THE QUESTION OF NAVAL COURTS-MARTIAL. the cer answer "There is no power in Venice ample Abundant mischief has been set going by well-meaning persons. The preliminary question, "What is the decree established" in this country and in the matter of the holding of naval courts - martial? has to be sure to be answered. And the reply cannot be given so shortly as both sides in this controversy appear to think. No one in his senses who acknowledged sense in her was also an honest man could wish at this moment to provoke controversy on a treatment of naval officers by the Admiralty. On that point we must be supposed to be all agreed. But the question who is truly responsible for causing debate cannot always be answered off-hand. And this is tainly the case in regard to the discussion in and out of Parliament on the decision of the Admiralty not to allow courts martial to be held promptly on the loss of ships so far during the present war. Must we put the blame on my lords, who have departed from the long-established usage of the Navy, or on those who find fault with them? Curiously enough very little, or indeed as good as nothing, has been said about another innovation-namely, the secrecy enforced in the one case, the court martial on Admiral Troubridge in regard to the escape of the Goeben and the Breslau—in which the Board has departed from its novel practice. We are not to assume what it is our business to prove. Nor are we to take it for granted either that the Admiralty is inspired by evil motives, or that, with the best of intentions, it is not doing mischief. Bassanio meant well when he appealed to Portia to "wrest once the law to your authority." Yet there was Two concessions must be made to the Admiralty and its defenders, official and unofficial. The Board is not bound to try an officer before dismissing him from a command or even from the service. And no officer can demand a courtmartial as a right. In 1746 Sir Edward Vernon, an admiral and the most conspicuous flag officer of the day, was cashiered without trial. Whatever else we may think of the action of the Board which advised the King to strike Sir Edward off the list, its legality has never been disputed. The authority which can do the greater, can do the less. There is no lack of precedents to show the right of the Admiralty to order an admiral to haul down his flag, or to turn an officer of lower rank ashore. Two cases, one of which occurred in our own time, may be quoted from among many to serve as illustrations. In 1796 Rear-Admiral Mann, who was serving under Sir John Jervis in the Mediterranean, argued himself, or in the solitary dignity of the starboard side of his quarterdeck he brooded himself, into an extraordinary delusion. He became persuaded that it was his duty to take his squadron home. The council of war he held agreed with him, and home he came. The Admiralty confined itself to ordering him to haul down his flag. The case of Mann and what is known of his character are curious, but the only part of the story which concerns us is the legality of the Admiralty's action in simply dismissing him from command, and that was not disputed. The second example is within the memory of those among us who have not the happiness to be young. On the 1st July 1871, H.M.S. Agincourt ran the Pearl Rock, near the Straits of Gibraltar, one of the best known and the most easy to avoid of all the perils of the sea. The strand ing took place in broad daylight. The Agincourt was the flagship of Rear-Admiral Wilmot, second in command of the Mediterranean fleet under ViceAdmiral Wellesley. She was leading the starboard, or inshore, division. The fleet was steering on a course given from the flagship of the commanderin-chief, and laid down by her senior navigating officer, StaffCommander Keddle. This course took her right on to the shoal, where she grounded. Now the captain, officers, and crew of a ship are primarily responsible for her safety. The responsibility of the men is mainly formal, and they are discharged. The officers who are directly responsible are the captain and senior navigating officer at all times, and the officer of the watch at the time of the disaster. Captain Beamish of the Agincourt, StaffCommander Knight, and Lieutenant Bell, the officer of the watch at the time of the stranding, were brought before a court-martial at Devonport on the 26th July. They were found to be in fault, but were lightly sentenced to mere reprimand and warning. Their main error was that they had not tested the orders given them, but had steered blindly, though the danger of the course the Agincourt was following was patent to some in her, and to others in the ships following her in the line. Captain Beamish himself acknowledged to the court that he had at the time felt that his ship was going very near the shoal. The case (and it is not the only one nor the most recent which could be quoted) was an instance of the evil which discipline can do when it reduces subordinates to mere blind obedience and timidity. Obviously the matter could not remain where the court-martial left it. The Admiralty might now have ordered a trial of the superior authorities of the fleet who laid the course. My lords preferred to exercise their power. A minute was issued in which they declared themselves satisfied, from a perusal of the evidence taken at Devonport, that the facts were sufficiently proved. They held that the stranding of the Agincourt was occasioned by great negligence on the part of other officers than the three who had been tried. They considered that the stranding of the ship was primarily due to the unsafe course steered by the squadron in obedience to the signal from the flagship of Vice-Admiral Wellesley. It was Rear-Admiral Wilmot's duty to inform himself of the position of the ships in his division, and to exercise due care to keep them out of danger. If he had been vigilant he would not have suffered his flagship to run on a well-known shoal when the marks were distinctly visible. Therefore my lords superseded both Vice Admiral Wellesley and Rear-Admiral Wilmot, and put Staff-Commander Keddle of the flagship on half-pay. They may or they may not have taken the wisest course, but the legality of their action could not be disputed. As touching the matter of secrecy, the "decree established" has always been that trial by court-martial must be public. The President can indeed order the court to be cleared for the purpose of ascertaining the opinions of the members composing it in private, or for any other reason. The Admiralty has power to make general rules for altering and regulating the procedure and practice of court-martial-subject to the provisions of Naval Dis cipline Act of 1866 as amended in 1884 and 1909, and also to the approval of the King in Council on a report of the Judicial Committee of the Privy Council, and