Commons Sitting of 14 March 1808

MUTINY BILL.
The Secretary at War moved the order of the day for the third reading of the Mutiny bill.
Sir Francis Burdett, pursuant to the notice given for him a few days since by a noble friend of his (lord Folkestone), had to offer a clause, to prevent officers from being dismissed from the army by any other means than the sentence of a court martial. He thought such a provision of essential importance to the army, to the interests of the crown, and those of the country. The form of the proposition he had to make was so moderate, that he did not conceive any objection could be made to it. He was not aware of any opposition being intended, except from some loose ideas that had been thrown out, of its trenching on the prerogative. He did not think it did. But even if it were true that it did, he should not think that would be a reasonable objection with the house, if he could shew that the power, so far as he meant to correct it, had been exercised in a manner detrimental to the honour of the crown, and the interests of the army and of the country. The army itself was constitutionally looked upon .as a great infringement made by the crown on the prerogative of the people. He did not say it was an unnecessary infringement. But as the army was constitutionally an invasion of the liberties of the people, the principle of limiting in some respects the arbitrary power of the crown, with respect to the army, could not be looked upon as trenching on the prerogative of the crown, which held the army only by the indulgence of parliament. He contended that no prerogative of the crown, ought to infringe on the liberties of the people. The clause he should propose had nothing in view but to secure that justice and fair dealing which should always mark the proceedings of the crown toward the people. He proposed to restrain only that which no king, if well advised, would ever do. It was due to the officers of the army, to afford them that legal protection for their fortunes and lives, and what was of stilt more importance to them, their Characters, which persons of other classes enjoyed. They were wholly at the mercy of those malicious whispers, by which the ears of persons high in authority were ever liable to be abused. Officers of the army should certainly be no worse situated in- this. res-

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pect than the rest of his majesty's subjects. No man ought to be condemned or punished without a hearing. Such was the principle of British justice. The honour of which military men were so tenacious, was exposed to ruin often without the possibility of guarding against it. The discipline of the army also suffered materially by the practice he wished to correct. For when those who, when brought to trial, would be found decidedly deserving of punishment, were blended in the operation of one undistinguishing stroke of power with those who, if tried, had the means of procuring themselves an honourable acquittal, virtue and good conduct, in a great measure, lost their stimulus, and bad conduct was sheltered from a great part of that shame, which was the most effectual check upon its vicious progress. As the object he had in view was to prevent future abuse rather than to censure the past, he forbore to cast any reflection, or to cite any of those case which it would be competent to adduce. He might be told there were cases in which persons were dismissed, whom it would be hard to expose by a court martial, though it would have been highly improper to continue them in the service. Persons of this kind might he permitted to resign, and thus there would always be a sufficient security against abuses of every kind. It was the principle of the British constitution to separate every thing odious from the crown, and to adorn it with the heavenly attributes of mercy and power of relief. It was an inconsistency with this principle that he wished to remove, by giving to the officers of the army the same measure of justice enjoyed by the rest of the Community. It was by the army that the crown was supported and the people protected, and why should the army be in a worse situation than any other part of the people in the essential point of justice? The army had now grown to such an extent, with a disposition still further to augment it, that even in point of mere numerical consideration, it was a large portion of the people. And, in the present critical and dangerous situation of the country, when our safety depended so much on the zeal and energy of the officers of the army, ought they to be left in circumstances in which they might be whispered out of their rank and situation, into poverty, disgrace and ruin, and a thousand calamities worse than any law could inflict, by the arts of a dark malignant assassin, who would not dare to
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meet them in the open light of genuine British justice? Courts Martial afforded ample means to punish every description of offence; and when it was considered that these courts were not, like juries, bound to be unanimous in their sentence, and how many descriptions of offences could be included under the very extensive and sweeping charge of ungentlemanlike conduct so often censured and punished by them, he was sure no latitude of impunity could be apprehended, by giving every accused person the opportunity of stating his case before such a tribunal. The hon. bart. concluded with moving a clause accordingly.
The Secretary at Warcomplimented the hen. baronet on the moderation which he had. displayed; but objected to the clause, because he had laid no ground for it. He urged the bad consequences of changes in the military system without the strongest reasons for it; and the necessity that the army should be dependent on the crown. It was so necessary, that even if it were not the case at present, he should have proposed it now for the first time. He would wish, if it were possible, that the military should have the advantage of the common law; but it was inconsistent with the constitution and discipline of the army. The history of the world proved the necessity of strict discipline in an army, and for this it must look to a head. The instances in, which the power alluded to had been exercised were of late extremely rare; but the best effects resulted from the existence of the power. Every part of the prerogative pushed to extremes would produce abuses —such as in the making of peace or war. But this was no reason for diminishing that prerogative. An army independent of the sovereign was contrary to common sense. Such an encroachment on the prerogative would subvert the constitution. He allowed that in former times officers had been deprived of their regiments for voting against ministers. But there were no instances of this abuse in modern times. He therefore gave his decided negative to the proposition.
Lord Folkestoneadverted to the extraordinary mannner in which the hon. secretary had answered the arguments of the honourable baronet on his side. He had complimented him first, for not stating past abuses, and then objected to the clause, because no grounds had been laid for it. The honourable secretary very

