Discipline
MANY COMMENTATORS, including some seamen, believed that those who served in the navy were innately lazy, resentful and violent, and could only be tamed by a harsh disciplinary code.1 The image of unremitting and often casual brutality is familiar from much of the literature and filmography relating to the Georgian navy, but projecting backwards into the seventeenth century the practices and perceptions of the eighteenth creates a wholly distorted picture of the former. Many of the procedures that came to dominate the disciplinary system of the navy in later years had their origins during the seventeenth century, but in many respects the system was also fundamentally different. For one thing, naval discipline was considerably less harsh than that used in the army or aboard merchant ships, and captains could not order loss of life or limb on their own authority.2 Those who exceeded that authority sometimes found that the crew protested against them, and on several occasions during the Interregnum the Admiralty took the men’s side, not the officer’s.3 In 1652 a drunken captain ordered the crew of his minute vessel to attack a Dutch flagship, and when a spokesman refused the captain shot him dead. The crew arrested the captain, and when the ship came home he was tried for murder and hanged.4
After the Restoration, discipline became progressively harsher, although even by the end of the period the navy was still a much less brutal place than it would later become. The key development was not so much more stringent punishments, but a new atmosphere of restoring respect for hierarchy, with the powers-that-be from the 1660s onwards proving less willing to take the men’s side than their predecessors before the Restoration. The only legitimate form of protest allowed under the Articles of War was in cases of poor victuals, where men were permitted to raise the matter ‘quietly’ with their superiors. Men who attempted to petition against their captains, and who might have expected a sympathetic hearing in the 1650s, increasingly found themselves on the receiving end of fines, whippings or other punishments. Pepys and his fellow administrators were privately sympathetic, but could not be seen to condone mutiny, and the channels of complaint that had once been available to seamen were slowly closed off.5
ARTICLES OF WAR
Until 1649 the legal framework for discipline at sea was markedly vague. The Lord High Admiral’s power to make rules to govern fleets were believed to derive from an Act of Parliament passed in the 1390s, and although individual admirals had regularly issued their own orders, these had no wider authority and no greater permanence.6 The serious Royalist revolt in the fleet during 1648 led to a formalisation and tightening of the disciplinary code. On 5 March 1649 the Rump Parliament approved twenty‘Laws and Ordinances of the Sea’ that had been drafted by the Council of State. After a first article ordering captains to ensure ‘that Almighty God be solemnly and reverently served in their respective ships’, the new code went on make abundantly clear the government’s immediate concerns. Death was specified as the mandatory punishment for those who gave intelligence to ‘any prince, or other person, being an enemy to this Commonwealth’; who incited revolt in the fleet; and who supplied the enemy, or harboured them. The remaining articles were concerned largely with preventing cowardice by captains, desertion by the men and embezzlement by both. The twentieth article was a catch-all, specifying that any other crimes not covered by the articles would be punished ‘according to the usual customs of the sea’.7
The poor performance of the fleet during the opening exchanges of the first Anglo-Dutch war led to the issuing of a new and expanded version of the 1649 articles. Promulgated on Christmas Day 1652, this almost doubled the number of articles from twenty to thirty-nine, no fewer than twenty-five of which specified the death penalty. The 1652 articles repeated the 1649 injunctions against revolt and aiding an enemy, but added more provisos against captains who failed to do their duty in battle (reflecting outrage at the performance of some officers during the battle of Dungeness) and against embezzlement from prize ships. The recent establishment of convoy systems for merchant shipping was reflected in the thirty-fifth article, which commanded captains and their crews to carry out that task diligently, and not to charge fees for so doing. Crimes that were covered by new articles included endangering the ship, sleeping on watch, using ‘braving or menacing words, signs or gestures’ during a court martial and an odd omission from the 1649 articles – murder.8 It would have been difficult for anyone serving on a warship to have pleaded ignorance of the new Articles of War. A copy was posted in the steerage, and at intervals the entire document was read out to the crew; both practices survived the Restoration and became standard procedure for much of the sailing era.9
Despite being officially entitled ‘Laws and Ordinances of the Sea’, neither the 1649 nor the 1652 articles were embodied in statute law. This was rectified after the Restoration with the passing of‘An Act for Establishing Articles and Orders for the Regulating and Better Government of His Majesty’s Navies, Ships of War, and Forces by Sea’.10 This contained thirty-five or thirty-six‘articles to be observed for the regulating and better government of his Majesty’s Navies, Ships of War, and Forces by Sea; wherein under the good Providence and Protection of God, the wealth, safety and strength of this kingdom is so much concerned’.11
