said, the Motion which he had then to bring forward was upon a subject which appeared to him of very great importance. Ten days ago he presented a Petition to the House, complaining of the punishment inflicted upon a private in the Scotch Greys, of the name of Somerville, under circumstances, certainly, which were of a singular nature, and involving an important question, deserving the attention of the House; a question not less than this—whether an Englishman, becoming a soldier, was to be deprived of all his rights as a citizen? He had always considered that a soldier never lost his rights as a citizen by becoming a soldier. Now, it appeared to him, that had not Somerville written to the Editor of The Weekly Dispatch, a letter, stating certain opinions, he would never have met with the punishment which was inflicted upon him. Somerville was a gardener by trade, and about four months back, enlisted into the Scotch Greys. Up to the period to which he had been charged with improper conduct, no complaint had been urged against him. He had regularly attended drills, and had conducted himself so as to insure the same treatment which others of his comrades experienced. The hon. Member here read a passage from the letter, which appeared in The Weekly Dispatch, and said, that when the newspaper containing that letter reached Birmingham, some inquiry was made as to the author. Somerville, being questioned upon the subject, immediately acknowledged that he had sent the letter. He was desired, although only a recruit, to ride with a class which he had never been called upon to ride with before. The hon. Member read an extract of the account given by Somerville, of his conversation, with Major Wyndham, showing that the Major was very much displeased with the man for writing the letter. The horse upon which he mounted was raw, and required a skilful rider, and Somerville could not accomplish it. He disputed with 30 the person who was in the school at the time, and, on being desired again to mount, he would not. This certainly was a breach of duty, but not deserving the heavy punishment with which it was visited. The statement which he (Mr. Hume) made was authentic, and capable of being substantiated on oath. When the regiment was drawn up in the riding-school to witness the punishment of Somerville, Major Wyndham addressed them for upwards of a quarter of an hoar, on the heinous offence of writing such letters. Now, it was a usual course to address soldiers about to be punished, on the magnitude of the offence of which they had been convicted; but, in this instance. Major Wyndham harangued the regiment, for upwards of a quarter of an hour, upon the wicked libel which Somerville had written, and upon the impropriety of a soldier's expressing political opinions, and giving encouragement to the mob; but he said little or nothing about the heinousness of the offence which was nominally the cause of the punishment which the regiment was called out to witness. Now, when the House took into consideration, not only that the political offence, or what was said to be a political offence, was the theme of the commanding officer's address to the regiment; and that in a conversation, which that officer (Major Wyndham) held with Somerville, previous to the court-martial, related altogether to the "libel," excepting only the one allusion to the situation to which the soldier had got himself, and which also was connected with the political offence, by the Major's adding, "that it would make him repent of what he had done"—that is, of writing the letter. Prom all these facts, it was impossible not to see that the man was, in reality, punished for the expression of his political opinions, and not for the alleged breach of discipline. But there were still other facts, which proved beyond all question, that the breach of discipline was laid hold of as a pretence for punishing Somerville. On the very day after the flogging of that man, a private, called Andrew Scott, flatly refused to go to the school. Well, was he flogged? No such thing. The only punishment was confinement to the yard for twenty-fonr hours, and the being kept to the barracks for another day. He (Mr. Hume) begged the House to consider the difference between the two cases. Here was Scott refusing, in defiance of all dis- 31 cipline, to go to the school at all, or attempt to perform his regular exercise, on the day after Somerville had been flogged for refusing to do what he had vainly attempted to do; the latter being a recruit, and his removal into a higher class, and his being ordered to ride an untrained horse, having all taken place within a few hours after he acknowledged himself to be the writer of the letter to The Dispatch. If his refusal was so deserving of punishment, why was the more culpable refusal of the other man (who had the example of the previous day's punishment before him) passed over with comparatively no punishment? If Scott believed that the punishment of Somerville was really inflicted for his refusal to do what he had attempted to do, and found to be impossible, would he (Scott) venture to refuse making any attempt, or even going to the school? Assuredly not. It was plain from his conduct, that the regiment very well understood that the letter was the real offence. A strong corroboration of this was, that on a few days after the flogging, some officers of the regiment attended the theatre, and received some marks of disapprobation from a part of the audience; and, in the course of that evening, some of the privates got into a squabble with the towns-people, in consequence of what took place in the theatre. The soldiers, being intoxicated, returned at a late hour to the barracks, with their clothes torn, and in such a condition, as would in a strict, or at least in a very severely-disciplined regiment, subject them to punishment. However, although