The Articles, Laws of Oleron
THE ARTICLES OF WAR and the LAWS OF OLERON
Île d' Oléron belongs to the departement of Charente-Maritime and is located in the estuary of the Charente in the Atlantic Ocean. The Poitou-Charente Region is abt 175 km2. It's captial city is Saint-Pierre d'Oléron. In 1199 Eleonora of Aquitanië resigned at the island. In the 17th century it was a safe heaven for the Huguenots. Known from legal history are the Rôles d'Oléron or: Jugements d'Oléron, a collection of martimime law customs and judgements, founded at the end of the 11th or at the beginning of the 12th century. This collection had an great influence to other similiar collections like the Damme Waterrights
Let us now examine the origin of our present King’s Regulations and Admiralty Instructions, and the Naval Discipline Act, generally known as the Articles of War.
These were certainly founded on the Laws of Oleron which, according to tradition, were adopted in Castille by Aphonso X. in the 13th. Century, and were introduced in to England by Richard I. A strong contingent from the island of Oleron was embodied in the fleet which set out in the second year of the reign of Richard I. for the Holy Land. William de Forz of Oleron was one of the five commanders and one of the justiciaries of the Navy.
From the Laws of Oleron was compiled the Admiralty Black Book, which, according to Doctor Exton, a Judge of the High Court of Admiralty in 1664, is “An authentic Book, having been from time to time kept in the Registers of the Court for the use of the Judges of the Admiralty successively, and as free from suspicion of being corrupt, or falsified as the records of any Court whatsoever.” This was a book which contained “The ancient Statutes of the Admiralty, to be observed both in Ports and Havens, on the High Seas, and beyond the seas which are engrossed in vellum on the said Book and written in an ancient hand and in the ancient French language.”
The Liber Niger Admiralitatis, or Black Book of the Admiralty, is an illuminated manual of instruction for the Lord High Admiral. It contains details on the appointment and office of admiral, the conduct of cases in the High Court of Admiralty, and a section on the examination and punishment of offenders, and includes the Laws of Oléron, a code of maritime law thought to have been compiled in the thirteenth century under English royal authority, initially to govern the Gascon trade which passed by the island of Oléron, off the west coast of France. Little is known about the circumstances of the book's compilation, or its early history. The book was consulted at the Admiralty registry by naval historians in the seventeenth and eighteenth centuries, but by 1808 it had been lost and the registry clerk claimed that the registry 'had never seen such a book, and knew nothing of it'. It remained missing until the early 1870s.
The Black Book of the Admiralty suddenly disappeared about the end of the 18th. Century, and was accidentally rediscovered in the year 1874 at the bottom of a chest, supposed to contain the private papers of a former Registrar of the Admiralty Court. It was then ascertained with tolerable certainty that while the book contained ordinances drawn up antecedent to the reign of Edward III. 1327, no part of the writing, which was in various hands, was of a date earlier than the reign of Henry VI., 1422. In the reign of King John, all causes of Merchants and mariners, happening on the main seas, were tried by the Lord High Admiral, who, in deciding such cases, was guided by the Sovereign’s Orders in Council; the unwritten laws and customs prevailing in nautical matters at the time, the decisions of his predecessors in office, together with the principles of justice acknowledged by himself.
The code of Oleron did not err on the side of leniency. “Know all men that We, with the aid of upright counsels have laid down these ordinances. Whosoever shall commit murder aboard ship shall be tied to the corpse and thrown in to the sea. If a murder be committed on land, the murderer shall be tied to the corpse and buried alive. If any man be convicted of drawing a knife for the purpose of stabbing another, or shall have stabbed another so that blood shall flow, he shall loose a hand. If a man strike another with his hand, he shall be ducked three times in the sea.
If any man defame, vilify, or swear at his fellow, he shall pay him as many ounces of silver as times he has reviled him.”
