Commons Sitting of 24 March 1812

BREACH OF PRIVILEGE—COMPLAINT RESPECTING A WITNESS BEING ARRESTED.
Mr. Edenmoved, that the order of the day, for taking into consideration the matter of the Complaint made to the House, that Mr. Campbell being summoned to attend the Committee appointed to enquire into the manner in which Sentences of Transportation have been executed, and into the effects which have been produced by that mode of punishment, had been arrested by a Sheriff's Officer yesterday, on his way to the House, be now read.
The order being read, Mr. Campbell was called to the bar, and interrogated by the Speaker.
Q,. Your name, sir, is Campbell?—A. Yes, Robert Campbell.
Did you receive an order to attend a Committee of the House of Commons yesterday?—Yes, I did.
In writing?—In writing.
[The Order was here put in and read. It was signed by Mr. Eden, as Chairman of the Committee, and ordered Mr. Campbell to attend.]
Were you prevented from attending by any circumstance, and what?—I was.
By what?—By an arrest.
Where?—In my own house. I had been out in the morning, and a little past twelve o'clock returned home for some papers which might assist me in answering questions which might be put to me by the Committee, and which I had forgotten found there three sheriff's offi-
158
cers, and was immediately served with a writ by one of them. I staled to him my situation in regard to the order of the Committee, and shewed him the order, as my protection, but all to no purpose. He said I must go with him, and after going up stairs to speak to my family, who were much distressed, I went with him accordingly to a lock-up-house in Black-friars-road.
Did you shew him the order before he took you from your house—I did.
What is the officer's name?—I have since understood it to be Hindson.
At what o'clock were you arrested?—At about a quarter past twelve.
Where is your house?—No. 1, Walcot-place, Lambeth.
How long had you been absent from home before the time of your return?—From about half past nine o'clock—[and here the witness mentioned the various places he called at, and transacted business, till the period of his return, in consequence of having forgotten the papers before mentioned.]
Mr. Campbellwas ordered to remain at the bar, and Mr. Hindson to be called; but on Mr. Wilson, a Member, rising to ask information from the Speaker, as to the proper course of proceeding, the witness was ordered to withdraw.
Mr. Wilsonthen stated some objection that appeared to him? In reply to which.
The Speakersaid, it was the established course of the House first to ascertain, by evidence, the nature of the facts, and then it was competent for any hon. gentleman to propose what course he thought fit to be adopted.
The parties were then called in, and Hindson, the officer, examined:
Your name is Hindson?—Yes.
You are a sheriff's officer?—I am.
Did you arrest Mr. Campbell yesterday?—I did.
Where, and at what time? At No. 1, Wacot-place, Lambeth, about 12 o'clock. On what process, a civil or criminal action?—On a special Capias for debt.
Did he at the time allege any reason why the arrest should not take place?—Yes, he did. He stated that he was called on to attend a Committee of the House of Commons, and produced a written paper to that effect, such as I had never seen before. My writ included two persons of the name of Campbell (John and Robert), and the order did not specify the christian name.

159
What did you do accordingly?—We walked together to Blackfriars-road, where I procured a special messenger to go to Mr. Campbell's attorney, to desire him to attend the Chairman of the Committee. I went myself to Messrs. Dan and Crossland, the solicitors, who employed me, and stated the case to Mr. Dan, whom I saw, and shewed him the order which I had procured from Mr. Campbell for that purpose; Mr. Dan said he did not think it was a; legal protection, and directed me not to discharge my prisoner till a proper enquiry should be made. From him I went to Mr. James, the under-sheriff of Surrey, who informed me, that no similar case had occurred during the time he had been in office, and requested to go for information to Mr. Burchell, the under sheriff of Middlesex. I saw Mr. Burchell, who gave his opinion, that being in Surrey, it did not come within the jurisdiction of the House; and that I ought to wait till a new order was made, which would probably be this day. I then went back and saw Mr. Campbell. I told him that Mr. Dan refused to grant the discharge, and, also what had passed between me and the under-sheriffs.
Did you take any steps to ascertain if Mr. Campbell was the person summoned by the Committee?—I never was in the House of Commons before, or nearer to it than the court of King's-bench, in Westminster-hall. I did not enquire into this, as my time was occupied, as I have stated, and I was served with the notice to attend here today, soon after I got home.
What is the amount of the debt?—6,960 l. and upwards. If it had fallen on me, it would have been utter ruin to myself and family.
The parties being withdrawn,
Mr. Eden,without offering any observations, moved—" That Mr. Campbell be allowed the privileges of this House, and be discharged from his arrest."
Mr. Wilsondid not think him entitled to this, as the case did not come exactly within their privileges, which he was as anxious to preserve as any man. He then stated the facts as disclosed in the preceding evidence, and contended, that Mr. Campbell being at that hour returning to his own house, could not be said to be in progress to the Committee of the House of Commons.
Mr. Edenfelt that there could be no doubt on the question before the House. As Mr. Campbell had been ordered to at-
160
tend the Committee at one, and was passing by the Horse-guards at five minutes after twelve, nothing could be more probable than that he had returned for the purpose he had forgotten.
The Chancellor of the Exchequersaid, if the witness had been bona-fide on his way to the House, its privilege ought unquestionably to be extended to him; but his being found at home might naturally enough lead the officer to suspect, when the order was produced, that it was some trick if the man was passing the Horse-guards at twelve o'clock, and went home, as he had stated, for a paper which he had forgotten; all this might be considered as in progress towards his attending the Committee, and the privilege of the House ought to be extended to him. He conceived it must be admitted, unless the veracity of the witness were questioned, that he was entitled to the privilege of the House.
Mr. Wilsonobserved, he had been somewhere else all the morning previous to his passing the Horse-guards at twelve o'clock, on business not connected with the Committee.
Mr. Lockhartthought, the order of the House, which was in his possession, ought of itself to have protected him from an arrest.
The question was then put and carried.
Mr. Edenwas of opinion that no censure was deserved by the unfortunate sheriff's officer, and he should therefore not propose to proceed with any severity against him; but he thought Mr. Dan, the attorney, ought to be ordered to attend to receive a reprimand for the language which he had held with respect to the order. He would therefore move that Mr. Dan he ordered to attend.
The Speakerwished to know, if the hon. gentleman would pursue this motion before the House decided on giving an order for the attendance of Hindson again tomorrow.
Mr. Stephen,before Mr. Dan was ordered to attend, wished to observe that there had appeared no intention on his part to infringe the privileges of the House. He would put it to them, if when the amount of the debt was considered, it could be expected that any man would take upon himself the heavy responsibility of ordering a discharge of the arrest, unless he was; certain that the order would justify his doing so.
Mr. Tierneythought Mr. Dan ought at

