MUTINY BILL. (Hansard, 15 June 1815)

§ Lord Palmerston
proposed some new clauses, which were adopted; but upon the proposition of a clause, that any soldier who should be taken prisoner by the enemy should be liable to the forfeiture, not only of his pay during the continuance of such imprisonment, but of any arrears of pay due to him upon being so taken prisoner, if it should appear, upon investigation before a military tribunal, that such soldier had not used due exertion and energy to save himself from being so taken prisoner,

§ Mr. Horner
deprecated the proposed forfeiture of the arrears due to a soldier upon being made prisoner, because an order for the payment of such arrears to his wife and family might have been transmitted by such soldier, while he was actually performing his duty. But he would not object to the other forfeiture proposed, in case that the capture of a soldier should appear to be the effect of his own will or negligence; for to allow him his pay during his imprisonment 831 might well be regarded as a boon to the soldier who should make a voluntary or pusillanimous surrender to the enemy. He suggested, however, that any investigation upon a subject of this nature should rather take place before a Court-martial than a Court of Inquiry, and that the onus should not be imposed upon the accused of proving that his captivity was not the result of his own negligence or want of exertion.

§ Lord Palmerston
stated, that as to the mode of proof, it was proposed to examine the captured soldier himself, together with any evidence which could be adduced on the part of the Crown, in order to show the circumstances under which he was made prisoner. The clause itself, indeed, was suggested rather from what had already taken place, than from what was likely to take place again. It was notorious that several soldiers had, through intoxication or negligence, permitted themselves to be taken prisoners upon the Peninsula, to whom arrears of pay were due, and that on their return to this country those arrears were paid; no power existing by the Mutiny Act to withhold them.
General Gascoyne approved of the clause, and lord Proby opposed it. Mr. Manners Sutton concurred in the suggestions of Mr. Horner; and after a short conversation, in which Messrs. Whitbread, Preston, and Lockhart, lord Palmerston and colonel Wood took a part, the clause amended according to these suggestions was agreed to.

Mr. Bennet
then rose and said:
Mr. Brogden; I rise, pursuant to notice, to move certain clauses in the Mutiny Bill now pending. From the terms in which the Mutiny Bill and the Articles of War are usually described, one would be led to suppose that they contained something like a distinct, intelligible code of crimes and punishments; while, on the contrary, nothing can be imagined more vague and indefinite. For, although the Mutiny Bill professes to be a statement of military law, it contains no precise precept; every thing being left to the arbitrary judgment of a Court-martial, with whom it rests to decide upon the character of an accusation, as well as upon the punishment of the accused. By a particular clause, indeed, in the Mutiny Act, it is consigned to the discretion of a Court-martial to determine, and to punish whatever is contrary to military discipline: 832 and thus a member of the British army is liable to be punished for an act which, until the moment punishment was awarded, might have been deemed innocent. It is imagined in this House that the Act which you are now passing comprises the whole body of Military Law, than which nothing can be more erroneous. For under the shelter of certain references in that Act, there is first "A Collection of Orders and Regulations" issued from the office of the noble lord; opposite (Palmerston), comprising near 700 pages. There is also a publication, technically called the Blue Book, intituled "General Regulations and Orders," issued from the office of the Adjutant-general, and, in addition to these, a variety of Orders and Circulars are issued daily, which equally become Military, not Constitutional Law; and may be termed the Rescripts of the Secretary at War. These are much too voluminous to be understood, and certainly are too complicated to come within the comprehension of the body of the British army.
Under all these considerations, therefore, Sir, I cannot but think the noble lord, and right hon. gentleman (Mr. Manners Sutton), assisted by his Majesty's law officers, and under the superintendance of proper military authorities, could not employ their summer leisure more justly, more humanely, or more agreeably, than in digesting and simplifying those numerous enactments, with a view to the establishment of some intelligible code for the government of our army, in order that every officer or soldier should know what laws he is called upon to obey. It is now, Sir, about 100 years since the first enactment of what might be called a Mutiny Act. In the first instance, that Act consisted only of a few clauses; but since that period a number have been added—with a view, no doubt, to multiply orders, but in no degree tending to render that code more complete or more definite.
Having made these prefatory observations, I shall proceed to adduce cases in support of the first clause I intend to submit to the House, which is, to "limit and restrain the power of the Crown to dismiss or cashier officers without a Court-martial." The necessity of such a limitation cannot, I conceive, be disputed in argument; and many facts have served to place the question beyond a doubt, for they have fully demonstrated the abusive exercise of that authority which at present 833 is annexed to the Crown. Certainly an officer who brings groundless charges against his superior, should be punished: but he should be punished by trial, and by law, and not by the caprice or whim of any individual, be he who he may.
