Commons Sitting of 14 February 1827

COLONEL BRADLEY'S CASE.
Mr. Hume, said, that he had, on a former occa-

461
sion, presented a petition from colonel Bradley, complaining of his dismissal from the army, without having been allowed to make any defence, and other matters, and he had moved for certain papers to substantiate the allegations of the petition, which the noble lord had thought proper to refuse; but, on the following day, he had brought down to the House the commission from general Fuller, under which major Arthur had acted in the steps which he had taken against colonel Bradley at Honduras, for the purpose of justifying the conduct of the government in its proceedings against colonel Bradley. But something more was wanted to bring the matter clearly to light; and he therefore wished now to call for additional documents. The hon. member then moved for the said papers.
Lord Palmerstonsaid, that the hon. member had twice before brought the case of colonel Bradley's dismissal from the service under the consideration of the House. On both occasions, he (lord P.) had stated to the House the grounds on which the military advisers of the Crown had recommended his majesty to dismiss colonel Bradley. The facts of the case were these: colonel Bradley had taken upon himself to question the military command exercised by major Arthur, at Honduras, and not content with submitting his doubts to the authorities competent to solve them, he had chosen to solve them himself, and by his own act deposed major Arthur. This was considered to be an act of mutiny, which it was quite impossible could be passed over. The military advisers of the Crown had founded their opinion of the propriety of removing colonel Bradley from the service, not on the representations of major Arthur alone, but also upon colonel Bradley's own representations, contained in his letters to the commander-in-chief. Colonel Bradley, however, not contented with the decision to which the advisers of the Crown had come, carried the case into a court of justice. He had rested his case there, on the ground that he had been illegally confined by major Arthur, inasmuch as he possessed no competent military authority to confine him. It would be perceived, that the case, in the court of law, did not rest on the same grounds as those which influenced the military advisers of the Crown; for the propriety of colonel Bradley's conduct
462
was not a question before the court. The only point before the court was, whether major Bradley did or did not possess the military power which he exercised. That he did possess that power, was proved by the production of the military commission granted to him in 1814, by general Fuller. The court being satisfied on this point, decided that the arrest of colonel Bradley by major Arthur was legal; but the court being also of opinion that the arrest was continued longer than necessary, advised the jury to that effect, and they in consequence, on that ground, gave colonel Bradley damages to the amount of, he believed, 100 l. When the question was last discussed in that House, the hon. member for Aberdeen stated two things: first, that the military commission produced in the court of law was a fabrication; and, secondly, that major Arthur had not alluded to that commission, in a letter written by him in 1820. He (lord P.) had contradicted those statements in the most positive terms. He might, perhaps, have allowed the case to rest there, being inclined to suppose, that the House would at all times be disposed to give credit to a person holding an official and responsible situation as he did, for speaking the truth; but he thought it would be more respectful to the House not to allow the matter to rest on his assertion only, and therefore, on a subsequent day, he had produced copies of the military commission and the letter of major Arthur, dated the 27th of May 1820, in which he alluded to the commission. The commission itself was in the possession of major Arthur's legal adviser; but of its existence he thought no person could doubt, any more than that he was then speaking within the walls of that House. He was at a loss to know on what ground further papers were now moved for. The question as to whether the Crown was properly advised to dismiss colonel Bradley had been twice discussed, and the House had decided in the affirmative. On that point he saw no ground for calling for further papers. There was another question personal between himself and the hon. member, as to who was correct in the assertions they had respectively made, he declaring the existence of documents, and the hon. member denying it. He contended, that the papers which he had laid upon the table were as conclusive a proof as could possibly be, of the

463
existence of those documents. If the hon. member should persist in saying that the documents were not in existence, he would say nothing more on the subject, but leave it entirely in the hands of the House.