161
any rate to be called to their bar, and told how the law stood in that respect.
The Chancellor of the Exchequersaid it was a question of fact, and was of opinion that no prima facie case was made against Mr. Dan, and that, as it did not appear he had any disposition to treat the privileges of the House with contempt, it was not necessary that he should be ordered to attend.
Mr. Tierneythought if nothing farther were done, and it appeared on their Journals that no steps were taken in consequence of such a breach of privilege, attornies might hereafter refer to this case, and tell those offending in a similar manner, that it was of no consequence, and no notice would be taken of it by the House.
Mr. Owen,when the responsibility of the man who discharged an arrest was considered, thought a fair excuse appeared for Mr. Dan. It seemed there was no christian name mentioned in the order, and therefore it might well be suspected that it was intended for another Mr. Campbell, and that the person arrested attempted improperly to take advantage of it. He thought enough had been done to assert the privileges of the House, and hoped they would give the parties concerned no farther trouble.
Mr. Bastardunderstood, that Mr. Dan had said "Don't mind the order of the House, but keep, your prisoner." He thought he could not say this in ignorance, and that consequently a farther enquiry was necessary. [The short-hand writer's notes of the evidence were here read.]
Mr. Ponsonbyagreed that this was a question of fact, but thought the attendance of Mr. Dan necessary, as he had doubted whether or not an order of the House could legally protect a person from an arrest. If he should appear to have doubted not the effect of an order of the House, but whether the order produced were genuine, or if he had doubted whether Mr. Campbell was the person entitled to its protection; he thought there would be but one opinion in the House, that he should be discharged. Since, however, Mr. Dan had been stated to have doubts on the subject, it was proper that be should be ordered to attend to state on what those doubts were founded.
The Solicitor-Generalthought it appeared that Mr. Dan, considering the circumstances altogether, wished to have the opinion of counsel, before he discharged the person: but if it was thought neces-
162
sary to have an explanation from his own mouth, as to whether he disputed the authority of the House, or only the authenticity of the instrument, he should have no objection to his being called.
Mr. Wynnsaid, the act was a manifest breach of privilege, and those who would state the case most favourably for Mr. Dan, must own that there was at least great doubt in his expressions. If the motion before the House was, that he should be taken into custody, what had been stated by the gentlemen opposite would have great weight, but they did not go the length of disproving the propriety of an order for his attendance.
The motion was then agreed to, and Mr. Dan ordered to attend to-morrow. Mr. Hindson was also ordered to attend again.
Mr. Edensaid, he had received a letter from Mr. Palmer, a witness attending a Committee of that House, complaining of having been arrested, (a laugh.) He did not know that the case was marked by circumstances so aggravating as those which characterized the former one; however he should move, that John Palmer and Alexander Grace, sheriff's officers, do attend the House to-morrow.—The motion was agreed to.

SINECURES BILL.
Mr. Bankesrose and moved, That the three first of the Resolutions which, upon the 31st of May, 1810, were reported from the Committee of the whole House, to whom it was referred, to consider further of the Report which, upon the 29th of June, 1808, was made from the Committee on Public Expenditure, and which Resolutions were, with an Amendment to the second and third, agreed to by the House, might be read; and the same were read as follow:
"Resolved, That the utmost attention to economy, in all the branches of public expenditure, which is consistent with the interests of the public service, is at all times a great and important duty.
"That for this purpose, in addition to the useful and effective measures already taken by parliament for the abolition and regulation of various sinecure offices, and offices executed by deputy, it is expedient, after providing other and sufficient means for enabling his Majesty duly to recompence the faithful discharge of high and effective civil offices, to abolish all offices which have revenue without employment, and to regulate all offices which have re-

