pursuant to notice, rose to move for leave, to bring in a bill to amend the constitution of Courts Martial. He was aware of the objection against interfering with the prerogative. But the interference that he proposed would be far from infringing on the just rights of the crown. In no age had the crown the power of managing the whole administration of the army, at its unlimited discretion. The high constable and earl marshal in antient times regulated the affairs of the army under due responsibility. On the attainder of Stafford, duke of Buckingham, high constable in the reign of Henry VIII, that monarch assumed and exercised the whole powers of the superintendance and government of the army. But the arbitrary principles of that monarch, and his immediate successors, rendered these practices no precedent for the justice of modern times. 812 After the Revolution, when better principles and juster notions prevailed, William III. conceived that by the prerogative he had not powers to punish the mutiny of a Scotch regiment at Dumbarton, on the appointment of a foreign officer, the duke of Schomberg, to be their colonel. King William applied to parliament for powers adequate to the case, parliament passed the Mutiny Act, which was a standing precedent for parliamentary interference in the judicial administration of the army. He allowed that Courts Martial were, generally speaking, so constituted as to form the most proper tribunal for judging military cases. But he considered it as a defect, that the legal officer who attended to do justice between the prosecutor and the crown, in the management of the prosecution, was, in fact, an officer of the crown. The power of that officer ought, therefore, to be under proper guards. He admitted, that if no abuses had existed in consequence of the right of revision, it would not have become him to propose any alteration in a system of things so long established; but he feared too many instances had occurred, that would go to justify the proposition he had to submit to the house. When he first had the honour of a seat in that house, a paper was laid upon the table, relative to the proceedings of a court martial, whose sentence, had been changed from a sentence of acquittal into a sentence of censure. He adverted also to a recent case, that of the hon. Cochrane Johnstone, in which that gallant officer had been honourably acquitted, and yet in consequence of that right of revision, that gallant officer was passed over in a course of general promotion, and all his professional prospects and hopes closed and blasted for ever. He did not mean to deny the undoubted right of his majesty to employ or to dismiss what officers he pleased. But when a Court Martial was employed, it was right that its decisions should be carried into effect, or proper reasons be given to the contrary. He adverted to the superior situation of the Navy on this head, and cited the case of captain, now sir Isaac Coffin, tried at Halifax by court martial, and ordered to be dismissed his ship. The Admiralty assumed the right of dismissing capt. Coffin from the navy altogether. But capt. Coffin appealed by memorial to his majesty against the decision, and the Judges to whom the matter was referred, consisting of persons not inimical to the crown, among 813 whom were lord Kenyon, lord Lough-borough, sir James Eyre, and sir Francis Buller, reversed the decision of the Admiralty, and re-established the right of capt. Coffin to be employed in his profession. He saw no reason why a similar controul and revision should not exist in the army. The special duty of military officers to the crown, and their looking for promotion to the crown only, devoted them particularly to the crown, and rendered their decisions at least not properly open to be enforced in rigour by the crown. He then adduced the case relative to the Perthshire fencibles: a charge had been brought against some subalterns, who, after a long and impartial trial, had reason to expect (and it was publicly expected) that they would have been honourably acquitted, but from that day to this no man could say he had official knowledge of that sentence, for it was totally suppressed, and there was great reason to suspect, that that suppression was owing to the great interest exerted on behalf of the colonel who had brought the charges, and whose character would have been seriously impeached in the acquittal of the accused, and the manner of that exculpation. He asked, then, if a system so liable to abuse did not imperiously require parliamentary interference to correct and improve it? He submitted, then, to the consideration of the house, with great humility, the following motion, which had long occupied his most serious attention. He moved, "That leave be given to bring in a Bill to expedite the decisions of Courts Martial, and to prevent any undue interference in impeding or delaying the result thereof."
