Nelson & His World

Discussion on the life and times of Admiral Lord Nelson
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 Post subject: Courts Martial v Civil Courts
PostPosted: Mon Dec 14, 2009 7:57 am 
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I mentioned the biography of Sir William Garrow on another thread. I learned from it that in the 18th century great changes occurred in the practices and procedures of courts of justice such the establishment of the principle of ‘innocent until proven guilty’, allowing prisoners to speak in their own defence and allowing their counsel to cross-examine prosecution witnesses, and so prevent informers and bounty-hunters from committing perjury with impunity and so condemn others to death.

How did the procedures and practices of courts martial compare with the civil courts? The penalties imposed by the naval disciplinary code were, of course, savage; but did an accused man have a better chance of a fair hearing than an offender might receive in a civil court before the changes noted above took place? What was the constitution of a court martial? Did the accused have the right to speak or have his defence articulated? How was a verdict arrived at? Were there any changes in court martial procedures in the 18th century that reflected the changes that evolved in the civil courts?

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 Post subject: Re: Courts Martial v Civil Courts
PostPosted: Mon Dec 14, 2009 10:06 am 
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The latest volume issued by the Navy Records Society happens to be "Naval Courts Martial 1793 - 1815" by John Byrn, which is a collection of transcripts of courts-martial, divided into various categories - 'procedural matters' - against society - specific naval/challenges to authority - multiple offences.

Byrn gives a lengthy introduction in which he details the workings of the court, and on the face of it, a court martial appeared to be fairer than the civil court described by Garrow, although I would suspect that an officer (educated) probably did stand a better chance than a seaman (usually uneducated), but Byrn claims that "...defences varied greatly, depending on the circumstances of the case rather than the rank or education of the accused.

Byrn states - "...during the evidentiary phase, all witnesses for the prosecution were called individually, followed by all those for the defence in like manner. Such evidences were examined first by the side that called them and then cross examined by the other party. Witnesses could be called back and re-examined as often as the court thought necessary. According to McArthur the general rule of thumb in the eighteenth and early nineteenth centuries ws that, in order to obtain a conviction, the prosecution had to bring forward two evidences in support of an accusation, but in cases involving extremely private matters, only one witness was sufficient to produce a guilty verdict"

He continues "...at the conclusion of the examination of the last witness called by the prosecution, the prisoner entered his defence. "

A key figure at the CM was the Judge Advocate - a trained lawyer, he read the warrant to convene the court and administered the oaths the judges and witnesses had to swear. He also advised the judges of "the proper forms" and gave opinion during the trial; he could also direct questions at witnesses and advise during the deliberation of the judges.

The book has full transcripts of trials, which give a very good picture of the RN at the time, covering virtually every crime in the book (and several acquittals are noted). Incidentally, Nelson figures in two of them - member of the board that tried Lieutenant William Walker of the Rose cutter in September 1794 (accused of taking money for giving protection to trade - not guilty and acquitted) and as President of the board for the trial of John Maloney, seaman of the Speedy in December 1796 (for frequent desertion and attempted desertion - guilty, to be hanged by the neck at the fore yard of one of HMs ships till he is dead...)


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 Post subject: Re: Courts Martial v Civil Courts
PostPosted: Mon Dec 14, 2009 11:10 am 
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Anna,

The biography of Sir William Garrow sounds most interesting. I have to admit I have not heard of him before your post and it would seem that he is not generally known. This would seem rather strange, since he introduced many of the many procedures and tenets which are now followed not only in British law, but by those of other nations as well.

Finding the book on Amazon, I noticed that there was also a tv mini-series about him on DVD. The comments there seemed to be mainly complimentary, but has anyone here seen them? If so, what were your impressions?

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 Post subject: Re: Courts Martial v Civil Courts
PostPosted: Mon Dec 14, 2009 12:38 pm 
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"I noticed that there was also a tv mini-series about him on DVD. The comments there seemed to be mainly complimentary, but has anyone here seen them? If so, what were your impressions?"

Although generally good, I don't think the TV series should be taken as an accurate picture of court procedure - indeed some of the aspects owed more to US court drama than real British procedure (i.e. the Judge using a gavel - the barristers moving around the court rather than fixed behind a desk, which are American rather than British practices). There were also some obvious mistakes - one man was sentenced to be placed in the Stocks, but was then depicted in a Pillory, which suggests that the programme makers didn't know the difference.