Like their predecessors, the 1661 articles did not constitute ‘a comprehensive penal code, but a haphazard assembly of regulations and admonitions, with a good deal of duplication and little order’. They, too, were concerned far more with preventing misconduct by officers, especially captains, than with repressing the common seamen, who were specifically targeted only by one article, the injunction against sleeping on watch.12 The 1661 articles were somewhat more lenient than their predecessors and some of their successors. Mandatory death penalties were specified in only eight articles (communicating with an enemy, disobeying orders because wages were in arrears, deserting to the enemy, burning the ship, spying, mutiny, murder, and sodomy, which had not been singled out in 1649 or 1652). The death penalty was also specified in twelve other articles, but in these cases courts martial had discretion to impose lesser punishments if they saw fit.13
OTHER DISCIPLINARY CODES
The General Instructions to Captains of 1663 contained an appendix of ten additional orders detailing a range of misdemeanours and punishments over which the captain had complete discretion. In theory, the lash could be awarded under only one of these orders, in cases where seamen relieved themselves below decks. Swearing, blasphemy and drunkenness were punished by fines of a day’s wages. A liar was to be hoisted from the mainstay for half an hour with a broom and shovel tied to his back while the entire crew chanted ‘a liar, a liar’. He would then spend the next week scrubbing the area directly beneath the ship’s heads.14 Officers and men who committed crimes ashore were dealt with in the civilian courts, for the proviso regarding the Lord High Admiral’s powers inserted at the end of the 1661 articles made it clear that these existed only‘upon the main sea, or in ships or vessels being and hovering in the main stream of great rivers, only beneath the bridges of the same rivers, nigh to the sea …’.15 Thus in 1677 Captain Thomas Booth, a well-connected young officer who had been Prince Rupert’s page, was found guilty of murdering a watchman at Great Yarmouth and rescuing a man from the law. Despite Rupert’s intercession, and Booth’s apparent dependence on King Charles II’s renowned leniency, the only mercy shown to him was the commutation of his sentence from hanging to the more ‘honourable’ fate of beheading.16 None of the naval disciplinary codes extended as far as high treason, and the few recorded cases of this had to be tried ashore under the common law.17
COURTS MARTIAL
The 1661 Articles of War specified that admirals or commanders of detached squadrons could summon courts martial comprising captains and commanders, with a quorum of five laid down for capital cases. These courts were meant to be organised by a judge advocate, who was given the power to administer oaths to witnesses, who gathered their affidavits in advance of the trial itself and who guided the court in its interpretation of the Articles of War.18 John Fowler held this position from about 1653 to 1660, and then served as Judge Advocate-General from 1663 to 1672; the Scot John Brisbane served as judge advocate in the Mediterranean fleet in the 1670s and subsequently became secretary of the Admiralty. In home waters, a senior captain or flag officer was appointed president, and as many serving captains as could be assembled in time formed the body of the court (retired officers were ineligible, as were those who happened to hold no active commissions at the time, no matter how temporarily). In March 1669 Pepys received an unlikely commission as captain of the Jersey to enable him to attend a court martial held to examine the loss of the Defiance, but after initial amusement at his unexpected elevation to command, Pepys withdrew from the court, alarmed that he might be setting a precedent for the packing of future courts by all kinds of ersatz captains appointed by his enemies.19 He also omitted himself from subsequent lists of commissioned officers who had served in the navy during his period of association with it, although his commission was presumably just as valid as those issued to any other officer, and Captain Samuel Pepys deserves to be restored to his place among the sea-officers of his time.20
A trial was generally held in the captain’s cabin of a royal yacht moored in the Thames, or on one of the great ships laid up in ordinary. Courts rarely sat for more than one day, during which they usually heard one or two cases, and captains who had an interest in any of the cases absented themselves.21 Written depositions were usually recorded beforehand by the judge advocate, but witnesses were then able to give their evidence verbally and could be questioned by the defendant; their original depositions would be read out by the judge advocate if there were obvious discrepancies with the verbal evidence. In 1687 Pepys was told that the use of both written statements and oral questioning was unnecessary, as one or the other could be used.22 At least one court adjourned in a particularly difficult case so that it could check points of law with the