Part 12

“The question arises from the alarming events of the late fires at Portsmouth and Bristol, for which the incendiary is put to death. But will an act of Parliament prevent such men as Jack the Painter from coming into the world, or control them when they are in it? You might as well bring in a bill to prevent the appearance or regulate the motions of a comet. John the Painter was so far from fearing death, that he courted it; was so far from concealing his act, that he told full as much as was true, to his own conviction. When once a villain turns enthusiast, he is above all law; punishment is his reward, and death his glory. But, though this law will be useless against villains, it is dangerous and may be fatal to many an innocent person. There is not an honest industrious carpenter or sailor who may not be endangered in the course of his daily labour. They are constantly using fire and combustible matter about shipping, tarring and pitching and caulking. Accidents are continually happening; and who knows how many of those accidents may be attributed to design? Indeed, the act says the firing must be done _wilfully and maliciously_, but judges and juries do not always distinguish rightly between the fact and the intention. It is the province of a jury only to try the fact by the intention; but they are too apt to judge of the intention by the fact. Justices of the peace, however, are not famed for accurate and nice distinctions; and all the horrors of an ignominious death would be too much to threaten every honest shipwright with for what may happen in the necessary work of his calling.

“But, as I think punishment necessary for so heinous an offence, and as the end of all punishment is example, of the two modes of punishment I shall prefer that which is most profitable in point of example. Allowing, then, the punishment of death its utmost force, it is only short and momentary; that of labour permanent; and so much example is gained in him who is reserved for labour more than in him who is put to death, as there are hours in the life of the one beyond the short moment of the other’s death.”

Mr. Henry Dundas, M.P. for Edinburgh, Lord Advocate, here spoke against the motion.

The bill was ordered to be reported, but it dropped.

The present law with regard to the burning in docks is this:—By the 24th and 25th Vic., c. 97, sec. 4, whosoever shall unlawfully and maliciously set fire to any station, engine-house, warehouse, or other building belonging or appertaining to any railway, port, dock, or harbour, or to any canal or other navigation, shall be guilty of felony, and liable to penal servitude for life, or not less than three years, or to imprisonment not exceeding two years, with or without hard labour and solitary confinement; and if a male under sixteen years, with or without whipping.

By the Act for the Government of the Navy, the 24th and 25th Vic., c. 115, article 30, every person subject to this act who shall unlawfully set fire to any dockyard, victualling-yard, or steam factory yard, arsenal, magazine, building, stores, or to any ship, vessel, hoy, barge, boat, or other craft, or furniture thereunto belonging, not being the property of an enemy, pirate, or rebel, shall suffer death, or such other punishment as is hereinafter (in the act) mentioned.

THE TRIAL OF ADMIRAL KEPPEL.

The trial of Admiral Byng, and, in a less flagrant degree, that of Lord George Sackville, had revealed the existence of a mode of prosecution fraught with danger in the hands of a weak or malignant administration. The means thus invented, were to throw upon the commander of an expedition which, from some cause over which he had no control, and possibly from the fault of Government itself, did not succeed, all the blame and penalty of the failure. Unlike the noble and friendly reception which Rome, in the days of its great and glorious contest with Carthage, gave to the defeated consul Terentius Varro, because he had not despaired of the Commonwealth;—a British general or admiral, however distinguished on other occasions, was to be met, on his return from any mischance, with opprobrium, criminal prosecution, and probably death. Fortunately for the constitutional character of England, and the dignity and independence of its military and naval service, this plan, when attempted for the third time, utterly and signally failed. Admiral Keppel was, indeed, not the man for such an attack, nor was the time of it suitable either. His own credit as a commander and a man of sterling worth, and his popularity, stood on the very firmest basis; and he belonged to the influential Whig party, which was then rising fast into power over a ministry as rapidly sinking under the disasters of the American War. Poor Byng had but his merit to protect him, and he perished; a better chance let Lord George Sackville off with his bare life; but Keppel had the public around him, and had not only the people in his favour, but also a giant band of personal friends. With such protectors as Rockingham, Burke, Fox and Sheridan, persecution might do its worst: he was invulnerable. The only thing to wonder at now is, the madness of a Government which could participate in such a prosecution against him. His trial is really a somewhat dull affair, as much from the certainty of his acquittal as from the prolixity of the details; yet it must be ever read with the deepest interest by all who advocate the free action and the fair latitude that should be allowed to every man who has to command the army or the navy of the British empire.

