HC Deb 11 July 1833 vol 19 cc592-608
Dr. Lushington

rose to move for the production of the minutes of the Court-martial on Captain Robison. He said, that he had on a former occasion presented a petition on the subject, and he had no hesitation in saying, that the principles upon which Courts-martial were constituted had been violated in this case. His object was to obtain justice for an injured individual by means of that House, which was now the only tribunal which could administer justice to him. He would shortly state the facts upon which he required the House to accede to his Motion. In the year 1828 Captain Robison, who had been appointed to the command of three veteran companies, which had been raised in this country for the purpose of being sent out to New South Wales, to serve there as mounted police, was brought to a Court-martial at the instance of General Darling, the Governor of that colony. General Darling, who was at that time exercising all the powers of the Crown, acted as prosecutor of Captain Robison. General Darling had the selection of the Court-martial which was to try Captain Robison, and he mentioned this to induce the House to consider the odds which this officer had to combat in contending with the tremendous powers with which the governors of our colonies were armed. Knowing those powers, the House would see that if it shut its ears against complaints of the misuse of those powers, it would leave to the arbitrary rule of our colonial governors all who served under them either in a civil or a military capacity. To the Court-martial thus selected by General Darling an officer was sent to act as Judge Advocate, who had been previously a member of the Court of Inquiry which sat upon Captain Robison. He had read the evidence of two of the witnesses who had been examined on the Court-martial, and from that evidence it clearly appeared that the Judge Advocate to the Court-martial had also been Judge Advocate to the Court of Inquiry. Now he understood that it was not only contrary to military law, but also to military practice, that the same officer should act as Judge Advocate both before the Court-martial and the Court of Inquiry. The Court of Inquiry lasted three weeks; the Court-martial lasted from the 11th of July to the 15th of September. One would suppose that from the length of time which the Court-martial lasted, that it required witnesses to be brought, not merely from different parts of the colony, but also from different parts of the world. But no such thing; for the charges, though voluminous, confused, and complicated as almost to defy anybody from comprehending the intention of the accuser, consisted in themselves of a few facts, and required the presence of only a lew witnesses. The trial lasted two whole months, from day to day, and during its continuance a circumstance occurred which, whatever might be the result of this Motion, ought to annihilate the whole of the proceedings taken against Captain Robison, for it was impossible to say, after that circumstance had been mentioned, that justice had been done, when that was prohibited from being done without which justice could not be administered. His first complaint was that an attempt had been made on the part of the prosecution to tamper with the witnesses. Before, however, he proceeded to that part of the subject, he must state to the House that one of the charges against Captain Robison was, that he had sent to England complaints against General Darling without having communicated copies of them to General Darling. During the inquiry General Darling addressed a letter to Captain Robison, desiring him to state whether he had sent home any such complaints, and on receiving an answer from Captain Robison, made that answer evidence against that officer. Another of the charges against Captain Robison was of a most extraordinary nature. Captain Robison was accused of having improperly made use of a letter written by the Governor's Military Secretary, Captain Strutt, to Lieutenant Sweeney, who was summoned to give evidence against him. To support that accusation Lieutenant Sweeney was called as a witness. Now, what would the House think when he read to them the contents of two letters, which he held in