MUTINY BILL. (Hansard, 12 March 1822)

Mr. Bennet
observed, that his hon. friend (Mr. Hume) had given notice of a motion for an instruction to the committee respecting the power of the king to dismiss officers. He hoped he would not press the motion at present, as it did not, as a general question, excite that interest which it deserved. It was the complaint, that in the House as well as out, it was the disposition to treat lightly constitutional questions in comparison with money matters. But in those times, when the members of that House were not so numerous, 152 had voted for the motion of 1734, while in the other House no less than 62 peers voted on the same side. But there was not at that time such a general indifference to constitutional questions, as unhappily prevailed at present. The gentlemen on his side of the House were on this occasion reduced to a sort of select society [a laugh]. The gentlemen on the other side might laugh and jeer, but he expressed most unfeignedly his surprise and regret, that the distinguished members with whom he had usually the honour to act, should have been absent on an occasion so deserving of their support. But in consequence of this absence, and in the hope of the presence of his hon. friends upon a future occasion, he earnestly recommended his hon. friend to postpone his intended motion.

§ Mr. Bright
said, that whatever might be the reasons which induced others to be absent or present, he looked at this question as one which had received serious attention in better periods of our history, and he strongly wished that the House would return to its former character, and examine the foundation of our institutions in the spirit of those institutions. He had been taught to entertain great suspicion of a standing army. However he might differ from gentlemen who were now absent or present, in a most sacred regard for the constitution be yielded to none. The right of dismissing officers, without cause assigned, had been, on a former occasion, treated as one of the prero- 1064 gatives of the Crown. He would say, should that question be again mooted, that the Crown possessed no such prerogative. It might be clearly made out that such a prerogative had never existed; and this was a time peculiarly fit for investigating that question and setting it at rest. A great war had recently terminated: a military spirit had risen up, and in considering the glorious successes of our army, we were too apt to overlook the character which constitutionally belonged to it. He looked at the navy with admiration—he looked at the militia as our constitutional and adequate defence—and he hoped, if the hon. member for Montrose should delay his proposition, that it would be only in order to bring it specifically forward at another opportunity.

§ Mr. Hume
said, that although he had known a question of as great importance as the present met by as empty benches, he would not persist against the advice of his friends, but would bring the subject forward on the bringing up of the report.

§ Mr. Hume
said, that the 29th clause of the bill respected courts martial, and to that clause he should move an amendment, which would confine courts-martial to the forms there prescribed, and declare "that no punishment whatever should be inflicted but such as was agreeable to the sentence of a court-martial, and to the forms of the act."

§ Lord Palmerston
said, that no punishment could be inflicted but such as was legal, under the act; therefore the amendment was unnecessary.

§ Mr. Wetherell
said, that if the amendment meant nothing beyond the carrying into effect the clause to which it was attached, it was clearly superfluous. But, if it indirectly aimed at the prerogative of the Crown to dismiss officers, let the question be fairly met, as the hon. member for Bristol had proposed.

§ Sir I. Coffin
would recommend a little modesty to the mover of the amendment, if he meant that the final approbation of the sentence should not be left to the commander-in-chief.

Colonel Wood
thought the proposed addition was a round-about way of bringing on the question which the hon. mover had said he should decline bringing on that night. He should be happy to meet the question upon constitutional grounds; 1065 for he considered the prerogative alluded to, the best safety against the interference of the army with the constitution.

§ Mr. W. Courtenay
contended, that some ground ought to have been shown for the necessity of the amendment. What grievances were there which the amendment remedied? If it meant to prevent the dismissal of officers, it was the proposition which had been postponed, in another form; if it did not, it was unnecessary.

§ Mr. W. Williams
felt, that the dependance of the officers of the army upon the will of the Crown, or that of the minister was so obvious, from the recent dismissal of a gallant officer, without any cause made out, or trial instituted, that he should conceive it his duty, if no more competent person undertook the task, to move for leave to bring in a bill for the exclusion of all military officers from seats in that House, and also from the right of voting for any person becoming a candidate for a seat in that House; for he thought that many persons were excluded from those privileges who might fairly be deemed more independent than the officers of the army were now become, in consequence of the conduct of the Crown, or its ministers.

Colonel Wood
said, he was as jealous of a standing army as his hon. friend, and regarded the prerogative as a check upon the army. The only true dangers which had occurred in our history, was when the army was severed from the Crown, and power was placed in the hands of the army. He saw no reason for such a quantum of suspicion of officers in that House. They sat on both sides. To receive the thanks of parliament in their place there, was the best reward which they could receive for a service in which, God knew, they got little wealth, though they might gather some laurels. There was no reason for excluding them any more than gentlemen of the navy or the law.

