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.