his hand, and which were written by Captain Strutt to Lieutenant Sweeney pending this inquiry? Captain Strutt sent an express to Lieutenant Sweeney with an official letter desiring him to attend the Court-martial with a detachment of his company, and in that official letter he enclosed a private letter of his own, which in his (Dr. Lushington's) opinion was nothing else than an attempt to intimidate that witness from giving the evidence which he was generally expected to give. The House would allow him to read those letters, and when he had read them he thought that every Gentleman who heard him would be of opinion that he had substantiated grounds for the Motion with which he intended to conclude. The official letter was dated 1st of April, 1828, and stated, that the Lieutenant Governor having directed an inquiry to be made into the conduct of Captain Robison, had instructed him to signify his desire to him (Lieutenant Sweeney) that he should afford every facility by the presence of his detachment to the fulfilment of the orders of the Court-martial. In the same envelope was the following letter, headed with the words "strictly private and confidential." In this letter Captain Strutt stated that "he could not allow the inquiry to proceed without discharging the disagreeable duty which had fallen to his lot." "I am anxious for your sake," continued the writer, "to warn you of the precipice on which you are standing. Circumstances have come to the knowledge of the Lieutenant Governor which implicate you jointly with Captain Robison. He may be right or he may be wrong, on that I give no opinion; all that I wish to call your attention to is the consequences which may attach to you individually. Your name has been mentioned in some of the despatches addressed to the Lieutenant Governor, and has not escaped his notice; but hitherto I have parried the subject. An honourable line of conduct is now open before you, and I hope you will follow it." Now, he begged the House to consider when, and by whom, this letter was written. What object could the writer have except to intimidate the individual to whom it was written? The warning given to Lieutenant Sweeney, that he was standing on a precipice, and that he was implicated with Captain Robison, was nothing but an attempt to intimidate Lieutenant Sweeney, into the suppression of such evidence as might be unfavourable to the prosecution. The most singular part, however, of this case was yet to come. When this letter of Captain Strutt was communicated to Captain Robison, he wrote a remonstrance to General Darling, against the tendency of such a letter to sap the foundation of all justice. That remonstrance was afterwards made the subject of a fresh charge against Captain Robison. At the Court-martial Lieutenant Sweeney was produced to substantiate a charge against Captain Robison. This he failed to do, on which the President took out of his pocket a prior written statement of Lieutenant Sweeney in order to contradict the evidence which he had then given, and to discredit the witness for the prosecution. That written statement was admitted as evidence, not only against Lieutenant Sweeney, but also against Captain Robison; and to conclude the whole of this extraordinary transaction, in which the prosecutor at one and the same time discredited his own witness and illegally introduced against Captain Robison, as evidence, that, which was no evidence at all, General Darling had circulated a printed statement, which he had seen, averring that Lieutenant Sweeney was undeserving of credit. Even that was not all; in consequence of the evidence of Lieutenant Sweeney being unfavourable to the prosecution, he was, first of all, suspended from military duty, and afterwards sent home without trial. He submitted, that if there was a shadow of truth in these allegations, the grossest injustice had been done in these particulars, and further investigation was absolutely necessary. He knew that General Darling disavowed all knowledge of Captain Strutt's letter to Lieutenant Sweeney. It might be true, that it was written by the imprudence—no, that was too light a term—of Captain Strutt himself; but by whomsoever written, and from whatever motives, it made no difference