§ Mr. W. Williams
asked, whether his majesty had the power of depriving a barrister of his rank, at his sole will and pleasure? There was no analogy in the cases. If the army had the power to destroy or uphold the constitution, it ought not to be under the control of any individual however high. They might turn against the people as well as against the Crown.

The Solicitor General
said, it was clear 1066 that the king could not inflict a more severe punishment than that which had been pronounced by a court-martial. But, though the Crown could not make it more severe, it might mitigate it. Now, if the amendment were carried, it would take from the Crown the power of mitigation. If a court-martial awarded the punishment of death, the king could not, should this amendment be carried, transmute it for transportation.

Colonel Davies
said, there were many instances in which officers who had been acquitted by courts martial had been afterwards dismissed. He instanced the case of the officers of the 85th, who having brought forward charges against their commanding officer, and failed to prove them, were dismissed; and the commanding officer was himself dismissed afterwards, although the court-martial had acquitted him.

§ Lord Palmerston
said, the dismissal of the officers who had prosecuted groundless charges was no argument on the present question.

Colonel Davies
said, his argument was, that the commanding officer had himself been dismissed, after having been acquitted by the court martial.

§ Lord Palmerston
said, it was then evident that the amendment raised the question of the prerogative.

§ Mr. Hume
said, he was not convinced by the argument of the solicitor-general, but he had no wish at present to agitate any point which would involve the question of the prerogative. The gallant colonel would remember that if an army, not under the control of the king, had interfered with the members of that House, and with the privileges of the people, the same might be done by one under absolute control. Its officers were perfectly dependant on the Crown, and, if he might use the phrase, were even the slaves of the Crown, in consequence of this power of dismissal.

§ Sir M. Nightingall
said, he was himself no slave, and did not believe that the officers of the army were slaves. He thought they had the interest of the constitution at heart as much as any set of men in the country.

§ Sir I. Coffin
said, that when the hon. member for Weymouth brought in his bill to exclude officers of the army from the House, he hoped it would include officers of the navy, that they might all go out together.

§ Colonel Trench
flung back the insinuations of the hon. member for Aberdeen, to the foul source from whence they sprung. He was surprised that any member should dare to throw out such an aspersion against a body of men, who surely were not unfitted to sit in that House, because they had devoted years pf their lives to the service of their country.

