§ Lord Palmerston
moved the order of the day for going into a committee on this bill. On the ques- 553 tion, that Mr. Speaker do now leave the chair,
said, that in rising to move an instruction to the committee to insert a clause in the bill to prevent, in future, the dismissal of officers of the army without trial by a court-martial, or the increasing the severity of any punishment awarded by the sentence of such court; he might, perhaps, in consideration of the difficulty of the subject, be pardoned, were he to intreat the indulgence of the House. But as he had voluntarily undertaken the task, as neither official duties nor imperative circumstances had forced it upon him, he was aware that he had no claim to any thing beyond a patient and a candid hearing. He should have, at the outset, to combat strongly formed opinions, not only on the part of those who might be considered his political opponents, but were among that number on whose support, upon ordinary occasions, he might confidently rely. In opposition to any arguments he could use, would be urged long established custom, an uninterrupted prescription of a century and a half; and he should be held up to reprobation as a daring innovator, whose councils, if followed, would make a breach in the just prerogatives of the crown, and tend to subvert the discipline of the army.
Notwithstanding these difficulties, so impressed was he with the expediency of effecting a change in one part of the military code, that he did not despair of carrying conviction to the minds of those who were most strongly prejudiced against him. He could assure those who trembled for the privileges of the crown, that he had no wish to invade any prerogative which conduced to the comfort or splendor of the monarch, nor was he one of those who would wish to shear royalty of those beams which ought to encircle the king of such a country as this. But if he could demonstrate, that the prerogative of dismissing officers of the army without trial by a court-martial, tended in no way to promote the splendor or security of the throne; that it was a question in which the sovereign had no personal interest whatever, while it had, in a thousand instances, been made the instrument of caprice and malice on the part of inferiors; if he could show, that it was illegal, that the authority on which it was said to rest did not justify its exercise; and further, that without, in any way, conducing to the discipline of the 554 army, it was dangerous to the constitution, then he trusted that he should have made out a case which would entitle him to the support of the House.
He confessed, that, till lately, he partook; of the common opinion, that the crown legally possessed, and ought to enjoy, a discretionary power over the commissions of officers of the army. It was not until, by an extraordinary stretch of that power, a gallant friend, of whom it was unnecessary for him to say what he felt, as his services were known and appreciated by every man in the country, and whose military achievements, interwoven with the history of Europe, would go down with that history to the latest posterity; it was not until he was immolated a victim at its shrine, that he was induced to examine its nature and extent. It was then that he discovered that the authority on which it was supposed to rest, was in direct contradiction to it, and that almost every writer on military law was opposed to it. Even those who might he supposed most anxious to uphold the prerogatives of the crown, found themselves so carried away by the strong current of all those opinions which from childhood are impressed upon us, that before we had advanced ten pages in their works, they were found laying down principles which, if adhered to in practice, would render all discussion on the subject wholly useless.
It was unnecessary for him to go into a long history of military law: the law, as it now stood, dated from the Revolution, and was to be found in the Mutiny act annually passed by parliament. The acts of the 13th and 14th of Charles 2nd, which were asserted by some to be declaratory of the powers of the crown, were virtually repealed by the first Mutiny act, passed in the reign of William 3rd: besides, when the complexion of the times, at the restoration, was considered, when it was recollected that the tide of public opinion set as strongly in favour of royalty as ever it had against it, and that the proposition for imposing the oath of nonresistance upon the whole nation was rejected in parliament by a majority of only three voices, no just rule for their future guidance was to be found in the acts of the legislature at that period. He, therefore, should assume, that to the Mutiny, act they were to look as the foundation on which rested all the power over the army exercised by the sovereign. That the power of the Crown was derived from 555 the Mutiny act, and not from any antiquated prerogative, was evident, from the fact, that if parliament neglected to pass it, the army, and, of course, all power over it, would cease to exist. No one could have perused our military code, as contained in that act, without perceiving throughout the same anxious regard for the liberty of the subject, which formed the essence of our constitution; and although necessity of preserving discipline rendered essential some deviation from the strict practice of the law, yet that the spirit of that law was invariably maintained. They would find in that statute a long catalogue of crimes, with various degrees of punishment annexed to them; such as mutiny, cowardice, desertion to the enemy, and a multitude of other offences of the deepest dye. If any thing would justify a summary mode of proceeding, it might be imagined, that such crimes as these, from their very nature, might require immediate punishment: mutiny, for instance, which, if not instantly suppressed, might spread through a whole corps, and defy authority. In dealing with such monstrous offences, some discretionary power might have been vested in the sovereign. Yet, so jealous was the legislature of arbitrary power, that abandoned miscreants, who had violated every obligation, human and divine, were still sheltered under the ægis of the law, and could not be punished, except upon conviction by a court-martial. The only persons from whom these rights were withheld, were the officers of the