London Magazine Enlarged and Improved

them into one; and a bill for that purpose lies now before the house of commons, intitled, (as above.)

This bill having been fome time fince printed, the better to enable all perfons to judge and advise in so important a matter, eccafion has thence been taken, to represent some parts of it, as intended to vest an un- A precedented and tyrannical power in the Jords of the admiralty, and as fubjecting all officers, more particularly those upon kalf pay, to a degree of flavery, hitherto ank own to our conftitution. This hath given umbrage to feveral fea-officers, who thereupon petitioned the lords of the admiralty to use their utmost endeavours for the maitigation of fome of its claufes, requefting B

more efpecially that the 34th article might be left out, and the 33d more fully explained.

Thefe articles are as follow.

Art. 33. If any flag-officer, captain, or commander, or lieutenant belonging to the fleet, hall be convicted before a court-martial of bebaving in a manner unbecoming the charac- C ter of an officer, he shall be dismissed from bis majefty's fervice.

Art. 34. As it stood at first in the bill.
All the balf-pay officers belonging to his ma-

navy shall be subject to discipline and command, ruben the lord bigh admiral, or commißioners for executing the office of lord bigh admiral, ball require their fervice and attendance.

Art. 34. As it was amended, and the amendment fhewn to the officers when they petitioned the lords of the admiralty.

lieutenants, masters, and furgeons of the navy should be twice as much as it had been; and that the entire old pay (which was confequently half the increased pay) fhould in time of peace be continued to fuch of those officers, as were within the defcription of that order of council, upon, this exprefs condition, that they should be ready at all times to obey fuch orders, as they should receive from the lord high admiral, or commiffioners for executing that office, for the time being.

However, fays the author, this order of council being made during the war, it could not take place immediately: And when the peace was concluded, it became

neceffary to reconfider it. Accordingly, I find, that in the year 1698, the lords commiffioners of the admiralty prefented to the lords juftices in council a draught of a new establishment both for full pay and half pay; which draught having been (as it fhould feem) laid before the house of commons, they addreffed the king, that he would be pleafed to take into confideration, and fettle the faid establishment. And it was accordingly confirmed by his majesty in council, April 18, 1700.

This feems to have been the first regula tion of this kind in which the parliament interfered, and therefore it appears to be the most authentick declaration of the intention of the publick in granting half pay, Dand of the duty incumbent on those who receive it; fince upon this draught, and the eftimate which attended it, the neceffary fums for fupporting it were granted by the

All balf-pay officers belonging to his maefly's navy, when ordered upon fervice by the lord bigh admiral, or commiffioners for executing the office of lord bigh admiral for ebe time being, ball, in cafe of their disobe- E dience to fuch commands, be liable to be tried and punished by a court martial, in such manwer as the faid court shall judge meet, according to the nature and degree of the offence.

This amendment did not fatisfy the offieers, and therefore they petitioned the houfe of commons to be heard by counsel against the bill; which, the author fays, raifed great prepoffeffions without doors against it; and that to examine the foundation of thefe, it was neceffary to explain the origin of granting half pay, the motives for doing it, and the conditions with which it hath been always attended.

commons.

This regulation, with regard to half pay, begins with obferving That it will be much for his majefty's fervice, and for the safety of the kingdom, to have always a competent number of fea-officers fupported on shore, who may be within reach to answer any fudden or emergent occafions ;" and therefore proposes, that there be 9 flag-officers, 50 captains, 100 lieutenants, and 30 masters, conftantly paid in the manner there fpecified. It farther directs, "That all officers entitled to F half pay fhall, at all times, be ready to obey fuch orders as they fhall receive from the board; to which end they are to transmit an account, from time to time, to the focretary of the admiralty, of the places of their respective habitations, that fo, when his majefty's fervice requires their attendance, they may the more readily be called thereunto."

The allowing of half pay to fea-officers, he fays, was first introduced in the reign of K. Charles I. was originally granted G only to flag-officers, and was fome years extended to the commanders of first and fecond rate fhips. But in 1693, it was refolved by K. William in council, that the Sen pay of the flag-officers, commanders,

By an order of council made in the year 1715, this establishment of half pay of the year 1700, was extended to all the captains and lieutenants which were then unprovided for: But ftill under the fame injunctions to

them,

them, as before, to keep themselves, at all times, ready to receive the commands of the admiralty: The articles relating thereto being copied verbatim, from those of the year 1700.