Sir F. Burdett
begged to protest against this mode of making a sort of personal appeal, which was both contrary to the Orders of the House, and inconsistent with the freedom of debate. The hon. officer had expressed great indignation, because the hon. member for Aberdeen had called the officers of the army slaves. Now, he (Sir. F. B.) had not the slightest hesitation in declaring his perfect conviction of the propriety of this language. It was language which our forefathers had held—it was an argument which had been frequently used by constitutional lawyers against the expediency of a standing army. The great objection to a standing army was, that it had a direct tendency to make the officers of the army slaves. The hon. officer might assume as high a tone as he pleased as to the purity of the motives which influenced the conduct of officers of the army—he might contend, that they were free from all undue prepossessions, and inaccessible to those motives of interest which operated on the rest of mankind; but he (sir F. B.) concurred in the sentiments, and would therefore vindicate the language of the hon. member for Aberdeen. He agreed with his hon. friend, that a standing army, and every thing connected with a standing army, was fraught with danger to the constitution and to the liberties of the people, and he would a thousand times rather die in his seat than submit to its unconstitutional control. Standing up as he did for the constitution, he had no hesitation in declaring, that a standing army was a gross infringement of every principle of that constitution. That it was such an infringement, and that it would sooner or later lead to the destruction of the constitution, was the Opinion of a person, who must be admitted to be a man of some genius even by the side of the learned solicitor-general—he alluded to Montesquieu, in his book on the Spirit of Laws—it was an opinion held by the soundest lawyers, and the ablest constitutional writers this country had produced. It was to be found in 1068 almost all the great writers, both ancient and modern, who had treated on the science of government. It was the opinion of Mr. Justice Blackstone—a man who would not be suspected of being over anxious to support liberal opinions, though certainly some of his sentiments in favour of liberty would be considered as licentious in these days, by many gentlemen on the other side of the House, and especially by gentlemen of the long robe. Now what did this writer say? He complained of the act, of which the House was now discussing the provisions. He never dreamt of the doctrine, that the control of a standing army was a part of the king's prerogatives; but he declared that the power over the standing army was conferred on the Crown by the mutiny act. He complained of the severity of this act—he complained of the cruelty of many of its provisions—he stated that it had been penned in haste, and without due consideration; and he expressed a hope, that it would he revised by the wisdom of some future parliament. He expressed his regret also that the soldiers of this country should be the only slaves among a nation of freemen, and he pointed out the extreme danger to the constitution which arose from placing arms in the hands of men who were in a more debased and degraded condition than any other class of their countrymen. Every thing which had been most deprecated by this learned commentator which would have made our forefathers shudder, and at which every friend to English freedom must tremble, had been since adopted. The English soldier was set apart from his fellow-countrymen—he was made a sort of artificial Mameluke—he no longer lived under the same laws—he was shut out from the protection of the constitution. Every apprehension of the learned commentator had been realised; and, instead of endeavouring to unite and amalgamate the citizen and the soldier, the government had employed the most artful and unconstitutional means to separate the two characters, and to cut off the soldier from all connexion, all feeling of interest and sympathy with the people. The learned commentator observed, that in whatever country an army was placed out of the pale of the constitution, they would naturally become the enemies of those rights which they could not themselves enjoy; and he expressed a hope, that the constitution of England would be 1069 able to survive what had led to the ruin of every other nation in which it had existed—the establishment of a standing army. To prevent these fatal consequences, it was incumbent upon us, he observed, to take care that the army should not be too numerous; that the character of the soldier should be mixed up as much as possible with that of the citizen; that there should be no barracks, no inland fortresses; that no means should be employed to cut off the communication of the army with the people; and that the term of service should be short, so that a principle of rotation might he established, and the soldiers be returned, from time to time, to the great mass of the people. These were the constitutional means of making the army a national support, and not an enslaved class of the community; these were the only means of avoiding the necessary consequences of maintaining a standing army in time of peace, in a free country. The noble lord opposite considered a standing army the best defence of the people of England. This was, indeed, making rapid strides towards overturning all the prejudices of our forefathers. What was Mr. Hume's opinion on this subject? Even that writer, with all his monarchical prejudices, was of opinion that a standing army would give a final blow to the liberties of the country, that it would be the euthanasia, or natural and proper death, of the liberties of the people of England. And well might we be said to be approaching rapidly towards this consummation, when we considered the amount of our standing army, the vast sums of money which were expended to support it, or the systematic means employed to perpetuate it. Under the guise of charitable institutions for soldier's children, infants were brought up by beat of the drum, and a race of artificial Mamelukes was created in the country. For God's sake let the children and orphans of soldiers be protected; but, was it protection to exclude them from all other employments or professions, or to bring them up as a fighting class in the country?—The hon. baronet proceeded to advert to the power assumed by the Crown to dismiss the officers of the army at its pleasure, and without assigning the cause of dismissal. It was a power which it was most dangerous to exercise, and which ought not to be suffered to exist in any country. It was said, that the king could have no 1070 interest in the improper exercise of such a power; but it was the principle to which he objected. The king might be a good or a bad king; he might be a patriot monarch or an ambitious tyrant: but, whatever might be the character of the reigning sovereign, he never wished to see the liberties of the people of England dependant upon any king. Gentlemen opposite said, we might depend upon the king; and the king would take care that the army should not turn out the parliament in these times. But, where was our security for his forbearance? Suppose the king, like Cromwell, should choose to turn out the members of that House by the instrumentality of the army. If such a power were sanctioned by the constitution, it was a constitution which deserved not to be praised for its beauty, nor admired for its wisdom, nor relied upon for our security. For his own part he would place no such implicit reliance, and was disposed to place a much greater reliance upon the honour and feelings of the officers themselves, by giving to those officers, and to the army at large, the protection and benefit of the constitution. As to the power of subverting the decisions of a court martial, or dispensing with a court martial altogether, by the fiat of the Crown, or rather of the ministers of the Crown, it was a most monstrous, irrational power, and mischievous even to those who exercised it. The Crown might in this way, by listening to the calumnies of some insidious enemy, and affording no opportunity of explanation to the party accused, do injury to its best friends. Such a power existed, he believed, in no other country of Europe: for in every other country the soldier had at least the protection of being subjected to a court martial—of being heard before he was condemned. Were the soldiers of England, then, to be placed in a situation more degraded and more slavish than that of the dependent satellites of the most despotic governments? This was not, as had been contended, a mere question of prerogative; for that House was bound to listen to no plea of prerogative, unless it could be shewn that that prerogative existed for the benefit of the people. On the same principle, the judges might be dismissed at the pleasure of the Crown; for it was not to be assumed that the Crown would not misuse its power, or at all events that its ministers were so immaculate as to be incapable of abusing 1071 it. There had been ministers who had not only turned out officers from their commissions, but from their seats in parliament; and though he supposed we now lived in more virtuous times, and the present parliament was of course immaculate, yet the possibility of the thing could not be denied, since it had actually happened at a former period of our history. The hon. baronet concluded, by thanking his hon. friend, for having drawn the attention of the country to this important subject, and by expressing a hope that he would not withdraw his amendment.