judge of the Admiralty court.23 Verdicts were not always unanimous, as in the case of Captain William Finch of the Foresight, who was cashiered in 1666 by the ‘major consenting vote’ of the court.24 In 1680 a gunner was found guilty of permitting an explosion in the gunroom. His sentence was the loss of a year’s wages, but only on a 5–4 vote of the court, with the minority voting for his dismissal.25 Nem con verdicts appear in the records only from 1675 onwards; this may have been because such verdicts constituted a noteworthy new development, or simply because in the past the judge advocate had taken the vote for granted and had not bothered to record it.26 On foreign stations, the admiral held courts martial aboard his flagship, calling together as many captains as he could and substituting lieutenants if too few captains were available. The court summoned aboard the Bristol at Point Comfort, Virginia, in July 1677 was particularly small; it consisted only of the president, Captain Sir John Berry, two captains and one lieutenant.27
The 1649, 1652 and 1661 Articles of War were vague on many matters. The judge advocate may have had the power to administer oaths, but he did not have the power to subpoena witnesses. Automatically court-martialling the captain and officers of a ship that had been lost was already standard practice, but this was sometimes dispensed with in wartime if the fleet was at sea and ‘the offending officers were taken flagrante delicto’.28 Courts martial often imposed a punishment of dismissal from the service, but this was thought to be invalid, as it infringed the king’s or the Lord High Admiral’s prerogatives to appoint whomsoever they saw fit.29 Many captains and other officers eventually returned to service despite having been dismissed by a court martial, and by the 1690s this was one of the central criticisms of the system.30 Put simply, courts composed exclusively of captains were accused of being too lenient to their own kind. Some of the critics who rushed into print after the ‘Glorious Revolution’ favoured trying all naval cases under the common law, while others proposed the replacement of courts martial by some entirely new structure. Holding the trials in the cabins of warships, with no audience, hardly engendered much faith in the transparency of proceedings,31 and the nature of the evidence was often muddled. Courts martial were often faced with cases where one side brought a string of allegations against another, who responded with an equally long list of counter-accusations. In such circumstances, the courts often concluded that there was blame on both sides and came to no definitive verdict.32
However, the (limited) evidence of surviving court martial records suggests that the majority of cases did end in convictions, and that the punishments imposed on convicted officers could be steep, with fines ranging from the loss of a month’s wages up to £1,000, and prison sentences ranging from three months to ten years.33 But this evidence is deceptive, and courts generally tended to side with senior officers against junior, and with both against lower ranks.34 In 1680 Lieutenant Anthony Hastings was even acquitted of murdering a seaman; the court accepted his plea of self-defence, but then, Hastings was said to be the valet de chamber and ‘vicious confidante’ of Admiral Arthur Herbert, who happened to be the court’s president.35 Pepys also recounted the delicious but possibly apocryphal story of the court martial of John Graydon, who lost his ship, the St David, in 1690. The court placed the blame squarely on the ship’s carpenter, but one of its members was allegedly heard to say to Graydon afterwards, ‘God damn, Jack, we have made shift to bring you off, but by God you must remember to do the like by any of us when it comes to our turn’.36 A few years later, Graydon was dismissed from the service for drunkenness, irreligious behaviour, mocking his superiors and praising the French. But even then he was reinstated, and he was soon a vice-admiral and commander-in-chief in the West Indies (although he was eventually dismissed from that position, too, for behaving violently and abusively towards much of the population of Jamaica).37
PUNISHMENTS: DEATH
The death penalty was reserved to courts martial: no lesser authority, including individual captains, had the right to impose it. However, courts were often reluctant to invoke the capital sentence, and during the 1650s they repeatedly refused to hand down the death penalty, even when it was supposedly mandatory. Men were regularly reprieved, and there is only one certain instance in that decade of a man being hanged for an offence committed aboard a warship.38 Echoes of the same leniency can be found after the Restoration. In 1678 a court had no alternative to sentencing a deserter to death under the terms of the seventeenth article of war, but the president and ten of the eleven captains who formed the court wrote a powerful letter requesting mercy for the condemned man, who was of previous good character and was ‘in the flower of his days’.39 Even when reprieves were granted, men often only learned of them when the noose was actually around their necks, so as to provide a suitably terrifying example to others.40 In 1676 Captain Joseph Harris was ordered to be shot to death for striking his colours to a foreign warship, but he was reprieved when the muskets were actually levelled at his head.41 The infrequency of executions probably enhanced their deterrent value. In 1676 the cook and boatswain’s mate of the Europa hulk were hanged for deliberately burning the ship.42 A seaman from the Rupert was hanged for desertion in 1680.43 There was a spate of death sentences in 1687–8: two deserters from the Jersey, a murderer from the Pearl, and the corporal of the Falcon, who had killed his old friend the steward following an argument during which he called the steward the son of a whore.44
