HC Deb 14 March 1808 vol 10 cc1080-5

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- 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 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 War

complimented 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 Folkestone

adverted 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 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 Duckett

said, 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 Fitzpatrick

thought 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. Burdett

found 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 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. Calcraft

rose 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, 251. which, added to the 10l. of bounty to induce them to enter into the regular army, made an expenee of 35l per man, or all together a sum of 640,000l. 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 War

restated 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. Windham

entered 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 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 Castlereagh

spoke 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.
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.