their conduct was much more disorderly than Somerville's, they were not punished. Yet such was the severity with which that man was flogged, that although the punishment was inflicted so long as seven weeks ago, and he had received only 100 lashes, he was still confined to the hospital, and was in a bad way. The treatment which he had experienced since the flogging, was a great aggravation of the punishment. His removal from Birmingham to Coventry, on account of the feeling which was expressed towards him in the former town, had retarded his recovery. Was such a case to be passed over by that House? Was it to be allowed that a man should be treated in such a way for the expression of his political opinions? He had always understood the constitutional doctrine to be, that a private soldier 32 was not only to think for himself on such questions, but that he was actually bound to know the law, and to refuse to obey his officer in doing an illegal act. He had known many instances in which privates were tried for their lives, for having acted upon the illegal orders of their officers. But it would be absurd to say, that a private could be responsible in such cases, if it was to be held that he should take his political opinions from his officers, and that he was liable to be punished for thinking for himself on matters in no way connected with military discipline. The hon. Member then read a passage from Blackstone, to show that, in free States, a man, so fur from losing the rights of citizenship by becoming a soldier, was to be considered as having become a soldier, "that he might continue to be a citizen," and protect the rights of himself and his fellow-citizens. But, he would ask, in what was the conduct of Major Wyndham to this soldier Somerville consistent with that doctrine? If such conduct was to be tolerated by the executive, and passed over by that House without reprobation, then the British soldier must henceforth be considered, not as a citizen, but a slave. What the consequence was to be, he should leave to the Secretary-at-War to consider. But if the doctrine was to be admitted in respect to privates, why should not the same rule be applied to officers? But he knew many Officers in that House, who were in the habit of expressing their political opinions very freely, and not only in that House, but in places where their privilege of Parliament could not be pleaded to protect them, and he would put it to the Secretary-at-War, whether, if it was to be the law that privates should be punished for political opinions, certain Officers—hon. and gallant Members of that House—should not be flogged for expressing their political opinions in the strong language in which they sometimes indulged. He wished some hon. Member connected with the law or the army, would inform him whether such was to be the law, or Blackstone was right? If Blackstone was wrong, then he would say, that it was most dangerous to the liberties of the British people, that there should be in this country so many thousands of armed men entirely subject lo the tyranny of their officers, and bound to obey their commands implicitly, and to take their political opinions from 33 them. That was a state of things which ought not to be allowed. [Sir Charles Wetherell: Hear, hear.] He would tell the hon. and learned Gentleman, upon the authority of Blackstone, that a standing-army, ruled under such doctrine, could only be suffered under a despotic Government; and if the hon. and learned Gentleman would assure him that such was the received doctrine at present, he (Mr. Hume) trusted that the next Parliament would place the law upon such a footing that, if there was to be a standing army, the soldier should not cease to be a citizen. When he last spoke in that House upon the case of Somerville, he abstained from pressing any motion at that time, because he understood that the right hon. the Secretary-at-War had not yet received any information; and he hoped that, by postponing the Motion, the right hon. Gentleman would be enabled to explain the circumstances, and to state what were the views of his Majesty's Government upon the whole transaction. There were now two courses open for him (Mr. Hume) to pursue. One was, to move for the appointment of a Committee of the whole House, to inquire respecting the legality of punishment inflicted upon a soldier by sentence of court-martial for the expression of a political opinion; and that evidence should be heard at the Bar of the House: for, although this was but a solitary case, yet it involved a question which concerned the rights of the whole people, and affected the liberties of every individual. But that was a course which it might not be necessary to adopt, and there was another which he thought might answer the purpose. He should move for a copy of the accusation against Somerville, of the minutes of the court-martial, and of the sentence; and the report of the commanding officer as to whether the whole sentence was carried into effect. This Motion would enable hon. Gentlemen opposite, connected with the War Department of his Majesty's Government, to explain the real nature of the circumstances connected with the punishment of Somerville, and to show whether or not that soldier's statement of his own case was correct. From this explanation he should be able to determine whether it might be necessary for him to found any other motion upon the papers for which he now moved. But he should reserve to himself to consider whether or not he 34 should take some ulterior step to ascertain what was the opinion of the Government respecting the interference of a soldier's military duties, with his political rights. He concluded by moving for the Return of Papers (which he had already described) relating to the Trial and Punishment of Private Somerville, of the 2nd Dragoons.
§ Mr. Hunt seconded the Motion.
