Lord Castlereagh on Summary Punishment for Marauding

Lord Castlereagh to Lord Wellesley, 17th July, 1809.

My dear Wellesley,—I have communicated your letter on the discipline of the army to the judge-advocate, attorney, and solicitor-general. They feel all its importance, and have desired time to confer together upon it. I have also conversed upon it with Sir D. Dundas, who seems quite clear upon the practice in all times past of summary punishment for marauding, when armies have been in the field on actual service. He says it was done by the Duke of York, an instance of which I inclose;[l] by Sir Ralph Abercromby; by many others; and in the last campaign, by Moore,—in short, he thinks, by all commanders who felt it necessary to the discipline of their army; and he has no conception that any army, more particularly a British one, can go on without it.

You will observe in the inclosed precedent that the execution is ordered, not upon the view of the commander-in-chief, or the provost-marshal, but upon the report of another general officer that such an offence had been committed. There is no doubt that such a practice always has existed, and has never been questioned when exercised to repress gross breaches of discipline in the progress of a campaign; but, as this extraordinary remedy is supposed to arise out of and to be alone justified by the necessity of the case, it does not appear that the mode and circumstances under which it is to be exercised have ever been defined with any precision. It is that extreme remedy which never can be made the subject of enactment, and will, therefore, probably always remain to be measured by the conscientious sense of its necessity operating at the moment on the judgment of the officer who authorizes it; and I know of no other protection he has for such exercise of authority than precedent, and the disposition all reasonable men would feel to support him were it questioned.

As far as I can collect any principle, it seems to be most clearly justifiable when inflicted instanter on the commission of the offence, and when the proofs are of a nature to place the guilt of the party beyond all doubt. Where time has intervened and the offenders been committed to custody, where the guilt is to be collected from the evidence rather than the view, there the intervention of a court-martial seems the preferable course.

I have not found any one who doubted that it would be clearly competent for the general commanding to punish with death, upon his own view of the guilt: but whether he can delegate such a power to his provost-marshal seems more questionable. The commander-in-chief thinks he can, according to the usages of war.

As soon as Ryder comes to town I propose having a meeting between the military and the legal authorities, and shall send you the result. What I have stated in this letter you will consider as not more than what I have been able to collect in conversation. There seems much difficulty in treading back our steps on the mode of constituting courts-martial. I much regretted the innovation in the mutiny act at the moment, as it was obvious it was relinquishing to theory and reasoning what you could hardly ever hope to resume by force of argument from an assembly not composed of professional men. On this part of the subject we are helpless till parliament reassembles, and even then I cannot look forward with much confidence to the system being restored.

This consideration does not alter the grounds materially on which the summary exercise of punishment is to be justified. It certainly, however, renders it the more indispensable, and in so far it may fairly be considered as one feature more in the necessity that warrants it. The only additional part of the question upon which it may be necessary in this preliminary communication to say a word is, that whatever increase of the provost establishment you may find requisite will be cheerfully sanctioned, and I conclude you can be at no loss for proper instruments on the spot to employ.

August 12th, 1809.

I have had my conference with the attorney-general and Ryder on martial law. They do not enable me to say much in addition to my former letter. They seem fully impressed with the persuasion that the power of summary punishment, even to death, must reside in the commanding officer of an army in the field, but in what precise mode, or under what particular circumstances to be exercised, they can give no opinion. They consider that the necessity of the case can only be the rule, and that the power must be regulated by the conscientious sense of the commander, and, of course, upon his responsibility. They admit that this is a painful duty, and of some hazard to an officer to undertake; but they say at the same time that, to be effectual, it must be both summary and arbitrary, and that it is impossible in this constitution that such a power should be intrusted, à priori, to any man. All they can say with respect to the safety of having recourse to the exercise of such extraordinary means of repressing disorders is, that they have reason to believe that such powers have been in very general use in the field, and that they know of no instance in which the acts so done in the face of the army, for the preservation of its discipline, have ever been subsequently questioned. The only practical suggestion they have enabled me to offer on your letter is, that the Mutiny Act allows three officers to sit on detachment court-martial if more cannot be had.

The 6th Regiment of Dragoons now with you have only 250 horses at home fit for service. These are ordered to assemble at Portsmouth for embarkation.—Ever, my dear Wellesley, yours very sincerely,

Castlereagh.

Notes

[1] Summary of Inclosure—Major-general Abercromby reported to the commander-in-chief that two men of the 14th Regiment attempted to rob the house of a countryman, and during the attempt murdered the woman of the house and wounded a child. His royal highness, in the interests of justice and humanity, determined to punish the perpetrators of so horrid a fact by a signal act of severity. His orders were issued to the provost, and the two men were at once executed at the head of the brigade.