Obrazy na stronie
PDF
ePub

You are therefore requefted to advise their Lordships, whether, in cafe fuch fenior officers fhould be called upon to give evidence at the trial, they may likewife fit as members of the court martial?—And also, Whether the court can be legally held without the fenior officers, (who shall happen to be called upon to give evidence) in cafe it is neceffary for their juniors to fit as members, in order to make up the number required by the statute to conftitute a court?

"The ufage of the fervice is very material upon this cafe, for naval courts martial are evidently confidered in the ftatutes concerning them, as known and eftablifhed courts; confequently in matters not especially provided for, the fettled courfe of proceedings muft have great weight. That the characters of witnefs and judge are not confiftent, is very obvious; and though in the common law of England there is no challenge to a judge, yet in the only inftance we know where judges were called upon to give evidence in a criminal cafe, [Kelyng's Rep. 12] it is obferved, that they fat no more during that trial.-By a ftric and literal construction of the statute of the 22d of Geo. II. chap. 33, fect. 12, neither the profecutor, nor the prifoner, would ceafe to be judges. But this conftruction would be abfurd, and the act muft, from common fenfe, adinit, as the ufage is, that officers to whom there is a juft ground of exception, or who have a juft ground of excufe, fhall not be in

cluded in the number of thofe of whom the court is to be compofed; confequently if any officer entitled by his rank to fit, is either profecutor, party, or witnefs, the perfon next in feniority muft fupply his place, and the court fo compofed will be legally held according to the intent of the Act.

AL. WEDDERBURN.
JA. WALLACE.
F. C. CUST.

Then the Judge Advocate read the order fent by the Lords of the Admiralty to Sir Thomas Fye, admiral of the white, to hold the court martial, dated the 31ft December, 1778, figned Sandwich, T. Buller, Lifburne; and for adjourning to the Governor of Portfmouth's house.

The following members were then fworn, agreeable to act of Parliament,

Prefident, Sir Thomas Pye, admiral of the white.

Matthew Buckle, Efq. viceadmiral of the red.

John Montagu, Efq. vice-admiral of the red.

Marriot Arbuthnot, Efq. tearadmiral of the white.

Robert Roddam, Efq. rear-admiral of the white. Captains. M. Milbank

Francis Samuel Drake
Taylor Penny
John Mourtray
William Bennet
Adam Duncan
Philip Boteler

James Cranston.

Then the Judge Advocate was fworn not to difclofe or discover the opinion of any particular member of the court martial, unless thereunto required by act of Parliament.

The

made the fignal for battle.

The Court was then adjourned he advanced to the enemy, and to the house of the Governor of Portsmouth, when the Prefident defired the Judge Advocate to read the charge.

The Judge Advocate then read Sir Hugh Pallifer's letter to Philip Stephens, Efq., Secretary to the Admiralty, dated London, the 9th of December, 1778, defiring the

Lords Commiffioners of the Ad. miralty to order a court-martial to be held for the trial of the

Honourable Auguftus Keppel, admiral of the blue, for mifconduct and neglect of duty on the 27th and 28th of July, 1778, as mentioned in the inclofed paper, con. taining the charges against him. The charge was then read as follows:

A Charge of Mifconduct and Neglect of Duty against the Honourable Admiral Keppel, on the 27th and 28th of July, 1778, in divers Inftances undermentioned.

I. That on the morning, of the 27th of July, 1778, having a fleet of thirty fhips of the line under his command, and being then in the prefence of a French fleet of the like number of fhips of the line, the said admiral did not make the neceffary preparations for fight, did not put his fleet into a line of battle, or into any order proper either for receiving or attacking an enemy of fuch force; but, on the contrary, although his fleet was already difperfed and in diforder, he, by making the fignal for feveral fhips of the vice-admiral of the blue's divifion to chace to windward, increased the diforder of that part of his fleet, and the fhips were, in confequence, more fcattered than they had been before; and, whilft in this diforder, VOL XXII.