army; they, without trial, without the means of defence, without knowing who were their accusers, or what their crime, might be punished in a manner which, to a man of nice feelings, must be worse than death, which, in most cases, attaches a stigma to the character, and in many was attended with total ruin. They found themselves, after a long period of honourable service, deprived of the commission on which they had depended for subsistence, and which, in many cases, had been purchased, not merely by length of service, but by an actual pecuniary payment. The power, so contrary to every principle of law and justice, which exposed to such cruel hardships so large a portion of the community, was assumed on the authority of the 35th section of the Mutiny act, by which his majesty was empowered "to make articles of war." Now, he would 556 affirm, that if this section stood alone, wholly detached from the context, it would be impossible to give it the construction attached to it by the assertors of the arbitrary prerogative. The king might frame articles for the better government of the forces; he might define what should be a military offence, and what the punishment for committing it; but the conviction of an accused party, could only be had through the medium of some tribunal by whom he should be tried. The power granted to the crown by the clause alluded to, might, as far as it went, be compared to that exercised by the whole legislature, viz. the power of framing and declaring laws; yet the legislature, in its collective capacity, did not take upon itself the judicial as well as legislative functions, the transgressor of the law being handed over to the constituted tribunals. Such would obviously be the meaning attached to this clause by any man of common sense, if it were left unexplained by any thing else; but what would the House say, when he read to them the clause which almost immediately followed (the 37th), by which it was expressly enacted, "That for bringing offenders against such articles of war to justice, it shall be lawful for his majesty to erect and constitute courts-martial, as well as to grant his royal commission or warrant to authorize others with power to try any crimes or offences by such articles of war, and to inflict penalties by judgment of the same." So far, then, was the Mutiny bill from placing in the hands of the crown an arbitrary power, that it was evident, that such power was in direct violation, not only if its spirit, but of its letter. This view of the subject was not confined to him; he could support it by the highest authorities who had written on military law.
Blackstone, in those celebrated remarks on our military code, which must be familiar to every member of the House, observes, "This discretionary power of the court-martial is, indeed, to be guided by the directions of the crown, which, with regard to military offences, has almost and absolute legislative power. 'His majesty, says the act, may form articles of war, and constitute courts-martial, with power to try any crime by such articles, and inflict penalties by sentence or judgment of the same.' A vast and most important trust, and un- 557 limited power to create crimes, and annex to them any punishments hot extending to life or limb." Such were the remarks of that great lawyer, applied to the power against which he (col. D.) did not contend—the rower exercised through the medium of a court-martial. How much stronger would have been his language, had be been called upon to comment on such doctrines as they had heard promulgated in that House. The observations of Tytler, a most respectable authority on military law, were still stronger. He is endeavouring to show, that military law was unjustly accused of being vague or arbitrary, and in confirmation of his argument, proceeds to make the following remarks: "The penalties, therefore, which it is competent for the sovereign to decree by his own authority, must, at the worst, be of a very slight and subordinate nature, and calculated merely for the enforcement of good discipline; since the greater crimes, and their appropriate punishments are defined and regulated by the Mutiny act, which, as already said, is the operation, not of the sovereign per se, but of the united branches of the legislature." "Besides this, when it is considered, that even those subordinate penalties which it is competent for the soveregn to enact by articles of war, or other regulations for the army, cannot be inflicted but through the medium of a court-martial, which has the essential characteristics of a jury, and is, in fact, a trial of the subject by his peers; we shall immediately be convinced, that this power of the crown, which has furnished much matter of intemperate declamation to writers tinctured with republican prejudices, can never be exercised under our excellent constitution, to the injury of the subject, or the abridgment of any of the valuable rights of that honourable class of men who compose the military force of the state." So fir the authority of Tytler, and he (col. D.) would ask any one who heard that passage, if he could imagine, for a moment, that the writer ever contemplated the claim which was set up on the part of the crown by the supporters of the prerogative? The sentiments expressed by Blackstone and Tytler were analogous to the theory and practice of the constitution, as exercised in every instance, except in the case of this most analogous prerogative. So anxious was the legislature to adhere to the great principle, not only 558 that the judicial should be separated from the legislative functions, but that the accuser shall in no instance be the judge; that in all cases of impeachment which are extra-judicial proceedings pro re natâ, intended to reach officers placed beyond the ordinary jurisdiction of the law; the Commons being the accusers could not be judges, and therefore the proceedings were held before the House of Peers. But in the cases where the sovereign dismissed officers without trial, he united in his own person the conflicting functions of legislator, accuser, and judge. This prerogative was more arbitrary than even that by which the proclamations of Henry 8th assumed the force of statutes, and which had justly been designated by Hume as a total subversion of the constitution. Even under that cruel tyrant, persons offending