From this account of the half pay, he -argues, that half-pay officers were always obliged to be ready at a call, and that even A the common law would perhaps be open against one that should refufe to ferve when called upon; fo that the said 34th article of the bill was not to create a new fpecies of offence, but to appoint the method of trial for an old one; and by this method the power of the lords of the admiralty was rather abridg'd than extended; fince by referring the matter to the judgment of a court-martial, it fhould feem as if they gave up their hitherto unquestioned right of ftriking the offender off the lift of offsers on half pay.

The author then proceeds to fhew the neceffity of this article, by observing, that as our fleet is our great fecurity, we ought to be continually provided with a fufficient number of able and experienced fea-officers; but that after a long peace, we may, upon the breaking out of a war, find ourfelves abfolutely unprovided; because engagements on fhore, and new habits of life, might infenfibly fteal upon our fea-officers, and might, without any imputation on their spirit or courage, divert them

courts-martial to their brother officers hath as yet been rarely heard of.

Upon the whole then, fays he, it may be affirmed, with great truth, that this 34th article, altho' oppofed with fuch vehemence, does not place the half pay officer in a worse fituation than what he now stands in; that instead of increafing, it rather diminishes the power of the lords of the admiralty, and by fecuring the service of the veteran commanders to the publick, it seems to be extremely neceffary for the honour of the fleet, and the fatety of the nation. -The author then proceeds to a fhort examination of the 33d article, and fays, that in the course of the late war feveral enor

mities had been committed by commanders of fhips, fuch as fraud, cruelty, and many inftances of a fimilar nature, which were fuppos'd not to be cognizable by courts-martial, because not explicitly defcribed in the articles of war; and that for this reason it was thought expedient to infert this article in the bill. Therefore, fays he, I shall now finish these remarks with obferving, that tho' the defending mankind against the attempts of arbitrary power and tyranny is, of all human actions, the moft beneficent and honourable; yet the supporting the interefts and extending the immunities of pri vate bodies of men, in oppofition to the publick utility and the fafety of the nation, is an undertaking of a far different kind:

from the thoughts of a profeffion, which D And, whatever name it may be difguifod

they confider'd themselves at liberty to abandon when they pleafed. Whereas, should this 34th article pass into a law, we fhall not only be fecured of the service of thofe, who receive the publick pay in time of peace, but we shall have them likewife readier, experter, and more present to their profeffion; because the neceffity of ferving E when called for, will oblige them to make their profeffion the continual subject of their thoughts, and thereby prevent their forget ting the fkill they have acquired.

under, is, in its nature, much nearer allt ed to tyranny than to patriotism.

To this pamphlet there were two anfwers publifhed; one, intitled, A detection of the confiderations on the navy bill, by a fea

man.

The author of this pamphlet begins with objections to the whole of the navy bill, as being calculated to give the board of admiralty a power to enslave and ruin, at pleafure, every one within its reach ; after which, he objects against several particular articles, and then comes to the 34th and 338; as to the former of which he obferves, that with respect to fea-officers in half pay, it has been the fettled method to leave notes F at the admiralty-office, of the place of their refidence, and when any commands from that board were communicated to them, by message or letter, they either attended fuch commands, or were ftruck out of the halfpay lift. In this method no law was neceffary; nor indeed ought any to be made about it for three reafons. First, because this rule anfwer'd all the ends of a statute, and executed itself. Secondly, because fuch law is not reciprocal, unless officers in half pay are call'd upon duty, and preferr'd in due rotation. And, laftly, because the bringing of the admiralty jurifdiction

If it fhould be urged, fays the author, that many of these gentlemen may hereafter be fo far incapacitated by age, or by their former wounds and fatigues, that it would be inhumanity to expect their fervice; and yet thro' the pique of fome powerful enemy they may, for this very reafon, be called on, he answers, That this objection is much stronger at present, fince now the admiralty have an unquestioned right to order any half-pay officer on fervice, and to ftrike him off the lift of half pay, if he disobeys, and perhaps to proceed G to farther extremities: Whereas, if fuch difobedience were to be tried by a courtmartial, every excufe of age, fickness, or domeftick engagements, would doubtless have its full force; fince the severity of

upon

upon the land, is an attempt to fap the bafis of the constitution, which can admit of no legal jurifdiction on shore to interfere with the common larv.