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well knew that there were instances of the most cruel oppression that might be stated. But the honourable baronet below only looked to the future, and had laid irresistible grounds for his proposition. He had stated his object to be to protect the officers and the crown itself from doing what was known to have been done, and from the secret whispers of slander and Malice. His lordship, however, expressed his hope, that the hon. baronet would withdraw his clause, and bring the subject forward in a separate bill, for so grave and important a matter required the most serious deliberation and the fullest discussion. The hon. baronet he allowed could not, however, be liable to the charge of precipitation from the other side. The noble lord opposite had brought forward his clause in a manner equally sudden; and as the hon. secretary had expressed so strongly his aversion to changes, he, no doubt, would give his vote against the change proposed by the noble lord near him. He earnestly requested the hon. baronet to withdraw his clause for the present, as he should regret extremely to be obliged to give it his negative.
Colonel Duckettsaid, there was no time, no country, no army, in which the power here complained of did not exist. To abridge the power of the crown in this point would not add to the liberties of the people, but to the independence of that army which was so much the object of constitutional jealousy.
General Fitzpatrickthought that all innovations on the constitution of the army ought to be attempted with the most cautious deliberation, and never without strong facts to warrant and call for them. The hon. baronet had adduced no such facts, and he himself knew of none. He should therefore give the clause his decided negative, if the hon. baronet should bring it up. The constitution of the army was as much an object of nice attention as the constitution of the state. The trial by jury was preferable to the trial by court martial in point of justice; yet nobody, thought of introducing it into the army. He hoped, if the honourable baronet withdrew the clause to bring it forward in the shape of a bill, he would atleast make out a case.
Sir F. Burdettfound in the speech of the hon. general, arguments to induce him to persevere in bringing forward his clause, rather than to withdraw it. He had maturely weighed the clause before
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he introduced it. If he did not cite cases of abuse, it was not because they did not exist, but because he was unwilling to hurt any one's feelings unless forced to it. He was surprised and astonished to hear the hon. general declare himself ignorant of such instances.—He declared his intention to withdraw his motion.
Mr. Calcraftrose to move an amendment, the object of which was to reduce the Mutiny bill to the state in which it was last year, and to take from his majesty's ministers the power of enlisting men for a term longer than that which the bill had hitherto prescribed. He replied to the arguments that had been used against limited service. In the East Indies the example of the company was a sufficient inducement for its adoption. In the West Indies, a regulation of that sort was absolutely necessary to enforce the regular relief of regiments. The character of the soldier was improved by the introduction of limited service; the greatest part of the army who conquered in Egypt, were composed of men who enlisted from the militia for a term of years. The success of his right hon. friend's system was rendered undeniable. He reprobated the mode in which it was attempted to subvert that system. Adverting to the 16,000 men that had enlisted from the militia into the regular service, he contended that each man cost the counties, upon the average, 25 1. which, added to the 10 l. of bounty to induce them to enter into the regular army, made an expenee of 35 l per man, or all together a sum of 640,000 l. and this not equally raised, but ultimately falling on the landed Property of the country. He concluded by moving, to omit the words in that clause of the bill by which the option of entering for limited or unlimited service was allowed to the recruit.
The Secretary at Warrestated the opinion which he expressed on a former night, that the plan of the right hon. gent. had met with no success Whatever, and that the former system from the second battalions was infinitely superior to it; producing every advantage of his system, while it was totally free from the inconveniences of that system.
Mr. Windhamentered into an examination of the nature of that system, which, he contended, it was the plan of the present administration secretly, covertly, and clandestinely, to undermine. The measure which they proposed was impotent as