were not deprived of all trial; they could be punished only upon conviction before nine privy councillors, a tribunal strongly resembling a modern court-martial. But even arguing the question according to the view taken by gentlemen opposite, he would contend, that they had not a shadow of reasoning-to support them. The prerogative was claimed in virtue of the clause in the Mutiny bill, which grants to his majesty the power of framing regulations; he presumed, therefore, that it would be necessary to show that, by those regulations, it was enacted, that the crown should, when it thought fit, cashier any officer of the army. But what was the fact? Not only might those regulations be searched in vain for such an assumption of power, but exactly the reverse was the law as laid down by them. The regulations, after enumerating a long list of minor offences, and the penalties to be attached to them, by the second article of the 24th section, expressly declared, "that all crimes not capital, and all disorders and neglects which officers and soldiers may be guilty of to the prejudice of good order and military discipline, though not specified in the said rules and articles, shall be punished." How! at the discretion of the crown? No. "But at the discretion of a general or regimental court-martial." After this solemn pledge given to the whole, army, that no offence was to be punished with-out trial, was not every dismissal of an officer without trial, not only an act of cruelty and injustice, but a direct breach of faith? His interpretation of the law 559 was thus, he flattered himself, borne out by the letter of the statute, and of the regulations, and fully confirmed by the great authorities he had quoted. If he referred to political writers, who, taking an extensive survey of the principles of government, had not dwelt particularly on military law, their general reasoning would, in every instance, be found to corroborate his views. It would be unnecessary to trespass on the time of the House with quotations from Locke, who had declared prerogative to be nothing but the power of doing public good without a rule; or from Bacon, Paley, De Lolme, Montesquieu, and a host of others, all of whom bore him out in asserting, that the power over the army reposed in the sovereign, was, like every other attribute of legitimate power, a trust for the public good, not, what no legitimate power ever could be, the instrument of selfishness and caprice. Leaving this part of the question, he would admit, that, even allowing him to have succeeded in showing the asserted prerogative to be illegal, still, if it were innoxious; if, like many of the enactments in our statute book, it were held out only in terrorem, to scare the offender whom it was not intended to injure; or, if its exercise were generally tempered with discretion and guided by justice; whatever objections might be made to its theory, he should not be justified in calling on parliament to interfere with its practice. But if he could show, that in many, many instances, caprice or misrepresentation had guided the blow, that the innocent had been confounded with the guilty, that not only had officers been unjustly punished without trial, but that when, after dismissal from the service, they had asked, not for restoration to their commissions, but merely for an opportunity of vindicating their characters, unjustly traduced, even that poor consolation had been denied; then he trusted, that the House would be disposed to agree with him, that nothing but a strong case of necessity could justify its continuance. To ascertain to what extent the power of arbitrary dismissal had been exercised, he had, last year, moved for a return of the number of officers w dismissed, since 1795; and, would the House believe that they amounted to 989? Here were a thousand cases of injustice [No, no! from the Ministerial benches.] He would ask those gentlemen who said no, no, if it 560 were not an act of injustice to punish any man without trial? If a man were to commit murder in the open day, in the most crowded street of this metropolis, although there were a thousand witnesses to the fact, would he be hung up to the next lamp post, or would he be punished by the laws alone? He would state one or two cases, in support of his argument; and he pledged his honour, that, if necessary, he could cite an hundred, in which the crown had committed the greatest injustice in the exercise of this power. The first he would cite was, the well-known case of the officers of the 85th regiment. Some years ago, three captains and five lieutenants of that corps brought their commanding officer, col. Ross, to a court-martial. Out of several charges, they succeeded in substantiating but one, and that a minor one; upon this, however, col. Ross was sentenced to be reprimanded. His majesty was so much displeased with the officers, who had thus brought their superior to trial, upon charges which they were unable to prove, that the judge-advocate, by his order, wrote to the commander-in-chief, to inform him, that he had no further occasion for their service. This was a most unjust proceeding. Those officers ought to have been put on their trial in their turn, which would have given them an opportunity of showing that they had, much against their inclination, been almost forced to bring those charges against col. Ross, for which they were now so cruelly punished. So far the injustice seemed confined to the inferior officers; but what would the House say, when they heard the conclusion of the judge-advocate's letter? It proceeded to state, "that this brought to his majesty's recollection, that col. Ross had lately been guilty of a similar offence, having brought major Ottley to trial on several unfounded charges." It then concluded by ordering col. Ross also to be dismissed the service. In the name of justice, and of common sense, what system of law was this? Here was the case of an individual, who, unjustly arraigned, saw his accusers punished for the prosecution to which they had subjected him; but at the moment when he could least expect it, the blow fell on him Also; not for any new offence which he had committed, but for something which had been treasured pp, to be levelled at him when wholly unprepared to meet it. If he had been guilty 561 of a military offence, in bringing an officer improperly to