The practice of levying fines is still carried out in the Merchant Service for certain offences of this nature, in accordance with the Merchant shipping Act, Section 235 et seq. “If a robber be convicted of theft, boiling pitch shall be poured over his head and a shower of feathers be shaken over to mark him, and he shall be cast ashore at the first land at which the fleet shall touch.”
One striking feature of this code is, that although rigorous penalties are laid down for the various misdemeanours it is specially ordered that the opinion of the crew is to be taken in to consideration under certain circumstances, and the decision of the majority is to be abided by. For instance, “If a ship is in Haven and stays to await her time and the time comes for departure, the Master is to take counsel with his companions and say to them ‘Sir, you have this weather.’ There will be some who will say ‘The weather is not good’ and some who say the weather is ‘Fine and good.’ The Master is bound to agree with the greater part of his companions, and if he do otherwise, he is bound to replace the ship and the goods if they are lost, and this is the judgement in this case.”
I quote here an extract from The Acts of the Apostles Chapter 27, verse 9-13, to shew that the advice of the majority was followed.
Now when much time was spent, and when sailing was now dangerous, because the fast was now already past, Paul admonished them.
And said unto them Sirs, I perceive that this voyage will be with hurt and much damage, not only with the lading of the ship, but also of our lives.
Nevertheless, the Centurion believed the master and the owner of the ship, more than those things which were spoken by Paul.
And because the haven was not commodious to winter in, the more part advised to depart thence also, if by any means they might attain Phenice, and there to winter; which is an haven of Crete, and lieth towards the south west and north west.
And when the south wind blew softly, supposing that they had obtained their purpose, loosing thence, they sailed close by Crete.”
If mariners went ashore without leave, got drunk, made a disturbance and were injured, the Master was at liberty to leave them behind and hire others instead, and if he had to pay the substitute higher wages he could charge the defaulter with the difference. As a chronicler optimistically observes, “If he can find anything of theirs.”
If a Mariner fall sick and become incapable of working, the Master was to put him ashore and seek lodging for him, provide him moreover with a candle of tallow and one of the ship’s boys to tend him, or, failing that, a hired woman.
If contention arose between the crew and the master, before turning any or all of them out of the ship it was enjoined that the Master should remove the tablecloth three times as a warning. As there was only one cooked meal per diem, this was apparently equivalent to three days’ notice. I think we can safely conclude that it was from this custom that the expression arose which is still in use of Losing the cloth. Our present King’s Regulations and Admiralty Instructions and the Naval Discipline Act both contain references to the Custom of the Sea and the Custom of the Service, vide Section 44, Naval Discipline Act, where it says that persons shall be proceeded against and punished “according to the laws and customs used at sea.”
In Part III., Naval Discipline Act, Section 52, clause 2, we find the expression According to the Custom of the Navy. It is interesting to observe that Section 43, Naval Discipline Act, states that “Every Person subject to this Act who shall be guilty of any act, disorder, or neglect to the prejudice of good order and Naval Discipline not herein before specified, shall be dismissed from His Majesty’s Service with disgrace, or suffer such other punishment as is hereinafter mentioned.” This, I think, used to be the 39th Article of War, and on account of it’s covering properties has been known for many years as the Captain’s cloak.
Sir Thomas Audley at the command of King Henry VIII framed a book of orders for War both by land and sea. The following are some of the instructions.
“First, the Laws which be written what every man ought to do in the ship towards his Captain to be set in the main mast in parchment to be read as occasion shall serve.” Today it is customary for copies of the N. D. A. to be distributed round the ship in easily accessible places.
“If any man within a ship had slept upon his watch four times and so proved, this be his punishment. The first time he shall be headed at the mainmast with a bucket of water poured upon his head. The second time he shall be armed, his hands held up by a rope, and two buckets of water poured in to his sleeves.” This latter corresponds with the old Military punishment which still exists in Barrack rooms although not authorised, known as Booting and Bottling, and was generally peculiar to the Cavalry. In later times in the Navy about the Nelsonic period, we read of this punishment being known as Grampussing, or making a man a soused Gurnet. It was not infrequently followed by putting a man in the lee of a sail so as to get the full benefit of the draught, walking the weather hammock netting, or being spread-eagled in the weather rigging. However, to continue, “The third time he shall be bound to the mainmast with gun chambers tied to his arms and with as much pain to his body as the captain will.” The fourth and last punishment being, as we would say nowadays a cumulation of offences, it is enacted that “Being taken asleep he shall be hanged to the bowsprit end of the ship in a basket, with a can of beer, a loaf of bread and a sharp knife, and choose to hang there until he starve or cut himself in to the sea.”
