§ On the motion of lord Palmerston, the House resolved itself into a committee on the Mutiny Bill.
§ Lord Probyrose for the purpose of introducing a clause into the Bill, for preventing the dismissal of military officers from the service without the previous inquiry of a court-martial. It would have been, perhaps, a better course for him, in the first instance, to have moved for a copy of the proceedings of the court-martial on colonel Quentin, as the circumstances attendant upon those documents would have been a striking illustration of the opprobrium of which he complained. He was always impressed with the opinion, that the dismissal of officers, whose only offence was the bringing forward charges against their superiors which were deemed unproved, was a measure not only impolitic, but illegal. Custom, he was aware, had sanctioned it, and the opinion of lawyers gave it a degree of éclat; but he would condemn this unmerited stigma, and was prepared to shew, that neither 46 the ends of justice nor discipline required its existence. If the ends of military law required this severity of opprobrium, it should be inflicted according to the acknowledged rules of the other branches of the national jurisprudence, and not at the volition of any individual. There were three cases in which he meant to notice the power against which he complained. None of these were, however, recognized by the Mutiny Act itself. But in them the same judicial objects were attainable without this discretionary authority. Those cases were, the bringing forward charges against superior officers: the rejection, on the part of military individuals, of an associate against whom they had some objection; and the cases which ordinarily occurred of being absent without leave. Now, in all these cases, no inconvenience could attach to the prosecution of parties, whose conduct appeared reprehensible. If charges were adduced which appeared primâ facie untenable, surely the accuser was fairly amenable to the ordinary mode of trial, without the interposition of any summary proceeding. In cases of absence without leave, he knew more than one instance in which the individual could have fully excused his breach of order, if exposed to the scrutiny of any investigation. In the navy there was no such mode of punishment; and was there a laxity of discipline? [Hear, hear! from the opposite benches, and the case of lord Cochrane was intimated to the noble lord]. But the case of that noble lord was different; he had been tried and convicted in a court of law. In no other army did this power exist. It was unknown in the despotic military organization of Austria and Russia. In those services no officer could be dismissed without trial; indeed, without this preparatory ordeal no punishment (and dismissal was often the most disgraceful) ought to be at all tolerated, particularly when nothing in the Mutiny Bill warranted its infliction, and when much dissatisfaction prevailed in the army at its being allowed to exist. The noble lord concluded by moving the insertion of a clause in the Mutiny Bill, providing "that it shall not be lawful to dismiss any officer except by the sentence of a general court-martial."
§ Lord Palmerstonopposed the clause, on the ground that the noble lord had not made out any case, or pointed out any abuses of that discretionary power vested in the Crown, to justify his proposition. When 47 our ancestors had curtailed the prerogatives of the Sovereign, they had left him that of which it was now the question to deprive him. The allusion to the officers of the 10th was not correct; for in that case, no officer had been dismissed, but removed. Was the commission granted by his Majesty, besides, to be considered such a freehold property, as to warrant it being deemed an injury to an individual to take it away from him, when he had become unworthy of bearing it? There were many causes which might justify his Majesty in withdrawing his confidence from an officer, which could not be brought before a court-martial. Disaffection, incapacity, or disgraceful conduct, were amongst those. The clause itself was not a new one. It had already been discussed, and rejected in the House of Commons without a division, and in that of the Peers by a large majority. The circumstances in which it had thus been lost, were, however much more in favour of its adoption than the present. It was in 1734, when sir Robert Walpole had recommended the King to dismiss lord Cobham and the duke of Bolton from the command of their regiments, which might be supposed to have been done in consequence of political differences. This prerogative in the hands of the Crown was necessary to the discipline of the army, and even the liberty of the subject; and on the total failure of the noble lord to produce proofs of the necessity of adopting his clause, he called upon the House to reject it.
Mr. Bennetdwelt upon the utility resulting from the discussion of military law in that House, especially in the discouragement and diminution of corporal punishment in the army. Of the nature and extent of this horrible infliction he was fully aware, from his own observation in early life; but he was happy to think that the severity of the evil had since been materially reduced. The hon. gentleman commented with much severity on the proceedings which followed the trial of colonel Quentin, and intimated his determination, at a future day, to propose an amendment in the Mutiny Act.