Mr. Humedenied that he had fallen into any such error and confusion as the noble lord had stated. This was a case of the utmost importance in a general point of view, and was, therefore, of much more consequence than if it applied to colonel Bradley alone, although one could not but be sorry that a deserving individual should have been so used. There were three or four questions connected with this subject, which deserved the serious consideration of this House. The first was, whether the Crown really possessed the prerogative which it claimed of dismissing officers of the army in this summary and arbitrary manner. The second was, whether his majesty had, under any act of parliament, the power, by himself or his officers, to grant commission of that nature; and if they were granted, whether those who received them were not still subject to the articles of war? The military commission, from general fuller to major Arthur, was the one produced in the court of King's-bench; and the court certainly had held, that it was a sufficient authority to colonel Arthur for acting in the manner he had done. He did not deny the existence of this commission. What he said was, that a person receiving such a commission was still bound, by the articles of war, to exercise it according to the rank and seniority which he held in the army, and that he was still subject to his superior officers. This was a case provided for by a section of the articles of war, and this was a point which was required to be established by one of the papers now called for. This was quite, distinct from the question, whether the commission itself had been granted by general Fuller. In giving a commission, it was impossible that he should have the power of giving a commission contrary to the king's commission, which colonel Bradley had in his pocket, and which required him to act according to his rank and seniority. When general Fuller granted the commission to major Arthur, he could only grant it to be exercised subject to the articles of war, and the question was, whether general Fuller's commission was to be considered as paramount to that of his majesty? It had
464
been stated, that major Massey, a senior of major Arthur, had obeyed major Arthur on that occasion. In answer to this, he had a letter from major Massey himself, in which he denied that statement. When major Arthur arrived at Honduras, major Massey and major Smith, who had both leave of absence, resigned their commands, and never acted under major Arthur. It was further stated, that major Arthur had applied to major Massey, to ascertain whether he Would sit on a court martial; to which major Massey had replied, that if the garrison was in danger, he would act, but then he would take the command, and direct major Arthur to take such steps as he might judge necessary, under the existing circumstances. But, had major Arthur ever thought of putting major Massey under arrest for this? No Such thing. Then it was to be considered, that the regiment to which major Arthur belonged had been disbanded about this time, and that major Arthur had been reduced to half pay, and then became a mere private individual, and had no commission from his majesty to supersede his superior officers in rank and seniority. How, then, could colonel Bradley attend on a court martial under major Arthur, and obey the orders of major Arthur in proceeding against his government? What superior officer would like to submit to his inferior in a point of that kind? Colonel Bradley had applied to major Arthur, to know, whether he was aware that his corps had been reduced, and that he was no longer an officer in the army? No answer was returned to this. Major Arthur was then desired to show his authority; but none had been shown. The commission, such as it was, had not been published; and the fair inference was, that there had been no such commission granted. He further contended, that neither the duke of Manchester, nor the king, had any authority to grant such commissions, against the authority of an act of parliament. Besides colonel Bradley had been kept in custody for ten days after major Arthur's commission had expired; and afterwards colonel Bradley had been dismissed the service without any opportunity of being heard in his own defence. Colonel Bradley had acted as any superior officer ought to have done in such a situation; and it was only because he was conscientiously anxious to procure justice for an oppressed individual, that he wished to

465
have this case undergo the fullest investigation. Colonel Bradley had been for twenty years in the army, and, during fifteen of these had served in the West Indies; and, whatever acts he committed which had the appearance of insubordination, were owing to major Arthur himself, who had not published his commission. It was extremely hard, then, that colonel Bradley should be thus condemned merely on the assertion of ministers. When colonel Bradley came home, he commenced his action in the court of King's-bench against major Arthur, who was defended by the Crown lawyers, at the expense of the Crown. It had been there held, that the commission was sufficient; but he could not help considering that as a mistake of the learned judge. Still, however, colonel Bradley had a verdict in his favour; but major Arthur had been hurried off by the ministers to Van Dieman's Land, as governor; so that colonel Bradley had not even an opportunity of procuring his damages or expenses, which still further diminished the slender means which had been left him, and increased the injustice which had been done him; and he had now only to hope that the House would do him justice.