Henry VIII. laid down that no Captain shall take the wind of his Admiral, but come under his lee except necessity require the same, and from this we may see that we derive the practice of an inferior in rank giving way to a superior, or asking permission before crossing his bows.
Flogging, hanging, keel-hauling, etc., were punishments which existed up to modern times with the exception of keel-hauling, which, although in use in the Dutch and French Services up to approximately 1750, was discontinued in the British Navy somewhere, I think, about the Stuart period, although there is reference to keel-hauling in the ‘Fair Quaker of Deal’, written about 1720, which makes it appear possible that this form of punishment existed till the middle of the 18th Century in our Navy.
The last official yardarm execution took place at Talienwan Bay in the second Chinese War in 1860, and was witnessed by a personal friend of mine, the late General Sir Alexander Tulloch. The culprit was a Marine charged with attempting to murder his Captain, and the execution was also witnessed by troops specially paraded on shore.
With regard to flogging, we are still bound by the regulations that it shall be carried out at the gangway, according to the custom of the navy.
An interesting case concerning flogging took place under Admiral Cornwallis who, the chronicler relates, ordered a Lieutenant of his own ship to be flogged under the following circumstances. Billy Blue, as Admiral Cornwallis was popularly called, appeared on deck having taken one glass of wine more than his customary allowance, which state of affairs led to his being totally unaware of his subsequent actions. He desired the Captain to turn the hands up to witness punishment. The Captain was obeyed with all ceremony customary on these occasions, but everybody was at a loss as to the reason for the order, for not only was it at an unusual time of the day, but also it was unusual for the admiral personally to interfere with the ship’s routine. On the hands being reported present, Admiral Cornwallis pointed to an Officer and ordered him to strip. Time did not permit of any argument or expostulation, nor to point out the impropriety of the Admiral’s conduct. The Officer was duly seized up to a grating and flogged. The next day the admiral was told of the occurrence, and again desired the hands to be turned up, and the Officer who had been flogged brought up on deck. The Admiral then appeared on deck with a cane in his hand, and walking up to the astonished Officer, addressed him as follows:
“I am told that yesterday evening I ordered you, Sir, to be flogged, and that my orders were carried into execution on this quarter deck, but upon my honour I have not the slightest recollection of the circumstances. It appears to be true, however; therefore this morning I have assembled those who saw you punished, and in their presence I have to tell you that I don’t come here to make an apology for what I have done, because no British Officer could receive an apology from anyone after being struck: If I did not strike you myself, I caused another man to do so. I won’t ask your pardon, Sir, because as a man of honour you could not, in this way, pardon an unpardonable offence. Nor, Sir, will I waive my rank to give you personal satisfaction on shore, because, by receiving your fire or firing at you, I could not obliterate the stain I have laid on your shoulders. But I ask a favour of you before the ship’s company, which is that you will take this cane and use it on my back as long as it will hold together. By God! I would do so to any man who served me as I served you. You may thrash me if you please as much as you like, and as I am a living man it shall not interfere with your future promotion.”
Here he presented the handle of the cane to the Officer who took it and snapped it across his knee and threw the pieces overboard, and extending his hand to the Admiral announced that he forgave him with all his heart.
This Officer is stated to have finished his Naval career that voyage and obtained a capital appointment on shore under the patronage of the admiral’s brother - an appointment for which he might have sighed in vain but for his luck in tasting Billy Blue’s discipline.