§ Mr. R. Wardstated, that the power of dismissing officers without being tried by a court-martial, existed in the navy, and instanced the case of lord Cochrane.
§ Lord Probycontended, that the mere suspicion of disaffection, unless that suspicion were substantiated, was not a sufficient ground for dismissing an officer.
§ Mr. Tierneyrose to support the clause proposed by the noble lord, and thought that on sound constitutional principles it merited his assistance. The argument drawn from the precedent of dismissal in sir Robert Walpole's administration, was far from being conclusive. It appealed to him to prove nothing more, than that sir Robert Walpole's House of Commons approved of their patron's conduct; and as to the right belonging to the Crown of resuming the commissions it had previously granted, it should be recollected that the system pursued in our army was essentially different from those of other countries. In our service commissions were purchased, and the purchasers were entitled to every protection in the enjoyment of their annuity. They had purchased a place of trust and profit, and had a right to be continued in it, unless found guilty of some crime deserving of forfeiture. The noble Secretary at War had stated, that the crimes of incapacity and ungentlemanlike conduct, could not be made the subject of trial. The latter of these was, however, frequently to be seen among the charges preferred before a court martial, and therefore thought capable of proof. And as to the former, it would be much more honourable to inquire into that before the unfortunate gentleman's pocket was emptied. But now his money was taken; and on a subsequent examination his incapacity was declared, and he was deprived of his commission with a stigma affixed to his character. With respect to the charge of disaffection against any individual, this surely was of a nature peculiarly capable of proof, and should be tried by some court; for, by the present practice, the character of an officer might be whispered away, and no reason given but the caprice or power, for depriving him both of that and his commission. The right hon. member next alluded to the case of the officers of the 10th hussars, who were dismissed to different regiments: these were not, he allowed, dismissed the service, but they were expressly sentenced to other corps for the purpose of learning subordination; but in such a case gentlemen were made their own executioners. For although not absolutely deprived, there were many who would not wish to enter another corps with this brand of insubordination. To field-officers it would be particularly severe; for how could they insist on submission, when their own want 49 of that requisite, might be so easily retorted on them? Yet, surely, among those gentlemen many shades of offence must have existed; some might have, been impelled to the measure, and others seduced; and surely no disadvantage could result to the service, by bringing them to trial. He allowed, that nothing could have been more conciliatory and accommodating, than the conduct of his Royal Highness the Commander in chief; but the House could easily conceive, how distressing any removal must be to a person who had embarked his fortune in the army, actuated perhaps by a desire of joining a particular corps. As to the circumstance of such a discretionary power existing in the navy, he conceived, that the officers of that service were previously tried for their offence; and, alluding to lord Cochrane's case, he said that a trial had taken place in a court of law. All now required was, that a trial should legally take place somewhere: this was the object of the noble lord's amendment, and he should give it his support.
§ Colonel Wooddeclared that if those officers of the Hussars had not been removed, a serious injustice would have been inflicted on the rest of the army. In addition to the case brought forward by his noble friend, of the officers dismissed by sir Robert Walpole, he would adduce one of a stronger nature, to prove the good effect of such a discretionary power. The case was that of the 85th regiment, five or six of whose officers had brought several charges against their commander, colonel Ross. One of those charges they had substantiated; but the court having reported that those officers were not actuated by a sense of public duty, they were in consequence of that report dismissed the service. Colonel Ross himself was some time after deprived of his commission for similar proceedings against the major of the regiment; but the other officers, who, though not actually engaged in the several prosecutions, had aided and abetted, were suffered to remain in the corps. Thus they continued for four or five years; but the same spirit of insubordination still appearing, the Commander in chief thought proper to remove them all, the regiment was re-officered from other corps, and distinguished itself by its gallant conduct both in Spain and in America. Col. Thornton was wounded at Bladensburgh, as were almost all the field-officers of the regiment. This cir- 50 cumstance he stated as a proof of the advantage resulting from the exercise of this prerogative. With respect to the trial of incapacity, this could not take place previous to the purchase of the commission; and to elucidate this, the hon. member read the regulation subsisting in the army, relating to incapacity, in which it is stated, that every officer who has been two years in the army, should be capable of commanding a troop or company, and understand every circumstance connected with its internal economy; that every captain of two years standing, should be capable of fulfilling the duties of a field-officer; and every general of brigade, &c. must strictly inquire into, and make accurate reports of, the sufficiency of every officer under his command, for the purpose that those who are incapable may be prevented from, rising higher in the service, or of being ultimately dismissed. This incapacity he conceived to be incapable of proof, or what would be more unfortunate, the proof requisité must be purchased by the lives of many gallant men, sacrificed not to their leader's cowardice, but to his insufficiency. The motion itself he conceived to be very ill timed. We had now arrived at the conclusion of a war in which, our army was no less distinguished by its discipline than its gallantry. Gallant our army ever had been; but before the regulations of the Commander-in-chief, it was very deficient in that other requisite of military efficiency.
