HC Deb 07 December 1803 vol 1 cc139-49
Mr. Hawthorn

then brought up the report of the committee on the bill for continuing Martial Law in Ireland. The report being read,

Mr. Wilberforce

said, it was not his intention to trouble the house with any long or minute discussion. With regard to the necessity of the measure now before the house, he believed there could be only one opinion. He rose, not to oppose the measure nor to deny its necessity, for he was of opinion that such a measure was really necessary in the present circumstances of Ireland, and that it had been suggested by the imperious dictates of necessity alone. The only difference that existed between him and the framers of the bill, was in regard to the mode of carrying it into execution.—He did not wish to trouble the house, but he wished to propose some amendment in regard to the constitution of those courts martial to which the bill alluded. He thought, unless in a case of the most impe- rious necessity, and suggested by the strongest reasons of expediency, no court martial ought to be permitted to sit in such instances which was not composed of seven members at least. If circumstances unhappily required the interference of such courts, it ought to be an object with the legislature to invest them with as much wisdom and deliberative justice as the nature of the case would possibly admit. The number constituting such courts, he thought, ought never to be more than thirteen nor less than seven. There was not less danger from too many than from too few, in the determination of such cases as might come before them. The age of individuals composing those courts, he thought also, ought to be particularly attended to. It was well known, that in the army there were many young men officers, who had not arrived at that age which the laws of the country have wisely fixed as necessary to enable a man to have the conduct of his own private affairs. And could it for a moment be thought prudent that we should entrust the lives of our fellow citizens to men whom the laws of the country had judged incompetent to the management of their own private affairs? He thought it was indispensably necessary that the legislature should provide that no minor, that no man under the legal age, should be permitted to sit in any such courts martial. The measure, he allowed, was necessary; but it ought to be the care of that house to appear reluctant to deviate in any degree from the ordinary exercise of the laws t they ought to appear scrupulous in the adoption of any harsh or severe measure, and to remove as much as possible from its mode of execution the appearance of all harshness, injustice, or severity. This he thought might be done by the provisions which he wished to propose as an amendment. He could not conceive that these alterations would render the measure in any shape less effectual. Did he apprehend this as the consequence, he would be the last man to propose them. He knew, indeed, very well, that the government of Ireland would not wish to exercise any authority put into their hands, with greater severity than the urgency of circumstances might require. But while he was perfectly conscious of this, he, at the same time, wished that the legislature should not trust to any individuals for the Upright or lenient execution of any measure; but should prescribe to them their duty by the letter of the law.—What is the circumstance, the hon. gent, asked, that endears the trial by jury to every man of this country? Is not every member of that jury liable to be reduced to the same circumstances of the person standing charged before him? Is there not a sympathy subsisting hetween the jurors and the persons whom they try—a sympathy that gives confidence to every man, that, if he has justice and equity on his side, it is the interest and congenial to the feelings of the jury to acquit him? In an ordinary court martial also, the officers composing that court martial were called to the trial of men of their own character and profession—men who had been similar to themselves, and to whose circumstances they were uncertain but they themselves might likewise, at some fnture period, be reduced. Here also there existed that sympathy and fellow feeling which operated in favour of the person to be tried. But the circumstances of a court martial trying criminals accused of rebellion were very different. The persons brought before them had different interests, and would seem to be almost of a different species. From the circumstances of a country in such a situation, they were too apt to meet their victims with anger and passion, which must ever be hostile to the deliberative measures either of justice or mercy. They feel too great an interest as a party to listen with that partiality which ought always to be extended to the unfortunate. If such would naturally be the case with almost all men in such circumstances, how much more ought the house to guard against the passions or prejudices of rash, unthinking, or unfeeling youth. In some instances he was aware the amendment he proposed to make might be attended with difficulty; but the lord lieutenant, he thought, might in such instances have a discretionary power. In times such as the present we ought to place some confidence in the government, particularly in cases where the letter of the law could not with so much advantage be enforced.—The hon. gent, concluded with stating, that in his opinion such courts martial as the bill alluded to, should not consist of more than thirteen, nor of less than seven, and that none under age should be admitted to sit in those courts.

The Speaker

stated, that the object of the hon. gent. could only be obtained by moving a separate and distinct clause to be introduced into the bill.