Before entering into the trial itself, it may be as well to give a short biographical sketch of the previous career of Admiral Keppel.

The Rt. Hon. Augustus Keppel, Viscount Keppel, of Elvedon, in the county of Suffolk, P.C., an admiral of Great Britain, and for some time First Lord of the Admiralty, one of the pre-eminent seamen of our naval history, was, like the unfortunate Admiral Byng, of aristocratic birth and descent: he was the second son of Sir William Anne[14] Keppel, K.G., second Earl of Albemarle, by his wife Anne, daughter of Sir Charles Lennox, K.G., first Duke of Richmond; and was the grandson of the famous friend and companion-in-arms of William III., Arnold-Joost Van Keppel, Lord of Voorst, whose aid to William in his acquisition of the throne at the Revolution was rewarded with the earldom of Albemarle, and other minor titles in the peerage of Great Britain. Augustus Keppel, the future admiral, was born on the 2nd of April, 1725, and entered the royal navy when thirteen years of age. He was a midshipman on board Commodore Anson’s ship, the _Centurion_, in his voyage round the world, in 1740. Of the dangers, distresses, and advantages of that celebrated expedition, he therefore had his share: in particular, at the taking of Paila, by Lieutenant (afterwards Admiral Sir Peircy) Brett. In 1741 he had a very narrow escape; for, having on a jockey cap, one side of the peak was shaved off close to his temple by a ball, which, however, did him no other injury. Having been appointed, while still in his teens, in the course of that voyage, a lieutenant, he, soon after his return, in February, 1745, took post rank as captain of the _Maidstone_, 40, and was very successful in capturing several French privateers; but on July 7, 1747, as he was giving chase to one, running too near shore on the coast of France, near Nantes, his ship was unfortunately lost: himself and crew were saved. Keppel’s picture, admirably painted by his friend, Sir Joshua Reynolds, represents him as just escaped from that shipwreck. Being soon exchanged, and returning to England in 1747, he was one of the court-martial on the trial of Captain Fox, of the _Kent_, who, for misbehaviour in the action under Admiral Hawke, was dismissed the service. After the peace in August, 1749, Captain Keppel sailed with a squadron, as commodore, to Algiers, to demand satisfaction or restitution for the treasure piratically taken out of the _Prince Frederick_ packet boat; and the matter was brought to a satisfactory and amicable conclusion. But another act of piracy, in the succeeding year, led him again to Algiers: he had a second audience of the Dey, and exhorted him to consider, that a great king, like His Britannic Majesty, was not accustomed to demand satisfaction in vain; to which the Dey made a defiant and spirited reply; but eventually concluded the business in friendly terms. In 1752, Commodore Keppel ably effected treaties with the States of Tripoli and Tunis, and returned with credit from the Mediterranean.

