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CHAP. IX.: Naval Tribunals. - Thomas Hodgskin, An Essay on Naval Discipline 
An Essay on Naval Discipline, Shewing Part of its evil Effects on the Minds of the Officers, on the Minds of the Men, and on the Community; with an Amended System, by which Pressing may be immediately abolished, by Lieut. Thomas Hodgskin, R.N. (London: Printed for the Author, by C. Squire, Furnival’s-Inn-Court, sold by Sherwood, Neely & Jones, Paternoster-Row 1813).
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It has been asserted, and with apparent reason, that to organise tribunals so as to deserve and inspire confidence, is one of the primary duties of legislation. Now, can any man, accustomed to reflect on the motives of human actions, think for a moment that naval courts martial can inspire, or are deserving confidence?
Where is the fancied theoretical perfection in their structure, that can make a man cheerfully commit his life, his fortune, and his reputation, into their hands? We have seen that they are composed of men comparatively destitute of education; corrupted by power, and often strangers to religion and morality: that, as the naval laws and customs, which form their minds, are founded in injustice, as they can have no strong convictions of injustice hereafter to be punished; and as its commission is never punished in the navy; whenever their interest is concerned, they have no motives to be just.
Such an opinion of them is not contradicted by any well known facts, but there are many which support it. The marked inattention which prevails in these courts, is a sarcasm upon tribunals; a burlesque upon justice; and when they condemn to punishment, it is often adding the bitterest insult to the most flagrant injury.
In courts martial, when trying a captain, (a time when every member’s mind should be deeply engaged with the business before him) I have witnessed them drawing caricature heads of the prisoner, and handing them about for mirth; and was I to relate all the improprieties I have been told of this sort, they would not only fill, but they would sully my paper. It is a well known fact, that a man’s sentence does not depend so much upon his degree of guilt as upon the natural disposition of his judges. A word that offends the feelings of pampered pride, or an opposition of opinion, particularly if supported by reason, is in these courts, and by such judges, classed with the widest departures from moral rectitude, and visited with as great a severity of punishment. The man who reflects, or who possesses any knowledge of courts martial, instead of submitting to their judgment as just, spurns them with disdain, as wicked; instead of these courts inspiring him with reverence, they breed nothing but contempt. The believers in the existence of that military honour which it is expected will guide the actions of these men, may as well believe that they can discover truth without attending to the evidence; that they will pronounce a just judgment at the end of a trial, though during it wholly occupied in the manner I have before described, for they all have the same foundation, imagined intuition. I believe not in this intuitive light to discover truth or guide the actions of men, and I trust the better informed and major part of our community, like me, place no reliance in it, whether denominated honourable feelings or inward grace. To rescue courts martial from such imputations, to constitute them so as to inspire and deserve our confidence, recourse should be had to the tribunals of our country, already endeared to us by opinion and a knowledge of their value: they do not punish the innocent, neither do they suffer the guilty to escape.
Whether the severity of the present code is to be continued or not, as men bear a portion of evil much better from the same authority that bestows upon them good; as no man can think naval captains are fit legislators, and consequently cannot respect their decrees; as it is right there should be a semblance of reason for continuing this severity, and that it should be sanctioned by deliberative wisdom, it is absolutely necessary that the crimes which sailors are liable to commit, should be correctly ascertained by our national legislature, and punishments strictly defined, appropriated to each.
When that is done, the whole code should be divided into three parts: the first part should consist of the greatest crimes, and they should be cognizable alone by a court, to be called a Superior Court Martial, which the admiralty and commanders in chief should alone have the power of assembling; the second part should consist of crimes of less magnitude, none of which were punished with death, and these should be cognizable by another court, called an Inferior Court Martial, to be afterwards described, or by the Superior Court: the third part should consist of the very minor crimes; the punishment annexed to them should be distinctly marked, and the more effectually to secure obedience to the captain, he should be ordered to inflict the punishment. These classes of crimes and punishments shall be afterwards explained, as I am now to point out how these tribunals may be constituted, just observing that the commissioned and warrant officers should never be tried but by a superior court martial.
The admiralty and commanders in chief should have the same power as they now possess, to order courts martial. The applications for them to go through the same forms and channels as at present. The person intended to be tried, to receive the same information, within at least the same time prior to the trial commencing as now.
The admiral or captain, being second in command, should, as now, preside or be the judge of the superior court martial. He should sum up the evidence, charge the jury, and after their verdict pronounce the sentence of the law, or return the prisoner to his duties. The other members composing the court should consist of thirteen, and should be called a Jury, of which the majority should decide upon the innocence or guilt of the prisoner. They should, at all times; be of the same rank as the prisoner, whether he was an admiral, a captain, a lieutenant, a warrant officer, or a seaman.