Sir John Hobhouse
said, that he was never more taken by surprise in his life than on the present occasion, for he had not the least idea that such a motion as the one before the House would have been brought forward, and he could not help thinking that a regard for the courtesy which prevailed even among political opponents, to say nothing of those who, for many years, had been engaged in the same cause, should have induced the hon. member for Middlesex to give some intimation of the course he intended to pursue. But, it appeared, that the hon. Member himself hardly knew the course he should follow, having so recently decided on one of two modes of procedure which, he stated, were open to him. With respect to the first plan, it was unnecessary to touch upon it, as it had been abandoned. The hon. Member had contended, that a man by becoming a soldier did not lose his rights as a citizen. He did not know that any one had asserted an opposite opinion; the proposition, therefore, not having been laid down upon one side, he could not see the necessity of combatting it on the other. The difficulty he felt in replying to the statement lay altogether on its being-founded upon that of which they had no parliamentary cognizance. The hon. Member held a private document in his hand, which he described to be so authenticated as to justify their consent to the production of the documents for which he had moved. If this were assumed to be a correct mode of proceeding, the only thing any hon. Member would have to do would be, to make a number of charges, and say, "If you have anything to produce against these charges, you will agree to an inquiry." He had no hesitation in saying, in the case in question, he had felt it his duty to call for the proceedings of the Court Martial, and he had not found in them the slightest mention of what had been adduced by the hon. member for Middlesex. He should be greatly shocked if, at this or other times, a soldier, who 35 was alleged to be punished for one offence, was, in reality, punished for another. There was no man—no Member of Parliament—no Englishman, who would be found dishonest enough to defend such a proceeding. He looked, however, to the proceedings of the court martial upon the one hand, and he found not the slightest allusion to the speeches said to have been made by Major Wyndham, or of any offence relating to a newspaper; he looked, on the other hand, to the fact stated by his hon. friend, that speeches were made before, and at the time of the punishment, which showed that the real offence committed by this man was not the having been guilty of disobedience of orders, but the having participated in political opinions which his hon. friend said was not a disgrace, but was, in fact, an honour; and, looking at these circumstances, and seeing nothing of this kind upon the proceedings of the court-martial, how was it possible for him to give credence to the statement which had been communicated to the hon. Member? How could he on ex parte statement suppose—nay the supposition was not enough—take it for granted, that an officer high in command, a gentleman of rank and station, at the head of one of his Majesty's regiments, ordered a soldier to receive a punishment—as his hon. friend characterized it, an extremely severe one—for an alleged offence, when the real cause of his punishment was, the having delivered a political opinion? It was fortunate for him, at least, that his hon. friend had not, on this occasion, at all taken into consideration the question of punishment of this description. That left him quite at liberty to deal with the question entirely on its own merits, and he would appeal to any hon. Member whether he could be expected to accede to the Motion thus introduced, without any notice. Considering that, in his situation as Secretary at War, it was necessary for him to consult the military authorities with whom he acted, surely it would have been but fair in his hon. friend to have given him notice of his Motion ere he laid it before the House. He did not know whether there existed any particular objection to producing the proceedings of this regimental court-martial. He believed that a soldier had a right to call for the minutes of general Courts; but he was not aware that he had this right with regard to a regimental Court. 36 There was, he repeated, nothing whatever in the proceedings of the Court to justify any appeal on v/hat had been admitted to be an ex parte statement. As to the measure of punishment, whether it had been excessive or not, he was not called upon to deliver an opinion. The question was, whether sufficient grounds had been shown for laying the proceedings of the court-martial before the House. Had notice been given, he should have consulted with the usual authorities, and should have known the line it was proper to pursue. On the first glance, he did not think there was any precedent to authorize the production of the proceedings. He was not, at the same time, aware of any objection to bringing them forward, except that the House had hitherto been extremely chary of interfering in matters of military discipline. Of course, where there had been any excessive exercise of the prerogative vested in military officers, the House had a paramount authority, as it had in all cases the right to call for such inquiry as it might deem necessary. But his hon. friend had proceeded on one ground, and the court-martial on another, and he could not believe it possible that any colonel of a regiment would do such a thing as that which had been set forth to the House. He would ask, if any Gentleman who heard him had ever known of such transactions?
Sir John Hobhouse
said, that he did not recollect to have heard of such cases, and that the grounds upon which he had always opposed flogging in the army were quite independent of any oppression that might be committed on account of political opinions. He had only to repeat, that he could not accede to the Motion, as he had not had notice of his hon. friend's intention to make it.