to Captain Robison. General Darling had called on Lieutenant Sweeney to account for the letter which had been written to him by his military secretary, Captain Strutt. Now, Sweeney was a man in distressed circumstances, and on receiving that demand saw that his all was at stake. In the agony of the moment he wrote a letter to General Darling, scarcely knowing what he was writing, and that letter was subsequently produced by the prosecution to contradict the testimony which he afterwards gave upon oath. He now came to another of the charges which had been preferred against Captain Robison, and which was not less extraordinary than any of those which had preceded it. Whilst Captain Robison was commanding a detachment at a distant outpost, he gave orders that the mailbags, in which he expected some despatches of his own, should be opened in the absence of the postmaster. For doing this a charge was brought against him before the Magistracy, who, on hearing the facts, dismissed it as frivolous and vexatious. This charge was again reiterated before the Court-martial, which expressly acquitted him of every part of it which implied either dishonour or discredit. Another complaint which he had to urge on behalf of Captain Robison was, that in violation of the law, the questions put to the witnesses were not taken down in writing, in order that the Government at home might be enabled to judge of their relevancy and pertinency. Now, unless such questions were reduced into writing, how was it possible for his right hon. friend, the Judge Advocate at home, to decide whether all had been done, that was necessary to the elucidation of justice? Another complaint was, that the Chief Justice of the colony, Mr. Forbes, who had been summoned as a witness for the prosecution, instead of appearing to give evidence in person, as he might have done, he being in the town, only sent a letter, which was improperly received as evidence against Captain Robison by the Court-martial. It had been stated, that Captain Robison might have insisted on the personal appearance of Mr. Forbes in his defence. But need he mention how dangerous it would have been for Captain Robison to call in his defence a witness summoned for the prosecution, a witness whom he would not have been allowed either to cross-examine or discredit, and who might be cross-examined at any length by the other side? The fact to which he wished to call the attention of the House was the manner in which the Court-martial had admitted that letter to be evidence. How could it be evidence? It was obvious, that if such proceedings were permitted to go uncorrected, no man's character could be considered safe. He now came to another fact, which appeared on the minutes of the Court-martial, and which to this moment remained uncontradicted. Captain Strutt had been permitted by the Judge Advocate to read over the minutes of his own evidence, and to refresh his memory as to what he had sworn previously, before he underwent cross-examination. That was another violation of justice. He therefore asked the House to let the minutes of the Court-martial be laid upon the Table, in order that every Gentleman might judge for himself of the justice or injustice of its proceedings. The sentence which it passed upon Captain Robison was, that he should be dismissed from the army, in which he had served for twenty-five years, and gone through all the Peninsular campaigns—after having been thrice in India; and after having gone out to New South Wales with as high testimonials to character as any officer could desire. He should now conclude by saying, that if this motion were to be opposed, the House ought at least to know the grounds on which it was met with opposition. He hoped that he should not hear a doctrine laid down which would deprive the House of one of its noblest functions—he meant that of administering justice to British subjects whenever and wheresoever they were injured. The hon. and learned Member concluded by moving, that a humble address be presented to his Majesty, requesting that he will be graciously pleased to give directions that a copy of the minutes taken by the Court-martial held upon Captain Robison, in 1828, be laid upon the Table of the House.