163
venue extremely disproportionate to employment, excepting only such as are connected with the personal service of his Majesty, or of his royal family, regard being had to the existing interests in any offices so to be abolished or regulated.
"That it is expedient to reduce all offices, of which the effective duties are entirely or principally discharged by deputy, to the salary and emoluments actually received for executing the business of such offices, regard being had to any increase which may appear necessary on account of additional responsibility, and sufficient security being taken for due performance of the service in all cases of trust connected with public money, regard being also had to the existing interests in such office."
The hon. gentleman said, that there was nothing on which the country looked with more pleasure than on the salutary principles of regulation which ought to be applied to Sinecure offices. Nothing, however could be so mischievous as those publications which, being dictated either by ignorance or by malice, tended to make the people imagine, that any reduction which could be made in the department of useless offices, was likely to diminish in any sensible degree the burthens created by the war. It would also be a great imposition on the House, if he should pretend, that the motion which he had to propose could be attended with an immediate economical effect. All that could be done was the establishment of the economical principle; and this, in the end, would have a sure, though a slow effect. Sinecures were but small drops to be saved from the ocean of expence; and again, he must caution the public from looking to their abolition as a cause of diminishing the public burthen. Much, certainly, had been done with a view to economy within the last forty years,—much more, indeed, than had been effected in that way from the period of the Revolution. His view was to abolish every office to which no efficient duties were attached; and this would be productive of gradual benefit. The offices obnoxious to him were those which were only burthen some, and not in any sense advantageous. He would follow the rules established for superannuation in the collection of the revenue; because as the practice of bestowing sinecures at present stood, there were seldom, any claims of meritorious service ad-
164
vanced, and they were conferred alike on the worthy and unworthy. He hoped the House would always shew its liberality, in being never niggardly to services fairly established:—such money was never ill bestowed; and, in fact, money must be bestowed, unless we chose to leave public, situations either to the aristocracy of fortune or to needy speculating adventurers. He should be sorry to see a contest between the aristocracy and the active talent of the country, for in such a strife it required little sagacity to foresee who would be victorious. It was to guard against any such fatal alternative, that be wished meritorious service of a certain duration to be rewarded; not, however, by the objectionable mode of sinecure, but by what he conceived a far better substitution; His motion contemplated the establishment of a fund, which in the first instance was to be begun by the profits of the sinecure which would soonest drop. The fund would be recruited by the very saving of the plan he had to propose. If any inconvenience should arise from no sinecure office becoming in a short time vacant after the adoption of his plan, the House would not, he was confident, be backward in supplying the deficiency. Something ought to be done towards the destruction of the principle on which sinecures were now bestowed; and if the principle were once destroyed, those sinecures which might remain, would only be considered as exceptions to a general rule, and would lose all their deformity. The Irish pension list also deserved to be looked into. This pension list was enormously extravagant, when added to the burthens which Ireland had to bear in contributing her 2–17ths to the expences of the whole country. Its pension list alone was 80,000 l. a year. He would not now occupy more of the time of the House, as the time for discussing the principle of his Bill would be more properly on the second reading. The hon. gentleman concluded by moving, "That leave be given to bring in a Bill for abolishing and regulating sinecures and offices executed by deputy, and for providing other means for recompensing the faithful discharge of high or effective civil offices, and for other economical purposes."—Leave was accordingly given, and Mr. Bankes, Mr. Wilberforce, and Mr. J. W. Ward were ordered to prepare and bring in the same.