§ Sir Charles Wetherell
would support the right hon. Gentleman, the Secretary at War, in his opposition to the Motion. He thought that the hon. member for Middlesex had preached a most extraordinary and unconstitutional doctrine. He knew nothing of the case, but what he had picked up from the speech of the hon. Member himself The private, Somerville, had been tried for a military offence by the competent tribunal; and the complaint made was, that that tribunal was influenced 37 by the circumstance of his having previously done something which was supposed to amount to a political offence. But if there had been anything improper in the conduct of the court-martial, the proper mode of appealing against the decision of the Court was, by an application either to the King himself directly, or indirectly through the Commander-in-chief. But if that House were to constitute itself into a Court of Appeal from the military Courts, it would, in fact, place itself in the position which was taken by the House of Commons in the time of Charles 1st, when it assumed the command of the army. At the same time, no man would deny, that the House had the power of interfering, if a case of abuse should have been clearly established against a military Court, or against any other Court. But as no case had been made out by the hon. member for Middlesex, he hoped that Gentleman would see the propriety of withdrawing his Motion.
§ Mr. Tennyson
had not received any intimation of the course which his hon friend, the member for Middlesex was determined to pursue, until he heard him make the present Motion. He was not prepared, therefore, to say whether the course which he had adopted was or was not the best, by which he might have brought the case before Parliament. But he would say this, that he never heard a case which more urgently called for investigation in that House than that which had been made out in the statement of his hon. friend. His hon. and learned friend who had just sat down, had stated that the House would be authorised, only by a case of great abuse, in interfering with the proceedings of courts-martial, or of any other Courts. But that statement implied an admission that the hon. and learned Gentleman himself was opposing the Motion upon insufficient grounds; for surely there never could be a case of grosser abuse than that which his hon. friend had stated. Whether or not the statement could be substantiated, it was of such a nature that the House ought to institute some inquiry, although he could not say in what form the inquiry was to be made. The House ought to be informed by the right hon. the Secretary at War, whether or not he had examined into the circumstances. For, although his hon. friend (Mr. Hume) had not given notice of the precise form of the 38 Motion, yet he had already drawn the attention of the Government to the case, and the attention of the whole country had been drawn to it—nor had any case ever created a stronger feeling of surprise and indignation amongst the people. If the statement of the hon. member for Middlesex was correct, there could be no doubt that the man had really been flogged for his political opinion, and he (Mr. Tennyson) was glad to hear his right hon. friend deny that the statement was correct.
Sir John Hobhouse
What I said was, that there appeared nothing in the minutes of the court-martial to justify me in supposing that there was any truth in the statement that the man was punished for a political offence.
§ Mr. Tennyson
was glad that his right hon. friend (Sir John Hobhouse) had stated his opinion, that a soldier could not be punished by a court-martial for the expression of his opinion on a political question. If such a punishment as flogging was to be continued, he trusted that the House would at least take care that the power to inflict it could not be abused as in this case. He would support the Motion.
§ Lord Althorp
said, he must complain, that the hon. Gentleman had not given notice of his intention to bring forward a Motion so unusual. It was said a man had been punished for an offence which did not subject him to a Military Court, under the pretence of his having committed a military offence. He (Lord Althorp) agreed, that, if that was true, the transaction was one which called for the severest reprehension. But this was a case in which the House ought not to proceed, unless very strong ground should have been made out; nor ought it to interfere with the proceedings of a court martial upon the unsupported statement which had been made by his hon. friend (Mr. Hume), on the authority of the individual himself who complained of being aggrieved. He entirely concurred with his hon. friend, that a soldier had a right, in common with every other Englishman, to express his opinions upon questions of politics. But there must be a line drawn, beyond which that, right should not be exercised; and he thought it a question of very great delicacy and difficulty, to determine where the line should be drawn in the case of a soldier. There was at present no reason for going into the discussion, and he put it to the House, whether the Motion 39 ought to be agreed to, notice not having been given of the hon. Gentleman's intention to make it.