That the above conduct was the more unaccountable, as the enemy's fleet was not then in diforder, nor beaten, nor flying, but formed in a regular line of battle on that tack which approached the British fleet (all their motions plainly indicating a defign to give Lattle), and they edged down and attacked it whilft in diforder. By this un-officer-like conduct, a general engagement was not brought on, but the other flag-officers and captains were left to engage without order or regularity, from whence great confufion enfued; fome of his hips were prevented getting into action at all, others were not near enough to the enemy, and fome, from the confufion, fired into others of the King's fhips, and did them confiderable damage; and

the vice-admiral of the blue was

left alone to engage fingly and unfupported. In thefe inftances the faid Admiral Keppel negligently performed the duty impofed on him.

II. That after the van and center divifions of the British fleet paffed the rear of the enemy, the admiral did not immediately tack and double upon the enemy with thofe two divifions, and continue the battle; nor did he collect them together at that time, and keep fo near the enemy as to be in readinefs to renew the battle as foon as it might be proper: but, on the contrary, he flood away beyond the enemy to a great diftance, before he wore to ftand towards them again; leaving the vice-admiral of the blue engaged with the enemy, and expofed to be cut off.

III. That after the vice-admiral of the blue had paffed the last of [R]

the

the enemy's fhips, and immediately wore and laid his own thip's head towards the enemy again, being then in their wake, and at a little diftance only, and expecting the admiral to advance with all the fhips to renew the fight, the admiral did not advance for that purpose, but shortened fail, hauled down the fignal for battle; nor did he at that time, or at any other time, whilft ftanding towards the enemy, call the fhips together, in order to renew the attack, as he might have done; particularly, the vice-admiral of the red, and his divifion, which had received the leaft damage, had been the longeft out of action, were ready and fit to renew it, were then to windward, and could have bore down and fetched any part of the French fleet, if the fignal for battle had not been hauled down; or if the faid Admiral Keppel had availed himself of the fignal appointed by the thirty-firft article of the Fighting Inftructions, by which he might have ordered those to lead who are to lead with the ftarboards tacks on board by a wind; which fignal was applicable to the occafion for renewing the engagement with advantage after the French fleet had been beaten, their line broken, and in diforder. In thefe inftances he did not do the utmost in his power to take, fink, burn, or deftroy the French fleet, that had attacked the Britifh fleet.

IV. That inftead of advancing to renew the engagement, as in the preceding articles is alledged, and as he might and ought to have done, the admiral wore and made fail directly from the enemy; and thus he led the whole British fleet away from them, which gave them

the opportunity to rally unmolefted, and to form again into a line of battle, and to ftand after the British fleet: this was difgraceful to the British flag, for it had the appearance of a flight, and gave the French admiral a pretence to claim the victory, and to publish to the world that the British fleet ran away, and that he pursued it with the fleet of France, and offered it battle.

V. That on the morning of the 28th of July, 1778, when it was perceived that only three of the French fleet remained near the British, in the fituation the whole had been in the night before, and that the reft were to leeward, at a greater diftance, not in a line of battle, but in a heap, the admiral did not cause the fleet to purfue the flying enemy, nor even to chace the three fhips that fled af ter the reft; but, on the contrary, he led the British fleet another way, directly from the enemy.

By thefe inftances of misconduct and neglect, a glorious opportunity was loft of doing a molt effential fervice to the ftate, and the honour of the British navy was tarnished.

When the evidence on the part of the profecutor (which lafted to the 30th of Jan.) was gone through, the admiral opened his defence with the following speech:

The Speech of the Honourable Auguftus Keppel, before the CourtMartial, in opening his Defence, Jan. the 30th, 1779

Mr. Prefident, and Gentlemen of the Court,

I AM brought before you, af ter forty years fervice, on the charge of an officer under my com

mand,

mand, for a variety of offences, which, if true or probable, would be greatly aggraved by the means I have had, from a long experience, of knowing my duty, and by the ftrong motives of honour, which ought to have incited me to perform it to the very utmost extent of my ability.

Sir Hugh Pallifer, an officer under my orders, conceives that I have acted very irregularly and very culpably in the engagement with the French fleet on the 27th of July laft; fo very irregularly, and fo very faultily, that I have tarnished the luftre of the navy of England.

Poffeffed with this opinion, on our return to port after the action, he has a letter from the Lords of the Admiralty put into his hands, giving me, in the most explicit terms, his Majefty's approbation for a conduct, which he now affects to think deferves the utmost difapprobation, and the fevereft cenfure; and he, with the other admirals and captains of the fleet, to whom it was likewife communicated, perfectly acquiefces in it.