He afterwards obferves, that the rule regarding half-pay fea-officers, by the es ftablishment, is clear, rational and felf-ex. ecutive, as neither the crime nor the punifhment can poffibly be misunderstood; but by this article it will be otherwise; for, fays he, who in their fenfes ever dreamt of making a law for the fubjecting of one or many men to the pure, fimple, and abfolute diferetion of a court for uncertain crimes, under the general term of difobedience, which may mean just what the ruling power pleafes? If this B was common fenfe, how eafily might this gentleman reduce our voluminous laws into one, by only enacting, that whoever difobeys the commands of his uperior, fhall be punish'd at the difcretion of the the court of King's Beneb. The meaning of laws, Sir, is, that the offender can never commit a crime, but he is aware of the punishment which is specially and notorioufly before his eyes, in terrorem. So that what this gentleman by mistake calls law, is abfolute power; and therefore was fuch a thing to be enacted, no man is oblig'd to obey it.

He adds a good deal more, to fhew the uncertainty of this intended law, and the

officer; and the author, after a fhort account of the application made by the fea officers, first to the admiralty, and then to the house of commons, examines the post tion laid down by the confiderer, that the admiralty will not, by the 34th article, acquire any new powers, nor the officer fuf> fer any new fubjection; as to which he ob ferves, that both the lords of the admiralty and the officers who applied to them, were certainly of a different opinion, other wife the latter would never have made any fuch application, and the former, out of pure complaifance, would have agreed to their request of having this article left out of the bill.

The author then proceeds to fhew, that the admiralty will by this article acquire a new and a very dangerous power, which is that of forcing a half-pay officer upon an improper fervice. Upon this he fhews, that the admiralty have now fufficient power to make a half-pay officer accept of any service that is confiftent with his Chonour and his duty; but have not, indeed, power fufficient to force him upon any fervice that is not, efpecially if he be one that can fubfift without his half pay: Whereas, fhould this article país into a law, they will acquire a power to com pel any half-pay officer, to go upon any fervice they command, let it be never fo improper; because they have the appointing who fhall be his judges in a court-martial, and thofe judges have a power to infli& what punishment they please upon his dif obedience. From whence the 'author concludes, not only, that the admiralty will acquire new powers, but also that all halfpay officers will be brought under not only anew but an insufferable subjection.

many bad confequences that may enfue D

from it; and then he proceeds to confider
the 33d article, which he fhews to be liable
to the fame objection of uncertainty, and
fays, that the confiderer ought to have con-
fidered, that frauds and crueltics are crimes
cognizable by the common law, where
none that apply ever fail of suitable redress;
but had not this been the cafe, why may E
not these or any other crimes be specified?
for the words unbecoming an officer are vague
and uncertain, and the punishment of an
officer, or not, will depend more upon the
intereft he has in his judges, than upon the
nature of his crime; and when crimes are
not ascertained, what may he esteem'd
criminal in one, or at one court. martial,
may not be thought fo at another.

And afterwards he adds thus: The confiderer ought likewife to have known, that in cafes really criminal, the admiralty have a regular judicature of their own, where matters of this nature may be better tried than by a court-martial; where the civil law co-operates with the law of the land, and where, if any thing of this kind G is wanting, it ought to be look'd upon as the proper place of redrefs.

The other pamphlet publifh'd upon this .occafion was intitled, An examination and refutation of the confiderations, by a real fea

Then he examines the expediency of this new law, as to which he asks, Can any thing be faid to be expedient to be done, that never -was yet found neceffary, nor for which the leaft reasonable foundation appears at prefent to think it ever will be neceffary? Has it in the courfe of this long war, in which the utmost strength of our naval power has been exerted, at any time appeared, that the admiralty's fummons has been infufficient to procure the fervices of the halfpay officers, or if one has excus'd himself, has there not been ten to fupply his place? In the time of the late rebellion, did they not throng to the admiralty to be employ'd in any way or manner their lordships thought fit to direct them? Are there not many captains now to be call'd upon, who have folicited commands for a confiderable time together, and for whom no room was found? If this then fhould be the cafe, where is the neceffity for laws to compel, where compulsion has not been found neceffury ?