thought it but reasonable the House should acquiesce in the Motion, for it went only so far as the production of the minutes of the court-martial and the sentence pronounced. It was not the province of that House to take into its consideration the question of how far it was competent to a court-martial to punish for a breach of orders or of discipline. That was a subject of too much delicacy for the House to intermeddle with, but the House would never suffer that the sentence of a court-martial should be applied to the purpose of inflicting covertly a military punishment on a soldier, for something else which made no part of the accusation against him upon his trial on the court-martial. Surely this Government in particular would never shelter a proceeding of so grossly unjust a nature as this, if the facts were as had been stated. But the complaint now made was, that this soldier was not only punished disproportionably to his alleged offence, but that by regimental arrangement, a trap was laid for him so as to cause him to commit this act of insubordination, and thus afford an opportunity, under cover of this sentence, to inflict not punishment for this offence, but vengeance for something industriously kept out of sight, namely, the offence of a political kind committed by him in writing a letter to the Dispatch newspaper. This trap consisted in the man's being removed into a higher grade (for which, not an hour before, he had been pronounced unfit), in consequence of which he was appointed to ride an undisciplined horse which he could not master, and which caused the man's refusal to peril his life wantonly, having been but four months in the regiment. And yet it was alleged that this was made the pretext for inflicting on him a severe and brutal punishment, for that which was not in fact a military punishment cognizable by that Court. The right hon. Baronet, the Secretary-at-war had said, forsooth, that this part of the grievance complained of, did not appear upon the face of the proceedings of the court-martial. No one could expect that it should—or that the finding of the court-martial should specify, that the sentence was carried into execution, "because of this man's having written a letter to the 40 Editor of the Dispatch." He conceived it would have been highly becoming in the right hon. Baronet to have made personally the proper inquiry into these facts, whether they were true, as stated in the petition, before he had attempted to set up such a defence for the punishment inflicted. As no denial of the allegation in the petition was attempted, he must take those facts as so far proved, that the right hon. Baronet was bound to have instituted an inquiry officially into their truth; and the House, of course, in the absence of all such endeavour on the part of that right hon. Gentleman, was also bound to institute that preliminary inquiry, the first stage of which would not be accomplished without the production of these minutes. Five weeks had elapsed since that man had received these 100 lashes, with a severity which it appeared still confined him to the hospital; and yet the officers arraigned by this petition, had not thought it their duty, as he felt they should have done, to volunteer a statement in their own defence.
§ Mr. Robert Grant
knew nothing of this case, except what was contained in the petition presented to the House. He agreed in the statement of the case made by the hon. and learned Gentleman; he admitted the superior power of that House, but he contended that the case, so stated, did not warrant the exercise of the delicate jurisdiction which was vested in the House of Commons. There were other ways of coming at the real nature of the case, which might, and should, have been resorted to before the hon. member for Middlesex applied to the House. The hon. Member might, for instance, have applied, in the proper quarter, for an inspection of the minutes of the court martial; and, after reading them, he could then have ascertained whether there was any just ground for the more solemn proceeding of an appeal to Parliament. With reference to what had been said of the conversation that took place between the commanding officer and the soldier, and to the assurance, that if the soldier expressed his contrition for the one offence, he should not be punished for the other, he was confident that the conversation had no effect on the minds of the five gentlemen who composed the court-martial, and that they decided purely on the evidence brought before them. Of this court-martial the 41 commanding officer, with whom the conversation was said to have taken place, was not one; and he was confident—relying, as he did, on the honour and probity of five gentlemen, bound to administer justice on their oaths; that the soldier was tried and sentenced for the military offence alleged against him, and not for any political offence which might have been known to the commanding officer. He said that common justice, common fairness, common consideration for men discharging a judicial duty upon their oaths, ought to be set against the conversation which was alleged to have taken place. He did not, in his conscience believe that the court-martial inflicted this punishment as a punishment for a political offence. Why did he think so? Because that was but justice to the judicial persons who stood between the soldier and the commission of his first offence. Those persons must receive that credit from the House which those holding high judicial stations always had, and justly claimed. Let the House suppose, however, that this was not the fact, but that the court-martial began with a feeling, and with a view of punishing an offence that was not charged. Did this individual, or did he not, commit an offence within the Articles of War, subjecting him to this punishment? Was the finding of the Court, that he had committed the offence right, and was the sentence just, that that offence should be so punished? Suppose this were not the case, were there not a hundred safeguards to prevent the improper exercise of this description of power? Did not this soldier stand before a court-martial to make his defence? He was a person, too, apparently, well able to express his opini-ions—indeed, that was stated to be his real fault. Had he any ground for denying the military offence? Was there no proof of its commission? Was there nothing which called for the pronouncing of this sentence, and the infliction of