Mr. Wilberforce

accordingly made out the clause at the table, and read it to the house. On the question being put that the clause be brought up,

Colonel Wood

said, he had no objection to the amendment proposed by the hon. gent. but rather than give any discretionary power to the lord-lieutenant, he thought it would be more eligible to dispense with the number seven proposed the hon. gent., and admit five as the smallest number that should constitute a Court martial. He was inclined to be jealous in conceding discretionary powers to government that were not absolutely necessary.—The clause was brought up and read a first time. On the question being put that it should be read a second time,

Mr. Secretary Yorke

observed, that he could not agree entirely with the hon. gentleman who had proposed the amendment, though he was ready to give him fall credit for the sincerity of his intentions. His great objection was, and he thought it must occur to every person, that this amendment was inconsistent with the original spirit of the measure proposed by the bill. The bill was of such a nature as could only be warranted by necessity. If there was no necessity for the measure, it would be better to discharge the bill entirely; but if the measure was thought necessary, which the hon. gent, fully admitted, such an amendment as he proposed would entirely defeat, its object. Were it possible for regular courts to sit, or for legal juries to be assembled, there would be no occasion for such a measure; but neither regular courts nor legal juries could meet with safety to themselves in the present circumstances of the country, and it was for this reason only that die measure was brought forward. Was it possible, the right hon. gent, asked, that any court in the very heart of rebellion could previously go through any tedious process to ascertain the particular qualifications of its members, or would it be proper that every officer, in order to ascertain his age, should carry a certificate in his pocket? The principle on which the hon. gent, proceeded would go entirely to prevent, in many instances, the assembling of any court together, and at times too when it might be most necessary. The right hon. Secretary concluded by stating that, if the bill is at all necessary, it ought to pass as it is, and if not necessary it ought to be entirely dismissed; but the amendment, it was obvious, would go to defeat its object.

Mr. Windham

thought that no restrictions of the kind the amendment went to establish ought to be introduced in courts martial. If he were to state his objection to courts of this description, he would say that they were not so competent as others. But this objection referred entirely to that degree of judgment which men of such habits and pursuits were likely to exercise. The great criterion to be sought for in courts, to which either the lives, the properties, or the privileges of men were to be tried, was judgment. But the hon. gentleman had not founded any of his reasons of amendment upon this broad and ostensible principle. He had objected to the general constitution of courts martial on the score of sympathy. It was not probable that any of those gentlemen composing a court martial would ever be reduced to the melancholy circumstances of those brought before them for trial. If this objection on the score of sympathy and feeling had any weight, it would militate equally against all courts martial. Did not courts martial try private soldiers as well as their brother officers, and would the hon. gent, say that officers could have that sort of sympathy with private soldiers which he was disposed to derive from an idea of a probability of being involved in similar circumstances? The truth was, that here there was no such sympathy as the hon. gent, pleaded for; and would he or any other gentleman say that that house ought to be more tender of the lives of rebels in Ireland, than of the lives of private soldiers who formed the strength and defence of the country? and yet the hon. gentleman's motion went to shew that where we neglected the interests of the private soldier, we should be anxious to provide for the safety of rebellion. But the hon. gent, was apprehensive of the rashness and undiscriminating judgment of such officers as were under age. For his own part if any want of feeling was to be apprehended, it was not, he thought, from young men warm with all the feelings, and all the sympathies of youth. If any such danger was to be apprehended, it was from men rather grown old in the prejudices and passions of a party; it was from men who had grown callus by long habits of severity. The tight hon. gentleman concluded by saying, that in regard to the principle or necessity of the bill, he was not at present called upon to give his opinion. He could not say it was necessary, and he was not prepared to say that it was unnecessary. But at all events if the bill was necessary, the amendment went in a great measure to defeat its object, and was besides founded on a principle that militated against courts martial of every description.

Mr. Wilberforce,

in explanation, said, he did not mean to cast any reflection on the integrity of young officers; but he drought they wanted steadiness, and the right hon. gentleman confirmed the opinion, when he spoke of the warmth of their feelings, That warmth may incline one way as much as another.

Dr. Laurence

disapproved of the clause; the remedy was not such as should be applied. When the general measure was before the house, his object had been to render courts martial as like as possible to those under the mutiny act. The president, under that act, should be a field officer, and age and experience were secured by the rank. He did not see why the same regulation should not hold in the present instance, nor why the courts should not consist of the same number of officers as in all other parts of his Majesty's dominions, except two places, where circumstances did not permit it. The number of troops in Ireland afforded every facility, and it was the more necessary to have this tribunal liberally constituted, as it took the individuals out of the cognizance of the other courts. The objection of the hon. gentleman, on the score of passions, amounted to nothing more than the general evil of human infirmity; and if it was to be regarded, we could not have a judge or juror against whom objections could not be made. His objection was to die; preamble, which took so wide a range, that robbing a hen-roost might be construed into an act of rebellion. The hon. gentleman had observed on a former night, that angels could not be trusted with arbitrary power: his present opinion went to say, that after twenty-one, it lost its corruptive nature.