The Secretary at War
represented that the measure proposed could not possibly be entertained in the present session, as it was incompatible with several provisions in the Mutiny Act, particularly with that which bound members of Courts Martial to keep their decisions secret till they should be revised by the crown. But, in answer to the general reasoning of the hon. member, he should argue, without going back to the times before the Revolution, which afforded no precedent applicable at present, that the interference proposed would be injurious. The hon. gent, allowed that his majesty ought always to have the power of judging what officers he should employ, and what officers he should dismiss. He would ask, then, what difference the alteration proposed in the 814 powers of Courts Martial could make in the case alluded to; namely, that of the hon. Cochrane Johnstone? Supposing him acquitted by the court, the hon. member allowed his majesty might still dismiss him. The immediate promulgation of the sentences of Courts Martial would be, in many cases, cruel to the officers themselves; for it would deprive his majesty of the exercise of that beneficial mercy by which he often remitted a censure or reprimand, in consideration of matters that were specified with honour to the officer in question, so as to leave him still in the service with unimpaired, and sometimes even exalted character. The naval service and the military were distinct in character, constitution, and government. The laws applicable to the one were frequently inapplicable to the other. There was no good ground for interfering with that system, by which the army had now been governed for a century. Any other system would, he was sure, be attended with injury. The annual revision of the Mutiny Act was the proper parliamentary controul, and it was amply sufficient for every good purpose.
Sir F. Burdett,
from the obvious fact of naval discipline being adequate to every good purpose, saw no reason why the more just and equitable constitution of naval Courts Martial should not extend to the army. He adverted to the case of col. Cochrane Johnstone, and insisted on the hardship of punishing that gentleman after he had been acquitted by the Court Martial. A similar influence might again be put into action for the injury of some deserving member of society. No other hopes of advancement should be held out, but those dependent on exclusive merit and military pre-eminence. The greatest possible injury that could be done to the character or feelings of an officer, who had been honourably acquitted, was to pass him over in the list of promotions, except that which went so far as to reverse the sentence of the court by which he was tried. Seeing, as he did, the necessity of reformation, and the wide door which had been opened to abuses, he should certainly support the motion.
§ Sir A. Wellesley
observed, that the measure proposed would go not only to alter the Mutiny Act, but also the Articles of War. The navy was the characteristic and constitutional force of Britain, and might therefore be governed more by the regulations of the legislature. But the 815 army was a new force, arising out of the 14extraordinary exigencies of modern times, and, from every consideration of expediency and necessity, must be left under the controul of the crown.
§ General Fitzpatrick
was ready to admit that Courts Martial required a reform to render the constitution of them and some of their forms of proceeding, more consistent with the general spirit of British law. But the present proposition went too far. If the power of the crown was too much relaxed, the army would become highly dangerous to the people and to the crown also. He allowed the extreme hardship of col. Cochrane Johnstone's case, and would have been happy if it had been in his power to remove the hardship that gent, had suffered. But as the power of the crown was unlimited, and very properly proposed to be left so, as to what officers it would employ, he did not see how the exercise of his majesty's discretion could be remedied by any measure proposing not to meddle with it. The commander in chief finding by the letter of the Judge Advocate, that col. Johnstone was not an officer agreeable to his majesty, abstained from recommending him in his turn for promotion. The only thing that was open to remedy on that proceeding, was to render the Judge Advocate responsible for the advice he should give to his majesty, and that had already been done by a clause in the Mutiny Act, adopted by the house on his suggestion. The system of the navy was inapplicable to the army in many cases. For instance, a captain of a man of war had the power to order a man to be flogged without a trial. The first officer in the army had no such power, and he should be sorry to think he had. He allowed it was desirable that the powers of the Judge Advocate should be defined and understood; and recommended to the hon. gent, who filled that office, to introduce himself some measure to that effect.
consented to withdraw his motion, though he could not help observing, that his wish had been misinterpreted, as well as some of his words. He was not desirous to trench on the royal prerogative: his Bill would only have referred to general Courts Martial, and in this point of view he could not see what distinction could be drawn between naval and military courts. He might at some future period bring forward his motion, when he hoped to render it more palatable to the house.