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to good, but powerful as to mischief. With a determined, unrelenting, remorseless animosity, they endeavoured to destroy the existence of that which lived to their shame. The question was, whether parliament would give to the country that delusive strength which spirituous liquors imparted to the human frame; or whether they would allow it to retain the natural vigour of an unexcited body? The subject was of great importance. His majesty's ministers had no right to call for a decision upon it under such circumstances. Was it fair to the house, was it decent to the public, to require the present parliament to reverse the measure already established, by admitting a proposition which had been twice negatived in two former parliaments, and thus making the legislature eat its own words? To introduce this innovating attempt into a bill which from the nature of it could not be stopped in its progress, was a step prompted by a spirit similar to that which directed the attack against Copenhagen. That his majesty's ministers really wished to destroy his measure, he doubted not, although they denied any such intention. He dwelt on the evils which must result from the noble lord's proposition, and particularly on the heart-burnings which must be occasioned among men who were enlisted for .different terms of service; and remarked the change which had taken place in the sentiments of his majesty's ministers; who formerly had called out for a present accession of force, reckless of futurity, but who now, disregarding the present, directed all their solicitude to the future: for he contended that not a single additional man would be gained to the regular army by the new regulation.
Lord Castlereaghspoke at length against the motion. Lord G. Cavendish and sir Ralph Milbanke spoke shortly in favour of Mr. Windham's measure, amidst frequent calls for the question. The house then divided, when there appeared: For the clause proposed by lord Castlereagh 189; For the clause proposed by Mr. Calcraft 116. Majority 73.

List of Minority.

Abercromby, hon. J.

Bathurst, C. B.

Adam, Wm.

Bewicke, C.

Agar, E. F.

Biddulph, R. M.

Althorpe, viscount

Blackburne, John J.

Anson, G.

Bowyer. sir G.

Antonie, W. L.

Bradshaw, A. C.

Babington, Thos.

Buller, J. of Exeter

Bankes, Henry

Burdett, sir F.

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Calvert, N.

Milbanke, sir R.

Campbell, lord J.

Miller, sir T.

Campbell, John

Milner, sir W.

Cavendish, Lord G.

Morpeth, vise.

Cavendish, G. H. C.

Mosely, sir O.

Colborne, N. W. R.

Neville, R.

Combe, H. C.

Newport, sir John

Craig, James

North, Dudley

Creevey, Thomas

O'Callaghan, J.

Cuthbert, J. R.

Ord, William

Dundas, Hon. C. L.

Parnell, Henry

Dundas, Hon. R. L.

Petty, lord H.

Ebrington, viscount

Piggott, sir A.

Eden, Hon. N. S. E.

Ponsonby, G.

Elliot, Rt. Hon. W.

Porchester, lord

Ferguson, R. C.

Power, B. R.

Fitzgerald, M.

Prettie, F. A.

Fitzgerald, lord-H.

Pym, F.

Fitzpatrick, R.

Quin, W. H.

Folkestone, lord

Ridley, sir M. W.

Frank land, W.

Russell, lord W.

Gell, P.

St. Aubyn, sir J.

Grattan, H.

Scudamore, P.

Greenhill, It.