this punishment? If not—if these persons did punish this man, actuated by unjust and private motives of their own, were they not liable to the severest punishments, both civil and military? There were many good common lawyers in the House, who could answer that question much better than he could. Was it permitted in this country for a number of persons to conspire together in order to 42 abuse the judicial authority? Was there no remedy? Had application been made at head-quarters? After all, were the military officers, generally, so indifferent to the interests and the welfare of the soldiers, as to permit such an act of injustice to pass unnoticed? Was there no justice in any quarter, and was it a common occurrence, that a person oppressed by an unjust court-martial should cry in vain to the fountain of all justice? He said, that there was not now before the House a sufficient degree of evidence to justify it in taking that step, which he did not, however, say it might not be obliged to take hereafter. He admitted all the general principles that had been laid down in the course of this discussion. It was quite absurd to say, that every soldier was debarred from exercising his judgement on matters passing around him, so that he acted consistently with a proper observance of military discipline. He did not dispute the civil rights which belonged to the soldier, but, he said, that although the soldier possessed those rights, he might be wrong in the frequent exercise of them. His noble friend had very justly observed, that it was not fitting that soldiers should always assume the character of political disputants. There was another principle which he thought would not be controverted; namely, that they ought to look with jealousy on the deliberations of those who deliberated with arms in their hands; a principle, in his opinion, quite as important as civil liberty itself. When this question was before the House on a former occasion, this court-martial was represented to be a district court-martial. It did not appear to have been so, and all he could say with respect to it was, that even supposing, as he was very unwilling to suppose, that the commanding officer was influenced in acting as he did from political opinions, which he did not and could not believe—he said, even supposing that to have been the case, he could not believe that the members of the court-martial would lend themselves to such an atrocious act of oppression, nor did he see one allegation in the petition, or the letter produced by the hon. Gentleman, that connected the conversation of the commanding officer with the court-martial itself. He had no doubt that the gentlemen who composed the court-martial, not only acted in rigid observance of their oaths, but that they possessed feelings 43 which, he was sure, were not scarce in the hearts of British officers—lie meant, regret and commiseration for the private soldier against whom the offence was charged, and a determination not to find him guilty until it was clearly proved against him—above all, not to punish him for an offence not committed, or not proved against him. He would say in conclusion, as that court-martial was acknowledged to have been held with strict propriety, and the punishment awarded according to the Articles of War, he certainly did not see the use or necessity of producing at present the papers which were required.
§ Mr. Edmund Peel
was satisfied, from what he knew of the manner in which courts-martial were conducted, that the soldier had been fairly tried for the regimental offence alleged against him. He would venture to assert, that the allegations of the hon. Member were not founded in fact. He should, however, vote for the production of the minutes of the court-martial, in order to do justice to the character of Major Wyndham.
Burdett would vote for the Motion, whether it was pressed now, or withdrawn, to be produced hereafter in an amended form, as a method of procuring a satisfactory elucidation of the case. The question at issue was important to every class, for there could be no doubt that the punishment awarded on this occasion greatly exceeded the measure of the offence. The hon. Member opposite said, that it would be attended with danger if the soldier were allowed to discuss political subjects. He did not think so; for, as Blackstone says, "a soldier puts not off the citizen when he enters the camp, but it is because he is a citizen, and would wish to remain so, that he makes himself for awhile a soldier." The bounds of military obedience had not been clearly defined; for there had been cases in which soldiers had been brought before Courts of Justice for obeying the orders of their offcers. It was perfectly clear that this matter was left in a vague condition, and it was the duty of the House, in a time of profound peace, to revise the law relative to military discipline. The power which was at present allowed by the Mutiny Act was much too great, and, as was said by Blackstone, "Perhaps, in some future revision of this Act, which was, in many respects, hastily penned, it may be thought worthy the wisdom of Parliament 44 to ascertain the limits of military subjection and to enact express Articles of War for the government of the army." Blackstone carried his doctrine to an extent which, in the present day, would be considered dangerous. The hon. Gentleman who spoke last but one, displayed a great deal of ingenuity in his mode of treating this question; but he must excuse him for saying, that he would perplex a plain case. When, therefore, he said, that there was no truth in the statement, and when charges were made, that the soldier was punished on other grounds than those upon which he was tried—there was sufficient reason to call for inquiry. Colonel Wyndham, from what he knew of him, was the very last man whom he would suppose likely to be guilty of anything approaching to cruelty or oppression. He admitted that; but it was necessary for the safety of the soldiery, the satisfaction of the public, and, still more, for the character of Major Wyndham, that the case should be fully understood. He should vote, therefore, for inquiry; for he believed, that if there was one duty of the House more important than another, it was, to watch over the courts of justice, and to see that they did not go beyond the limits marked out by the law. To prove that this had ever been the practice, he would refer to the circumstance of appointing a Committee of