MOTION FOR PAPERS RELATING TO CAPTAIN KING.
Lord Folkestonesaid, he held in his hand a Petition on which he found it necessary to make a few observations, before he moved that it should be brought up. The House would recollect that previous to the expedition against Buenos Ayres sailing from the Cape of Good Hope, sir Home Popham, who had the command of the naval department, had by a mistake in his own judgment, illegally, as it had since been determined, hoisted a broad pendant and constituted himself a commodore. In consequence of this self-promotion, he had appointed the Petitioner, captain King, a most deserving and capable officer, who was then a lieutenant in the navy, captain of the Diadem, the commodore's shi and in this capacity of captain, and with all the great responsibility attached to the situation, the petitioner conducted safely the Diadem, and the fleet under her command, from the Cape to Buenos Ayres. When the expedition arrived there, the petitioner at the instance of the commander-in-chief, took the command of a body of marines, and acted on shore as a lieutenant colonel; in the execution of which service, as well as that of the captain of the Diadem, he received the thanks of his superior officers. He had since been fixed in his command as captain of the Diadem, and acknowledged at the Treasury as a lieutenant-colonel: but when the prize-money came to be distributed, the petitioner was named in the warrant only as lieutenant King, and only entitled to a share of prize-money as applicable to that rank in the navy. This was a very serious injury to captain King, in point of pecuniary interest but besides that, he felt it as a kind of slur on his character, which he was desirous of having removed. He had, therefore, requested the noble lord to present this Petition, which the noble lord had readily undertaken to do; but having stated this much, he found himself at a loss how to proceed for the best, and would be obliged to the Speaker for his advice. His first idea was to move for a committee to enquire into the circumstances of the case: but ort farther consideration, he thought that it would be better to move merely, that the Petition do lie on the table: and then, as the case was well known, and he believed, acknowledged by ministers to be a hard one, if they did not take it up in a certain time, he would make a motion on the subject. This seemed to be absolutely necessary, as captain King had been
166
deprived of all chance of deriving benefit from a court of law, as well as of his character as an officer. He moved, therefore. That the petition be brought up.
The Speakerobserved, that it depended on how far this was an application for money, before the House could determine as to its being received.
Lord Folkestonesaid, the Petition complained of the usual practice being departed from to his loss and detriment; but it was not altogether pecuniary compensation, but restoration of character, which was his object in bringing forward the Petition. If the usual practice had not been departed from, he could have proved his rank, but being named as a lieutenant he was precluded from doing so.
The Speakerwas extremely unwilling to start any objection to the Petition, but it was the duty of the House to beware how they established a precedent by receiving it. If he understood the noble lord, the petitioner craved remuneration, and other things. Now in all cases hereafter to be brought forward, of application for money, would not the petitioners pray for remuneration and other things?
Lord Folkestonewished to state, that this was not the language of the Petition, which did not pray for remuneration and other things, but merely his own comment on it. No doubt ultimately the effect might be so. Sir Home Popham had appointed the Petitioner a captain. This appointment was not legal on the part of sir Home; but was the Petitioner to dispute the order of his commanding officer to make him a captain? Was he to examine into sir Home Popham's right before taking the command? If he had objected to the appointment he would have been guilty of mutiny, and liable to be tried by a court martial. It was true, that if the petitioner had been named as captain of the Diadem, sir Home Popham could only have received prize money as a common sailor, but if any person was to sulfur, it was the person who committed the illegal act, and not the person who obeyed. He at the time had been more than six months promoted to the rank of captain. There were many instances of captains of the navy, though in no command on shore, still sharing in the distribution of prize-money.
The Speakersaid, that on these grounds, the noble lord having shewn, that what he had said respecting remuneration was only his own comment, he now thought himself at liberty to put the question.
Mr. Rosestated this to be a question of very considerable hardship, but the noble lord, he believed, would find it very difficult to put it in such a shape as to allow it to be successfully entertained by the House. He was not at present so well prepared as he could wish to be, not being aware of the subject coming that night before the House, respecting all the particulars of this case. He could say, however, that it was heard in the Exchequer for many days before the lords of the privy council, sitting there in their judicial capacity, who, after much deliberation, came to the ultimate determination, that captain King could not share as a captain. This, he could say was not done with any particular view of benefiting sir Home Popham. All the circumstances of the case had been attended to, and captain King's promotion taken into account. The whole of the prize was now distributed. He was willing to admit captain King's merits, and that his case was one of compassion. It had been stated by the noble lord, that the object of this Petition was not only to obtain money, but to remove a slur cast upon him. For his part he had never heard any thing of him but commendation.
Mr. Stephenrose to correct an accidental mis-statement of his right hon. friend. Counsel had certainly not been heard in this case before the privy-council. He then entered into a legal disquisition to prove, that the case was not a law case, but that it came under the prize act, to be decided under the prerogative. The commodore had no power to appoint a captain, and captain King having been thus illegally appointed, did not come within the scope of the proclamation for the distribution of prize-money, under the assumed title to which he had no right. There was no apprehension, that this principle of exclusion would extend to any other officers, as it was grounded merely on the illegality of captain King's appointment.
Mr. Whitbreadwas glad that the statement of the hon. and learned gentleman who spoke last, had put down the authority of the right hon. gentleman. Indeed it must appear to any person impossible that till captain King saw the warrant he could argue against it. If there was to be a sufferer in this case, there was no question but it ought to be the man who had misconducted himself. Captain King had been placed in a situation by sir Home popham, where he had deserved the
168
thanks of his country, and had received pay and forge money, as a lieutenant-colonel on shore. He was to all intents and purposes a field-officer on shore; but it seemed, that because sir Home Popham had committed an illegal act, captain King was to be degraded. He was not, as had been said, lieutenant of the Diadem, previous to the appointment in question, but commander of L'Espoir. He was taken out of his ship and sent upon land, where he would have shared as a field-officer. Sir Home Popham, when he had acted in a different manner from what he ought to have done, was to be rewarded at the expence of a man who had done his duty.—Sir Home, upon other occasions, had received large remunerations from the Droits of Admiralty; but captain King, it seemed, could find no friend among the advisers of the crown, to afford him any remuneration from these funds. He apprehended that captain King had more at slake than the money; he felt that he had been excepted in the most invidious manner; he felt that some slur in the public mind must have been thrown upon him; and if the House expressed their opinion, that the persons who issued the warrant acted in an unlawful manner, they would do more for the satisfaction of captain King, than if the money were to be taken from the pocket of sir Home Popham, and put into his own. It was material to know who had been the advisers of the crown throughout this whole matter.
Mr. Rosestated, that the decision complained of was not one come to by his Majesty's ministers, but by the privy council.
The Chancellor of the Exchequerapprehended, that the Petition was for money; and as a petition for money, it could not be received by the House without a previous recommendation on the part of his Majesty. The noble lord by whom it had been introduced, had rightly stated, that there was no actual demand for money in the prayer of the Petition, but at the same time he had properly admitted, that pecuniary remuneration was the ultimate aim, and necessary consequence of the Petition. Such, certainly, was the true construction to be put upon the Petition, and no one could possibly entertain a different opinion. Gentlemen on the other side were in error to contend, that there was no other mode of bringing the subject under the consideration of parliament. On a statement of the facts contained in the Petition, they might