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 Post subject: Re: Courts Martial v Civil Courts; Crime and Punushment
PostPosted: Mon Dec 14, 2009 12:52 pm 
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Anna!

Although I know that your post is concerned with comparative legal procedure, when you write "the penalties imposed by the naval disciplinary code were, of course, savage" and "were there any changes in court martial procedures in the 18th century that reflected the changes that evolved in the civil courts?" (!) I feel that you are inadvertently giving the impression that civilian justice was liberal and evolving whereas military justice was - well- "savage" and thought to be so. I do not believe this to be true and I would like to paraphrasing something I said in relation to an earlier item on Sadistic officers and Punishment, namely -

"As regards the severity of otherwise of the system of justice, we have to remember that the prevailing social theory was that a policeless society could only be defended against an unreformable minority of habitual criminals by severe and public punishment. The modern notion that criminals were unfortunate rather than evil did not apply. All believed in it: even the mutineers at the Nore and Spithead continued to flog offenders just as their officers had done. On land, as urbanisation destabilised the population and created extemes of ostentatious wealth and grinding poverty, crime rocketed and punishments became more and more severe in a desperate (and ineffectual) attempt to curb it. In the late 18thC there were over 200 capital offences in the civil criminal code - including things as trivial as theft of an item valued at over 30 shillings. So many people faced a capital crime as a result that juries were reluctant to convinct and the death sentence was seldom enforced. In 1820, for example, out of 1129 death sentences handed down, only 107 were carried out.

Compared with this, naval justice was comparatively moderate. The Articles of War contained only 20 offences punishable by death - and all were for serious matters like spying, mutiny, murder, cowardice and offences against morality like buggery. And as on land, the system ensured that even those punishments could be moderated if it was needed. In John Byrn's book on Punishments on the the Leeward Island station between 1784 and 1812, (which has much more analysis of the overall figures of trial and punishment than his recently published Navy Records Society volume) he shows that only 12 of the 26 condemned men were actually hanged."

Philonauticus has shown that the procedure followed in courts martial was exhaustive (I would say much more exhautive that a poacher would have received in front of a local JP) and seemed fair. No doubt officers, who were likely to be more articulate than ABs, could present better cases than members of the lower deck, but my strong impression from the NRS volume is that no favouritism was shown to commissioned officers. Rather the opposite.

We have to remember also that flogging - which to the modern eye was a horrific punishment and one reserved for the lower deck - had different vibes in the 18th and 19th centuries when it was widely accepted as a necessary if unpleasant deterrent. Imprisonment had not yet become a part of the normal array of punishment and there were no prisons in the modern sense. Incarceration was mostly a temporary holding operation until the 'real' sentence was carrried out (or, one had to add, the debt was paid). And even if imprisonment had been accepted as a normal punishment, putting it into operation on a wooden warship, when the liberty of everyone aboard was constrained in one way or another, would hardly have been feasible. In these circumstances, there was little alternative at sea to what amounted to 'a short sharp shock'.

Brian


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 Post subject: Re: Courts Martial v Civil Courts
PostPosted: Mon Dec 14, 2009 1:05 pm 
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To expand a little further on Courts Martial - The Court was made up of a panel of officers - minimum number five, maximum thirteen, who should be flag officers, captains or commanders. The senior would act at President of the court. The courts must be public. When making a verdict, each officer of the panel would vote, in ascending order of seniority, the junior officer first.
I would think that the weak point of the system was that the defendant had to defend himself - questioning witnesses and making a final defence statement, and this would depend on how confident and articulate they were, however I would agree with Brian’s comments above - reading through the cases in Byrn’s book, it seems clear that many made a good defence and were acquitted.


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 Post subject: Re: Courts Martial v Civil Courts
PostPosted: Mon Dec 14, 2009 2:46 pm 
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Quote:
A key figure at the CM was the Judge Advocate - a trained lawyer
I would have thought there was often a problem with the availability of a trained Judge Advocate, particularly on foreign stations. In that circumstance, did the court martial not just appoint an officer as a temporary Judge Advocate for the duration of the court martial?

Perhaps another issue, albeit unavoidable in military justice, was that trial by jury was not available.

