stealing you shall severely punish, and if the fault be great, you shall acquaint us Generalls therewith that Martial Law may be inflicted on the offenders."

The captain does not seem to have had express power to punish officers. If he was dissatisfied with them he put them ashore, and occasionally even confined them on board. Even after the Act of 1661, captains occasionally confined their lieutenants or put them ashore. In September 1704 a Court Martial was held to inquire into the difference between Captain Moore of the Oxford and his lieutenant, Toby Lyle.1 The captain was found guilty of too severe and irregular confinements of the lieutenant, a decision which recognises the captain's right to confine. In 1708 Captain Hicks of the Cornwall was alleged by Lieutenant Tyer, "late gunner of the Cornwall," to have dismissed him and his servant and put them ashore at Lisbon. He was found to be justified as Tyer had been guilty of drunkenness and other irregularities, so Tyer was accordingly dismissed from his employment.” '

The Councils of War which advised the Admiral or "Generall" were the bodies out of which the Naval Courts Martial grew. It was probably some such Council of War which advised Drake before his condemnation of Doughty for mutiny, but it was certainly not a legally established tribunal. No actual record of that proceeding is, I believe, extant, but the formal record of Drake's proceedings against Burrough and the officers and men of the Golden Lion on May 30, 1587, survives."

It can hardly be called a regular trial, for none of the alleged offenders were present, as three days before they had sailed away from the Fleet with which Drake was attacking Cadiz.

The record is of importance as it sets out the constitution of the Court and shows the claim which Drake made to be the sole authority to punish offenders. The report is headed:

A general Courte holden for the service of Her Mate abourde the Elizabeth Bonaventure the XXX daye of Maye before Sir Ffranncis Drake Knighte Generall of Her Mate Fleete Thomas Fennard Vice Admirall, Anthony Plotte Leivetennant Generall, John Marchant Sergeant Major and the reste of the Captaines and Masters of the Fleete as followeth. The evidence of Captain Marchant and Captain Clifford is then set out, and the report proceeds:

1 R.O. Ad. In. Letters, vol. 5265.

2 Ibid., vol. 5267.

• Oppenheim, Administration of the Navy, Appendix B.

On dewe consideracon whereof the Generall sayde :-althoughe I am not dobtefull what to do in this case or yet want any aucthoritie, but myselfe have from Her Maiestie sufficient jurisdiecon to correcte and punishe with all severitie as to me in discretion shalbe meete, accordinge to the Qualitie of the offences yet for the confidence I have in your discretions as also to witness our agreament in judgment in all matters I praye you lette me heare your severall opynions touching this facte which hath been declared in your hearinge this daye: In my judgement it was as fowle and untollerable a mutanye as ever I have knowne.

Drake then proceeds to say that his "fiynall and diffinityve sentence is this": that the persons named

the pryncipall contryvers and leeders of this mutanye shall assone as I come by them wheresoever I find them within my powere abyde the paynes of death, iff not they shall remayne as deade men in lawe.

As might be expected after this outspoken lead from so masterful a person as Drake :

The whole Councell approved this sentence as iuste and necessarye for avoydinge the like hereafter which elces muste needes growe to the utter dissolucon of all Her Maiesties service for the sea hereafter.

Before dealing with the Acts and Ordinances of the Long Parliament, I must mention what perhaps further investigation may show was a form of tribunal, to which attention has not, I believe, hitherto been called.

Mr. Perrin, the Librarian to the Admiralty, mentioned to me one day that he had accidentally come across a case of a trial by jury on board ship. I have examined the original document in the Record Office. It is a long manuscript account, by one " William Ball Mariner," of an unproductive voyage of the Earl of Warwick in 1627, in the form of a day-to-day diary.

Under date of June 12 the following appears:

this 12th day of June there was also a Martial Court called and appointed and a Jury panelled upon James Adams concerning the mutiny by him committed the Ist day of this month, and also for a shirt he stole on board our Admiral, "The Great Neptune," the time he was a prisoner being let loose only to come to prayer and he played the knave. Of which jury there were six of the Admiral's men appointed, four of the Hector's, two of the Jonathan's, and one of the Flight's, all chosen officers, and by his indictment whereof he was accused they found him to be guilty of mutiny and so delivered their verdict under their handwritings and left him to

1 R.O.S.P. Dom., Car. I, 80, fol. 7.

the mercy of the Right Honourable The Earl of Warwick, Judge in that place and the Court assembled to be censured condemned him to be hanged, pronouncing that fearful sentence of death, "The Lord have mercy on his soul."

He

The extract given above seems to suggest that there was a jury as well as a Court. Ball is said in the Record Office calendar to have been the Master of the Hector, and seems from the form and substance of the narrative to have been a more or less educated man. might have called the thirteen officers who composed the Martial Court a "jury," with which he would no doubt be familiar ashore. Against this view, however, it appears that a Court other than the Jewrie" condemns a man to death, and that he was commended to the mercy of the Admiral, who, if Warwick's commission was similar to Howard's, would have had the power to pardon the man.