169
move for papers to elucidate those facts; and if the House thought a sufficient ground was laid for the production of the papers, they would afford sufficient means of judging of the true character of the proceeding alluded to. Whatever might fall from hon. gentlemen in the heat of debate, he was convinced that they did not really themselves believe, that there was any premeditated injustice in the present case. It certainly was a case which had been attended with considerable difficulty. It had long occupied the attention of the privy council. They had compared the conflicting memorials on the subject, but they had certainly not heard counsel. The law officers of the crown had been consulted by government; and the result of all those deliberations and consultations was a determination to set aside the illegal appointment altogether, without any reference to the character of captain King; and to leave the parties in the same situation as if that appointment had never taken place. As to L'Espoir, the appointment of captain King to that ship proceeded from the same source as his appointment to the Diadem, and consequently was equally illegal. He received his share of the prize-money as a lieutenant, which was his legal rank. He was very ready to own, that captain King having long acted as captain, might feel himself disappointed in his expectations of receiving a larger share of prize-money than that which he actually did receive. He expressed his regret that such a meritorious officer should experience any mortification; but he confessed that the case did not appear to him to be one of such hardship as to demand relief from the Droits of Admiralty. Had his opinion been different on this subject, nothing would have been more easy than to have remunerated captain King from that fund, without doing any injury to sir Hume Popham, to whom he had been so strangely accused of sacrificing captain King's interests. He trusted the House would pause before they authorised the bringing of prize causes before them. They must be aware that such a step would be an encroachment on the prerogative; but they were not aware of the multiplicity of perplexing business in which such a proceeding would necessarily involve them. He begged to caution gentlemen against abandoning themselves to the first feelings of liberality; unless indeed gross abuse and oppression were clearly established. He trusted that the
170
House would agree with him in rejecting the Petition, on the ground which he had before slated, namely, that it was a Petition for money, not recommended by the crown; leaving the question open to discussion in any other way, should the case appear to demand it.
Mr. Ponsonbywas not prepared to say, whether the present came within the rule of the House; but he thought, generally, that it was a Petition directly asking for a grant of public money, and not one which might ultimately tend to that effect, that required the consent and recommendation of ministers. He conceived that the meaning of the rule was to make ministers responsible for what grants they recommended, and not to restrict the power of parliament. He should take the liberty, however, of suggesting to the noble lord, that if instead of pressing now to a division, when such doubts were entertained, he would withdraw the present motion, and move only for the Memorials of captain King to the Admiralty or Privy Council, he might perhaps, by such a motion, ultimately obtain his object.
Sir C. Polethought that there was a peculiar hardship in this case. If captain King had been appointed through an error of the commander, still he had done the duty, and he thought he ought to share for the rank in which he acted. If he had been a simple passenger, and appointed to command the marines on shore, he thought that he must have shared.
Mr. Yorkecertainly considered that captain King had suffered great hardship but not injustice. He had not been deprived of any legal right, but he was disappointed in a hope which he might very rationally have entertained. As to strict justice, the doors of justice were open to him as well as to any other man, if he had any legal injury to complain of. He considered that this Petition was substantially, if not formally, an application for a grant of money, and that therefore, it could not be received without the recommendation of ministers.
Lord Cochranewas of opinion, that instead of sharing as a lieutenant, captain King ought to have shared for the rank in which he served. He thought that it was clearly within the power of the privy council to have ordered him such a share, and that if reward was the proper stimulus for exertion, the privy council had committed a gross error in not awarding him such a share. He believed that prize

171
money and the rewards of the profession were very principal causes of the exertions made in it. He confessed that they operated on his mind, and that it was the diminution of the prize money by recent regulations, which principally induced him to leave the profession for the last two or three years (hear, hear! from the ministerial benches.) He would never be a robber of his own country, but he saw no reason why we should not be permitted to plunder our enemies. He had presented a Petition the other day, which was refused to be received, from a man (general Sarrazin) whom he considered as a highly meritorious officer; and because ministers did not appear sensible of his value, they refused him the rewards which, as he thought, were due to the plans which he had presented for the good of the country, and the success of the war. He thought that injustice had been done to that gallant officer as well as to captain King, and that parliament ought to have power to take such petitions into their consideration without asking the consent of ministers.
Mr. Peter Mooresaid, that every body had been heard except the Petitioner. He wished that the Petition itself might be read, in order to learn whether it was really an application for a grant of public money, or whether it was not such a Petition as might be entertained without the consent of his Majesty's ministers.
Admiral Harveythought that the whole question in point of order was, whether this was a Petition for money or not; and it appeared to him it could have no other object but money, and that no other relief could have been contemplated by the Petitioner. He allowed with the noble lord that the emoluments of the service must be desirable to every one embarked in it, but still he would never allow that those emoluments were the only stimulus to exertion. Although there were fewer opportunities now than there formerly were of obtaining glory and profit in the naval service, still the sense of duty would always stimulate our officers to proper exertions. If captain King had been unsuccessful in meeting in this instance a serious disappointment to his natural expectations, he hoped some other opportunity might occur, in which his services would meet their proper reward.
Mr. Crokerthought it necessary to state to the House what the recent alteration of the regulation respecting prize-money
172
was, which appeared to the noble lord (Cochrane) of such importance, as to make him withdraw from the active services of his profession. Formerly the commissioned and petty officers had six-eighths of the prize-money, and the seamen and marines had but two-eighths. Considering the merits of the seamen and marines, and the numbers among which it was to be divided, it was thought proper to give them somewhat a larger share, and now it was five-eighths which went to the commissioned and petty officers, and three-eighths among the seamen and marines.
Lord Cochranecontended, that the proportion to the petty-officers had been decreased rather than increased, and defied the hon. gentleman to prove the contrary.
Mr. Bastardthought, that as captain King had done the duty of captain of the Diadem, and had been subjected to all the responsibility of that duty, he ought to have shared for the rank in which he served.
Lord Folkestone,in consequence of what had fallen in the course of the discussion, was ready to withdraw his motion, and put it in a shape less objectionable. He hoped, that if the House should coincide with his motion in another shape, the right hon. the Chancellor of the Exchequer would not withhold his consent to an application for a grant of money. He considered that if the Diadem had been lost, captain King would certainly have been tried for the loss; and as he had done the thing which was required of him, he ought to share in the gain.
The Chancellor of the Exchequerrequested the noble lord would not consider him as a party to any arrangement of that sort. He had argued before, and should still contend, that unless a very strong case were made out, the House would not feel disposed to take into its consideration matter of this nature.
Lord Folkestone,after a few words in explanation, withdrew his motion, and then moved, "That there be laid before this House, Copy of any Memorial or other Paper presented by captain King to his Majesty to the board of Admiralty or to the Privy Council, respecting the booty captured at Buenos Ayres, and also the report of the law officers of the crown, to whom it was referred to consider of such Memorial."
Mr. Yorkesaid, that as to the subject of this new motion, he thought that the House would not interfere in such cases, except

173
on very strong grounds. At present he should vote against it simply on the ground of the House being taken by surprise, by a motion of this sort being brought on without previous notice.
Mr. Whitbreadthen suggested the adjournment of the debate upon this motion, until after the holidays; he should say till the 8th of April.
This suggestion was acquiesced in by the House, and the debate was accordingly adjourned to that day.