trial, why was he not punished at the time; why was he allowed to continue in command of the regiment? But it was a waste of words to comment on such proceedings; the whole transaction was of so monstrous a nature, that it needed only to be mentioned to excite the reprobation it deserved. Another case of equal or even greater hardship, was that of an officer of the Blues. Dissensions had unfortunately subsisted in that regiment for some time, when an officer, for lampooning his comrades, was obliged to quit it. It was resolved by the whole corps, that, in the event of the discarded officer challenging any one of them, such challenge was not to be accepted. Some time after, a captain of the regiment met the officer who had been dismissed; high words ensued, and a challenge on the part of the discarded officer was the consequence. A statement of the transaction being made to the regiment, it was agreed that no notice whatever was to be taken of the challenge. The officer was, in consequence, posted by his challenger, upon which, some of the regiment, with a strange inconsistency, preferred a complaint against him at head quarters. The House were, perhaps, not aware, that the king's regulations were most positive against duelling, the sending or accepting a challenge being punishable with cashiering; thus, in addition to the resolutions of his comrades, the officer was supported by the positive orders of his sovereign. Would it be believed, that, in defiance of those regulations which, that they might be generally known, were every month read to every regiment in the service, this officer was by the king dismissed for not fighting a duel; in other words, for obeying the positive order of the king himself. How was an officer to act when thus placed on the horns of a dilemma. If he accepted a challenge, he was liable to be cashiered; if he refused it, he was dismissed the service? Whenever it was asserted, that the prerogative was likely to be abused, an answer was attempted, by urging the responsibility of the servants of the crown for the advice they might give, and their liability to be called to a severe account if they abused their trust. Such an argument, experience showed to empty words. Let the House look to the events of the last session, for the effect of parliamentary control on 562 the conduct of a minister. When, by a most outrageous stretch of the prerogative, his gallant friend (sir R. Wilson) had been removed from the service upon charges which the ministers themselves shortly after knew to be vague and unfounded, what was the result of an appeal to parliament? Not only was redress withheld, but even all explanation of the grounds on which that step had been taken, was denied: a majority of the House had refused to admit the question of inquiry; though he was convinced, that if they had been asked individually their opinions as gentlemen, there was not one who would not have been compelled to acknowledge, that his hon. friend had been treated with the most cruel injustice. Having thus endeavoured to demonstrate, and he trusted successfully, that this asserted power was illegal, in direct violation of the statute which was made the ground of its assumption, and in its exercise cruelly oppressive, still his task remained unaccomplished; and, to justify him in requiring the interference of parliament, it was necessary to convince them, that the discipline of the army could be maintained without it. This he conceived to be so easy, that he trusted a very few words would suffice to establish the proposition, that the punishment of all refractions of the articles of war, and all breaches of military discipline, might safely be entrusted to the discretion and integrity of a court-martial. The advocates of the prerogative contended, that cases might arise of a nature to require immediate and summary proceedings, and of a nature which could not safely be trusted to the decision of officers of the army. With regard to the first objection, he would ask, which were the most serious military offences? Mutiny, insubordination, or plunder in presence of the enemy. Thus, one charged with these crimes, might he brought before a drum-head court-martial, be accused, convicted, and shot in half an hour. If that were not a summary proceeding, he did not know what was. It had, however, been contended, that cases might arise of disaffection, so genes rally diffused through a garrison, as to make it impossible to bring an offender to justice, through the medium of a court formed of materials so tainted. Such an argument would be worth something, if the offence, as in civil cases, must be friend in the place where committed. But a 563 military offender might be tried in England, upon charges laid against him in India; if, therefore, the garrison of Dublin were in a state of disaffection, any offender, whom it might be necessary to bring to justice, might he tried in Edinburgh or London. The members of the court, although usually taken, in their turns, from a list, in military phrase termed a roster, might, whenever it pleased the crown, be selected from any part of the army, least tainted with disaffection. Let them contrast these with the proceedings before the ordinary courts of justice; there the venue must be laid, and the jury chosen from the county in which the offence had been committed, from among those who might be connected by ties of friendship or acquaintance with the accused. Then the sheriff, if suspected of partiality, was precluded from returning the jury, and, in all cases, chose them from a number of not less than 48. But time unfavourable chances did not end here: they attended the military prisoner through every stage of trial. In criminal proceedings, before the ordinary courts, a right of peremptory challenge, to a certain extent, was allowed; no such privilege was extended to a military offender, who must show cause for every challenge. In the former case, the judge and jury were distinct; in the latter they were one. In the ordinary courts the jury must be unanimous to convict a prisoner: in military courts 9 out of 13 were sufficient to condemn in capital cases, and a bare majority in all cases not capital. It had been said, that the members of a court-martial might be suspected of a fellow-feeling towards one of their own profession, and be disposed to defeat the ends of