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Remarks on Military Law and the Punishment of Flogging

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Remarks on Military Law and the Punishment of Flogging This is a reproduction of a library book that was digitized by Google as part of an ongoing effort to preserve the information in books and make it universally accessible. https://books.google.com REMARKS ON M I L IT A R Y L. A. W. AND THE PUNISHMENT OF FLOGGING. BY MAJOR-GENERAL CHARLES J. NAPIER, C.B. AUTHOR OF “ COLONIZATION IN AUSTRALIA.” W. “Forty stripes he may give him and not exceed: lest, if he should exceed, and beat him above these with many stripes, then thy brother should seem vile unto thee.” DEUTERONOMY, xxv. 3. L ON DO N : T. AND W. BOONE, NEW BOND STREET. MDCCCXXXVII. f PRINTED BY willia M wilcockson, Rolls Pui Loi NGs. DEDICATION. TO THE FIFTIETH REGIMENT. WHATEveR credit it may have been my good for tune to gain in the field, I chiefly owe to the soldiers of the fiftieth regiment. When I wear the decoration of a Companion of the Bath, I do not forget the men by whose intrepidity this decoration was won; and that I am but the channel through which the King expressed his approbation of their courage. I have never claimed this mark of honour as bestowed ex clusively upon myself. I bear it as the ensigns bear the colours: in honour of the King and of the regiment. The old soldiers of the fiftieth, that yet live, are dispersed: but they still remember Egypt: they still remember Spain: and the glories of Abercrombie, of Moore, of Wellington, are yet before them, as the dreams of past wars float upon their memory! But * > * iv DEDICATION. these men die away: day by day they perish, think ing of those fields where erst they were assembled in arms. Scattered by time, they are now lost to each other: those who fell, and those who survive, are nearly alike. ‘QUo FATA vocaNT, young soldiers, is your motto; ‘FUIMUs is ours! To the young fiftieth I am unknown: but to old soldiers, their former regiments seem ever as their home. I have three nephews in the army; their father has been my comrade from our childhood; and as I feel towards my brother and his sons, even so do I feel towards the old and young fiftieth. I there. fore dedicate this book to that regiment, as the highest mark of respect that I can offer to the me mory of those soldiers who once defended, and to the men who now guard its standards: standards that have passed victoriously through so many battles! CHARLEs JAMEs NAPIER, Major-General. The motto “Quo fata vocant,” is borne on the colours of the fiftieth regiment. CONTENTS. PAGE PREFACE - - - - - V CHAPTER I. INTRODUCTION - - - - | CHAPTER II. OBJECT OF SOCIAL LAW AND How IT works TO OBTAIN THAT OBJECT - - - - 6 CHAPTER III. OBJECT OF MILITARY LAW AND HOW IT WORKS TO OBTAIN ThaT OBJECT - - - - 9 CHAPTER IV. OF MILITARY OBEDIENCE - - , - - ll CHAPTER V. CONNECTION BETWEEN SOCIAL AND MILITARY LAW - 19 CHAPTER VI. THE LEGISLATURE AND wait ERs on MILITARY L.Aw Mix THE MILITARY AND CIVIL CODES TOGETHER - 25 /* CONTENTS. PAGE CHAPTER VII. OF RIOTS - - - - - 38 CHAPTER VIII. MILITARY LAW SHOULD DIFFER IN PEACE AND IN WAR - 50 CHAPTER IX. OF THE SOLDIER SERVING AT HOME AND IN THE COLONIES 53 CHAPTER X. oF THE MILITARY code: CALLED “MUTINY ACT" AND “ARTICLEs oF waR” - - - 58 CHAPTER XI. OATHS - - - - - 75 CHAPTER XII. THE REPRIMANDING OF COURTS MARTIAL - - 77 CHAPTER XIII. OF THE RIGHT TO DISMISS AN OFFICER WITHOUT TRIAL 8] CHAPTER XIV. THE FORMS OF TRIAL USUAL AT COURTS MARTIAL - 86 CHAPTER XV. ON PUNISHMENTS AND REWARDS - - - 122 CONTENTS. PAGE CHAPTER XVI. 126 PUNISHMENTS - - CHAPTER XVII. 146 PICKETTING AND FLOGGING - CHAPTER XVIII. CAN FLOGGING BE SAFELY ABOLISHED ' 166 CHAPTER XIX. SUBSTITUTES FOR FLOGGING - 175 CHAPTER XX. 185 PUNISHMENT IN THE COLONIES - CHAPTER XXI. soME FARTHER REMARKs on PUNISHMENT 190 CHAPTER XXII. CONCLUDING OBSERVATIONS ON PUNISHMENTS 200 CHAPTER XXIII. OF REWARDS - - - CHAPTER XXIV. THE RESULTS OF REWARDS PROVED 219 CONTENTS. PAGE CHAPTER XXV. 228 ON PENSIONS - - - - - CHAPTER XXVI. GAMES - - - - - CHAPTER XXVII. OF THINGS WHICH TEAZE SOLDIERS - - 237 CHAPTER XXVIII. 