Mr. Secretary Peelsaid, that it had at last become necessary that this question should be brought to some termination. Since it had been before the House, it had changed its shape so materially, that he would in the first place, briefly call the attention of the House to the different groundson which the case had been argued. Originally, it was represented by the hon. gentleman, that the whole question was, whether any commission existed that justified colonel Arthur in assuming the military command of Honduras. His noble friend asserted, in the most positive manner, that there was a commission of that nature in existence. The hon. gentleman expressed a strong suspicion, that the commission, if any existed, must have been a fabrication. This statement was certainly one of those which approached the extreme limit of debate. To the positive assertion of n. nobleman holding the responsible office of Secretary of War, he felt that he could not but give implicit confidence. The fact, however, was soon placed beyond all doubt. The commission itself was produced; and it then further appeared, that it was signed by general Fuller in 1814, and had the effect of
466
devolving the military command of the colony upon colonel Arthur. The hon. gentleman opposite, on the production of this document, shifted his ground, tie no longer denied its existence; but he contended, that the commission was not properly worded, and therefore that it did not entitle colonel Arthur to take the command upon himself. The hon. gentleman denied that the commission gave colonel Arthur authority to assume the military command; yet, what were the words of the commission? It empowered colonel Arthur to take the command of all the armed persons in the settlement. But the hon. gentleman insisted, that, this was not explicit enough to warrant colonel Arthur in taking the command of the king's troops. They, he maintained, were not included in the general terms used in the appointment: the commission should have stated distinctly, that colonel Arthur was to have the chief military command in the colony. That was the question at issue between the parties, and it was upon that question the court of King's-bench had to decide when the case was under consideration before that tribunal. The whole inquiry turned upon these points: "Was it a legal commission? Did it entitle colonel Arthur to take the command, not only of the local militia, but also of the king's troops?" The question was clearly settled, in the lengthened argument of lord chief justice Abbott. Having referred to the acts of parliament relating to the subject, and all the official documents which had been produced on the trial, the lord chief justice gave it as his opinion, that the commission, in point of law, did fully warrant colonel Arthur in taking the command of the army in the settlement of Honduras. Mr. Justice Bailey assented entirely to the views of the lord chief justice, and Mr. Justice Holroyd was of the same opinion. Mr. Justice Littledale, who was present, intimated no dissent from the judgment delivered by the court. But there was another objection to colonel Arthur's authority. His regiment had been disbanded; and upon that tact arose the question, whether it did not invalidate the commission granted by general Fuller. Upon this point also, the opinion of the judges of the court of King's-bench was given; and it was expressly staled, that, so long as colonel Arthur remained a half-pay officer, he was as well entitled as ever to hold the commis-

467
sion granted by general Fuller. The judges had no doubt that the mere tenure of his regimental rank made no difference whatever with regard to his right to the command. If the House, then, were satisfied that the commission was in existence, and had confidence in the judgment of the four judges of the King's-bench, they must be satisfied, that, as to every question of law and fact, colonel Arthur was fully justified. Such being the state of the case, he hoped the House would concur with him in resisting the production of any more papers respecting it.
Mr. Bernalstated that, in his opinion, the principal point was one which the right hon. gentleman had overlooked; namely, whether general Fuller had legal authority to grant the commission in question to any officer. It would be seen; by reference to the report of the trial, that the judges did not sufficiently advert to that point. The judges alluded slightly to some evidence that there had been a recognition of a local kind, as to some authority possessed by general Fuller to grant a commission of this nature. But surely it was too much that, in 1825, any uncertainty at all should exist as to so material a point. The judges shrunk from the question, instead of entering into it boldly and manfully. It was their duty, he conceived, to state expressly, whether the Crown had authority, by martial law, or by the ordinary Statutes of the land, to delegate to its commanders abroad, the power of granting commissions, like that given by general Fuller to colonel Arthur. He also thought that it was equally the duty of the right hon. gentleman to elicit from legal authority, the fact, whether such a power was possessed by the Crown. This, he trusted, was not too much to expect in 1827. On the face of the report of the trial, the point had evidently been blinked. Besides, the words of the commission in this case did not give authority to colonel Arthur to command the regular forces. The case of colonel Bradley was altogether one of great hardship, and he would take the liberty of advising' the right hon. gentleman to represent it in the highest quarter, as one well deserving of redress.