justice. Without meaning to cast any imputation on the members of the profession, he could not help observing, that if any bias were to exist in their minds, it might naturally be supposed to be towards the crown, the source of all their honours and emoluments, rather than towards a friendless individual, from whom they could expect nothing. Besides all these fearful powers with which military courts were armed, they had delegated to them an indefinite power of trying every offence of which a human being could be guilty, whether declared to be such or not by the articles of war, or act of parliament; for, by the 2nd article of the 24th section of the articles of war, it is enacted, that "all, crimes 564 not capital, and all disorders and neglects, which officers and soldiers may be guilty of, to the prejudice of good order and military discipline, though not specified in the said rules and articles, are to be taken cognizance of by a general or regimental court-martial, according to the nature and degree of the offence, and to be punished at their discretion." Such being the power with which the crown was legally vested, he would ask, could any one really believe that the removal of the power of arbitrary dismissal, could in any way be considered as likely to prove dangerous to the sovereign? But might not its continuance prove dangerous to the constitution? Did not the evidence of all history prove, that the more the soldier was separated from the citizen, the more he was placed at the absolute disposal of the executive, the more dangerous he became to the rest of the community? It was an observation of Montesquieu, that all men in a society, who were deprived of those privileges which were enjoyed by their neighbours, were to look at them with envy, and be ready to assist in their destruction. Was it not, then, a species of political suicide on the part of a legislative assembly, voluntarily to throw into the hands of the sovereign this most dangerous power, or still more so, that allow it to be exercised in direct violation of their own enactments? If they placed the army beyond the pale of the constitution, if they showed themselves unwilling to allow them a participation in those rights which they themselves enjoyed, did they not force them into the arms of the sovereign, to whom they would naturally be disposed to look as the source of all the honours of their profession? He might be told, that our own history in former, and that of other nations at the present time, presented proofs of an army being more disposed to side with the people than with the crown. If, indeed, a tyrant similar to the last of the Stuarts were once more to fill the throne of this country, who, not content with subverting its liberties, were to attack its religion (and he begged the House to recollect, that a great contemporary authority had given it as his opinion, that had not James tried to overthrow the religion of the country, his army would never have sided against him), then, he doubted not, that the army would recollect that they were 565 citizens before they were soldiers. But might no situation he supposed between national freedom and the tyranny of James, or that of a Bourbon of Spain, or a Bourbon of Naples? Were there no gradations through which an army might be led step by step; and did they not know, that from the nature of its constitution, it was only in extreme cases that an army could be induced to resist what they had been taught to consider lawful authority? If this were considered, it would be obvious, that an evil disposed monarch, with an army at his absolute disposal, might become dangerous to the liberties of his subjects. Probably his fears would appear ridiculous to many, who considered the manner in which the liberties of the country were cherished by his present majesty; but, although they had the good fortune to possess a sovereign anxious to promote the happiness of his people, they could not tell who might follow him. It was a just remark, that the best princes were often in one respect dangerous to liberty, by removing from the minds of their subjects that suspicion which is its best safeguard. He had now little more to add, having stated all that he considered as most likely to give effect to his arguments. On those who considered the officers of the army as menial servants of the crown, and who thought the king had as good a right to dismiss a general as to discharge a footman, those arguments would have little influence. But, if they who were disposed to think, with him, that the soldiery were the servants of the state, by whom they were paid, and for whose service they were raised, and that the power of the sovereign over them was placed in his hands for the public good; if they who would wish to keep alive those feelings of nice honour and attachment to the laws, which alone would prevent an army being dangerous to the state; if they were not convinced, he must attribute his failure, not to the weakness of the cause, but the feebleness of the advocate. Before he sat down, he begged, in the name of the army, to implore the House not to withhold from them a participation, as far as circumstances would admit, of those rights which were justly considered the birth-right of every individual in this land of freedom. He would particularly address himself to those who had so often and so ably advocated the cause of foreigners residing in this country. If 566 they had exerted themselves in favour of aliens, to whom they were bound by no other tie than the common feelings of humanity and jutsice, would they remain silent when they saw equal if not harsher restraints about to be continued against their fellow citizens, the brave defenders of their country? No, forbid it every feeling of gratitude and justice; and he would remind them of the eternal truth applicable to the internal as well as external affairs of a state: "Non modo falsum esse illud, sine injuria non posse, sed hoc verissimum, sine summa justam rempublicam regi non posse."—He concluded by moving, "That it be an instruction to the Committee, that they have power to make provision to prevent the Dismissal of Officers of the Army without trial by a Court-martial, or the punishment of any Officer, Non-commissioned Officer, or Soldier, who shall have been tried by a Court-martial, in any manner beyond the sentence of the Court."