With the fame ill opinion of my conduct in his bofom, he goes to fea again under my command; he goes to fea under me, without baving given the leaft vent to his thoughts, either by way of advice to myself, or of complaint to our common fuperiors.

He afterwards corresponds with me on terms of friendship; and in his correfpondence he uses expreffions, which convey a very high opinion of my disinterested. nefs, and of my zeal for the service.

After all this I come home; I am received by his Majefty with

the moft gracious expreffions of fa vour and efteem; and I am received in the most flattering manner by the first Lord of the Admi ralty.

Several weeks paffed, when, at length, without giving me any previous notice, the Board of Admiralty fend me five articles of charge, on which they declare their intention of bringing me to my trial; thefe charges are brought by Sir Hugh Pallifer, who, nearly at the fame time, publickly declared, that he had taken this step from an opinion, that he himself lay under an imputation of difobe. dience to my orders, and that this imputation was countenanced by me. I may fay, without the leaft hefitation, that if I fhould be cenfured on fuch a charge (which in this court, and with my caufe,! I think impoffible), there is an end of all command in the navy. If every fubordinate officer can fet up his judgment against that of his commander in chief, and, after several months of infidious filence, can call him to trial, whenever he thinks it useful for the purpose of clearing away imputations on himfelf, or in order to get the start of a regular charge, which he ap prehends may poffibly be brought on his own conduct, there can be no fervice.

If the charges of my accufer could be juftified by his apprehenfions for himfelf, he has taken care to prove to the court, that he had very good reafon for his fears; but if thefe charges are to be confidered as fupported upon any rational ground, with regard to the nature of the offence, or any fatisfactory evidence with regard to the facts as against me, he makes [R]. 2

that

260]

ANNUAL REGISTER, 1779.

that figure, which, I truft in God, all thofe who attack innocence will ever make.

In your examination into that judgment, which my officer, in order to depreciate my skill and to criminate my conduct, has thought proper to fet up against mine, you have very wifely, and according to the evident neceffity of the cafe, called for the obfervations and fentiments of all the officers who have served in the late engagement; fo far as they have been brought before you by the profecutor, I take it for granted you will follow the fame courfe with thofe that I fhall produce. If this fhould not be done, an accufer (according to the practice of mine), by the ufe of leading questions, by putting things out of their natural order, by confounding times, and by a perplexed interrogatory concerning an infinite number of manœuvres and fituations, might appear to produce a ftate of things directly contrary to the ideas of thofe who faw them with their own eyes. I am aftonifhed, that when an officer is accufed by another of crimes, which, if true, must be apparent to a very ordinary obfervation and understanding, that any witnefs fhould, on being afked, refufe to declare his free fentiments of the manner in which the matters to which he depofes have appeared to him. I never wished that gentleman fhould withhold that part of his evidence from tendernefs to me what motives the accufer had for objecting to it, he knows.

any

The plaineft and fulleft fpeaking is beft for a good caufe. The manifeft view and intention that

things are done with, conftitute
their crime or merit. The inten-
tions are infeparably connected
with the acts; and a detail of mi-
litary or naval operations, wholly
feparated from their defign, will
be nonfenfe. The charge is read
to a witness, as I apprehend, that
he may difcern how the facts he
has feen agree with the crimes
he hears charged; otherwife I
cannot conceive why a witness is
troubled with that reading. The
Court can hardly enter fully into
the matter without fuch informa-
tion; and the world, out of our
profeffion, cannot enter into it at
all. These questions I am informed
are properly questions of fact; and
I believe it; they are perfectly
conformable to the practice of court
martials; but if they were quef-
tions to mere opinion, yet the
court, not the witnefs, is anfwer-
able for the propriety of them.
Masters have been called here by
the profecutor (and the propriety
not difputed) for mere opinions
concerning the effect of chacing
on a lee-fhore. In higher matters,
higher opinions ought to have
weight; if they ought, there are
none more capable of giving the
court information than thofe who
are fummoned here; for I believe
no country ever was ferved by of-
ficers of more gallantry, honour,
ability, and fkill in their profef
fion.

You are a court of honour as well as of ftrict martial law. I ftand here for my fame, as well as for my life, and for my fta, tion in the navy. I hope, therefore, that, in a trial which is not without importance to the whole fervice, you will be fo indulgent as

to

« PoprzedniaDalej »