OTHER PUNISHMENTS
‘Flogging round the fleet’, the practice of placing a condemned man in a boat and inflicting a specified number of lashes at the side of every ship, was in use as a punishment by the 1650s, but it was rare: there were only three instances of its use during Blake’s last two expeditions (one for striking the captain, one for theft, the other for fighting and drunkenness).45 The frequency of such punishments seems to have increased after the Restoration, as did the number of lashes awarded.46 In 1665 a seaman accused of plundering a French merchantman received five lashes ‘with a whip of small cords’ at each of five ships, ‘his body fastened to the mast of a boat and a drum beating in the boat’s head, a paper on his halter to show his fault, and his fault to be read aloud’.47 In 1673 a mutineer was sentenced to five lashes at each of seven ships. One deserter in 1684 was sentenced to thirty-one strokes on the flagship and nine more at each of the six ships in the squadron; in 1687 another deserter was sentenced to twenty-one strokes at the sides of each of four ships.48
For most low-level misdemeanours, captains could use their own authority to order a wide range of punishments. They could have a man flogged, but could only bestow a few lashes without referring the case to a court martial; a man sentenced to nine lashes by his captain in 1658 protested against the excessive cruelty of the punishment.49 The one known exception was the case on the Warspite in 1673, when a seaman named John Freeman had supposedly wished the entire fleet was on fire with the king and queen aboard it. The captain gave him eighty lashes on his own authority, presumably to demonstrate his loyal zeal, but the subsequent court martial (significantly, on Freeman and not the captain) concluded that Freeman was ‘very silly and almost an idiot’, judged that he had been punished enough, and released him.50 Otherwise, even courts martial that sentenced a man to a flogging (other than a flogging round the fleet) were remarkably sparing by eighteenth-century standards, when several hundred lashes were sometimes awarded. In 1681 a seaman who spoke ‘scandalous and defamatory words’ against his captain was sentenced to just twenty lashes.51 The floggings themselves were usually carried out at the ship’s capstan, and men’s wounds were subsequently pickled in salt.52
Captains had a range of other punishments available to them. They could have a man put in the bilboes (a form of stocks; a punishment especially favoured for drunkenness), or else he might receive a sharp blow from the boatswain’s feared rattan cane. Ducking from the yardarm seems to have been regarded as an easy punishment, and may have started to fall out of favour for that reason; for one thing, it was part of the ritual humiliation of men who had never before sailed into the Mediterranean or across the equator.53 But it was also known to be favoured by the Dutch, so simple patriotism and an aversion to aping an enemy’s practices may have made it unfashionable. Keel-hauling was mentioned by Sir Henry Mainwaring earlier in the seventeenth century, but there is no record of its use between about 1650 and 1690. However, a wide range of ingenious punishments could be invented, or drawn from the deep well of naval tradition, to fit certain kinds of crime. Weights could be hung around offenders’ necks ‘till their hearts and backs be ready to break’.54 Three swearers had marlin-spikes fastened into their mouths by cords tied round their heads, and had to stand for an hour ‘till their mouths were very bloody’.55 The seaman who stole and then pawned his captain’s wig for a shilling was sentenced to have his hair cut off, while for an unspecified crime committed in 1669, one seaman had eight of his foreteeth pulled out.56 The chaplain and diarist Henry Teonge watched as two seamen who had stolen some beef were tied to the mainmast with pieces of beef tied round their necks in a cord,‘and the beef bobbing before them like the knot of a cravat’. For two hours, the rest of the crew took turns to come up and rub the raw beef in their mouths.57 Such punishments were designed to humiliate, rather than to harm, and like the punishment for liars, they must have generated considerable mirth among the crew as a whole. The youngest members of the crew had to face the weekly ritual of‘Black Monday’, when a boatswain’s mate whipped the ship’s boys with a cat-o’nine-tails for all the misdemeanours they had committed in the past seven days.58
The court martial of Admiral John Byng, 1757. Seventeenth century courts would have been organised in a similar way, although far fewer people would have been present than in this particularly high profile case – and, of course, the officers would not have been in uniform, which was not introduced into the navy until 1747.
(FROM THE LONDON MAGAZINE, 1757)