Sir H. Hardingesaid, he had not the slightest doubt as to the point adverted to by the hon. gentleman. It was a great absurdity, surely, to argue, that, if any military officer commanding in chief, in
468
the West Indies, for instance, or any officer holding the second command, should die, there should be a sort of interregnum until an appointment to fill the vacant office could be received from England. It would otherwise be impossible to carry on the military government of the colonies. It had been always the custom for the governor to appoint a successor to the command pro tempore, subject to his majesty's future approbation; and that that appointment was valid to all intents and purposes, until his majesty's sanction or disapprobation was received. In this case it was certain that his majesty did sanction the appointment of colonel Arthur. From the year 1814, when he was appointed, the Secretary of State regularly kept up an official intercourse with him, and thereby sanctioned his appointment. The same practice had been constantly followed in every colony belonging to this country, in every part of the globe. Nothing could be more awkward—no precedent more dangerous—than such a rule as the hon. gentleman who spoke last sought to institute. The judges of the King's-bench had no doubt as to the state of the law. They gave their opinion upon it in distinct terms. Lord chief justice Abbott said, expressly, that, "as to the second point, affecting the validity of colonel Arthur's commission, it was for his majesty to determine afterwards whether he would approve of the appointment made by general Fuller, as to the military command of Honduras. According to the facts in evidence, it appeared that his majesty had given his sanction, as colonel Arthur was officially acknowledged and treated as having been duly appointed." There could be no doubt, therefore, as to the approbation, or sanction, of his majesty. The only doubt on the trial was, whether a half-pay regimental officer could hold a staff appointment. He had given his opinion in the affirmative. Any officer receiving pay was, by military law, competent to command. Colonel Arthur did not receive his pay as he might, as a colonel on the staff, merely as a matter of economy, colonel Arthur received the salary of the office of civil superintendent, which he held as well as that of military commandant. There could be no question as to the right of a half-pay officer holding a staff appointment to assume the command. In this very capital, the major of the Tower was a half-pay captain. He was responsi-

469
ble for all the military duties of the place, and a captain, marching in with a battalion could not command there. The major might be tried by a court martial, though he was regimentally on half-pay. The case, therefore, was perfectly clear. He was desirous that colonel Bradley, as an old and a brother officer, should be treated with forbearance. To such treatment he was entitled, by his services and by his misfortunes. But his case was not such as to call forth any expression of the opinion of that House. It would be the height of danger to allow military officers, in distant colonies, to take the authority from their superior officers, from whatever well-intentioned mistake such conduct might proceed. He meant nothing harsh to colonel Bradley personally; but he could not refrain from saying, that when colonel Arthur desired him to attend at the government house, and meet the other officers there, in order that colonel Arthur might then state the whole grounds on which he had assumed, and would maintain, the military command at Honduras; and when colonel Bradley, instead of acceding to this reasonable request, issued contrary orders to the officers, calling upon them to meet him at his quarters at the very time appointed by colonel Arthur for the meeting at the government house, it was impossible to imagine any line of conduct of a more dangerous tendency. Colonel Arthur had shewn a sincere wish to make colonel Bradley acquainted with the grounds on which he exercised his command. Colonel Bradley, however, not only refused to listen to colonel Arthur's statement, but issued contrary orders, calculated to lead to the most mischievous results. He therefore approved of the proceedings which had taken place. The only thing he regretted was the misfortunes of the individual.
Mr. Humemade some observations which were not distinctly audible, and was interrupted by
Lord Palmerston, who wished to inquire whether the hon. member, in stating, that assertions had been made in that House which were not founded in fact, meant the observation to apply personally to him.
Mr. Humesaid, that what he meant to convoy was, that assertions having been made in that House which were not founded in fact, he had rather rely on authenticated documents than on any such assertions.
Lord Palmerstonrepeated his inquiry, whether the hon. member's allusion was meant to apply personally to him.
Mr. Humesaid, he did not conceive that the noble lord was entitled to any courtesy from him; inasmuch as the noble lord had, on a former occasion, said he did not conceive himself bound to answer any question put by him, although he was ready to satisfy the House. The noble lord had no right, therefore, to expect any courtesy from him, after having on that occasion so notedly declined acting as a gentleman. [Cries of "Order, order."]