Justice at the commencement of every Session, to prevent irregular proceedings in military, as well as civil, courts. He regretted that he was not in the House the other night when the hon. member for Preston brought the general subject under the attention of the House, as he should have availed himself of the opportunity of going more at length into the subject. He had flattered himself that flogging was hardly ever practised in the army, but, unfortunately, the practice seemed of late to have been growing up from the comparative disuse into which it had sunk. He said, the practice had increased, for he was sure, that recently no person could have read the papers who must not have been shocked with the accounts of the punishments inflicted upon soldiers. The argument which had been urged, that all the officers in the army were men of honour, did not appear to him to be entitled to much weight, for men would do things under particular circumstances, which they would not do in a different situation. He be- 45 lieved, that men of higher honour and of greater humanity, did not exist than the officers of the British army; but supposing severe discipline necessary to secure the efficiency of the array, they reconciled themselves to practices of which their hearts and their better reason disapproved. He did not intend to impugn the proceedings of this court-martial, for he had not sufficient evidence to give an opinion on the subject; but he maintained that the state of the public mind rendered inquiry necessary. Within the last twelve months, general attention had been directed to this subject, and there was a feverish anxiety that the practice should be got rid of. He therefore implored and entreated his Majesty's Ministers to take the whole subject into their consideration, and look over the articles of war, with a view to correct such abuses as might exist under them. He thought that the present period was peculiarly adapted for the examination of the whole question, and he trusted that it would be proceeded in without delay. As to the power in question of subjecting men to this species of torture, the thing was monstrous, and the abuse of it intolerable. It had been said, that it would be most unsafe to abandon this power, but surely it could be much lessened without danger, and there could be no doubt that the crimes for which it was to be inflicted should be most accurately denned. There was no one—he would not say a humane man, but no man, however desirous of keeping up the discipline of the army, who would not say that the power of punishment should be exercised with the greatest forbearance. The hon. Baronet in conclusion praised Mr. Shipp, and again entreated the Ministers at once to revise the Mutiny Act, and take away the possibility of the recurrence of such offences.
§ Sir Robert Peel
said, the charge was, that a soldier had been punished for one offence, having committed another; and that was a question totally distinct from the corporal punishment to which the hon. Baronet had endeavoured to direct the attention of the House. He, thought it would have been better if that question had been left untouched; but, convinced as he was, that if they constituted themselves a tribunal for the examination of the proceedings of this court-martial, on the mere statement of the offender, they would have a petition for the same purpose 46 from every person who might hereafter be tried, he should certainly vote against the Motion. By consenting to constitute themselves a tribunal on such grounds, for the investigation of the proceedings of a court-martial, they were withdrawing from the officers of the regiment, and from the Commander-in-chief, the whole of the authority delegated to them by Act of Parliament, and at the same time placing the matter under the worst possible jurisdiction which could be selected. He candidly admitted that nothing ought to be more severely condemned, than that an officer should accuse a soldier of one offence, and cause him to be punished for another. He would begin by stating this; but he must at the same time say, that it would be utterly impossible to maintain the discipline of the army, if soldiers were allowed to be political partizans, correspondents of newspapers, or members of political clubs. Then, indeed, a standing-army would be in truth a curse—then might they bid farewell to civil liberty. He thought, accordingly, that it was fully in the power of the officer in command to interdict a soldier's communication with the newspapers, and prevent him from being a member of a Political Union. He denied the truth of the doctrine, that a soldier continued to enjoy all the rights of a citizen. It was quite clear the soldier must forfeit that portion of his civic right which would interfere with the discipline of the army. But to address himself to the matter immediately before the House. The question simply was, had they sufficient prima facie evidence to induce them to believe that this individual had been punished for one offence while he had been accused of another? The expediency of corporal punishments had nothing to do with this charge; and it was most improper to appeal to men's passions on this topic. Now he did not think a prima facie case had been made out; he disbelieved the charge. He could not believe that Major Wyudham and the other officers on the court-martial could have violated their-oaths by trying a soldier on one charge and punishing him for another. He did not believe that Lord Hill and the other superior officers of the army would have suffered the proceeding to pass unnoticed, if anything appeared against this line of conduct pursued by Major Wyndham. Wishing, therefore, to leave the army to its natural protectors, desiring not to establish 47 a precedent for the interference of the House of Commons in such matters, which must be fatal to the discipline of the army—he would give his decided vote against the proposition of the hon. member for Middlesex, however it might be shaped.
was quite convinced, that it was impossible the charges brought against Major Wyndham and the other officers could be founded in fact. The charge against the prisoner was necessarily referred to one or more of the Articles of War, and this most strictly, and no verdict could be given except upon the charge. He was quite convinced that the court-martial had been properly conducted, and that the officers upon it had acted as became gentlemen and men of honour.