Mr. Robert Grant

remarked, that his hon. and learned friend in the speech which he had just made had culled out of the paper which Captain Robison had circulated only two or three of the charges which he had brought against the Court-martial which had tried him, and had entirely left out of consideration the many other charges which Captain Robison had preferred which had made, he believed, a very considerable impression upon those who had read them. As those charges had been very generally circulated, he trusted that the House would allow him greater scope in replying than he should otherwise have ventured to take. He should begin by stating, that he was not there to defend General Darling—all that he undertook to perform on this occasion was, to defend the proceedings of the Court-martial. His hon. and learned friend had complained that Captain Robison had been charged before the Court-martial with having opened the postbag without due authority—an offence of which he had been accused before a civil tribunal, which had acquitted him of the charge, describing it as unjust and frivolous. Now, it might be wrong for General Darling, under such circumstances, to bring that charge before a Court-martial; but how could that be made an imputation upon the Court-martial, which, on hearing the charge, had acquitted him of it? Let not the House suppose, from his silence respecting General Darling, that he intended to throw blame upon that officer; he was neither his champion nor his accuser; and he should only refer to that officer when he found him in connexion with the Court-martial. He admitted exclusively that the House had the power to supervise the proceedings not only of Courts-martial, but of all judicial tribunals, and that in exercising that supervision it was to be guided by no general rules, save the immutable principles of justice. But the House, which might exercise its supervision in all instances, ought it his opinion to be very cautious how it exercised it in any. The question, then, with regard to this Court-martial resolved itself simply into this: "Does there appear in its proceedings a case so pregnant with injustice and oppression as ought to induce the House to take the first step in the career of censure by agreeing to an Address for laying the minutes of the Court-martial on the Table?" His opinion decidedly was, that there was no such case, and therefore he thought, that the House would be well advised in not acceding to this Motion. The charges which Captain Robison had preferred against this Court-martial were numerous; but yet they resolved themselves easily enough into three heads. There were, fast, the objections to the constitution of the Court, next the objections to its proceedings in admitting and rejecting certain evidence, and, last of all, the objections to its decision and sentence. Now, if he could prove, that the constitution of the Court was legal, that its proceedings were regular, and that its decision was right, the conclusions to which he had come, and which he had already stated, must be assented to by the House; but if not, the Court-martial must submit to censure, and he along with it, for not expressing his disapprobation of its conduct, from the commencement to the close of these transactions. He would remind the House, that it was not called upon to decide on the merits or demerits of Captain Robison. The question was not whether the decision of the Court-martial on the charges preferred against Captain Robison was correct or not, but whether the members of that Court-martial performed their duty fairly, and came to such a decision as honest and intelligent men would be justified in coming to: for he need not say, that if they came to such a decision, it could be no impeachment of their integrity if the House came to a contrary decision, seeing that it was a matter of daily occurrence for Juries, against whose integrity not a suspicion was breathed to come to different conclusions upon the same evidence. The first objection contained in the paper of this unfortunate man—for unfortunate he certainly was—respected the constitution of the Court. That paper stated, that the Court consisted of a President and eight other officers only, the ordinary number of officers upon Courts-martial being thirteen. Now, nine officers were four more than were required by the Mutiny Act and the articles of war to constitute a Court-martial. Considering, therefore, the numerous duties which the military had to perform in New South Wales, it was favourable to General Darling, and a mark of respect to Captain Robison, that his Court-martial consisted of a greater number of officers than the law required. There was another circumstance connected with the constitution of the Court, which he felt it necessary to state in justification of the Court itself. With the exception of one officer, who was junior to Captain Robison, all the rest were his superiors in rank. His hon. and learned friend had told the House that the Court-martial sat from the 11th of July to the 15th of September, two whole months; but he had not told them that four-fifths of that time had been taken up by the defendant in cross-examining the witnesses, and that this oppressive Court had given him three weeks out of those two months for the preparation of his defence. The next objection of Captain Robison was, that he had been compelled strenuously to object to two members of the Court, but that his challenge had been over ruled and disregarded. Now, he (Mr. Grant) believed that this petition had been framed in London; and therefore he must suppose that in the lapse of time Captain Robison had forgotten the facts, or else he never could have so misrepresented them. It was true, that Captain Robison had objected to one member of the Court; but his other objection was to the Judge Advocate; and if he reckoned the Judge Advocate as a member of the Court, as undoubtedly he was, then the Court-martial consisted of ten officers. He (Mr. Grant) wished the House to attend to the terms of the objection which Captain Robison raised against one