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 Post subject: Re: Courts Martial v Civil Courts
PostPosted: Mon Dec 14, 2009 3:24 pm 
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Many thanks, all, for those interesting and informative comments, and for the pointer to the 'Byrn' book on courts martial which is now on the 'wish list'.

Brian:

I'm sorry I didn't make myself clear! I really didn't mean to give the impression that the civil courts were more liberal. There were, as you point out, many more offences that could attract the death penalty in the civil courts than there were in naval courts. I just wondered - and from your comments, my suspicion was correct - whether there were many cases of acquittal, or 'lenity' as Nelson often said, in courts martial, just as there were in the civil courts. As the authors of Garrow's biography point out, 'When capital punishment existed for many property crimes, juries would frequently reduce the charge, and thus lessen the sentence from death to transportation or...to whipping and imprisonment. The term 'pious perjury' was coined by Sir William Blackstone who wrote that 'the mercy of juries often made them strain a point, and bring in larceny to be under the value of twelve pence [over this sum was a capital offence] when it was really of much greater value, a kind of 'pious perjury'.'

It certainly seems that the RN gave a much fairer hearing than the civil courts - until the changes that gradually evolved.

Kester: The biography of Garrow is most informative - a little bit 'text-book' dry in style, but with wonderful flashes of immediacy when Garrow's withering cross-examinations are quoted verbatim, skewering the shifty, dishonest and corrupt.

Yes, Garrow has slipped into the shadows, his name unknown even to many lawyers, as the comments on the dust-jacket confirm. This is perhaps because the changes were not enacted in Parliamentary legislation but rather evolved gradually, as a result of Garrow's robust court-room style. He managed, amongst many other beneficial advances, to reduce the dominance of judges over juries, so that judges took on a much more passive role, controlling the legal procedures, but leaving the presentation of evidence and the cross-examination of witnesses to counsel, and the assessment of guilt or innocence to the jury.

Sadly, having been such a force for true justice in his youth, he became a crusty old reactionary in old age: probably one of the reasons why he has been forgotten.

The TV series 'Garrow's Law' was, with the reservations PN has noted, very good, I thought, entertaining and illuminating at the same time. It really brought home how terrifying it must have been to be hauled before a pre-Garrow court, without proper representation, with no presumption of innocence, without the right to make a defence, with bounty-hunters, paid to denounce the accused, who were not subject to rigorous cross-examination. We may think that 'the law is an ass' on occasions, but there is no doubt that our 'laws and liberties' were enhanced and protected by Garrow's towering achievements in changing the face of the English criminal trial.

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 Post subject: Re: Courts Martial v Civil Courts
PostPosted: Mon Dec 14, 2009 4:38 pm 
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Tony!

Yes. The first paras of the minutes of courts martial list the name and ranks of the officers acting as judges; note that they take the oaths required by the appropriate Act of Parliament; and then record the reading of the warrant appointing XYZ as judge advocate for that particular trial. In the occasional courts martial I have come across, this person was often the Admiral's Secretary or the Clerk of a ship. As you say, many were not lawyers but were administrators who were expected to be able to master the particular statute and procedures involved.

Trial by jury was not part of it. But with between 6 and 13 judges asking questions there were quite a few people who had to be convinced of innocence or guilt in a similar way.

Brian


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 Post subject: Re: Courts Martial v Civil Courts
PostPosted: Mon Dec 14, 2009 5:27 pm 
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Anna, PN,

Thanks for your comments and, despite its shortcomings, perhaps something for the wish list!

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 Post subject: Re: Courts Martial v Civil Courts
PostPosted: Tue Dec 15, 2009 9:04 am 
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A futher query about naval justice: there was a famous case, quoted in several biographies of Nelson, of a marine, John Jolley, who was under sentence of death. Nelson ordered that all the ceremonial for the execution should be enacted, but that a pardon should be granted at the very last moment, in the hope that the threat of execution would emphasise the power of naval law, and act as a deterrent, while at the same time, showing mercy to an individual. One biographer, Edgar Vincent, suggests that it was Nelson’s sense of the dramatic that impelled him to such a course; but I think this granting of a last-minute pardon was not a unique incident. I have read, I am sure, of a similar case, the details of which I can’t now recall, in which a senior officer, (I think it was Troubridge) ordered that a last-minute pardon at the gallows should be granted.