The Speakersaid, it was the duty of the person who occupied the situation in which the House had done him the honour to place him, to take care that whatever irregularity hon. members might be betrayed into in the warmth of debate, should be rectified, and that any expressions which might be disrespectful to the House, and painful to 'the feelings of individual members, should be explained and retracted. He had understood the hon. member to say, that all he intended to convey by his observation was, that authenticated instruments laid before the House were better evidence than any assertion that could be made in that House, inasmuch as those assertions might be founded upon the particular construction put upon these documents, or the particular inference drawn from them by the persons who made the assertion. If such were the meaning of the hon. gentleman, no imputation was cast upon any individual in that House; and all that could be inferred from the hon. member's observation was, that different persons might form different judgments of the same document. Such an explanation must, he was sure, be satisfactory to the noble lord, although it was evident that the noble lord did not, in the first instance, put the same construction upon the hon. member's meaning as he (the Speaker) had done. With respect to the last observation of the hon. member, he was quite sure that the hon. member must himself feel that it was highly disorderly; and he was satisfied that the hon. member could not have deliberately intended to make it.
Mr. Humesaid, he had been a long time in the House, and had endeavoured never to use language which might he unbecoming in him, or irregular as to the forms of the House. It had often been

471
his lot to bring before the consideration of the House subjects which might be disagreeable to many persons; but he had always tried to do it in a manner which should be as little painful to the feelings of others as possible, He had, however, no hesitation in saying, that in the reply which he had made to the inquiry of the noble lord, he intended to return the same conduct which the noble lord had displayed towards him on the occasion to which he had already alluded. If he had been wrong in doing so, he was sorry for it. A want of courtesy on the part of the noble lord, was the expression which he should perhaps have adopted; and in using that which he did, he was ready to admit that it was not what he exactly meant, nor perhaps that which he ought to have used.
The motions were then negatived.

WRITS OF RIGHT—DOWER.
Mr. Shadwellrose, pursuant to notice, to move for leave to bring in a bill relative to the landed interest of the country, and to what he conceived to be a grievous imposition on their property. The object of the proposed bill was particularly as to the duration of time within which Writs of Right, or real actions, as they were called might be brought, after the period by which the ordinary remedies were limited had ceased. A principal ingredient in the comfortable enjoyment of real property was a secure and unassailable title; but the effect of a writ of right being practically to hold that enjoyment in jeopardy for a great number of years, it was found necessary, at a very early period of our history, to abridge the period within which this writ could be sued out. The first act of the legislature in which they were mentioned was the statute of Morton, made in 1236, in which it was enacted, that, no such writs should be brought for causes which had occurred since the reign of Henry 2nd, that was since the year 1185. In the revolution of time, this period of forty-six years was extended, and, by the first statute of Westminster, made in the first year of Edward 1st, that was in 1275, it was re-enacted, that no writ of right should be brought where the cause of action had arisen since the reign of Richard 1st, or 1199, thus making the period of limitation seventy-six years. The law then remained unaltered until the 32nd Henry 8th, when, in 1540, it
472
was enacted, that no writs of right should be brought after a period of sixty years. From that time to the present, the law had remained the same. In the reign of James 1st, a limitation had been made to other actions, but this was not included. Now, the practical result of this was, not that persons having just claims possessed any greater facility of enforcing them, but that persons who fancied they had claims, and particularly those in the lower classes, were led to indulge hopes wholly without foundation, while the possessors were exposed to serious inconvenience, because they were unable either to sell or mortgage their lands, unless they could show an undisturbed title for a period of sixty years. The bill which, if he should obtain leave, he should have the honour of proposing, would have the effect of limiting this period. He wished to state, that this was no new idea of his, but had been proposed to the House, in 1783, by the late lord Kenyon, and had passed through the committee of the House. With a few alterations the present bill was the same. It was true, that the bill did not succeed then, but that was no reason why it should not succeed now. A greater spirit of inquiry and research was abroad, a spirit of reform in all useful matters was now cultivated by all classes of persons, and especially by the two Houses of Parliament. There was now no longer that stiff adherence to ancient forms and rules, merely because they were ancient, which existed when lord Kenyon brought forward his measure. At present, a title to be recoverable at law, must be what was called a legal title; but when the estate was vested in trustees who had the legal right, while another person was the beneficial owner, that could only be vindicated in a court of equity. Now, at least one half of the real property in the kingdom was vested in trustees, and was therefore more or less, in a state not to be vindicated, if attacked, but in the courts of equity. In a recent case, which must be familiar to every one, that of lord Cholmondeley, it had been solemnly declared, that in equity a suit could not be instituted for land after twenty years had elapsed from the lime of the title's accruing. Now, if this was true, the period of limitation, with respect to one half of the real property in the kingdom would be twenty years, and the period of limitation with respect to the other half,