§ Mr. Manners Suttonsaid, that admitting for the sake of argument those abuses to exist, which had been stated, it did not follow that the proposition of the noble lord was the only or the best remedy for them. With regard to the hardships complained of by the right hon. gentleman, sustained by those who purchased their commissions, in the first place he would observe, that there were a great many commissions in the army which were not purchased; and that those who did purchase them, made the purchase with a full knowledge of the conditions annexed to it. He apprehended the noble lord who brought forward the proposition, was not aware of the whole importance of the question; and that, if it were thought advisable to do any thing respecting it, Parliament ought to pass a distinct act, and not introduce it its a mere clause of the Mutiny Bill. The clause, as it now stood, either would not effect the desired 51 object at all, or it would effect something far beyond that Object; and required, therefore, great nicety in the wording, and many other clauses to explain and limit it. Supposing abuses to exist, a shorter and a more expedient way would be for Parliament, if it thought an individual to be greatly aggrieved, to address the Crown upon the subject, and to obtain the removal of those ministers who had so advised the Crown. To deprive the Crown of its prerogative of controlling the army, so far as the power of dismissing its officers went, would introduce as great an anomaly into the constitution as that which was pretended to exist in the present system. As the army could not exist without the power of Parliament, so it could not be put in motion without the power of the Crown; that was the counterpoise provided by the constitution; but that balance would be partly destroyed if the proposition of the noble lord were carried. He should therefore vote against it.
Mr. Wynnthought, that as the Mutiny Bill provided many of the temporary regulations of the army, and as, under its provisions, courts-martial were held, it could not be improper to introduce into it a clause such as the noble lord had proposed. He could not agree with the right hon. gentleman, that the House could properly investigate the case of this lieutenant or that major in order to address the Crown in any particular instance of abuse. The course now proposed would be preferable. He should therefore support the clause.
§ The clause was negatived without a division.
§ Mr. Whitbreadcomplained of the power which magistrates had of sending persons confessing themselves to be deserters to the dépôot at the Isle of Wight without any record; and said, that when the clause allowing such a power came to be read, he should move an amendment.
§ Lord Palmerstonsaid, that this power was allowed, to prevent the collusion, which sometimes took place, when one informed against another for being a deserter, and received the reward, while the person informed against had never been in the array, and only shared the reward with the informer.
Mr. Wynnwished that there should be some mark of disapprobation affixed to duels in the army, especially as some courts-martial now promoted duels. He 52 alluded to the case of ensign Cowell, who was dismissed the service by the sentence of a court-martial, for not sending a message in an affair in which he supposed himself the aggressor. The hon. gentleman related the affair, by which it appeared that Mr. Cowell went a little heated with wine to a theatre at Bourdeaux, and meeting Mr. Harvey, the paymaster of the regiment, from whom he thought he had received some slight, he behaved to him in something of a hostile manner. However, reflecting on his conduct, and perceiving that he had been wrong, he made a submission to Mr. Harvey. Yet though he acted with such real spirit, and with so much of what ever distinguished the man of true bravery and honour, from the bully or the coward, he was brought to a court-martial and dismissed. The sentence, the hon. gentleman said, was not only pernicious to military discipline, but at direct variance with the laws of the land. What, he asked, would have been Mr. Cowell's situation had he sent a message, and killed his antagonist, in an affair in which he conceived himself the aggressor? It was ever the sign of true magnanimity not to be afraid to make a concession for an injury; and only a want of real bravery would risk taking away the injured person's life rather than submit to confess a fault. The hon. gentleman concluded by repeating his wish that military duels should have some mark of disapprobation affixed to them.
§ The report was ordered to be brought up to-morrow.