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 29l. and was to be increased to 98l. 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 20l. 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.
| For the Motion | 31 | |
| Against it | 53 | |
| Majority | — | 22 |