every order so made must be laid before Parliament. It may appear that in the face of these leading cases, and those acknowledged rights of the Admiralty, nobody has a just ground to accuse the Board of departing in the present war from the ancient practice of the Navy. Nothing has been done which has not been done before. As might have been expected, this is the plea It advanced by Mr Winston Churchill, and the Crown lawyers in the House, and the unofficial or ex-official advocates outside. Only a very unwary oritic could be disarmed by what is essentially a mere sophistry. The substance of the case against the Board is that it has turned what was an exception into a rule. has thereby departed from ancient custom, and has made an innovation which may be turned into a precedent of a very injurious kind. The doctrine which has hitherto been acted on in this country in all the business of Government has been stated once and for all by Burke. "It is indeed difficult, perhaps impossible, to give limits to the mere abstract competence of the supreme powers, . . . but the limits of a moral competence, subjecting occasional will to permanent reason, and to the steady maxims of faith, justice, and fixed fundamental policy, are perfectly intelligible and perfectly binding upon those who exercise any authority, under any name or under any title, in the State. . . . The constituent parts of a State are obliged to hold their public faith with each other, and with all those who derive any serious interest under their engagements, as much as the whole State is bound to keep its faith with separate communities. Otherwise competence and power would soon be confounded, and no law be left but the will of a prevailing force.' re mirals, would it be justified by the precedent of Sir Edward Vernon? The "permanent reason," the "fixed fundamental policy" of the British Navy, has been that officers and men alike are entitled to a public trial where they appear to have failed in their duty. The abstract competence of the supreme authority to act by "administrative order" has been conceded and used, but as an exception and for special reasons. Before the exception can be turned into the rule, before what was the remedy for particular difficulties is turned into the common practice, the Navy and the country are entitled to insist on ceiving some serious justification for the change. Some of the excuses made have been positively puerile. Mr Winston Churchill must have been animated by a downright contempt for the understanding of his hearers when he told the House of Commons that the senior officers of the Navy were too busy to sit on courts-martial. They were not too busy to sit in the case of Admiral Troubridge or to form the Court of Inquiry on the explosion in the Bulwark. But that argument would carry the First Lord to extraordinary conclusions. At the beginning of the Crimean War an officer in a ship actively engaged on the coast of the Asiatic possessions of Russia was murdered by a marine sentry. It is not physically impossible that the same crime might be committed now. Would the trial To contend that because the Admiralty has on certain occasions and for particular reasons dispensed with a courtmartial, therefore it may dispense with court-martial altogether, is "a legal argument" in the worst sense of the word, or rather in the entirely unfair sense in which the words are made to mean a quibble designed to confuse a witness or bamboozle a jury. If a member were to arise in the House of Commons and to argue that because the independence of Belgium was gained by a violation of the Treaty of Paris, and because the signatories to that Treaty condoned the violation, therefore no Treaty, including the one which secured Belgian neutrality, could be said to be binding, he would be reasoning in just this way. If some Admiralty of democratic sentiments and democratic disregard for the freedom of minorities were to cashier half a dozen unpopular ad- of the murderer be postponed till the war is over, or would he not be tried, or would he be executed without trial by administrative order? The use which the supreme authority of the Navy is making of its abstract competence would justify us in going to that length with officer or man. The supposition is an absurdity if you please, but the reductio ad absurdum is a legitimate form of argument. Other arguments, no less feeble than Mr Winston Churchill's, have been produced to show how inconvenient it might be to hold a court. One was the Attorney-General's quotation of the case of Sir Robert Calder, who weakened Nelson's fleet off Cadiz by returning in his flagship to stand his trial for his action off Ferrol. In the first place, Nelson might have insisted on his returning in a frigate, if he had not been too kind-hearted to subject Calder to the indignity of going home "like a convict." But the fleet off Cadiz was far more seriously weakened when RearAdmiral Lewis was sent into Gibraltar with his squadron to renew his water and provisions, whereby he was prevented from being present at Trafalgar. In both cases there was a necessity to be faced. It was far better to lose the service of Admiral Lewis's ships than to supply them from the other vessels in the fleet, which might have led to the untimely retreat of the whole force before hunger and thirst. It was better to lose Calder's ships than that one admiral should behave bad-bloodedly to another-or that the agitation over the action off Ferrol should not be brought under the cleansing influence of an open trial. After all, the essential question is, Why did the Navy consider it right and a matter of course that courts-martial should be held? For let it be repeated, the "steady practice," the "fixed fundamental policy" of the Navy, was to hold them. When the First Lord told the House of Commons that some people seemed to be under the delusion that a crime must have been committed whenever a ship was lost, and that this was the reason for holding a court, he was under a misapprehension himself. Nobody supposed that any crime had been committed by the captains of frigates which were destroyed to prevent them from falling into the hands of Suffren in the Bay of Bengal, or of D'Estaing on the coast of North America. Yet courts-martial were held in, I think I may venture to say, all such cases. The proofs remain in the reports of courtmartial in the Record Office. They are brief, and on the whole formal, but they were trials ending in a verdict of the court. The desire of the officers concerned to be tried was both rational and easy to understand. They had been entrusted with His Majesty's ships, and had lost them. They wished to have it put on record that they were not to blame, for the very sufficient reason that acquittal by a court-martial was an effectual answer any charge or reproach which to |