The first case I shall mention, is that of the officers of the 35th regiment, respecting which I have received, and I suppose every member of this House has received, a printed statement, which proves how little they deserved the fate they have experienced. They were commanded to prefer charges against their colonel, precisely in the form prescribed to them by the Horse Guards. These officers were in fact, ordered to prosecute on charges which they never originated, or were willing to sanction: they were full of clerical errors, which they were not even permitted to correct. The case of these officers was indeed most remarkable. Prior to the year 1801, if an inferior officer brought his superior to a Court-martial, and failed in obtaining a verdict, he became himself an object of trial; and if it were proved that his conduct had been improper, and that he bad not been actuated by a true sense of what he owed to the good of the service, he was broke. I do not, Sir, at all quarrel with the practice; it is right and salutary: it is necessary for the preservation of the discipline of the army. But it never was contended, before 1801, that the Crown had the power, or if it had the power, was it ever the practice to dismiss officers from the army, to deprive them of their purchased commissions without military trial, for the simple offence of failing in a military prosecution. Now what was the case of the 85th? The regiment had returned from Holland, after a campaign which, however discreditable to some persons, was honourable to that regiment. The officers lived together in perfect friendship, when unfortunately a quarrel arose between their lieutenant-colonel (Ross) and their major (Ottley); the latter wrote down to the senior captain, intimating to him, by the express desire of major Matthews (at that time the assistant secretary to the Commander-in-chief), that certain reports of his conduct on the part of col. Ross had reached the ear of the Commander-in-chief, and requesting information. The officers living upon the most friendly terms with their lieutenant-colonial, were most unwilling to furnish any evidence that might operate against him; they, how- 834 ever held a meeting, and in consequence of the pressing demand from the Horse Guards, they returned an answer to the various inquiries submitted to them, which answer they also sent to col. Ross, who allowed they had no option, and that they could do no otherwise. To the great astonishment of the officers, however, one year after their report was made, they were ordered by the Commander-in-chief to become the prosecutors of col. Ross. In vain they remonstrated; in vain the senior captain hastened to London to obtain the revocation of this order; in vain they slated that many of their witnesses were out of England,—that they had no interest, no concern in the prosecution,—that it was foreign to their feelings, contrary to their opinions,—that they were witnesses not prosecutors;—in vain they, urged, that even if they were compelled to act as prosecutors, the charges were so drawn that they could not prove them, that they were contrary to the evidence they had been compelled themselves to give,—that they were full of clerical errors.—The answer was in all the insolence of military despotism, "That his Royal Highness ordered the eight officers to be considered as prosecutors,—that the Judge Advocate (sir C. Morgan) had drawn out the Charges, as they then stood, in a legal form, and that no alteration, would be permitted." In this way the trial began. The officers stated to the Court that they were compelled to come forward as prosecutors: they disowned the Charges in the present shape, and declared their inability to prove them.—As might have been expected, col. Ross was acquitted; but his prosecutors were cashiered—Now, it has been said, that these eight officers were privately informed, that if they proceeded in the prosecution, and failed, they would all be broke;—it is affirmed also, that a letter was written to that effect. Now, Sir, I am commissioned to state here, that no such message, no such letter was ever received; I am instructed to declare the statement a direct falsehood, be the person who he may who made it. How then is it to be endured, not only that officers should be dismissed the service, should be cheated out of their commissions, but that the Crown, to effect these mean purposes, should force them to become prosecutors against their will, and that it should turn witnesses into accusers? If such be the law, and the practice of the army, a Court-martial is a mere mockery: it is an 835 insult to talk of a trial;—far better would it be to place the life and limb of the officer and soldier at the mercy of the Crown, acting by responsible ministers, than to hold out that as a boon, which is meant to be a curse, and to affect to govern by law, when there is no taw but the will of the Commander-in-chief. But what is more extraordinary in this transaction, the order was issued in his Majesty's name at a period (in 1801) when, according to the evidence of Dr. Willis, his Majesty was in a state of mental derangement: thus the name of the King was abused. Is it to be endured, that the King is to be dragged from a sick chamber to the council? That his hand is to be un-manacled at the will of a chancellor, or any other person, for the unworthy purpose of signing away the characters, the fame, the fortune of a body of gallant officers, and respectable men, many of whom had shed their blood in his service? Is it to be borne, that my lord chancellor (Eldon) is to drag forth the sovereign, from a state of personal restraint, to sign away the fortune and characters of eight gallant officers? And that they are not only to be thus deprived of their commissions, but the injustice and violence practised against them, is to serve as a precedent for the further perpetration of similar enormities? Their case has been quoted as an authority to prove the legality of the dismission of officers without trial. Severe as the blow, and cruel as the injury is to those brave officers, they feel them the more severely because they are thus made to furnish an authority for inflicting the same barefaced injustice on others.