of the officers. "The defendant particularly requests that Captain Crottin will withdraw from the Court, in consequence of the intimacy in which he has lived with that officer, and he puts it to his feelings whether he (Captain Crottin) ought to be present at the investigation." He should, therefore, contend that he had made out his case that the Court-martial was properly constituted. His hon. and learned friend had laid it down as a general rule, that a Judge Advocate who had attended a Court of Inquiry could not sit upon a Court-martial instituted by the recommendation of that Court of Inquiry. Now, the manner in which this objection was stated in Captain Robison's paper was not quite so mild. Captain Robison stated, "The officer who acted as Judge Advocate of the Court was not an impartial and unprejudiced person, having been a Member of the Court of Inquiry, and he acted in that important capacity in defiance of my solemn protest against it." His answer to this objection was, that the Judge Advocate was not removed from the Court, because, by Act of Parliament, he was not challengeable. The Orders of the Army were, that no man could protest against the President of a Court-martial in a foreign country, because he was appointed by a warrant from the Governor, nor against the Judge Advocate, because he was appointed by the Crown. Besides, in this case the Court of Inquiry gave no opinion, and only examined witnesses and collected evidence to see whether there was any ground of charge against Captain Robison. It was the opinion of many high military authorities, that the having been a Member of a Court of Inquiry, when that Court had pronounced no opinion, was no good ground for objecting to an officer being afterwards a member of a Court-martial arising out of the facts collected by such Court. As to the objection that the Court was blamable in having received as evidence the letter of the Chief Justice of the Colony, he must say, that that could form no ground for revising the proceedings of the Court, for the letter was of no importance whatever to the case; but he would add, that if the receiving evidence which would not be received as evidence in a Court of Law was to be an objection to the proceedings of a Court-martial, that Court would stand the test, for it was an object with Courts-martial to let in any evidence that was tendered. Indeed, in the 1,050 pages which these proceedings occupied, four-fifths might be said to consist of inadmissible evidence, but this was owing to the indulgence of the Court, in allowing the defendant to go into matters which were irrelevant. There was, he would admit, evidence admitted for the prosecution which, strictly speaking, was inadmissible, but it was not of that material nature which would justify a revision of the proceedings. No objection had been made at the time by the defendant himself to the admission of the letter of the Chief Justice, and in his subsequent protest against its being allowed to remain on the minutes, he admitted the fact, adding, that he was taken by surprise, but the Court in its decision on this objection, stated, that having been warned in the opening statement that such letter was to be produced, and having made no objection at the time it was produced, he could not justly require it to be struck out. They allowed it to remain, but not as evidence. This decision he (Mr. Grant) contended was perfectly consistent with the strict rules of Courts-martial. The next objection of the defendant was, that the prosecutor was permitted to object to the testimony of his own witness, and to bring a previous letter of that witness to shake his own evidence. Now, on this point it was distinctly stated by Captain Strutt, and also by the Governor, that he (the Governor) knew nothing whatever of the private letter written by Captain Strutt to Lieutenant Sweeney. The letter was marked "private and confidential," and in opening the other letter in which it was enclosed it fell out, and was picked up by Captain Robison, and though so marked was read by him. When Lieutenant Sweeney found, that it had been so read, he in great agitation begged that he would not say a word about it, which Captain Robison pledged his honour not to do, but the first step he took was to write to the Governor making a complaint that such a letter had been written. It was not unnatural that Captain Strutt should have written this confidential letter to a man with whom he was on intimate terms, whom he knew to have been in some degree exposed to risk from some of the proceedings against Captain Robison, and whom he also knew to be in a great measure under the influence of that officer. When the complaint, of Captain Robison was received respecting the private letter, a letter was written by order of the Governor to Lieutenant Sweeney, calling on him to explain. In answer to this Lieutenant Sweeney wrote the letter which had been afterwards produced in Court, and in which, after giving an account of what occurred, which it was unnecessary for him then to repeat, he added—" I further beg to pledge myself on my honour, as an officer and a gentleman, that what I have here stated is consistent with the truth." This was written in May, but, in the July following, when he was called upon as a witness to some of the same facts, he gave evasive and reluctant answers, which brought upon him the public censure of the Court. Now, in point of law, he must contend, that a prosecutor was perfectly authorized to bring evidence to contradict the testimony of his own witness, not to discredit his general evidence, but to contradict him in the particular parts of it where he may have given evasive and reluctant answers, as in this case, and to show that at another period he had given a different account of the same transaction. This he stated on the authority of Mr. Phillips, in his work on evidence, who quoted the opinion of Lord Ellenborough as authority for the rule thus laid down. This, then, was the whole of the case as to the letter, with the exception, that it was not pulled from his pocket by the president