In 1755, he sailed as commodore in the _Centurion_, for Virginia, having on board General Braddock, and under his convoy a fleet of transports, with 2,000 troops, to drive the French from their encroachments on the Ohio. The event of that expedition, as is well known, was unfortunate, and would have been more so, but for the co-operation of Keppel. During his absence he was elected to Parliament for the city of Chichester, in the room of his brother, who had succeeded to the earldom of Albemarle at his father’s death. In January, 1757, Keppel was the junior member of the memorable court-martial, at Portsmouth, which tried Admiral Byng; and (for the law gave him no alternative) he was obliged to concur in the sentence which adjudged the admiral to be shot to death. He, however, strenuously endeavoured to save him; and in his place in the Commons, applied to the House on behalf of himself, and several other members of the court-martial, praying the aid of Parliament to be released from the oath of secrecy imposed on courts-martial, in order to disclose the grounds on which that sentence was passed. The obvious intent of this leave to disclose, was to allow the members of the court-martial to openly comment on and protest against the monstrosity of a law which compelled them to an award of death for an error in judgment; and thus might they avert its effects. The Commons listened to the prayer; the sentence was for the moment respited, and a bill passed the House to release the members of the court-martial from the obligation of the oath of secrecy. But the upper House was less merciful; after examining the several members of the court-martial, the Lords unanimously rejected the bill. To the third question, among those, which the Lords put to the members of the court-martial on that occasion, viz., the question,—“Whether you are desirous the present bill should pass?”—Keppel, with Rear Admiral Norris, and Captain (afterwards Sir John) Moore, answered in the affirmative; and to the fourth question,—“Whether you are of opinion that you have any particulars to reveal relative to the case of, and the sentence passed upon, Admiral Byng, which you judge necessary for His Majesty’s information, and which you think likely to incline His Majesty to mercy,”—Keppel replied, “I think that I cannot answer that question without particularising the reasons for my vote and opinion.” The House, by not passing the bill, would not allow him to do so, and the shameful sentence was, despite of his humane endeavour, carried into execution. Commodore Keppel, in 1758, sailed from Spithead with a squadron and land forces, on an expedition against the French settlements at Goree, on the coast of Africa, which he reduced by a vigorous attack. In Hawke’s memorable naval victory over the French armament under Conflans, Captain Keppel, in the _Torhay_, had a brilliant share; he sunk the enemy’s ship, _Thésée_, of equal force to his own vessel, at the second broadside. Again, while in command of the _Valiant_, he victoriously served under Sir Edward Hawke in Quiberon Bay. In October following, just before King George II.’s death, he was appointed to command the fleet on an intended expedition, in which General Kingsley was to command the troops; and His Majesty saw a battalion of the foot guards march by Kensington Palace for that purpose two days only before his death. The royal demise occasioned a suspension of the expedition. In 1761, Commodore Keppel commanded the British fleet at the celebrated reduction of Belleisle; and in 1762, he contributed greatly to the reduction of the _Havannah_, being second in command under Sir George Pocock, who said, “that Keppel executed the service under his direction with the greatest spirit, activity, and diligence.” In 1763, he was a Lord of the Admiralty; in 1765, he was appointed rear, and in 1770 vice, admiral of the blue. Keppel had thus risen to the very highest repute, and deservedly so. He was a man of cultivated mind and generous soul, and was a thorough British sailor,—brave, prudent, energetic, and indefatigable. His frankness, affability and good humour, won him the unbounded love of the seamen, who gave him the affectionate and familiar title of “Jack’s protector.” It was in the very midst of this credit and popularity that the Government of the day—the disastrous administration of Lord North—sought to re-enact against Keppel the tragedy of Admiral Byng. The occasion was this:—

The court of France having, in February, 1778, acknowledged the independence of America, proceeded to make an open avowal of the hostile sentiments they had long entertained against England, by detaining all British ships to be found in the French ports. Orders were, in consequence, given by the British ministry to fit out a fleet of twenty sail of the line with the utmost expedition; the command of which was offered to Admiral Keppel. As the ministry had, in a great measure, lost the confidence of the country, the eyes of the whole nation were turned on Keppel, in whose appointment every one seemed to feel his own security included. On this occasion, therefore, he had a great deal to risk. His well-earned fame was now to be staked on the doubtful issue of a single battle. The part he had taken in politics, and the close friendship in which he lived with the leading members of the opposition, augmented these difficulties, and even rendered the command that was offered him extremely hazardous; for the ministers were his political enemies, and political hostility at this time was carried to a very great height. Any failure, therefore, whether proceeding from unavoidable accident, or those misfortunes which the wisest and bravest cannot repel, might attach censure on him, and be attended with disagreeable, if not with dangerous, consequences. A due consideration of all these incidental difficulties made him hesitate in accepting an appointment so pregnant with danger from the hands of ministers; but in consequence of a royal message delivered to him through the first lord of the admiralty, he attended in the closet to receive the commands of his sovereign; and in that and the subsequent royal audiences, he delivered himself with that plainness, candour, and sincerity, which so strongly marked his character. He particularly took the liberty of observing, that he served in obedience to His Majesty’s commands, that he was unacquainted with his ministers _as ministers_, and that he took the command as it was, without making any difficulty, and without asking a single favour, trusting only to His Majesty’s good intentions, and to his generous support and protection. Keppel sailed from St. Helen’s on the 13th of June, 1778, with a naval force and with unlimited discretionary powers. But this force was of no more than twenty sail of the line, many of which were in a bad state of equipment, and was extremely inadequate for the important service which was entrusted to him. On the one hand, it was well known that France had a large fleet at Brest ready for sea; and, on the other, the great commercial fleets of England were on their passage home from the East and West Indies. Besides, the defence of these fleets, he had to protect the extensive coast of Great Britain, together with those invaluable reservoirs of her naval power, in which were equally included her present strength and her future hope.