§ Lord Palmerston,
in stating the grounds upon which he should feel it his duty to oppose this motion, did not mean to follow the example of the hon. gentleman, in producing a number of authorities, drawn from various authors, who had taken, possibly, a partial view of the subject, or had judged erroneously on a matter which did not fall within the course of their ordinary discussions. If he could not produce an argument sufficiently strong in itself to carry conviction to the mind of the House, he would not attempt to bolster it up with quotations and authority. The ground of his opposition would he, that the principle of this proposition involved a direct breach of an important prerogative, which the crown had possessed from the earliest periods; and which it was most essential for its own splendor and for the interests of the people, that it should continue to retain. He was one of those who considered that the prerogatives of the crown were not given to it for the peculiar advantage, or dignity, or interest, of the individual who might happen to wear the crown; but for the interest and the benefit of the people. It was not requisite that he should go into any long historical research to prove that this was a prerogative of a most ancient character; for he had only to refer the House to the statute book of the realm. He need only refer them to the statute passed in the beginning of the reign of 567 Charles 2nd, which declared, "that the government or command of the militia, and of all the forces by sea and land, of this realm, is, and by the law of England always bath been, the undoubted right of the kings of England; and that of both or either of those forces the control and command ought not by the parliament to be assumed." And the act of the next year declared to the same effect. He had also before him the articles of war, which were published in the reign of Elizabeth, at a time when the earl of Essex was at the head of our army, and parliament, under the extraordinary circumstances in which the nation was placed, took upon itself the exercise of a prerogative which belonged to the crown, and the crown only, of right. He had likewise the articles of war of Charles 2nd's reign: and by these, courts-martial were instituted. They were instituted under powers which were thus delegated from the crown. The crown could not grant those powers, if it did not possess a prerogative to do so; and therefore he was entitled to assume, that it did possess the prerogative. In the articles of war of the reign of Charles 2nd it was declared, "that no officer shall be dismissed from the service, except by an order from us, our general, or of a court-martial." It was clear, then, upon every principle of strict reasoning, analogy, and common sense, not less than upon these authorities, that the power of dismission had always resided in the crown. If he was right in this assumption, he must be allowed to say, that there was nothing in the Mutiny bill which took away the prerogative. Nothing could be a greater mistake than that which hon. gentlemen opposite frequently committed, in calling the Mutiny bill the protection, the safeguard of the army; as if it conferred upon the army some privilege which was to countervail the prerogative of the crown. It was, in fact, a bill to enable the crown to proceed more summarily, in certain cases, than otherwise it would be competent for it to do. At the time of the Revolution, as was well known to every hon. gentleman who heard him, it was considered illegal and unconstitutional to proceed against a military offender, otherwise than by common form of law in the courts. It was equally notorious, that at the latter end of the reign of James 2nd, and the begining of William 3rd, the army were guilty of various acts of riot and insubordination. 568 What did parliament then do? They passed an act, giving his majesty power to proceed summarily against such offenders. What the intentions of parliament, in enacting that statute were, its preamble would sufficiently show. It began by stating, that a standing army was, by the constitution, dangerous and illegal; that the king and parliament, nevertheless, under then existing circumstances, deemed it expedient that one should be kept up. It recited, that in time of peace, no man could legally be punished by martial law. Yet, said the same act, "it being necessary to keep he soldiers in their duty—that exact discipline should be kept up, and that those who desert the service should be brought to more speedy punishment;" and then it went on to give to the king a power of appointing courts-martial to try such offences. The Mutiny act could not be considered as abridging any of the royal prerogatives, unless it did so, not by implication merely, but in express terms. It also gave to the king the power of making articles of war; and in the next clause, there was this limitation—"that no person within the realm should be made responsible for life or limb, except for the crimes mentioned in this act, and punishable in the manner therein described." This act, therefore, left the king with the power which he undoubtedly possessed of dismissing any servants whom he pleased—a power necessary to his dignity and his independence. The case of captain Caulfield of the navy, which had been mentioned, was of a very different description from the other cases adduced by the hon. gentleman. He was tried by a court-martial. The Admiralty, thinking the sentence of that court not sufficiently severe, dismissed him from the service, independently of the finding of the court-martial. The crown confirmed this dismission, and in so doing was undoubtedly improperly advised. But, if the hon. gentleman meant to say, that the judges, in delivering their opinion upon captain Caulfield's case, intimated that the king had not the power of dismissing any of his servants, he (lord P.) must protest, that their opinion would bear no such construction. The hon. gentleman had said, that since the year 1793, no less than 929 officers, whom he denominated the victims of injustice and oppression, had been dismissed the service. It would be found, however, that 569 the ground of