Lord Archibald Hamilton

said, there appeared to him to be two reasons held out for voting the present measure one was, the late insurrection in Dublin. If the hope expressed in his Majesty's speech, and the address in answer to it, was to be. relied on, it was a measure of precaution. Precaution against what? Was it against rebellion, against insurrection, against dissatisfaction in the people against the government? No. If he were to exercise his own understandng, he would say it was not a precaution against fear, or against danger, but against the confidence and hope expressed by his majesty's ministers. Bearing in mind the sad and calamitous consequences which attended this measure when it first passed, he could not approve of the continuance of it and he wished to give it this decided mark of his disapprobation. The question being put, the clause was negatived. On the question, that the bill be read a third time to-morrow,

Admiral Berkeley

rose, not to oppose the bill, though his Majesty's ministers gave no satisfactory reason why it should pass, but to give notice that he should on an early day, the earliest he could after the recess, move for the production of certain papers, which he hoped would clear away the imputation which, from something that had been said on a former night, now very unjustly rested on the character of the late commander in chief in Ireland (General Fox).

The Chancellor if the Exchequer

called on the hon. admiral to state.

Admiral Berkeley

said, he alluded to what the chancellor of the exchequer said, "that the commander in chief had early intelligence of the intended insurrection on the 23d July."

The Chancellor of the Exchequer

denied having used these words. A gentleman, who spoke in the early part of the debate on the night he alluded to (Mr. W. Elliot) having said, that no instructions had been given to the commander in chief, no communication made to the lord mayor; he had said, that instructions had been given to the lord mayor through the superintending magistrate, a police officer well known to the hon. gentleman. He took the earliest opportunity of declaring, that he had not the most distant idea of casting any imputation on the officer alluded to, nor had he heard, except irons the hen. gentleman, that there was the smallest idea that any imputation was supposed to exist. He was sure, that whenever the conduct of the late commander in chief in Ireland, came to be considered, it would be found as free from blame, and as creditable to that deserving officer, as any other part of the conduct of the Irish government was, to the general credit which the conduct of that government had obtained.

Admiral Berkeley.

—The right hon. gentleman has mistaken me. I did not mean to say, that I conceived any imputation against that meritorious officer from the words that he spoke: yet, I do think, they conveyed an aspersion. Ths hon. officer himself thinks so; nor is he the only person who does think so. The right hon. gentleman said, that early intelligence was sent to the commander in chief.

The Chancellor of the Exchequer.

—What I said was, that information had been sent, at an early hour, to the superintending magistrate.

Mr. J C. Beresford

observed, that to any gentleman acquainted with Dublin, it could not appear at all surprising, that the insurrection of the 23d of July should happen (even if such had been the case) without the knowledge of government or the commander in chief It took place in the most obscure part of the city, proceeded only through three streets, and was put down in one hour. He also observed, that the night was remarkably dark. From these circumstances, the hon. member inferred, that this disturbance might have occurred without the knowledge of the civil government or the commander in chief; without attaching any blame to either, for neglect of duty or inattention.