After much mature consideration, Keppel finally resolved to yield everything to what he conceived to be a faithful discharge of the great trust reposed in him. He wisely thought that the only fleet which was then prepared to protect the commerce and the coast of his country, ought not to be hazarded against vast odds, either upon personal or professional punctilio. His conquest over the feelings of pride, was so extremely difficult, that he afterwards declared, “he never in his life felt so deep a melancholy, as on finding himself even for the moment obliged to turn his back on France; and that his courage was never put to such a trial as in that retreat; but that it was his firm persuasion his country was saved by it.” The fleet returned to Portsmouth on the 27th of June, and being joined by such ships as were ready, the admiral sailed again on the 9th of July, with twenty-four sail of the line, and two days afterwards was joined by six more. In all, therefore, he had now thirty sail of the line, four frigates, and two fire-ships. The day before Keppel’s departure from Portsmouth, the great French fleet, amounting to thirty-two sail of the line, and a vast number of frigates, sailed from Brest, under the command of the Count d’Orvilliers.

The actual encounter with the French cannot be better described than in the narrative of it given by Mr. C. D. Yonge, in his “History of the British Navy:” he writes thus:—

“On the 9th of July, 1778, Keppel again put to sea with a splendid fleet of thirty sail of the line and four frigates. With him were the Vice-Admirals Sir Hugh Palliser, Bart. (a Lord of the Admiralty at the time), and Sir Robert Harland, Bart.; and, among his captains were, John Jervis, of the _Foudroyant_, 80 (afterwards Earl St. Vincent), and in the _Robust_, 74, Captain Alexander Hood, afterwards Viscount Bridport. The French fleet had quitted Brest the day before; the commander-in-chief was the Comte d’Orvilliers; and among the subordinate admirals was a prince of the royal blood, the Duc de Chartres, subsequently known as that Duc d’Orleans who voted for the murder of his relation and king, the hapless Louis XVI. The Duc de Chartres was one of the vilest of cowards;[15] and being also given, as such people sometimes are, to boasting of the exploits he intended to perform, he had lately announced to Admiral Sir George Rodney, at Paris, his appointment to a command in the fleet which was to combat Keppel. Rodney predicted that the result of the meeting would be that His Royal Highness would be conducted to England to learn English; but he and his commander did their best to defeat the prophecy by avoiding the battle for which he had professed so much eagerness.

Before he regained his old station off Brest, Keppel learnt that the French were at sea; and accordingly he kept off the land to search for them. The weather was so hazy that the two fleets nearly passed one another unconsciously; but on the afternoon of the 23rd the fog suddenly cleared off, and, to the surprise of both, they found themselves within a few miles of each other, some leagues to the west of Ushant. D’Orvilliers had probably been ignorant of Keppel’s return to England for reinforcements. At all events, he believed him to be far weaker than he really was, and at first showed every inclination to fight; but when, on approaching nearer, he ascertained the real strength of the British fleet, he showed that he had no idea of engaging on equal terms. He resolved to decline the battle; and his possession of the weather-gauge enabled him to do so. His conduct was a practical acknowledgment of the inferiority of French to British sailors; for more equal fleets could not be found. The French line-of-battle ships exceeded the English in number by two; but the English ships were rather the larger; and the English had two thousand two hundred and seventy-eight guns, to two thousand two hundred and seventy-six, that composed the armament of the French. In frigates, D’Orvilliers had a decided advantage; but however useful they might be before or after the battle, in the actual conflict they were not likely to have much weight. A fairer opportunity of testing the naval merits of the two nations could not be imagined. D’Orvilliers, however, kept away, and the next day was seen moving off in full retreat. Keppel, signalling to his fleet to form in fine of battle, and to chase, pursued with every sail his ships could carry; and, as two of the Frenchmen had fallen to leeward, he endeavoured to cut them off, in the hope of thus forcing his antagonist to a battle in order to save them. D’Orvilliers thought more of saving himself, and left the stragglers to their fate: their speed enabled them to escape, but they were unable to rejoin their comrades. The 24th, the 25th, the 26th, passed without any variation of the circumstances or relative positions of the two fleets. The French continued their retreat; we continued our pursuit. In the afternoon of the 26th, Keppel, thinking he was losing time by keeping his fleet in line of battle, hauled down that signal which had been constantly flying from the time he first saw the enemy, but still he kept up the signal to continue the chase.