The other cases which I shall now submit to the committee, are either taken from the individuals concerned, or from sources which I cannot doubt. Lieutenant Ridsdale I have seen, and his case is as follows: Serving with the Wexford militia, he had been grievously ill-treated by by the abuse of the royal authority in 1811. In aggravation of which I consider it, that his grandfather lost his life in the service of his country, as did his elder brother; and that his father served in the army no less than 40 years. Yet this Meritorious officer was the victim of abused power!—[Here the hon. gentleman read the charges and sentences of the Courts-martial which arose out of a momentary dispute with another office, in which he was in no way to blame.] Surely, Sir, from the complexion of these 836 documents, it could hardly be supposed that lieutenant Ridsdale would not have been restored to the service, particularly as captain Royd was with all his censures so restored; a letter was however clandestinely written by his commanding officer, colonel Phair, of a slanderous description, by which it was prevented, and which letter be at first denied, and never could justify. The Commander-in-chief at last, from what reason I never could divine, except it was from his knowing him to be an ill-used person, gave him a commission in a West-India regiment, Previous to joining this corps, lieutenant Ridsdale thought it an indispensable, duty to clear his character from the aspersions cast upon it: when, instead of being himself made the subject of a court-martial, and colonel Phair being called, upon to prove his assertions, be (lieut. R.) was unaccountably compelled to prosecute colonel Phair: the consequence was, as usual, the rules of evidence were violated, his charges were not found proved, and he was dismissed the service! What must be the feelings of this young officer, when, upon endeavouring to get a hearing subsequently to this decision, he received a letter from general Torrens desiring him literally, "not to importune that office any more." If general Torrens is in the habit of thus treating officers who complain of oppression, it were better for the army and the office, that general Torrens should be removed from it. Now what, I ask, was the situation of this young man? What was he to do? He had been insulted, struck, dragged about like a felon, convicted of having sent a challenge; but, from the circumstances of his situation strongly recommended to mercy: but his colonel, underhand, interferes, and the mercy of the Crown is not extended to him. It is however extended to the prosecutor, who had been broke, and who ought from the nature of his offence, never to have been restored. At last, however, the Commander-in-chief gives lieutenant Ridsdale a commission: the moment he obtains it, "Now," he exclaims, "I am a soldier again; now my character can, be re-established." He then immediately applies for a court of inquiry; it is refused; he applies again; it is refused once more; he renews his demand, and he is ordered to prosecute colonel Phair: he does so; the Court-martial acquit colonel, Phair, and lieutenant Ridsdale is cashiered—Now what would gentleman wish this 837 officer to have done? Was he to have submitted to the insinuations of colonel Phair? Was he to have joined his new regiment with the stain that colonel Phair had fixed on his name? For my own part, Sir, I think lieutenant Ridsdale acted honourably, though not wisely; for he ought to have known, that as the army is now administered, there is no safety in an inferior officer under any circumstances prosecuting a superior. He must patiently submit to the injuries to himself and to the service, whatever they may be.
The next case I shall adduce is that of captain Tuton, who was ordered to prefer charges against another officer in the form prescribed by sir John Stuart, contrary to his own judgment. What was he to do? Compelled by the regulations of the service to attend to the complaints made to him as superior officer, and ordered by his general to prosecute; he wished to put the charges into something like order, instead of the mere complaints as they were taken from the men's months; but he was prevented, and compelled to undertake their proof in the prescribed form. Yet in consequence of the decision of the Court-martial against his charges so preferred, this officer was dismissed by the alleged command of the King. But the case of this officer was aggravated by this circumstance, that the conduct of the Court-martial was so irregular, as to be condemned by the two solicitors who attended to conduct the prosecution and defence. In fact, I have it from undoubted authority, that such was the puerile conduct of the members of that Court, that, instead of performing their judicial functions, after publicly betting on the result of the trial, they chiefly amused themselves throughout with cutting papers and sticking them in the hair of the President!! The letter of the two solicitors, both of them most respectable men, is a proof of the nature of the tribunal; and of the propriety of making its decisions conclusive as to the characters and fortunes of those who are unfortunate enough to be prosecutors before it. I shall now read the Solicitor's letter, addressed to captain Tuton.