dismission, in respect to the greater number of these officers, was, their being absent without leave. He flattered himself he should be able, if it were considered necessary, to prove, that in all these cases the crown had been as well advised, as he had shown it to have been in respect of a case mentioned on a former evening. On that occasion the hon. gentleman had done him the favour to inform him beforehand, that he meant to bring it forward; and perhaps the hon. gentleman's ill success in that instance, had induced him now to advert to nine or ten cases successively, in the well-grounded belief that he (lord P.) would be less prepared to meet him than upon the isolated case in question. In the year 1734, this prerogative had been admitted, by those who most questioned its propriety, to be vested in the crown. To show its expediency, however, let the House suppose the case of an officer accused of cruelty to part of any hostile population. If he were tried by a court-martial composed of officers, every one of whom had been guilty of the same offence, the consequence would naturally be an acquittal. Would it be improper that the crown should interfere under such a state of things, and do that justice which the court would not do? It was only the other night, on the contrary, that the hon. gentlemen opposite—those gentlemen who always professed themselves the friends of liberty, humanity, and strict justice—complained, in discussing a particular case, that a court-martial had violated its duty by returning too lenient a sentence. Suppose that in that case an acquittal had been returned—would not the crown have been petitioned to revise the sentence of the court? Let them suppose, again, the case of an officer, guilty of some crime cognizable by the civil tribunals of the country—how would the civil law enforce his obedience to its injunctions? Did any one suppose that a constable, with a warrant in one hand, and his staff in the other, would be any thing like a match for a general officer supported by six or seven hundred bayonets? If the views of the hon. gentleman were carried into effect, it would be impossible to enforce the laws by which the army was governed, except by the instrumentality of the army itself. The case of colonel Allen, which had been referred to on a former evening, would afford a clue to the consequence that 570 would result from such a system. Colonel Allen, it would be recollected, demanded to be tried by a court-martial, upon a charge arising out of a complaint made by his commanding officer. It happened, that the colonel was tried, not only upon that particular charge, but also upon two others. Colonel Allen complained of that circumstance, and said that it was gross injustice to try him upon any other charge than that which he had himself desired to be brought to trial upon. He (lord P.) believed that, if the hon. gentleman's clause were agreed to, every officer would, like colonel Allen, object to be tried upon any charges except what they themselves should set up. By acceding to the amendment, the House would create a fourth estate in the kingdom; and convert the army into a power most dangerous to the country. Instead of being subordinate to the proper authorities, and incorporated with the practice of our constitution, the army would be changed into a corps of Mamelukes, which would very soon overthrow the laws, and annihilate all power but their own.
maintained, that the power of dismissing officers without previously bringing them to trial, was a prerogative which the king ought not to possess. He believed that the late emperor of France, and he was certain that the present king of that country did not possess that power. There had been instances recently of distinguished French officers being tried for state offences, and yet retaining their rank. The king of France could refrain from employing military officers, but he could not dismiss them. That could only be done by the sentence of a court-martial. He believed that not even the most despotic governments possessed the power which was said to be vested in the crown of England. He agreed with the noble lord, that the prerogative which was claimed for the king of England ought to be, and generally was, exercised for the interests of the people, and in support of the dignity of the crown: but, there were instances in which great injustice would have been prevented, if officers had been afforded an opportunity of defending themselves before a court-martial. The case of his dear and valued friend (sir R. Wilson) was one of those instances. If that distinguished officer, covered as he was with the honourable rewards which he had earned in so many bloody contests, had been tried 571 by a court-martial, he would have been acquitted; not on account of the considerations to which he had just alluded, but upon the mere merits of the case. So confident was he of the propriety of the conduct of his gallant friend, that he did not hesitate to declare his conviction, that if ministers had known the circumstances of the case before the gallant officer was dismissed, they would not have consented to the proceeding. Sir R. Wilson had committed no offence; his exertions on the day of the queen's funeral had prevented the spilling of blood. Had it not been for his interference, many lives must have been lost, and the city must have been thrown into such a state of confusion, that all the powers of government would have been ineffectual to prevent the most terrible disasters. He trusted that a moment of calm reflection would arrive, when justice would be done his gallant friend by restoring him to the rank which he deserved, and giving to the profession to which he belonged the advantage of possessing so brave, so experienced, and so talented an officer.
§ Mr. H. Gurney
was of opinion, that the king's prerogative of dismissing officers from his service was a very necessary one; and lamented that the hon. colonel, in his zeal for the liberties of Englishmen, had not rather turned his attention to the position of the privates, under the existing system of martial law and life enlistment, than to a few possible cases of very inferior hardship.