473
sixty years. The House was called upon, therefore, to make the law, in some degree, consistent; and for that purpose he should propose to limit the period within which the legal title to land might be disputed to thirty years. He proposed, also, to correct a gross abuse which resulted from the present state of the law. As the law now stood, a person having no title whatever, might for the mere purpose of vexation, bring a writ of right against the person known to have the title. He might put him to great expense to prove his title, and after all he was not even compelled to pay costs to the person whom he had wantonly injured and harassed. This abuse he proposed to remedy. There was another injustice which it was his intention to remedy. At present, the party bringing the writ of right was not bound to make out his claim; but the tenant in possession was compelled to make out his title to property, of which he might have been in possession for fifty years. He proposed to make possession primâ facie evidence of the right, and to throw upon the party disputing the right, the onus of proving a better title to the land. He proposed also, to alter the law respecting the manner of taking conveyances, to bar the dower of married women on purchases made by their husbands, by a mode less circuitous and expensive than that which was at present adopted, and by merely inserting in the conveyance words to the effect, that the purchaser should be seized of his estate in freehold, discharged of the dower, or claim of dower, of his wife. The hon. and learned member concluded by moving for leave to bring in a bill, "for the limitation of a Writ of Right, and to amend the Law with respect to Dower."
Mr. Lockhartthought the landed interest were much indebted to the learned member, for the measure which he proposed to introduce. He could have wished that the learned member had proposed some remedy for the evil arising from outstanding terms, which created great difficulty in the perfecting of titles. At present, persons were frequently obliged to consume years in finding out the next of kin, in order to take out letters of limited administration, at a most enormous expense. There was another evil which called for a remedy. A bill in chancery was held to be notice to all the world; and if a bill in
474
chancery, disputing the title to landed property, had been filed, within a period of sixty years, and afterwards dropped, it nevertheless operated as a bar to the transfer of such property. The learned gentleman would do a real service, by remedying the law in these respects. He felt the more fortified in this opinion, seeing that it was supported by that illustrious man (for so he would call him), Mr. Charles Butler, a gentleman not only versed in law, but in every human science; the ornament not only of his profession, but of literature.
Mr. D. W. Harvey, after some observations upon the practice of conveyances, and the facility with which they entertained any objections to a title when they might be made to form grounds of proceedings in a court of equity, expressed his surprise and regret that the learned gentleman had not moved for the appointment of a committee to investigate the state of the laws with respect to real property, rather than, by proposing a partial and unequal remedy, to disappoint the expectations formed by the public upon any thing which might emanate from a man of the learned gentleman's character and legal reputation. If, however, the learned gentleman did not move for that committee, he would himself, at an early period, propose that the whole of the laws relating to real property be subjected to the revision of a committee of the House.
Mr. Humeexpressed his conviction of the necessity of such a committee, and condemned any measure which did not put some bar to the claims of the clergy for tithes. Some of these claims were carried back four hundred and fifty years; and unless a general system of reform was introduced, they would patch without relieving those difficulties which deteriorated the value of land to the extent of four or five years' purchase. The learned gentleman's bill seemed, indeed, to be but a patch, and he agreed with the hon. member, that it would disappoint the hopes of the public.
Mr. Shadwell, in reply, declared himself willing to lend the benefit of any little experience which he might possess, to any measure which the House might adopt towards a reformation of the law of real property; but he thought they ought not to reject the remedy of one grievance, because they could not obtain their wishes with regard to all. Men differed with respect

475
to what was a grievance, as well as upon the remedies to be applied to them; and he could not but think that by doing a little at a time, they might gradually acquire all, while if they were to wait until all were agreed, no man in the House was likely to live to benefit from their labours.
Leave was given to bring in the bill.