§ Lord Palmerston
thought it no part of the rules of debate to permit gentlemen on one side the House to use such expressions as to them seemed convenient, and to forbid those on the other side from using strong language in their defence. The hon. baronet was in the habit of giving the House the result of his private studies; but he had omitted to state, in his quotations from Blackstone, the paragraph which identified the standing army with the British constitution. However dangerous might be the existence of a standing army, it would be infinitely more dangerous to have no army at all; and the amount of existing danger, whatever it might be, would be increased by the measure suggested by the hon. member for Aberdeen. If the army was not to be elected into a fourth estate, it must be placed under some species of control. The hon. baronet objected to that control being vested in the Crown. Was parliament, then, to have the control of the army? Wherever popular assemblies had attempted to command a military force, the thing had usually ended by that force commanding them. The observation of the hon. baronet respecting "artificial Mamelukes," referred, he supposed to the children of the Military Asylum; but the children of that establishment were allowed to choose their own professions, and the majority of them had actually chosen civil pursuits. With regard to the military rules of other governments, he apprehended that the king of Prussia had often exercised the power in question.

Mr. Bennet
said, his hon. friend had not applied the term "slaves," to the army tauntingly or sneeringly. Certainly the language of the gallant officer was entirely new.

§ Mr. Creevey
said, he had beard the hon. and gallant officer make use of the 1072 word "dared,"—a word, the use of which was always considered highly un-parliamentary.

Mr. Bennet
said, his objection was not to the word "dared," but to the words "foul source," which had been used by the gallant member and which he trusted he would take an opportunity of explaining.

§ Colonel Trench
said, that the expression used by the hon. member for Aberdeen had certainly appeared to him to be coarse and foul-mouthed. He had answered it in a moment of indignation, and as he was not often in the habit of addressing the House, he feared he had inadvertently gone beyond the rules of debate. He apologized to the House for having done so, but he should not carry his apology any further.

Mr. Bennet
informed the Speaker, that when the House had been in a Committee, a dispute had arisen betwixt two hon. members, of which, as he was not in the chair, he could not probably be supposed to be aware. One of those hon. members was his hon. friend, the member for Montrose, the other the member for Cambridge; and he regretted to say that in consequence of expressions used by his hon. friend, the other hon. member had made a retort, couched in a manner which as he was not then present, he could not designate. A subsequent explanation had been made by his hon. friend, which had been accepted by the House. A similar explanation had been made by the other hon. member, of the expression he had used; as far as the house was concerned, he might say he had made an apology; but not one word had he said with regard to the person towards whom those expressions were directed. As it was not the custom in that House, or elswhere, for such language to pass without a retractation, or ulterior consequences, he hoped some means would be taken by the House to stop any further proceedings.

§ The Speaker
commended the course which the hon. member had taken, with such an apprehension on his mind as he had described. With respect to the circumstance to which he had called his attention, he begged to state, that he was present in the House as a member during the time it occurred. He was sorry the impression left on the mind of the hon. member was such as he described; but 1073 he was bound to say that it differed from his own. The language which had caused the excitement in question, used on the one side had since been explained as being applied, not personally, but to a profession, or class of persons, to which the hon. member feeling himself aggrieved, belonged. The explanation of the hon. officer in return, was one which admitted that he spoke with warmth, and in an unguarded manner; but, what was more important, the hon. officer expressed his regret that he had used any language inconsistent with the orders of that House. Now it was plain that language tending to a personal misunderstanding, must be contrary to the orders of that House, and therefore it was, that he conceived that an explicit disavowal of all ulterior intention of pursuing the subject had been made. One hon. member was in the House, however, and it would be a satisfaction to the House to know that his sentiments were such as he had just stated.

§ Mr. Hume
stated, that according to his apprehension, the explanation of the hon. officer, notwithstanding the reservation it contained, was not meant to be applicable to him in a hostile sense. For his own part, he felt perfectly satisfied, and would have prevented his hon. friend from troubling the House, had he been aware of his intention.