accused,' and such an objection would doubtless be sustained under the Naval Discipline Act (s. 53). Courts of Inquiry are very useful in the investigation of all doubtful transactions, particularly in cases where public obloquy has been incurred, or the conduct of commanders become the subject of general animadversion in the navy. They are also very effective in adjusting disputes between officers, and reconciling all differences and animosities that may occur in service amidst the various tempers and caprices of men; for character and reputation often suffer the most, where no such criminality can be imputed against either party as would support a charge before a court-martial. 1 Opinion of Law Officers, 1813; Adm. Rec. 14, No. 33. |