§ On the order of the day being read for the third reading of the mutiny bill, the bill was read accordingly; after which,
The Secretary at Warbrought up a clause by way of rider, which contained the oath to be in future administered to all members serving on regimental courts martial, and also another for swearing all the witnesses who should give evidence before them.
§ General Fitzpatrickthen rose, and, after adverting to his proposal on a former day, that no person should be permitted to sit as president on a regimental court mar- 858 tial who bad not attained the age of 21 years, said, that if be thought it could have the slightest tendency to weaken the discipline of the army, he would be the last man who should think of proposing it. He did not say, that the usual punishments inflicted were more severe than necessary, for which reason, the clause he should recommend, would, in its effects, rather serve to strengthen the powers of regimental courts martial. As it must, however, be confessed that the punishments were at times extremely rigid, the greater attention should be paid to have them carefully administered. If the same gravity and dignity were infused into these regimental, that always accompanied general courts martial, the men, finding the same impartial trial in the one, as in the other, would be naturally led to a more cheerful compliance with their decisions. He maintained that the powers given to regimental courts martial went beyond the object for which they were originally established, which the act itself stated to be for the trial of small offences, which words certainly must imply that they would be limited to the infliction of small punishments. They were never designed to try mutiny, desertion, thefts, and those other serious charges which, were now brought before them; and though in usage the intention of the act had been prevented, yet if it had been foreseen that such causes would have been brought before them, there could be no doubt that they would have been subjected to the same solemnities of oaths as in general courts martial. To his proposal he never had heard any other objection made than the general one, that it would be an innovation in the service; but the same argument was applicable to any improvement that could be offered, and would have formerly applied with equal force against the bill itself. As the object of administering oaths was acceded to by the secretary at war, what remained for him to submit was, that the presidents on such courts should not be under the age of 21 years. He proposed it on the same principle on which it was required, that none should preside in general courts martial who were not of the rank of field officers, the object of which was, to provide that the presidents should be persons of a competent experience. It might, indeed, be said, that the presidents of regimental courts martial were required to be of the rank of captains, and that if a man was 859 not fit for Such a president, he could not be fit to command a company. In answer to this, he would declare it as his opinion, that it would be a good and salutary measure, if captains were required to be of the age of 21 years. He thought the genius and talents of some young men would offer an exception to this regulation, but, as a general rule, he thought it might have very favourable consequences as to the service. On the present occasion, however, he would not submit any other alteration than the one he proposed, especially as military regulations in general more properly belonged to the prerogative of the crown. He then proposed; as an amendment to the first clause, that after the. words that "no man under the rank of captain," should be added the words, "and had attained the age of 21 years."
§ Sir James Pulteneyopposed the clause on the grounds that the long-established practice in the army ought not to be altered without the maturest deliberation.
The Secretary at Wardefended the clause on the grounds that an innovation had been made by the regimental courts martial taking cognizance of higher crimes under different names. It was time, therefore, that the evidence against the soldier should be examined with the solemnity of an oath, that the punishment for perjury might follow close upon falsehood. He had consulted several general officers, who were for the most part against the clause, but they had alleged no sufficient reasons. He could not agree to have none as president of a court martial who was not 21 years of age, on account of the inconvenience which it would produce.
Earl Templewas against the oath being administered, where the person who swore falsely was not liable to the penalties of perjury, as must be the case in a regimental court martial, which was not a court of record like a general court martial.
Mr. S. Bournesaid, that persons perjuring themselves before a regimental court martial, should be made liable to all its penalties.
§ Sir Eyre Cootedefended the clause, because it gave greater solemnity to courts martial. The object was the discovery of truth, and how could truth be more effectually discovered than by putting the witnessess on oath?
§ Mr. Fullerwas against the clause, as tending unnecessarily to multiply oaths.
The Chancellor of the Exchequeragreed 860 in the propriety of the clause, though he regretted that he differed in opinion from so many able officers. He could not conceive how the oath could be prejudicial. The discretion of the officer was the same, and the evidence would be the same. He agreed, that if the practices of the courts Of law, with respect to evidence, was to be followed, it might be dangerous. He a greed to this clause, because it was just in itself, and not because there was any complaint.
§ Lord De Blaquieresaid, wanted no innovation in the system, but to have things brought back to their original institution, to confine the jurisdiction of regimental courts-martial to trifling offences, instead, of trying, as they do now, offences of mutiny, desertion, &c. under names that did not belong to them. He wished to have limited also the quantum of the punishment they should be entitled to inflict, for he had seen a man sentenced by a regimental Court-martial to receive one thousand strokes, for an offence, which, on board a ship, would not have been punished with more than a dozen lashes. At the same time, he confessed that he did not like to hear the solemnity of an oath should be resorted to in every trivial charge of drunken frolic, or being late on the parade.
Sir W. W. Wynnein reference to one of the observations of the chancellor of the exchequer, said, that in the militia, he knew of many captains in regiments, who were neither 21 years of age, and had not been so much as two years in the service.
Colonel Franklundspoke very warmly against the bill, as likely to breed great dissentions, and promote disputes and unhappiness amongst the men, who would be thus encouraged to threaten their comrades with indictments for perjury if they gave evidence unfavourable to the accused. The practice which the clause went to abolish had prevailed for time immemorial, and without any complaint against it, from the reign of W. HI. down to the present moment, though the mutiny bill was brought every year before the eyes of parliament. This was merely a question of speculative good, offered to practical experience, for which reason he would give it his decided negative.
Colonel Stewartsaid, he could not oppose the clauses, on account of the manner in which regimental courts martial proceeded, as they were now constituted. He 861 Slated, that it was usual for the president to take short notes of the most material parts of the evidence, while the other members of the court were chatting, or perhaps amusing themselves with writing or drawing on the slips of paper before them. In his opinion, these courts martial should always be composed of either 5 or 7 officers.
General Stewartsaid, he was anxious that on account of the similarity of their names, his opinion should not be confounded with that of the hon. officer who spoke before him, and whose proposal, of placing 6 or 7 officers in these courts martial would be impracticable in places where troops were detached, sometimes at the distance of one hundred miles asunder.—After a few words from General Fitzpatrick, the first clause was agreed to, and added to the bill; and, on the question being put on the second clause authorizing the administering of oaths as to the witnesses,
§ Sir J. Pulteneysaid, he did not think this clause would be attended with any material inconvenience; but, considering how soon the present mutiny bill would expire, and that it must undergo a discussion in the other house, he doubted whether there would be time to pass it with those amendments.
§ Sir J. Wrottesleywas adverse to the bill, on account of the bad effects to be apprehended from it; amongst which, he mentioned the certainly that, in all parts of the country where soldiers may be tried by regimental courts martial, upon charges brought against them by the townsmen or inhabitants amongst whom they were quartered, there would be found petty fogging attorneys on the watch to take advantage of the slightest circumstance that could afford any ground whatever for menaces of indictments, or actual prosecutions for perjury. Both the clauses being added to the bill, it immediately passed, and was ordered to the lords.