§ Mr. Hume
observed, that the hon. member who spoke last had said, that he thought the king ought to possess the power of dismissing his own officers. Now, he would maintain, that the army was not the servant of the king, but of the state, and that the king was only required, as chief magistrate of the state, to administer justice to it. There was a wide distinction between the power which the king possessed of dismissing his own servants, and that which was claimed for him of dismissing military and naval officers. The noble lord commenced by admitting, that the foundation of all prerogative was utility; but he had failed to show wherein consisted the utility of the particular prerogative in question. The acts to which the noble lord had alluded, were passed at a period when the kingly prerogatives were the subject of dispute between the crown and the people. Since that time many of the prerogatives of the 572 crown had been annulled, and the king now possessed none, except those which were confirmed to him by act of parliament. If that were not the case, why should it be necessary to pass an act of parliament annually to continue those prerogatives? The army existed only by the passing of the bill before the House. If the bill did not pass, there would be no army; and if there were no army, there could be no prerogative over it. The hon. member referred to the Mutiny act of last year, which, he observed, provided, that individuals in the army who committed any of the offences recited in the act, should suffer the punishments that might be awarded by a court-martial: but there was no part of the act which gave to the king the power of cashiering officers. To he sure, the noble lord had said, that by section 35 of the act, the king had the power of establishing articles of war which were to be recognized in all courts of justice, and one of which declared, that the king might dismiss officers: but the noble lord could not fail to know, that in every act of parliament which was passed, provision was made, that no regulations should be framed for carrying the act into effect, which were contrary to the spirit of the act itself. Now, he contended, that the assumed right of cashiering officers was opposed to the spirit of the act. The noble lord had asked how the prerogative could be dispensed with in the case of a mutinous garrison. He would ask the noble lord, in return, of what use the prerogative would be under such circumstances? Mutineers usually placed themselves beyond all power, and listened to nothing but their own will. He therefore thought that the argument of the noble lord upon that point must fall to the ground. There were doubtless advantages and disadvantages attached to both the modes of proceeding with respect to officers—namely, by a dismission by the crown; and by a trial by a court-martial; but he believed that, upon a fair comparison, the balance would be found in favour of the latter. Certainly, nothing could be so bad as the tyranny and cruelty of dismiss sing an individual who, perhaps, had served his country for 30 years, without affording him an opportunity of exculpating himself.
said, that he had now, for the first time, heard it asserted in that House or elsewhere, that the king of Eng- 573 land possessed no prerogatives, except what were granted to him by acts of parliament. The hon. gentleman, with his great legal knowledge, would perhaps condescend to point out the particular acts, nay, the particular sections of the acts, by which a few trifling prerogatives—such, for instance, as the power of making war and peace, and of assembling and dissolving parliament—were secured to the crown. The hon. gentleman had said, that there was nothing in the Mutiny act which gave the king authority to dismiss an officer. Let the hon. gentleman consider how far his argument might be carried. Did he mean to contend, that the king could not dismiss a private soldier for misconduct—that he could not disband a mutinous regiment without bringing every individual in it to trial by a court-martial? If there was any thing in the hon. gentleman's argument, it must go to that extent. He believed that the prerogative in question might be used most beneficially for the public, in cases in which it would be imprudent to subject officers to a trial by a court-martial.
§ Lord Hotham
was of opinion, that a prerogative which had been exercised for so long a period, must have some foundation in law. The only objection which he should notice was, that there was danger to the constitution in the assumption of this prerogative. He had frequently heard fears of danger to the constitution, expressed on the opposition side of the House; but, as it appeared to him, the only danger to the constitution, connected with the subject, would arise from the motion of the gallant member, if carried in the affirmative; for he confessed, he could not see a greater source of danger than an army independent of the crown. It had been said, that officers of the army ought to enjoy the same privileges as other subjects. Now, he had spent a great part of his life in the army, and no man could be more anxious than he was for the welfare of the service; but he could not consent to give to it the privilege now sought for; because he thought it would be of no advantage to the officers individually, but would be most dangerous to the country.
§ Sir F. Blake
could not consent to the motion, but thought that, in cases of dismissal of the nature alluded to, some compensation ought to be given to officers. For his own part, in a corps which he had the honour commanding, 574 he had found great advantage from the power given to colonels of reducing noncommissioned officers to the ranks; and, as that power was not disputed, he did not see why the sovereign should not have a similar power over commissioned officers.
§ The amendment was negatived. The House having resolved itself into the committee,
proceeded to reply to the observations of the noble lord made in the former stage of the bill. He contended, that the 13th and 14th of Charles 2nd had nothing to do with the question. If the crown possessed this mighty prerogative, what was the use of passing the Mutiny bill in such a hurry, or what was the use of passing it at all?
considered it irregular for any member to reply directly, in one stage of a bill, to the observations of another member, made in a former stage.
said, it was not strictly regular to reply to a speech made in a former stage; but he thought the hon. member had a clear right to go again into arguments on the general measure.
resumed, and went on to contend, that, by the 37th section of the bill, it was laid down that all officers must be tried by a court-martial for any offence imputed to them, and that dismissal by the crown without such trial was against the spirit and letter of the act referred to.
§ Lord Palmerston
maintained, that the act Charles 2nd did not confer the prerogative on the crown, but recognized it as pre-existing. The hon. member had asked why press this bill, if the crown had so extensive a prerogative? To this he would reply, that it was necessary, for the sake of discipline, to have a summary mode of punishing offences committed by officers of the army. If the crown did not possess the power of dismissing without a court-martial, then no new enactment was necessary; but such was not the true construction of the 37th section. It said, that it should be lawful for a court-martial to try for certain offences; but it did not interfere with the power of the crown to dismiss without trial. There were many cases, not breaches of the articles of war, which would not only warrant, but require a dismissal without trial. How, for instance, could a man be tried for want of talent?
§ The bill then went through committee.