of the Court-martial (who was a most honourable man and an excellent officer, and who knew his duty better,) but was produced by the prosecutor. There was, therefore, he contended, no ground for calling the proceedings of the Court in question on this objection. There was in the paper which the defendant had circulated amongst the members of the House another and most important objection, on which he would say a few words; it was, that one of the witnesses, a private soldier, named Budd, had been tampered with by General Darling, and promised rewards and promotion if he gave evidence against the accused; but supposing that this fact was as the defendant had stated, it would still form no ground for calling the proceedings of the Court in question, for though the Court had discredited Budd, yet the facts to which he spoke against the accused were proved by other witnesses, against whose testimony no imputation had been directed. He referred to this fact, not as any willing impeachment against General Darling—he admitted that, if true, it was a blackening and a serious charge against him, but he had mentioned it solely in reference to the case before the House. It should, however, be added, that the story told by Budd was improbable, to an extent bordering on romance. He stated, that on his return to Sydney, he had an interview with the Governor, with the knowledge of his military secretary, Captain Strutt, and of his private secretary, Lieutenant Condamine; that he had remained seated with him at the Government-house for several hours; that the Governor had promised him promotion if he would give evidence against Captain Robison, and that not only would he promote him, but any one of the veterans who might be ready to give similar evidence. On his cross-examination, however, he admitted, that he had never been at the Government-house, had not seen the Governor, and that he had no idea that he should receive his discharge. To this should be added the statement of Captain Strutt and Lieutenant. Condamine, who both swore, that Budd had not been to the Government-house, and had never had any interview with the Governor to their knowledge. This, he thought, was sufficient to put an end to that part of the charge. There were several other points contained in the paper circulated by Captain Robison—but not mentioned in the statement of the hon. and learned Gentleman—of which he would only say, that they were not borne out by the evidence on the minutes of the Court. When first Captain Robison felt himself aggrieved by having what he considered an unjust charge made against him, he should have sought an inquiry at the hands of the Governor. If the Governor refused, he should have transmitted copies of his application, with his complaint as to the refusal, to the authorities at home; if that were refused or delayed, he then might send his communications and complaints home by any way he could, taking care not; only to apprise the Governor that he had so done, but also to send him copies. Without adopting this course, he sent not only charges of his own, but also written charges of some of the veterans against the Governor. When written to by order of the Governor, to know whether he had sent any such charges, he gave evasive answers to the first and second letters, and it was not until a threat was used in case of further refusal that he gave an answer, that he was not bound to criminate himself. It was perfectly clear, that in matters of a criminal nature, no party was bound to criminate himself; but this was not an examination by a magistrate of a party accused, but a demand made by a superior officer to one under his command, to know whether he had done that which it was his duty to do; for, if he had sent any complaint to England, he was bound to report it at once to the Governor. It was idle, therefore, to say, that this demand of the Governor was for the purpose of procuring answers to criminate himself. If the Court had sentenced Captain Robison to be dismissed for sending home charges clandestinely, there could be little doubt that the authorities at home would have restored him to his rank; but his dismissal was not for that; it was for refusing to obey the orders of his superior officer, in not making a return when he was legally called upon so to do. The objection of Captain Robison, as to the Court having refused to erase questions and answers, objected to by him from the minutes, was not better founded than the others: the Court had undoubtedly the power to allow such questions and answers to remain, though they might not be strictly evidence, for they were aware, that the whole case would be revised before a final decision. One of the great errors of Captain Robison in conducting his defence, which he did with much ability, was, that he thought he had a right to repel charges made against him by recriminating on General Darling. A great part of his statements were made up of such charges, in which he also introduced charges made by some of the veterans. The Court had properly refused to record matter of a recriminatory nature, and tending to inculpate absent parties. The Court-martial found, that the letter written by Captain Strutt was not liable to the construction placed on it by Captain Robison, and that the latter had acted in violation of all confidence and every principle of gentlemanly feeling in the matter. Without reference to the charge of exciting the veterans to mutiny, the finding of the Court-martial, which decided, that Captain Robison had acted in a manner so gross and scandalous as to be utterly unbecoming the character of an officer—that finding could not be impugned, and left no alternative but the dismissal of the party. Such being the case, there was no pretence for saying, that the dismissal of Captain Robison was an act of cruelty or injustice. The members of the Court-martial were undeserving of the censure attempted to be cast upon them: they had acted honourably, and in the strict discharge of their duty. In conclusion, the right hon. Member expressed his intention to resist the Motion