Mr. T. Grenville

not having before taken any part in the discussion of the measure before the House, did not mean to oppose it in the stage to which it had arrived; nor should he have, on this occasion, troubled the House with any observations, if some expressions, which had fallen from the right hon. secretary, had not compelled him to it, in order to exclude himself from that general conviction of the necessity of the measure which had been said to exist. He should not take up the time of the House, by entering into an inquiry whether the measure were necessary or not? but he would contend, that from the information which his Majesty's ministers had thought proper to give, no inference could be drawn of the existence of that necessity. When his right hon. friend (Mr. Windham), on the first introduction of the measure, had applied for a short delay, in, order that information might be laid before the House, his application had been rejected on the ground that the smallest delay would be dangerous in the then existing circumstances. Though he was not in the House himself on that occasion, he was at the time fully sensible of the justice of the application, but whatever argument might have applied in that instance against delay, there could be none to apply in the present. The two bills now in their stages through the House, would not expire till six weeks after the commencement of the present session. The session had commenced on the 22d of November, and the bills would of course not expire till the 1st or 2d of January. He therefore put it to the House, what possible argument could be used against a short delay, until such information should be communicated to the House, either by the report of an open or secret committee, us should justify the adoption of such strong measures. It had been more than once his lot to complain of the conduct of his Majesty's ministers, in bringing forward measures of great importance, without laying sufficient information before the House; and he took this opportunity of protesting against die manner in which the two bills before the House had been introduced. There was another circumstance too that should weigh with parliament, and which materially affected the spirit of the constitution: he meant the operation of such a course of proceeding in the legislative union. Since the passing of that measure, it had become more than ever the duty of his Majesty's ministers to shew to the people of Ireland, that every measure involving their interests, not only claimed but received us much discussion and attention as it would, it their own legislature still continued to assemble. It was particularly their duty to avoid giving the slightest ground of suspicion, or suffering any one to fancy that the affairs of that country were not fully attended to. He did not mean to oppose die completion of the two bills before the House, though, if he were to follow the example of other gentlemen, in stating the ground of his private opinion, he should feel embarrassed, and considerable difficulty in making up ids mind on the subject. The Mouse had no documents to ascertain whether the measure were the wisest or most proper for Ireland; they bad no official information whether the situation of that country was such as to require coercive measures; they had no ground on which to rest their proceedings, but the language of his Majesty's ministers, that language generally varying, and always changing. He meant nothing ungracious to his Majesty's ministers individually, but, as a member of Parliament, he was bound to speak his sentiments openly, and say, he could have no confidence in their administration, neither in the wisdom of their measures, nor in the activity with which they executed them. The hon. gentleman entered here into a train of severe comments on the conduct of ministers, and on their incapacity. He then adverted to the manner in which the notice of his hon. friend (Admiral Berkeley) had been so quickly commented on by the Chancellor of the Exchequer. He had expected that his hon. friend's observations would have met with a very different reception. That challenge which ministers had on a former day given when they deprecated a discussion by a side wind, they now had an opportunity of deciding by the proposition of the hon. Admiral respecting his hon. relation; and tile more the House investigated the conduct of ministers, the more fully would they discharge their duty.

Mr. Secretary Yorke

not intend to follow the hon. member through the details of his speech, because nothing that had fallen from him appeared to him to require an answer He was anxious, however, to say a few words, which he had not before an opportunity of doing, on the observations of the hon. Admiral. The hon. Admiral had given notice of a motion for certain papers, in consequence of an aspersion which he conceived to be thrown on the character of an honourable relation. His right hon. friend, the Chancellor of the Exchequer, had distinctly stated, in answer to the hon. Admiral, that no such aspersion had been meant, either by himself, or any other member of government; and had correctly repeated file language he had used on the occasion. The right hon. Secretary here re-stated what the Chancellor of she Exchequer had before stated in explanation, and insisted that no direct nor implied aspersion was contained in the terms used. Whatever conduct the hon. Admiral should think proper to observe, would be for himself to determine; but after what had passed, he must bring forward his motion, n t in consequence of any aspersion on the hon. General, for whom he felt himself a very high respect as a meritorious and distinguished officer, but sis a direct charge on his Majesty's government in Ireland, which he should be ready to meet. The right hon. Secretary wished also to state a few words, which he had omitted on a former day, in answer to an observation which had been made by an hon. gentleman (Mr. Elliot), by way of criticism, not of crimination, respecting the Lord Lieutenant's going to the Park on the night of the 23d of July. The usual residence of the Lord Lieutenant was in the Park, whence he used to return every day about two o'clock to the Castle, to receive such information as might have been procured by the subordinate officers of the government. He had come to the Castle, on the 23d, and after receiving the information respecting the projected insurrection, had held a consultation on the expediency of his remaining in the Castle, the result of which was, that it was considered better for him to return to the Park, as the circumstance of removing his family to town might create considerable alarm. Every body who knew his lordship, would do him Use justice to suppose that he would not leave Dublin from apprehension on such an occasion; nor was it probable that he should consider a Serjeant's guard in the Park a better security than a garrison of 4000 men in Dublin.

Mr. Windham

thought, that as a charge might arise out of the statement that had been made, either against the Irish government, or the Commander in Chief, that the hon. Admiral might, notwithstanding the explanation that had been given, bring forward his motion, though not for crimination for the justification of his hon. rela- tion.—The question was then put, and the bill ordered to be read a third time tomorrow.