Laws regarding Impressment

Admiral Byng's case was atypical. First because he was not only an officer but an Admiral. Second because although he was officially executed for cowardice in the face of the enemy (I forget the exact wording). The real reason was political. Basically when his court martial originally found him guilty they did little more than censor him, which would have meant that he would never have been employed again. However he decided to argue his case, and worse did so by calling on support from people no one liked, trusted or respected. Had he kept his mouth shut he would most likely lived, but because he spoke out in the worst possible way the Navy ended up in a position where they had no option but to execute him. Something that no one actually wanted to happen, least of all his fellow officers; even those who were far from his supporters did not want him to face the death penalty.

In regards sentencing and the official charge, if you were marked with an 'R' (for Ran) in a ships books you were a deserter and technically should be hung regardless of why you'd missed your ships departure. The Navy certainly went to a lot of time and effort to promote this fact in an effort to try and convince men not to run.

The reality was that court martial's, which consisted of five(?) ship Captains, tended to understand that men could miss their ships for a lot of reasons or simply have a moment of insanity. (If you happened to have family near the port your ship was in the wanting to see them is not exactly surprising, nor was missing your ship as a result). So they tended to be very lenient, off the top of my head most men simply lost the wages from that voyage (which they would have lost anyway) or at worst ended up being flogged around the fleet (which unlike the army was not a death sentence as the flogging was stopped before the man died).

It has been argued that the Navy would have been better served by letting this attitude be widely known. Since men who had accidentally missed their ships would have been far more likely to return to the Navy.


Oh, someone posted a quote; 'The floggings will continue until moral improves'

This was Lord Howe, later Lord Saint Vincent, circa 1798. He had been given command of the Mediterranean fleet and found it in a abysmal state of discipline. To restore discipline and turn the fleet into an effective fighting force he strictly enforced the rules and regulations of the Navy - and not just for the sailors, he was if anything harder on the officers*. This included floggings and hangings on a rather impressive scale to reinforce his authority. After a few months he'd made his point, and was able to tone things down slightly because everyone in the fleet was well aware that he was more than willing to follow up on any threats he may have made. It should be noted that even though he was flogging men left right and centre he was still loved by the men because he did treat them with respect, and was consistent in why men were being punished.

That this worked isn't really in question. This was after all the same fleet that Nelson took to the Nile, and more or less the same fleet that fought at Trafalgar.

(*Under Lord Howe officers;

Were required to wear full uniform whenever they were in public view, that mean both at sea and on land.

Had to be on deck at first light.

Were no longer allowed to keep women on board, even unofficially.

Prior to this Captains were having what could politely be called something of a holiday.)

I'm not sure where you got that version of the story from. It's true that Byng's court martial was essentially a political one, but that was a result of the Admiralty wanting a scapegoat for the loss of Minorca to avoid the blame falling on them. The Admiral had been sent to the Mediterranean to secure Minorca without the materiel and time to do the job. So rather than risk everything, in what he viewed as a hopeless endeavour, he fought an indecisive battle with the French before withdrawing, conceding Minorca in the process.

By the time he made his return to Britain, the political situation demanded that someone face the music for the loss of such strategically important base. He was tried under article 12 of the 1749 Articles of War. His court martial (there appears to have been only one) cleared him of cowardice and disaffection but found him guilty of failing to do his utmost to engage the enemy. As written, the 1749 Articles defined only one punishment and gave the court no flexibility to vary it. Although he had supporters in Parliament, it was his misfortune that the King (who could grant a pardon or reduce the punishment) sided with the Admiralty and refused clemency.

As a consequence of Admiral Byng's court martial, the Articles were amended in 1778 to allow the courts to vary the punishments on many crimes (but not all), which is why the courts of the Napoleonic period had some latitude when dealing with deserters. If Byng hadn't been found guilty on any count (or had been pardoned), a great many more (lowly) men would have perished in those years as a result. It's also worth noting that had Admiral Byng's action taken place ten years earlier, he'd have been tried under the 1661 Articles of War which did allow the court to decide on a fit punishment, and he might have escaped with his life.



The exact make up of a Court Martial varied depending on the period and the location. The 1661 Articles of War required 5 officers but set no upper limit with one notable example having no fewer than 4 flag officers and 36 captains sitting. The 1749 version stated that the Court should have no fewer than 5 and no more than 13 persons. If there were fewer than 5 but at least three of post or above, a court could be made up by including the most senior commanders (lieutenants). It's also interesting to note that the 1749 Articles excluded the commanding officer of a fleet or squadron from presiding over a court martial (to prevent the CO directly using his influence to affect the verdict).

I really get the feeling that you're confusing or conflating Byng's case with another. In an earlier post you stated that there were two courts martial and the first merely censured him. Given that he was tried under Article 12 of the 1749 Articles of War it would have been impossible for a court martial to censure him. If he was guilty, the only permissable sentence was death. If he wasn't guilty, there would be no grounds for a censure. You then go on to say that Byng talked himself into a second trial - there are no records of a second court martial and Byng (who was under guard at Portsmouth) was in no position to make such a demand politically. The above quote seems to suggest that the sentence was carried out simply because the King didn't care for Byng's supporters, however, as I'll show below, the decision had been made before those pleas for clemency were made.

As I previously mentioned, by the time Byng had returned to England, there was huge political pressure to put someone on trial for the loss of Minorca. This pressure came from all levels of society including from the King himself. As the commanding officer of the expedition, Byng was the obvious candidate and he was arrested and held for trial almost immediately.

During his court martial Byng concentrated on defending the accusations of cowardice and disaffection but, possibly as a consequence, failed to convince the trial board that he had done all he could to defeat the French (or more importantly deliver his troops to defend Minorca). The court martial therefore found him guilty under article 12 with the sentence of death. However, they also included a recommendation for clemency on the grounds that he hadn't held back in his duty. This proviso seemingly contradicted their verdict since if he hadn't held back, how could he have not done his utmost?

The court's verdict was passed to the Admiralty Board. It was here that Byng's fate was really sealed. When they passed the verdict onto the privy council (and by extension to the King) the board omitted the plea for clemency but substituted a request that the legality of the sentence be reviewed. It would appear they did so merely to enable them to wash their hands of accusations of any legal wrong doing.

There wasn't really any question over the legality of the sentence passed. There was, after all, only one sentencing option available. A panel of 12 judges swiftly confirmed that it was indeed legal. The privy council (acting for the King) then directed the Admiralty to draw up and enact a death warrant for Byng. As later commentators have pointed out, if the judges had been asked to review legality of the verdict and the apparently contradictory recommendation for clemency, things might have turned in Byng's favour.

Although one member of the Admiralty board, Temple West, refused to sign the death warrant (over his doubts of Byng's guilt), there were sufficient members available to make the document legal. This was passed, together with instructions on carrying out the sentence to the commanding officer at Portsmouth (Admiral Boscawen, who had been specially appointed for this task, quite possibly due to his dislike of Byng) where Byng was being held. So, in effect the King had already made his decision about the outcome before any of the pleas on Byng's behalf were heard. In fact, those pleas could only be made once the sentence had been confirmed.

Had these pleas been made with more tact, or possibly had they come from someone with more political clout with the King, then Byng might have been saved. Likewise, had the Admiralty Board passed on the recommendation for clemency from the court martial, as the de facto prosecutors, their request would have been difficult to refuse. However, the King had no reason simply to reverse his position without a compelling case for clemency being made. Let's not forget that, even after the trial, there were still a lot of people that wanted to see someone answer for the 'criminal' loss of such a strategically important base. So if people had merely "stayed quiet" (as you suggest) the King would have had no reason or motivation to act.