If the fleet consisted of fourteen ships, one of the rank wanted should be taken from each ship; if less than fourteen, two, three, or four should be taken from each, as might be necessary, but never more than four should be taken from any particular ship, none ever being allowed to come either from the ship to which the prosecutor or the prisoner belonged. These jurors might be sent from their respective ships, either by ballot or by the selection of the captain. The prisoner should have a power, as he has on shore, of challenging any of these jurors, not exceeding seven, or the larger half. When from three or four being sent from four or five ships, their number was more than thirteen, the president or judge should have the power of rejecting whom he pleased; he should also have the nomination of a foreman from out of the jurors. These jurors should take an oath to do justice between our sovereign lord, &c. &c. and the prisoner, to the extent of their knowledge; and I think it would be advisable to read to them, at the commencement of every trial, a short address, stating the necessity there was for the good of the service and the country, that justice should be impartially administered; that while the innocent were sent away with honour, the guilty should not escape punishment; the importance of the duties they were about to fulfil, and the heavy responsibility that would lie on them, should they not execute them to the best of their knowledge and abilities. I should suppose, that a power in the hands of the captains of selecting what men they pleased from their respective ships, and leaving to the president the power of rejecting whom he pleased, when the number sent exceeded thirteen; and his also having the selection of a foreman, combined with the influence captains always will have over their men, would leave to officers a means of ensuring justice being always done; but, if it is thought this will give officers too much influence, let the jurors be taken by ballot, and let them have the power of choosing a foreman for themselves; and I should conceive, making men, who are subject to the same laws, and likely to be in a similar situation, will secure to the prisoner that sympathy of feeling, from being subject to similar temptations, that must convince him of the justice of his sentence, as well as erring man is enabled to judge. This jury then, should, after hearing the evidence, give in a verdict of guilty or not, and leave the judge to pronounce the sentence ordered by the law.
When a captain is deprived of the power of punishing men at his pleasure, I foresee there must be more courts martial than at present; but I have conveyed my opinions very ill to the minds of my readers, if I have not convinced them that much the greater part of the punishments which now take place are unnecessarily and wantonly inflicted; that the crimes they are made use of to repress, are the natural effects of the present system; and, was that amended, courts martial would not much exceed their present number, and would soon rapidly decrease. One advantage of the mode I have proposed is, that it will allow courts martial to take place very often; when, if they were composed entirely of captains, circumstances would not permit them.
The jurors could very frequently be sent from their respective ships to the ship of the second in command, and the fleet proceed upon their duty; when from the absence of so material an officer as the captain, they could not. But, farther, to promote the speedy execution of justice, and enable the superiors of my profession to establish order in it, an inferior court martial might be constituted, who might take cognizance of the second class of offences. The admiralty and commanders in chief should, at their discretion, upon application, order this court to assemble in preference to the other; and they should have the power of appointing as the judge, any captain they pleased, he not being less than six years a post captain. The jurors to be composed exactly as in the superior courts martial.
A general authority should also be given to all captains to order an inferior court martial, to be assembled whenever five ships might meet promiscuously, having no immediate opportunity of communicating with a commander in chief, or the admiralty; and the second in command of these five ships not being less than six years a post captain. This court should be composed precisely like the others, the second in command being president, and should be assembled by the orders of the senior officer of these ships, upon receiving the regular application that is now made. The punishments for the second part of the crimes, and that this inferior court martial should have the power of adjudging men to, should be such as the captains should be enabled to inflict on board the ship where the offence was committed; but, as the sentence would be known, it would never be possible for them to exceed the quantity appointed. This subject shall, in the next chapter, be more fully explained. In an essay of this kind, where it is merely intended to give a brief sketch of some easily accomplished improvements, a detail of every little circumstance connected with a court martial, will not be expected: the minor parts of them might be conducted as they are now, without any apparent disadvantage; an open court, a judge advocate, or clerk to take minutes, who might, as well as the judge or jury, question or cross question any evidence, first obtaining the judge’s permission; but these complicated arrangements I leave to those people who have made them the study of their lives. I shall feel happy if my country will, with me, adopt the principle, and introduce it into naval jurisprudence, of trying every man by his peers. It is a system that has been long acted upon in our country with the happiest effects; and to introduce it into the navy, would be sanctioned by every Briton’s heart, from its affinity to those tribunals he is accustomed to respect and revere. One effect to be expected from this system is, that it will make our officers, as all may at some time or other expect to be judges, feel, more than they do now, the necessity of acquiring a little knowledge: a responsibility will lie upon them properly and clearly to sum up the evidence, perspicuously to charge the jury, and legally and strictly pronounce the sentence of the law.
The responsibility now belonging to condemning men to punishment, is so much divided amongst the thirteen members of courts martial, that every man thinks it lessened; and I apprehend this conviction of a necessity of acquiring knowledge, this responsibility properly to act, to be much wanted by every officer.
Such a mode of trial will give to our seamen an idea that they very much want; it is, that they are of importance to the community for other things than fighting the battles of their country. When the life and death of a fellow-creature shall depend upon their decision, it must give them habits of reflection; it must elevate them to dignity of action; it must learn them to discriminate more clearly than they do now, right from wrong; and teach them, in comparison with what they now feel, to think well of themselves, which is the first step to propriety of behaviour, and what elevates man in the scale of being, and brings him nearer to perfection.
Let it not be said of seamen, that they differ from the jurors of their country in possessing no property: what influence has this property on men’s minds, that it so clearly enables them to distinguish right from wrong? I know of none, but that it gives a man increased facilities of acquiring knowledge. This is, in our country, now open to all; and I feel no hesitation in asserting, that amongst the leading seamen, are to be found men more intelligent than usually compose the provincial juries of our country.
It should be remembered that nothing can well happen at sea requiring the abilities of an Ellen-borough or an Erskine to decide; there are no intricate questions of property; there can scarcely exist any circumstantial evidence; it is generally plain matter of fact, fair subjects for military men to judge of, which the common sense of the seamen, permitted to reflect, is as likely to discriminate as the refined understanding of the judge.
With such tribunals, and with laws founded in justice, I cannot see any objections that can be made to subjecting the whole of our merchant sailors, as well as those in men of war, to the judgment of these tribunals, which would teach them naval laws, train them in habits of proper obedience, and, at all times, fit them for men of war.