The Articles of War and the Laws of Oleron

Let us now examine the origin of our former ‘Queen’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 Castile by ALPHONSO X in the 13th Century, and were introduced into 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 ‘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 Amiralty, to be observed both in ‘Ports and Havens, on the High Seas, and the seas ‘which are engrossed in vellum on the said book and written in ancient hand and in the ancient French language.

The ‘laws of Oleron’ were the laws which governed the seafaring nations of the West, and were derived from the code formulated in the Republic of Rhodes and received and confirmed by the Romans and neighbouring states bordering on the Mediterranean, in the same manner as was the code promulgated at Wishy (a small Swedish town in the island of Gothland) received and conformed to by the nations bordering on the Baltic and to the north of the Rhine.

The ‘Black Book’ of the Admiralty suddenly disappeared about the end of the 18th Century, and was accidently 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 cf EDWARD 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 tine, the decisions of his predecessors in office, together with the principles of justice ackowleded 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.....

  1. ’Whoever shall commit murder aboard ship shall be ‘tied to the corpse and thrown into the sea’
  2. If the murder be committed on land, the murderer ‘shall be tied to the corpse and buried alive’‘
  3. 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 lose a hand
  4. ‘If a man strike another with his hand, he shall be ‘ducked three times in the sea’
  5. ‘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 Shinping 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 strikng feature of this code is, that although rigorous penalties are laid down for the various misdemeanours it is especially ordered that the opinion of the crew is to be taken into 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 —

‘Sirs, 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 be does other-wise, he is bound to replace the ship and the goods if they are lost, and this is the judgement in this case.

The recent and former Queen’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, Sec. 52, clause 2, we find the expression According to the custom to the Navy. It is interesting to observe that Sect. 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 Her Majesty’s Service with disgrace, or suffer such other punishment as is hereinafter mentioned.’ This, I think, used to be the 99th Article of War, and on account of its 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 beread as occasion shall serve’

Before the DFDA in the relatively recent days of the NDA, it was customary for copies of the NDA 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 into his sleeves. This latter corresponds with the old Military punishmentwhich 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 gurner.

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 sharpknife, and choose to hang there until he starve or cut himself into 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 say that we derive the practice of an inferior in rank giving way to a superior, or asking permission before crossing his bows.

Flogging, hanging, keelhauling, etc., were punishments which existed up to modern times with the exception of keelhauling, which, although in use in the Dutch and French Services up to approximately 1750, was discontinued in the British Navy somewhere it is believed, about the Stuart period, although there is a reference to keelhauling 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 the Royal Navy.

The last official yardarm execution took place at Talienwan Bay in the second Chinese War in 1860, and was witnessed by General Sir Alexander Tulloch.The culprit was a Marine charged with atternrting 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 Adthiral Cornwaliis who, the chronicles relate, 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 order 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 day, but also was it unusual for the Admiral personnaly 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 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 quarterdeck, 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 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 upon your shoulders. But I ask a favour of you before the ship’s comany, 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 itand snapped it across his knee and threw the 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 aprointment 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 B1ue’s discipline.

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