Up to comparatively recent times, Boatswain’s Mates and Ship’s Police were armed with small ropes ends known as Colts or Starters. A Sergeant of Marines was similarly armed, but, except in third rates, was forced to confine his attentions to his own Corps. The Boatswain used invariably to carry a cane, and in carrying out every order the laggards were assisted by these worthies. Midshipmen were not exempt, and Jack Mitford mentions a case in which an offending Midshipman was seized to a grating in his Captain’s Cabin and given a dozen with the colt by the Captain’s orders. The Captain was subsequently Court Martialled and severely reprimanded, which, the history states, was ‘Nuts’ to every Midshipman in the Fleet. This occurred in the early forties.
I will not speak of the authorised punishments such as flogging round the Fleet, mastheadings, etc., but we might note that certain punishments were meted out by Mess Deck Court Martial. A Cook of the mess, if he spoilt the dinner, was tried by a jury of Cooks of Messes, the signal to form the Court being the hoisting of a swab by the mess concerned and the beating of a can along the messdecks. The punishment consisted of being Cobbed or Firked and was carried out with either a stocking full of sand or half a bung stave of a cask, which instrument, owing to the bung hole, caused blisters on the posterior of the culprit. The punishment was prefixed by the words Watch there watch, and everybody within hearing was bound to take his hat off under pain of a like penalty. The last blow was always the hardest and was known as the Purse, - hence the expression of getting the Purse or Hoisting a swab. The Reverend Cooper in his standard work on Flagellation says that this punishment was in use in Irish Schools in bygone days, and was known as School Butter.
Cobbing or Firking was the term used for unofficial Flogging, and was similar to the Military punishment known as Sling Belting. The latter punishment was administered with the sling of the old fire-lock.
The number of lashes at an official flogging was left to the Captain, but for theft, a man might be made by Captain’s summary punishment to run the Gauntlet, in which case he was started between two lines of men by having a dozen with the Thieves’ Cat, an ordinary cat with knotted tails. He then advanced between the lines, preceded by the Master-at-Arms, who held a drawn sword against his chest, in order that his progress should not be too rapid, and every man hit him with a rope’s end wherever he could. He then received another dozen with the Thieves’ Cat at the turn to the starting point, after which he retraced his steps or passed down the other side of the ship. In this connection, it is interesting to observe that a similar punishment existed in the Russian Army under Peter the Great; this Monarch, however, limited the number of blows at one time to 2,000.
It is noteworthy that Mr. Pepys, the famous Secretary to the Navy, was given the Duke of York’s commission to be Captain of the ‘Jersey’ so that he could be a member of a Court Martial for examining the loss of the ‘Defiance’ and other things. Although in this instance, the worthy Secretary does not seem to have been an actual member of the Court, he was associated with another held to inquire into the dispute between the Captain of the ‘Nonsuch’ and his First Lieutenant, which he classifies as a “Drunken kind of silly business.” Mr. Pepys withdrew before the Court gave judgement, as it was feared that the precedent of his being made a Captain might be hereafter made of evil use. During the late War, Sir Eric Geddes was given the rank of Vice-Admiral while he held office at the Admiralty.
The above instances are the only ones which I can find of civilians being granted Naval Commissions and although the precedent is there, I doubt if it will ever become a matter of frequent occurrence. When attending yardarm executions it was the bow oars of the attending boat who furnished the party on the whip. The bowmen of the launches, beside being the most easily spared of the crew - the boat generally being manner and armed with a carronade - were usually the biggest scoundrels in the ship, and the fact that they had actively to assist in the execution, was done as a warning in case they thought of following in the criminal’s footsteps. It is from this that we get the expression which is still current - As honest as a bow oar, or in other words, a thorough-paced rogue.
In the old days, The First Lieutenant, who was the Executive Officer of the ship, had no power to punish unless the Captain was absent ‘with leave from the Admiral.’ If we look at King’s Regulations, Article 585, we find that the Executive Officer may not cause a boy to be caned unless the Captain is absent by permission of a superior authority for a period exceeding 48 hours. The present code is certainly founded on the former.