A couple of questions: on whose authority, other than his own, did Nelson order this remittance of sentence? Was there anything in naval regulations that granted a senior officer the power to overturn, at the last moment, a sentence properly arrived at? Can anyone recall similar pardons such as John Jolley’s?

The principle of retaining the death penalty for a great number of offences while refraining, in practice, from invariably imposing it seems to have been not unusual in both naval and civil courts, though perhaps more common in the latter, where, as Brian has pointed out, there were far more capital offences. Garrow himself in his reactionary old age, was for retaining a whole host of capital offences, for the deterrent effect, trusting in the good sense and discretion of judges not to impose the death sentence in cases where mercy was appropriate. Garrow’s biographers quote the sad case of a man of excellent character, with sick children, who stole in desperation. The judge declared: ‘I hope your appearance here will be of no detriment to you hereafter – it ought not to be – you have suffered much already. Go hence, and bless the laws which have enabled the judge to exercise some discretion on your case. Gaoler, discharge the prisoner!’ (Maybe he should have thanked also the changes instigated by Garrow that gave him a fair hearing.)

However, I don’t know of any last-minute pardon at the gallows for a civilian, that in effect overturned the sentence of the court, such as the pardon granted to Marine Jolley.

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 Post subject: Re: Courts Martial v Civil Courts
PostPosted: Tue Dec 15, 2009 2:54 pm 
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Quote:
A couple of questions: on whose authority, other than his own, did Nelson order this remittance of sentence? Was there anything in naval regulations that granted a senior officer the power to overturn, at the last moment, a sentence properly arrived at? Can anyone recall similar pardons such as John Jolley’s?
Only the King could grant a pardon. Nelson's secret instruction to Troubridge in John Jolly's case was: 'You will, therefore, respite the prisoner from the sentence of death, till his Majesty's pleasure is known'. The royal pardon did not come through for several months.

I seem to remember reading somewhere that some commanders in chief did sometimes exceed their authority by issuing a pardon as opposed to making a recommendation for 'Royal Mercy'.

Sometimes it was the Admiralty that explicitly ordered the 'mock' execution of a man already secretly reprieved.

The King's royal prerogative of mercy also applied to those sentenced in civil courts, but perhaps was used in a less theatrical way?

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 Post subject: Re: Courts Martial v Civil Courts
PostPosted: Fri Dec 18, 2009 8:18 pm 
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Tony:

according the Garrow biog. Royal Pardons were usually sought by the judge who had passed the death sentence if a guilty verdict had been brought in, and he felt a reprieve was justified. He would simply write to the King appealing for mercy.

There are incidents in the fiction of the day of dramatic civil reprieves like Marine Jolley's naval one, such as Hetty Sorrel's reprieve in George Eliot's 'Adam Bede', with a horseman galloping up waving the Royal Pardon at the last moment, and also Jeanie Deans in Scott's 'The Heart of Midlothian' who walked to London from Scotland to get a Royal Pardon for her condemned sister. Whether there were any real cases of this kind would be interesting to know. Fiction usually reflects current custom, so maybe there are actual cases of last-minute reprieves.

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 Post subject: Re: Courts Martial v Civil Courts
PostPosted: Mon Mar 29, 2010 11:55 pm 
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Well, here's a turn up for the books!

The case of the seaman, James Carse, who was tried for murder, is well documented in biographies of Nelson, under whom Carse had served. I was intrigued to discover that the barrister who cross-examined Captain Nelson, when he gave evidence on Carse's behalf, was none other than - William Garrow!

http://www.garrowsociety.org/features-g ... urder.html

Carse was sentenced to death but was reprieved. He served a term of imprisonment.

I wonder if this case will be part of the new series.

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 Post subject: Re: Courts Martial v Civil Courts
PostPosted: Tue Nov 08, 2011 8:11 am 
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I received this long Google Alert this morning, of which only the first paragraph is relevant. It is another example of the 'last-minute pardon' we discussed above. The piece cites the case of a seaman Clarke who was serving in the Rattler in 1786 when he was sentenced to death but pardoned by Nelson at the last minute. Does anyone have any more information on this case?

http://www.caribbean-beat.com/issue-12/ ... cy-antigua

I apologise if this is another of those misleading/false stories about Nelson that appear in the popular press. I am so frenzied at the moment that I don't have time to search my bookshelves to check it out.

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