250 OF SENTRIES - - - - - CHAPTER XXIX. 256 soLDIERS FAMILIES - - - - CHAPTER XXX. 258 COUNTY AND CITY REGIMENTS - - - CHAPTER XXXI. 262 ON THE COLOURS OR STANDARDS - - - CHAPTER XXXII. TROOPS ON BOARD SHIPS OF WAR - - - 266 CHAPTER XXXIII. OBSERVATIONS ON THE EVIDENCE TAKEN BEFORE THE COMMISSIONERS ON MILITARY PUNISHMENTS - 270 P R. E. F. A. C. E. My respect for the judgment of the public has made me labour strenuously to render this little volume worthy of patronage; at the same time I am conscious that my best claim to the indulgence of the community is honesty of purpose. I am not aware that there is any book on military law which advocates the separation of military from social law, though some able works have been pub lished on a contrary principle by Adye, Tytler, Kennedy, and Simmons. If I viewed the matter in the same light with these authors, I should not have written upon a subject which they have so cleverly treated; but they have all considered mili tary law as an emanation from the social law, de pendant upon it, responsible to it, and seeking its assistance under all difficulties. This erroneous principle (erroneous if my view of military law be just) has been laid down by the legislature; and the authors who have written upon military law en deavour to explain it upon this principle: they had no choice. Their works were written to expound vi PREFACE. the law as it is, for the instruction of young officers; mine is written to controvert the propriety of union between the social and military law. Such is my apology for publishing the present essay. I am in clined to believe that Major Kennedy and Captain Simmons will coincide in my opinion; perhaps they will more fully develope the subject. To do so would not be inconsistent on their part; for an exposition of what the law is, and an essay upon what it ought to be, demand different lines of argument. I have opened the latter field for discussion, but I have done little beyond broaching the general principle. If either of these gentlemen would correct, enlarge, and form a system of details based on the principles that I have advocated, he would present to the public a useful picture of the machinery for working military law. Such a detailed plan might be adopted by the legislature, and military law be administered by a corps of judges advocates, formed of military men, and directed by a military judge advocate general. The punishment of flogging has been treated of in this volume. I confess that I entered on the subject with great hesitation; but I thought it to be one from the consideration of which I ought not to shrink. The public have raised this the question, which is now like a “troubled spirit,” and can be laid by discussion alone. The endeavours to throw cold water upon such a matter is ridiculous, it is an acknowledgement that the Government feels afraid of a public enquiry; that it does not feel strong on PREFACE. vii the question, which will, of course, be pressed with increased vigour by the public. I can see no good cause for such timid conduct: let open investigation take place and the danger be at once encountered by argument, which is the only means by which public opinion can be influenced. That the reason ing I have used is sound, I have not the pre sumption to assert, especially as it is opposed to the opinions of many better soldiers than myself; but seeing that the Government shrink from, while the public cherishes discussion, and that every news paper puts forth its attacks upon commanders of regiments, filled with unjust and false assertions, I have endeavoured, perhaps erroneously and un successfully, to clear the question from the rubbish with which it has been loaded, and exhibit it to the view in its general bearings. In the performance of this task I am not conscious of any influence but that of the desire to speak truth. Were I a political partisan writer, the reader must see what a wide field of popular declamation would be opened to me by advocating the total abolition of flogging. Did I covet favour from those in power, I should devote my pages to the defence of flogging in time of peace. To declaim in behalf of either system would have been an easier work than that which I have under taken; but I am so convinced of the justice of what I advance, that, in despite of that want of ability which may pervade the execution of my task, I be lieve that my arguments will produce a strong effect viii PREFACE. upon many who are now of an adverse opinion, but who have not studied the question. Finally: I am aware that the principles of military law which I have advocated, will be disputed, for this is an age of discussion; but out of that discussion the truth slowly and impressively arises; and I shall readily acknowledge my obligation to those who point out whatever is faulty in the work which I now sub mit to the public. NoTE. In avowing my readiness to acknowledge sound criticism, I am not bound to do the same by that which is thoughtless and in jurious, therefore I shall here notice some observations made by Captain Irwin on a work of mine called “Colonization,” treating of the New South Australian Colony, and published for the guidance of those who seek to emigrate to that distant part of the world.
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