MOTION FOR PAPERS RESPECTING CAPTAIN TOMLINSON.
Mr. Westernesaid, that he rose to move for a variety of papers relative to the prosecution and trial of captain Tomlinson, of the royal navy, and he hoped he had it in his power to disprove any imputations which had been cast on him. He begged to assure the House, that his sole motive in coming forward on this occasion was, to vindicate the character of a brave and gallant office, and to redress the injuries he had sustained, by the only mode which remained to remove the stigma which had been most unjustly affixed to him. The case of captain Tomlinson had bee" already in part before the House, on a recent debate, [see vol. 21, p. 960,] and it had been there stated, he thought rather incautiously, by the secretary of the Admiralty (Mr. Croker,) that captain Tomlinson had been acquitted in consequence of a flaw in the indictment. This he denied; for there was not a tittle of evidence on which he could be condemned, nor could it be shewn that he was guilty of the smallest neglect of duty. What was the nature of the accusation? That captain Tomlinson, commander of the Pelter gun-brig, had entered into a conspiracy to defraud government, by making extra charges for the repairs of the vessel which he commanded, and that those extra charges were to be made by a forgery of the blacksmith's account, which amounted to 29 l. and was to be increased to 98 l. This conspiracy was alleged to have taken place fifteen years prior to the charge being brought against him; and it happened that this was the only money transaction that captain Tomlinson ever had with the navy board in his life. From the nature of the business, it was quite impossible for a person in captain Tomlinson's situation to account for the authenticity of all the vouchers of the sub-tradesmen, or of the stores which reseat to the ship, and his business was
174
to transmit them ministerially to the navy board. In the present case then, he affirmed, there was no fraud whatever; and he was convinced that the ship-wright was perfectly innocent of any fraud, though that was not material as affecting captain Tomlinson. That officer had pursued the ordinary course on his arrival in port, relative to the repairs of his vessel; he drew a bill on the navy board for the amount, and his pay was debited on the bill until the vouchers were forwarded. The necessary certificates were procured (which the hon. gentleman read), and the bill was ordered to be paid, as the certificates were perfectly regular; and it so happened that the officer who succeeded captain Tomlinson, in the Pelter, being re-commissioned (lieut. Walsh), was acquainted with the transaction, and might have been examined. This being the case, it was most extraordinary that, without any ground of charge, the navy board should afterwards obtain a warrant to arrest captain Tomlinson. And here he had to remark, that the evidence which had been procured did not attach, in the slightest degree, to captain Tomlinson; did not even name him, or venture to assert that they suspected him, or had any reason to suspect him; and it was certainly rather a hasty proceeding in Mr. Justice Nares to grant the warrant on such slight grounds, and he could not help supposing that he must have been taken unawares. The hon. gentleman then referred to the affidavits, in which the name of Captain Tomlinson never occurred. However, two Bow-street officers were dispatched in pursuit of him, while he was in the command of the sea fencibles at the mouth of the Scheldt. He surrendered himself, and on coming to town requested an interview with the solicitor of the navy, who refused to meet him until he submitted to the warrant. He asked, was this the treatment due to a gallant and meritorious officer, to refuse him an explanation, on a charge of fifteen years standing, and after dragging him up to town on an accusation of a capital felony? He could not help saying that it savoured something of malice. At last a hearing was granted him. Mr. Graham and Mr. Nares both said, that there was not a tittle of evidence in support of the charge; and when the solicitor of the navy proposed that ha should be liberated on bail, these gentlemen said, that there was no pretence for that; and the prosecution would have