"Dear Sir; Those friends of yours who consider that you did not conduct the Court-martial properly on your part, labour under a great mistake, and they should be informed, that in the first place you did not wish to appear in the character of prosecutor against captain 838 M'Arthur, and therefore merely stated the complaints of the men as you received them; and afterwards when you found, yourself driven into the situation of prosecutor, you called on Mr. Tanner and myself, for our professional assistance, with a view to the matter being conducted regularly, properly, and fairly; but such was the conduct of the Court (acting apparently under an extraordinary bias in favour of the prisoner!) that Mr. Tanner in a very early stage of the trial, seeing the inclination of the Court, and their determination not to be governed by the established rules of evidence which was contended for, and being disgusted with the very improper and irregular mode of proceeding, withdrew himself from the Court, and recommended you no longer to appear in the character of prosecutor. Though the Court obliged yon to proceed, and though I continued my attendance at the Court a day or two after, Mr. Tanner had withdrawn himself; it was not with any hope of assisting you, which was quite impossible; but merely to witness the novelty of such a mode of trial as I never before heard of, and such as I am willing for the honour of the army to believe was unprecedented. Improper bets were made in Court by the members and the president himself, as to the time the trial would occupy, if conducted in the regular way we contended for; and we were, contrary to every rule of evidence, precluded from giving such evidence as ought to have been heard, and such as must have changed the complexion of the transaction altogether very materially. But I need not enlarge on this, which is fully and accurately stated in your reply, particularly as to the questions you put to sir Charles Asgill, which be declined answering on account of its being private conversation, and which was not a legal objection.
"The Judge-advocate, (colonel Ryves) in various-instances, attempted to correct the Court in its proceedings, but without effect, and was evidently very much distressed at the improper and indecorous behaviour of the president and members. Mr. Tamlyn, who attended on behalf of the prisoner, has several times admitted to me that he never witnessed such proceedings in his life, and that in his opinion the president and members were highly culpable. Indeed, there can be but one opinion about it, and every one must regret that the army should be so dis- 839 graced by such a proceeding; though I still trust it will not be deprived of your services, which, on a fair investigation of the matter in question, certainly would not be dispensed with.
"I can only say you have my best wishes that you may yet obtain justice, and remain, dear Sir, yours faithfully, "Barnstaple, W. LAW."
June 20, 1814."
I shall make no comment on this letter; but if officers are to be cashiered by tribunals so conducting themselves, the tribunals must be reformed. The system must be reformed, or the army will become a service into which no gentleman will enter. I have taken the greatest pains to inform myself of the truth of the facts which I have brought forward; and I should have resorted to captain Tuton himself, if I had not been informed he had lately been gazetted as an ensign, which circumstance naturally made me delicate of subjecting him to any answer on the subject: and I trust that no other result of the present mention of his case will occur, than the accelerating the work so well begun.
In reference to the case I have just stated, I cannot but remark on the lamentable defects of Courts-martial in respect to the want of a person of the legal profession to guide their proceedings. It is shocking to think of the ignorance sometimes displayed. Nay, not only military officers are appointed to the important office of judge-advocate, but I have seen a letter from the office of the right hon. gentleman (Mr. Manners Sutton)—I do not know if it happened in his time—where a president was called upon to nominate a person to officiate, and who should be acceptable to himself!
I shall next notice the case of lieutenant Blake of the 55th foot. The ground of the charge I cannot defend, but the procedure was most extraordinary. While a close prisoner in Windsor barracks, a Court-martial assembled for his trial in Holland. Having moved for a Habeas Corpus, which was refused, on the plea that the Court had no jurisdiction, he was released by the military authorities, and suffered to be at large, and repaired to London, when he saw in a public paper that a Court was assembling for his trial at Harwich. He applied to the office of the Judge-advocate, and was informed they had no knowledge of such a circumstance 840 being about to take place. Almost immediately after, he received a notice to attend his trial; and he could scarcely arrive in time, without any witnesses; while those for the prosecution were all prepared and arrayed against him. The consequence of this trial was, that be was cashiered. Another case to which, Sir, I wish to call the attention of the committee, is that of ensign Cowell. I have attentively read that trial; and the more I consider all the circumstances connected with it, the more am I astonished. I understand the right hon. gentleman (Mr. Manners Sutton) was not present at it, but was represented by the Deputy Judge-advocate-general. And here I cannot but take occasion to observe, that this Deputy Judge-advocate not only fills that important situation, but also fills the by-no-means unimportant one of Chief Clerk to himself! and, in addition to these, is comfortably established in the business of an army agent. The latter office I think must evidently be very incompatible with the judicial duties of his original station. In fact, it is utterly impossible that these various avocations can be filled with equal attention, and least of all the important duties of Courts-martial. I wish, however, to ask the right hon. gentleman, whether he approves of that Court-martial (ensign Cowell's), as to its legal character? Whether he approves of the charges that were brought forward, whether of the evidence, whether of the garbled letters that were used, and lastly, whether as lego-military adviser of the Crown, he thought it his duty to apprize the Commander-in-chief that the sentence was at variance with the evidence?