Shelly, H.

Grenfcll, P.

Sheridan, R. B.

Griffenhooffe, B.

Shipley, W.

Herbert, H. A.

Smith, George

Hibbert, G.

Smith, S.

Hippesley, sir J. C.

Smith, Wm.

Hobhouse, B.

Stanley, lord

Howard, Henry

Taylor, W.

Howard, hon. W.

Temple, earl

Hume, W. H.

Templetown, visc.

Howorth, H.

Thompson, H.

Jackson; John

Thornton, H.

Kensington, lord

Tierney, G.

Knapp, George

Vansittart, N.

Knox, Hon. T.

Vernon, G. G. V.

Lambe, Hon. Wm.

Walpole, G.

Lambton, R. J.

Waid, J. W.

Leach, John

Wardell, G. L.

Leman, C.

Wharton, J.

Lemon, J.

Whitbread,'S.

Lemon, sir W.

Wilberforce, W.

Lloyd, sir G.

Wilder, colonel

Lloyd, J. M.

Williams, sir R.

Lushington, S.

Windham, Wm.

Lyttleton, W. II.

Wynn, C. W. W.

Macdonald, James

Wynn, sir W. W..

Madocks, W. A.

Tellers.

Martin, H.

Calcraft. J.

Mawle, Hon. W. R.

Warrender, sir G.

KING'S MSSAGE RESPECTING SWEDEN.
The order of the day being read,
Lord Hawkesburyrose to move an address of thanks to his majesty for his most gracious message. After the proofs of unshaken firmness and fidelity which his Swedish majesty had displayed to his engagements with this country, there could scarcely be any other sentiment in the minds of noble lords, but that the conduct of this country towards Sweden should be marked by that justice, generosity, and good faith, which characterised the relations of this country with its allies, and which were so signally called for and deserved by the uniform steadiness and spirit exhibited by his Swedish majesty. The object of the subsidies and of the support which it was proposed now to afford to Sweden, was not the formation of any confederacy, but to enable his Swedish majesty to defend his dominions against the formidable confederate attacks with which he was threatened. He should repeat it, that it was to enable that gallant monarch to make a stand in the defence of his kingdom, and not with a view to entangle him in any alliance that should prevent him from making peace with the enemy if any opportunity occurred of his obtaining terms he might consider as equitable and honourable. His maj's. government had never interfered to prevent his availing himself of Such an occasion. The subsidy of 1,200,000l. which was to be furnished to Sweden, would not be paid, in one sum,

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as had been that formerly to Prussia, but in monthly instalments, to be continued as long as it was probable its object could be accomplished. His lordship concluded with moving an-address to his majesty, which was an echo of the message.
Lord Grenvillewas satisfied with the ground on which the noble secretary rested his motion; and so far he was not disposed to make any opposition to it. He heard with pleasure and approbation, that no attempt was made by ministers to prevent Sweden from making what peace it might be in her power to negotiate; and that the subsidy now offered her was promoted only by justice, generosity, and good faith. So far it was endeavoured to uphold the character of the country in the eyes of Europe. He was sorry, however, to see the treaty encumbered with the article that provided that the two countries should negotiate conjointly. There was no reciprocity between the interests and situation of the two powers; and where there was no reciprocity, it was idle to tie down either of them to a joint negotiation; besides, there was a sort of contradiction in saying that Sweden was left free to negotiate if an opportunity offered to enable her to make peace, and next, to require that she should not make peace except in conjunction with Great Britain.—The motion was then agreed to.