175
ended here, but a bill of indictment, founded on exparte evidence, was found against captain Tomlinson and Mr. Tanner, by the grand jury of Middlesex.—Here the hon. gentleman recapitulated some of the particulars of the trial, and commented on the speech of the Attorney General (as reported on that occasion, by a person employed by the prosecutors.) The result was the acquittal of captain Tomlinson, after having suffered what he must call a most cruel prosecution. It could not have been hoped that captain Tomlinson would be found guilty, for if there was a shadow of evidence against him the indictment would have been laid in Hampshire or Devonshire, and not in Middlesex, when it must necessarily have fallen to the ground. All the evidence which had been procured, was that of persons actuated by malice or spleen against the shipwright, Mr. Tanner, and there was no opportunity of procuring evidence to rebut them. On the whole, there appeared a considerable degree of malice manifested by the solicitor of the navy board, in the mode of conducting the prosecution of captain Tomlinson and Tanner. On the 23d January, 1810, the latter entreated to be allowed to state his case; but it was pretended, that nothing was known of it, though he saw the witnesses, who deposed against him, in the room of Mr. Knight, the solicitor of the navy. He was equally unsuccessful in an application to sir W. Rule, one of the commissioners of the navy. On the 4th February he was arrested, and kept in a lock-up house, after which he was sent to gaol, where he was left nine days before he was confronted with his accusers, who were suffered to go down to Dartmouth when they had signed the affidavits, from whence they returned on the 12th or 13th February. Whether, however. Tanner had been guilty or not, captain Tomlinson was not affected by the evidence, and the prosecution must be attributed to malice and cruel oppression. Prior to the prosecution he had held an important command, in consequence of apian submitted to the Admiralty, for fitting out fire-ships on the expedition to the Scheldt, in 1809. He had been furnished with orders for all the necessary supplies, but afterwards had occasion to make strong representations of a deficiency; and he was fully justified in doing so, for his character was at stake. He firmly believed that it was in consequence of those complaints that the prose-
176
cution had been commenced against him. On the whole, he trusted the House would grant the papers he should move for, as there was no other resource left to captain Tomlinson by which he could wipe off the stigma injuriously and maliciously thrown upon him. The honourable gentleman then paid the highest compliments to the private and professional character of captain Tomlinson, and concluded by moving, in the first instance, That there be laid before this House, copies of all letters or informations given to the Navy Board, on which the prosecution was ordered against captain Tomlinson and Mr. Benjamin Tanner."
Mr. Crokerdenied that there was any delay or neglect in the Navy Board, in not having furnished the stores required, consequently that they could not be accused of malice in the prosecution. There had been some years back a sort of mercantile and ship-building connection between Tomlinson and Tanner, subsequent to which Tanner became a bankrupt. The assignees made a demand of a debt due from the captain to the latter, which demand he resisted, stating that he had no transaction with Tanner so far back as 1795. The assignees brought their action, and it was necessary to prove the signature of the captain to a document: a blacksmith from Dartmouth was put in the witnesses box, and was shewn a paper from the Navy Board, as of work done by him, and he was asked was that his signature to the Bill? To which he replied "No." The counsel expressed his astonishment, and said, "it must be, for it was a voucher from the Navy Board." The blacksmith replied, "Though it is a voucher from the Navy Board, nevertheless, it is not my writing. It is a forgery." Upon this evidence the prosecution was grounded. So much for the malice. When Tanner was taken up for his share in the transaction, there were found in his desk certain remarkable papers, as of bills for work done by order of captain Tomlinson; on one side of the papers was the real number of days charged, and on the other fictitious ones, in order to defraud government, so that instead of five or six days per man, there were charged 14 days. When the false gains were summed up, there appeared a remainder of a bill in favour of Nicholas Tomlinson for 20 guineas; finding these fraudulent papers, was it malice in the Navy Board to institute enquiry? He proceeded to state

177
various other circumstances of a suspicious nature, which at the time seemed fully to justify the proceedings of the Navy Board in the case of captain Tomlinson.
Lord Hennikercondemned the opposition given by the honourable Secretary to the Admiralty to the motion of the hon. gentleman. That motion was for papers, not to criminate or exculpate, but merely to enquire into the conduct of government towards an officer who had been engaged in seventy-two battles.
Sir Thomas Thompsondefended the character of the Navy Board. He attempted to shew that they had been guilty of no neglect of duty in furnishing articles to captain Tomlinson; stated, that they did not know of the subject of the prosecution, till within three days of its being commenced; and contended, that in ordering the prosecution, they had been actuated by no vindictive spirit. He sat in company at the Navy Board with eleven as honourable men as any in this kingdom.
Mr. Brand,from the high character which he had heard of the gentleman who was the subject of the motion, and the observations which had fallen from the Secretary of the Admiralty, wished to make a few observations. The speech of the honourable Secretary was certainly calculated to make an impression on the House, which made it so much the more necessary to accede to the motion. He would not allude to what had been said about malice; but that there was an unfavourable impression on the mind of the Secretary of the Admiralty, against capt. Tomlinson, was very evident. If he himself were to speak on such a subject, where a captain of the British navy had been acquitted by the sentence of a judge, when not a tittle of evidence had been produced, he certainly would, at least, have observed a more decorous mode of speaking of the gallant officer. He would not, with the levity used by the hon. Secretary, have so coupled the names of Tomlinson and Tanner, and Tanner and Tomlinson. He was acquitted, not because the indictment against him was ill laid, nor because Tanner could not be prosecuted, but because there was not the smallest evidence against him; and he must say, that when an honourable captain of the British navy was acquitted, and when, through the medium of an hon. friend of his, called for the production of documents to justify his character, the House was bound to give him such an op-
178
portunity of clearing himself in the eyes of the country. After the strong impression, too, attempted to be made against his character and honesty, they were bound to sec these papers produced. Whatever had been the practice of the Navy Board, he should think that alter a lapse of so many years, when the subject was so trifling in its amount and accidental in the manner it came before them, it would have been more decorous if, instead of immediately ordering a prosecution, they had sent for capt. Tomlinson, and asked him in the first place to explain what they conceived was irregular or incorrect. Very different, however, was their mode of proceeding; and though he would not say the prosecution was dictated by malice, he would say that there must have been at least a strong leaning against the hon. captain. However strongly the hon. Secretary had put many of the cases, it might be possible that they could receive a satisfactory explanation. Indeed he understood that many of the private memoranda that night first produced, would be explained by the very papers required. The item of 20 l. for instance, referred to muskets taken in a prize by capt. Tomlinson, and sold to a volunteer corps. He had not the honour of an acquaintance with capt. Tomlinson, but when he knew that he stood high in the opinion of the gentlemen of the neighbourhood, who wished to come forward in his behalf, that he had displayed high valour in fighting the battles of his country; and when he called on the House, merely to afford him the means of reestablishing his high and injured honour, they ought, in his opinion, to lend a willing hand to afford him every means for that purpose.
Mr. Crokerin explanation said, he had merely stated the facts on which the Navy Board had acted, without arguing from these facts.
Mr. W. Smithsaid, it appeared to him that the manner in which the Navy Board had been defended by the hon. Secretary and the hon. baronet, were as opposite as light and darkness, In defending the Navy Board from malice, the honourable Secretary certainly left an impression on his mind not very favourable, and opposite, perhaps, to what, he intended: but what had been said by the hon. baronet, a member of the Navy Board, had been said in a way that certainly did him great credit. He stated matters in a clear way, without colouring, and he thought he had