§ Mr. Hunt
did not understand how Gentlemen could complain of having been taken by surprise, as the subject had been so long before the House. The hon. Baronet had denied that soldiers had a right to express their political opinions when not on duty. If that was so, every military Officer in that House should be restrained in the expression of his political opinions. It was said, there was no complaint against the Commander-in-chief. He complained of the conduct of the Commander-in-chief, because the charges had been published in all the public papers, and no inquiry had been instituted by that officer. It was most extraordinary that his Majesty's Ministers should resist the Motion. The man had been tried for one crime, and punished for another. After the soldier had written the letter to the editor of a paper, he was ordered to ride an untrained horse. When dismounted, he refused to mount again, and was tried by a court-martial. That was the charge, and his hope was, that the Motion of the hon. member for Middlesex would not be rejected. He thought the Secretary-at-War ought, at least, to discharge the man, and send him about his business, in order that they might have the benefit of his testimony at their bar.
§ Sir Ronald Ferguson
thought it better that the matter should be left to the military authorities, who, he had no doubt, would do justice to the injured party, and who, he could take upon him to say, were uniformly disposed to act in the humanest manner, compatible with the efficiency of the service, towards the soldiery. Within his own period an immense progress had been made towards doing away altogether 48 with corporal punishment in the array; so much so, indeed, that he would say, that the time was arrived when the experiment might be tried, so far as the home service was concerned, though he feared that it would not be possible to preserve the discipline of the army in the colonies, unless the commanding officers possessed some discretionary power with respect to the infliction of bodily punishment.
, if the statements made against Major Wyndham could be proved, there could be no doubt that he should no longer remain in the service. He must add, however, that he had known Major Wyndham for years, and he could say, that from all he could gather from the facts of the case, and even from the petition itself, there was not the least ground for the charge against him. Notwithstanding these circumstances he would vote for inquiry, because he was well aware that no individual could be more anxious for it than Major Wyndham himself, and he was sure he would come out of the inquiry with credit. The petition bore on the face of it three or four falsehoods. It stated, for instance, that the soldier had received 100 lashes, and had been sent back to prison to receive the rest at another time. This was contrary to law—it was contrary to fact—and, seeing such a falsehood stated, he had a right to doubt the rest.
gave great credit to the noble Lord who had just spoken, for the way in which he had argued the case. He would admit that it was a subject for inquiry, but, after the statement made by his Majesty's Ministers, he could not see how the hon. member for Middlesex could persevere in his Motion. He would, therefore, recommend him not to press his Motion. If it should turn out that there was any truth in the statements, he would be the first person to assist in bringing the offender to justice.
thought, it would be time enough for the House to think of interfering, when it was seen that the military authorities had neglected to make the proper inquiry.
Sir John Hobhouse
said, in allusion to what had fallen from the hon. member for Middlesex, that he had been taken by surprise, for he did not know that the petition was to be brought up on that evening. He, therefore, had not made himself acquainted with the sentiments of the Com- 49 mander-in-chief; and it would be a want of courtesy to lay the papers moved for before the House without consulting; him. The only question, therefore, before the House was, whether, in the present state of the proceedings, it would be proper to accede to the Motion. He thought it would not, and should vote against the Motion.
said, that the right hon. Gentleman begged the question altogether. He said, there was nothing in the charge respecting a political offence. Of course there was none. The right hon. Gentleman admitted that a man became a soldier in order to defend his rights as a citizen. Well, then, when the man was off duty, surely there could be no great offence in his expressing his political sentiments. It was true that there were ex parte statements. His very object was, that the other party should be heard. It was a reflection on Lord Hill that he had not yet taken notice of the subject. There was, therefore, no means of appeal but to that House, and that was the reason why he brought forward this Motion. After the candid and manly observations of the noble Lord opposite, he did not wish to press the question in a manner to which the noble Lord might object. He was prepared, therefore, to withdraw the present Motion, and give notice of a Motion for this day week, to refer the petition to a Select Committee. He did this in order that no one might accuse him of taking the House unprepared.
§ Motion withdrawn.