DISMISSAL OF MR. JOHN GIFFARD.
Lord Hardwicke, pursuant to notice, called the attention of the house to a transaction, during the discussion upon which some observations had lately been made upon his conduct, which he was conscious were wholly unfounded. The transaction he alluded to, was the removal of a Mr. Giffard from a place which he held in the revenue office in Ireland. He was only anxious to offer a candid statement of the matter, as it really stood, and that statement, he trusted, would fully vindicate his character, as far as it was implicated in this matter. The noble earl then observed, that he would not insist on reading extracts from the letters of the noble secretary of state on this subject, as that, he understood, would be objected to; but he believed he was. at liberty to read extracts from his own letters in answer to those of the noble secretary. The noble earl then read a variety of extracts from his correspondence in 1805, with the noble secretary (lord Hawkesbury), respecting the business of the catholic petition, and the measures which the Irish government was
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instructed to pursue, in order to prevent any irritation of the public mind upon that question. From these extracts it appeared, that the catholics held private meetings to concert the best mode of preparing and presenting their petition, the result of which they had never published. The whole of their meetings and proceedings were presided over by a noble lord (Fingal), to the candour, moderation, and temper of whose conduct, throughout the whole of this business, he should be ever happy to bear the testimony such conduct deserved. In order to give effect to the instructions of government, he had consulted with all the leading men in Dublin, and had their approbation of the measure he thought it prudent to adopt. The under-secretary of government had even been instructed to send a confidential person to Mr. Giffard, and to acquaint him with the wishes of his majesty's government respecting the catholic petition; more particularly specifying those wishes, by informing him, that no discussion should be agitated in Dublin on the question, until it had previously come before, and been decided on by parliament. Mr. G. had early and repeated admonitions on this point, but no consideration, he said, should deter him from giving "a licking to the papists." He accordingly made the most violent and offensive speeches in the common council of Dublin against the catholics, which were felt to be exceedingly injurious by the catholics, and which, in his opinion, were wholly irreconcileable with the wishes and instructions of government. In order to prove the sincerity of the wishes of the noble secretary, and in compliance with what he conceived to be his own duty, he removed Mr. G. from the situation he held under government, not however without repeated admonitions to desist from every inflammatory proceeding. It was true, that some time after, in May, the noble secretary expressed some regret at that measure, as it seemed to have given offence to some protestant Irish gentlemen then in England. Whether the opinions of those gentlemen were right or wrong he should not now enquire; -but he imagined that the situation he then held, afforded as fair an opportunity of judging of the situation of Ireland, as any of those gentlemen could possibly have had. He had interpreted the instructions of government in the best manner. his judgment enabled him to do; and he had not acted,

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as had been insinuated, with any harsh precipitation towards Mr. G. In order to prove these assertions, he should now move, "That there be laid before the house, extracts of the correspondence which took place between the noble secretary of state and himself, respecting the manner in which it was thought proper to act in Ireland with respect to the measure of the catholic petition."
Lord Hawkesburyacknowledged, that nothing could be more candid than the statement of his noble friend, but still he felt himself not bound to produce the correspondence moved for, because some of it was of a private nature, and because, it produced, it could answer no purpose. It was true, the conduct of his noble friend in displacing Mr. Giffard was looked upon as rather harsh by some of the protestant gentlemen in Ireland, and in this country: and indeed, when it was recollected what Mr. Giffard had suffered during the rebellion, and on other occasions, with respect to persons naturally most dear to him, these sufferings would carry with them some excuse for his intemperate behaviour.
Lord Grenvillehighly approved of the conduct of the noble earl, on that occasion, and thought that the statement he had just made, abundantly justified that conduct.—After a short explanation from lord Hawkesbury, lord Hardwicke withdrew his motion.
[ORDERS IN COUNCIL BILL.] On the motion for the, first reading of this bill,
Lord Grenvillesignified that he had an objection in form to any further proceeding in this measure. it was in direct contradiction to the standing order of the house, of 1702; and if their lordship's allowed that order to be infringed, there would be an end of their best privileges, and of their deliberative capacity. This the noble baron proceeded to shew from a variety of cases, and from the nature and necessity of the standing order to which he had referred.
Lord Hawkesburyconfessed that the objection was an important one, and that sufficient time should be allowed to take it into consideration. He thought, however, the bill should first be printed.
Lord Grenvillewould not object to the printing of the bill, but was of Opinion that the debate which had arisen on his objection to the form of the bill should be adjourned to Wednesday.—This suggestion was, acquiesced in.