179
proved not only no neglect of duty in the Navy Board, but that they had shown no malice or dislike in the prosecution. It appeared to him that they had committed no impropriety but one. Considering how long captain Tomlinson had been in the service, they acted in a hasty manner. When he had fought so long the battles of his country—when so great a command was entrusted to him in the Walcheren Expedition—he confessed it did appear hard that, on such slight grounds, the Attorney General should have been instructed (o bring a prosecution against him for felony. And this was the whole of the charge against the Navy Board in this transaction. Sufficient ground, in his opinion, had been stated for the production of the papers. It would be said perhaps that his conduct to the Admiralty and Navy Boards had been petulant and violent—[cries of No, from the ministerial bench]—Then if not so, there could be no charge against him. Of captain Tomlinson he knew nothing personally; he knew only that he was acquitted from the prosecution brought against him: he was assured by a gentleman in his parish, for whom he had the highest esteem, that be had observed captain Tomlinson in various relations, both as a private individual and a magistrate, and that such a charge could not be brought forward with the slightest shadow of foundation. What were they to think of such a prosecution, when they were told that it was scouted by the court, who would not even allow evidence to be brought forward against it. It could not be denied, that an allegation of fraud had been made against captain Tomlinson, and it could not be denied that the Secretary of the Admiralty had detailed, what he conceived to be irrefragable evidence, to prove that he had committed that fraud. What, then, was the demand of captain Tomlinson? That as a charge had been brought against him in an open court, where he had no opportunity of bringing forward evidence, and afterwards twice in that House, such papers might be produced as would enable him to go into the whole of the case. Capt. Tomlinson must have lost his memory, and lost his judgment, if he wished for the production of papers which would not produce an effect such as he alleged they would produce. It was very hard such a charge should be allowed to attach to a gentleman who held so high a situation in the navy [No, from the ministerial bench]. Then if he held at pre-
180
sent no situation, it was very hard surely, that a charge which could not be proved against him, and which he was willing to go into so minutely, should be the means of preventing him from being employed by his country.
Mr. Robinsonobserved, that, as the supporters of the motion had entirely exculpated the Navy Board from all blame, they had taken the ground from under the hon. mover. He justified the Secretary of the Admiralty from the hard measure which had been dealt out to him, and thought it was impossible for him to have taken any other course than he had done to refute the imputations thrown out against the Board he was defending.
Mr. Whitbreadobserved, that the hon. Secretary of the Admiralty had brought forward much new matter without the smallest evidence. But taking all that had been alledged, what was there in it? Because captain Tomlinson was in partnership, and because Tanner had committed forgery, were they entitled to proceed against captain Tomlinson without any evidence Should that justify a prosecution against a captain of the British navy? After they had failed in the warrant, upon the very same evidence they went before a grand jury. This shewed a singular zeal in prosecution. With all deference to the gentlemen who presided at the Navy Board, he could not but think that as a board they had been negligent of their duty.—The hon. gentleman then went into several particulars of the case of captain Tomlin son, and argued that there was not the smallest ground to doubt, from any thing that had yet been said or produced, the statement of captain Tomlinson. Was it not necessary, therefore, that the matter should be enquired into? He thought there was something like a persecuting spirit displayed in this business, if not by the Navy Board, at least by those whom they employed. The business was first brought before Mr. Nares, then before Mr. Graham, than whom no man stood higher in the estimation of the public, as an upright and intelligent magistrate, and both Mr. Nares and Mr. Graham thought there were not even grounds for holding captain Tomlinson to bail. Here it was taken on the same evidence to a grand jury; and the Attorney General said, that he ought to be hanged, because he happened to be connected with a fraudulent partner. This was a curious conclusion to jump at. He wondered bow so great a

181
lawyer as he was, could have sanctioned such a prosecution. This enquiry was due to the country. The country owed much to captain Tomlinson. It was due to the country, because he was a proscribed man, and was deprived of an honourable employment in the service of" that country which so often he had gallantly defended.
Mr. Crokeragain explained. He had not argued the case to prove captain Tomlinson's guilt, but to shew that the Navy Board had grounds for what they did.
Mr. Whitbreadstated, that the speech of the hon. Secretary had exactly the effect as if he had argued against captain Tomlinson.
Lord Cochranewished an investigation not only for the sake of the individual member, but of the profession to which he belonged. He had heard him universally well spoken of, not only as a gallant officer, but as a moral and conscientious gentleman.
The Chancellor of the Exchequerhoped the House would not be misled by their feelings to enter upon a jurisdiction quite new to them. It was impossible for the House to take upon themselves the functions of a court.
Mr. Abercrombythought captain Tomlinson placed in a very unfortunate situation. His name had been introduced before into the discussions of that House, and the Secretary of the Admiralty, not an ordinary member, had misrepresented his case. The correction ought to have the same notoriety. Might not a naval court of enquiry be appointed on the recommendation of a Committee of that House
Mr. Yorkeobserved, that if that which the last speaker had recommended were done, it still could not be brought before a court martial, as the circumstance happened 15 years ago, and therefore such a proceeding would be contrary to the articles of war.
Sir F. Burdettsaid, that as captain Tomlinson was aspersed by a charge of participating in the embezzlement of the public money, the House was called upon to go into an enquiry.
Mr. Lyttletonconsidered captain Tomlinson as having suffered a most extraordinary hardship, and parliament he thought would dishonour itself by not adopting investigation.
Mr. Westerneshortly replied; after which the House divided.

For the Motion

31

Against it

53

Majority

—

22