From all these cases, Sir, and from all I have ever heard on the subject, I feel it necessary that some limitation should be placed to the power of the Crown. It is clear that that power has been grossly abused, and that abuse having been published to the whole world, it is, in my opinion, the bounden duty of this House to protect, by every means within its reach, the lives and fortunes of those gallant men who form the British army. I shall, therefore, Sir, conclude by moving a clause to that effect: viz. "That it shall not be lawful for the Crown to dismiss any officer without a Court martial, for any offence arising out of a Court-martial, whether he has been either prosecutor or witness.

§ Sir F. Flood
offered a few remarks on the case of lieutenant Ridsdale, and contended that he had most properly been dismissed the service. With regard to Courts-martial in general, which the hon. member had attacked, he thought them subjects of commendation, as they were courts of strict law on one side, and courts of equity on the other.

§ Mr. Manners Sutton
hoped the House would not expect him to be prepared to go at length into all the cases stated by the hon. gentleman, some of which he had never heard of before. As for the first case, it had occurred many years before he came into office, and he did not at all know the minutiae of it. As to the case of colonel Phair and lieutenant Ridsdale, the Court-martial had taken place in Ireland, and the proceedings had never come to his office. As to captain Tuton's case, the assertions in his memorial had been flatly dented by the members of the Court-martial. Lieutenant Blake had been guilty of great outrages at Windsor, and afterwards sent in his resignation to the Horse Guards. It was not then thought proper to accept it, and he had been brought to a trial at Harwich, and found guilty. The hon. gentleman must have been misinformed respecting the notice of trial, as copies of the charges were invariably sent both to the prosecutor and the prisoners, before the day of trial was fixed. He next came to the case of ensign Cowell, and it gave him great regret to find this case so often alluded to. He was aware of the great difficulty and delicacy of the case respecting fighting duels, and was sensible of the inconsistencies in the Articles of War upon that head. He, however, apprehended, that greater evils would result from an alteration of them. He was satisfied the case of ensign Cowell was much misunderstood. He believed the facts of the case to be these: Ensign Cowell got into a personal quarrel at the theatre at Bourdeaux, with a man who was pressing into the box in which he sat. He then turned about to some officers near, and asked what they advised him to do. Their answer was—"Take no notice of him, we suppose that he is not a gentleman." Ensign Cowell shortly after asked the man whether he was a gentleman, and obtained his address. Ensign Cowell, however, let some days elapse without taking any farther notice, and the gentleman, a Mr. Hurley, then began to look for him.
842 Ensign Cowell then asked for an apology, which was positively refused, and afterwards the explanation came from ensign Cowell, who said that he had not knows him to be a gentleman. The officers, upon hearing of this, refused to mess with him, and sent him a letter intimating to him that he should resign. He actually did send in his resignation, but afterwards retracted it, and called for a Court-martial. As to the complaint of officers being dismissed in consequence of failing in their charges, it must be observed, that Courts-martial were always granted when one officer wished to bring charges against another. The freedom of granting those trials could only be restrained by the liability of the persons bringing the charges. It was not for merely failing to prove charges that an officer was dismissed, but for bringing forward charges without any reasonable foundation for them. As to discretionary power, it was always liable to abuse, wherever it was vested; but the advantages to be derived from the honest application of a discretionary power were often found considerably to outweigh the evils apprehended from its abuse. He thought there was no species of discretionary power which might with greater safety be left in the hands of the Crown. Every act of it was done in the face of the day, and open to observation. He should therefore feel it his duty to resist the introduction of the clause into the Bill.
After some further observations, in which lord Palmerston, Mr. W. Smith, sir G. Warrender, general Gascoyne, Mr. Wynn, lord Compton, and Mr. Bennet participated, the clause was negatived without a division. Mr. Bennet said, it was not his intention to move the other clauses at that late hour; but he would take that opportunity of giving notice, that on Wednesday next he should move for leave to bring in a Bill to limit the number of lashes to be inflicted by the sentence of a Court-martial. The Report was then agreed to.