"

That there really was a jury in some cases seems to be supported by the ship's orders of the Red Lion dated 1627,1 of which the fifth clause prohibits striking (except by those authorised) and opprobrious language, and then proceeds: " if he shall strike an officer he shall be tried for his life by twelve men." The ship's orders of the " Constant Reformation" dated 1638 do not contain any similar provision. The matter requires further investigation, and possibly reference to other similar tribunals may come to light.

8

The convenience of such a tribunal as that convened by Drake was soon recognised, and as the absolute power of the Sovereign declined, and that of Parliament grew, the right of the Commanderin-Chief to make ordinances, and to punish for their infraction, began to depend upon the authority of Parliament.

In my former article I directed attention to the steps taken by the Commonwealth Government to restore and make effective the discipline of the Navy, and need not do more here than repeat that, in the first instance, power of Martial Law was given to the Lord High Admiral; that his powers were transferred to the Council of State, and that later various Commissions were set up. By the Act of 1653 the Commissioners, or any three or more of them on land, or one or both of the Generals at sea :

3

were authorised and empowered for the service of the Commonwealth and government of the Navy and Army at sea to call a Council or

1 R.O.S.P. Dom., Car. I, 56, fol. 101.

2 Ibid., Car. I, 407, fol. 32.

• Statutes of the Interregnum, vol. ii, p. 708.

Councils of War, of captains or other officers as to them shall seem meet, and to appoint a Judge Advocate to attend the said Councils of War, who was authorised to administer an oath to witnesses. The "Council of War" was empowered to cause any person belonging to the Navy and Army at sea to be summoned before it, and to try him for offences against the "Articles or Ordinances of War, to give judgment and cause execution to be done according to the Articles." Any Ordinances were to be approved by Parliament before being put into execution.

The Articles of War, strictly so-called, had been passed by Parliament on December 25 of the previous year. There were, however, no regulations as to the summoning or constitution of the Council of War, which could be called by the Commissioners or one or both of the Generals at sea. In December 1653 Blake, Monk, Disbrow, and Penn, of whom the first three were Commissioners and the last a "General-at-Sea," acting in presumed exercise of the powers conferred by the Act, issued certain instructions which had for their object the creation of Courts inferior to the General Councils of War mentioned in the Act, and defining their powers.

They were of three degrees. The Commander of each squadron, with the assistance of a Council of War composed of the captains of his squadron, could try all offences committed in the Fleet under his command. Flag officers subordinate to the Chief Commander, calling to their assistance the captains of the ships in his division, could try offences committed in any ship in his division. The Commander of any three ships sent on detached service had the like power.

No sentence of loss of life or limb, nor the cashiering of any captain, was to be carried into execution without the approval of the "Generals," to whom were to be sent the depositions which were to be recorded with the Judge Advocate of the Fleet. Nor was any Lieutenant or Master to be cashiered without the approval of the Commander-in-Chief.

The captain of each ship was empowered with the assistance of the lieutenant, the master and his mates, the clerk of the cheque, gunner, boatswain, and carpenter (thus forming a ship Court Martial) to try all offences, but no sentence of loss of life or limb or the cashiering of any commissioned or warrant officer could be passed. Such cases were to be remitted to the "Commander of the Party," or of the division, or of the squadron, or ultimately to the Com

mander-in-Chief, to whom alone the cases of loss of life or limb or cashiering of captains were reserved.

All commanders of ships of war were to attend "at all such times as a pendant or other signal for a Council of War shall be put forth," under penalty of loss of losing a day's pay for the first offences, the same for the second, and upon refusal to pay he was to be arrested by the Marshal General of the Fleet and be kept in custody till payment.

If he offended again he was himself to be brought before the Council of War as a contemnor of order & discipline."

Here was a complete system which, had the Commonwealth lasted a little longer, might have been permanently part of the administration of justice in the Navy. It bears a remarkable resemblance to the system of the Regimental, District, and General Courts Martial which exists in the Army.

At the Restoration the whole of those Acts and Ordinances were swept away, and, indeed, it is only due to industrious search that within the last few years the Statute Law Revision Committee has been able to publish a fairly complete edition of the Ordinances and Acts of the Interregnum.

But the good work which had been done by the zeal of those responsible for the Navy during the existence of the Commonwealth was not entirely lost. The Parliament summoned by Charles II in substance re-enacted the Articles of War, and if the system of Courts Martial inaugurated by Monk and his friends was too democratic for the Royalists who came into power, it at least formed the framework of those sections of the Acts of Charles II which dealt with Court Martial.

Next, therefore, may be considered the provisions of the Act 29, Car. II, c. 33.

Under that Act the Lord High Admiral was given power to grant commissions to "inferior Vice-Admirals or Commanders-in-Chief of any squadron of ships to call and assemble Courts Martial consisting of commanders and captains." But no Court Martial was to pass a sentence of death unless it was composed of at least five captains, nor should any such sentence be executed (except in the case of mutiny), if the offence was committed within the narrow seas, without the leave of the Lord High Admiral, or if committed beyond the narrow seas, without the "order of the Commander-in-Chief of that fleet or squadron wherein the sentence of death was passed." The Judge Advocate of any fleet was given the power to administer