Sir Francis Vincent

considered, that the question was not so much what was the conduct of Captain Robison, as whether there were prima facie reasons for consenting to the returns moved for. The conduct, therefore, of the Court-martial, was chiefly to be considered; and, for his own part, though he did not accuse the members of it of gross misconduct, still he thought their proceedings, on the showing of the right hon. Gentleman himself, highly irregular. Besides, Captain Robison was found guilty on the evidence of Lieutenant Sweeney, which evidence had been severely censured by the Court.

Sir Henry Hardinge

said, he knew neither of the parties, and only interfered from a sense of duty. He thought, that it was extremely prejudicial, that when Courts-martial had acted in a proper manner, that House should be converted into a Court of Appeal. It was also to be deprecated, that inferior should be allowed to censure superior officers, through the medium of petitions widely circulated. He admitted the imprudence of Captain Strutt's letter; but, like the members of the Court-martial, he thought that the letter was written with a good intention. The conduct of Lieutenant Sweeney had been very improper, and it was impossible for General Darling to act otherwise than he had done, under the circumstances in which he had been placed. How could it be said, that he had tampered with the witnesses, when the minutes of the Court-martial were in existence, to show that he had not done so. There was another charge, viz.—that a witness had been rewarded who had given evidence which tended materially to damage the prisoner. Now, he was Secretary at War at the time of the transaction in question. The witness Budd, had at that time been discharged, and had been allowed an allotment of land as an invalid, along with many other invalids; and this was what was construed into a proof of undue tampering with a witness. Reflections had also been cast upon the President of the Court-martial, Colonel Lindsay, an officer of the highest honour and integrity, of forty years' standing. The petitioner had also said, that the minutes were garbled in order to prejudice his cause. Was it likely, that officers like those who constituted the Court-martial, would do so? It was surprising to him, that Captain Robison, who had been for thirty years in the army, could possibly entertain such an opinion of the officers who composed it. Great inconveniences would, in his opinion, arise, if the House of Commons were to convert itself into a Court of Appeal from Courts-martial. No case had yet occurred in which the sentence of a Court-martial had been dealt with in the manner now proposed. He should, therefore, vote against the Motion.

Major Beauclerk

said, he regretted the opinions which had been announced by his Majesty's Ministers. If the minutes were refused, in his (Major Beauclerk's) opinion, there would be a case of gross injustice. He did not mean to say, that the members of the Court-martial had not done their duty; but, in his opinion, it was the duty of that House to call for the minutes of their proceedings. It was no argument to say, that such a course had not been pursued for a hundred years. It was the duty of that House to throw the shield of its protection over the army; and the longer that protection had been delayed, the sooner should it now be conceded.

Sir Rufane Donkin

denied the possibility of a Court-martial being tampered with: he appealed with confidence to every military man in the House, to confirm that statement. After detailing the services of General Darling, the hon. Member pronounced a eulogium on the character of that officer, which he declared to be wholly above suspicion.

Mr. Aglionby

observed, that Captain Robison had been convicted of misconduct with respect to the letter, solely on the evidence of Lieutenant Sweeney, which testimony was of an equivocal nature.

Sir J. Scarlett

considered, that the course which had been pursued by the Court-martial, in respect to the evidence of Lieutenant Sweeney and the letter, had been correct. In his opinion, there was no just ground for calling for the minutes of the Court-martial. The petitioner had been misled, and his statements, brought forward at the end of five years, had been completely refuted. The proceedings of the Court had, in fact, been revised by two Judge Advocates General; and, if the House were ready to listen to such complaints, men of honour would not be very willing to sit on Courts.

Mr. O'Connell

said, that the House would do an act of injustice if it did not call for the minutes. He denied the dangerous doctrine laid down by the right hon. Gentleman (Mr. Grant), that calling for the minutes of a Court-martial was a reflection upon the members. The evidence of Lieutenant Sweeney and the letter, contradicting each other, had both been received by the Court-martial, which, he contended, was not correct. Lieutenant Sweeney was admitted to have prevaricated, and of what value was the testimony of a prevaricator? He was the sole witness in the case. Being convicted on the evidence of a prevaricator, Captain Robison had a claim upon the House, and was entitled to call for the minutes of the Court-martial.

Sir Harry Verney

was bound, though he did it with reluctance, to condemn the conduct of Captain Robison. General Darling was an honourable and high minded man, and, he believed, could not be guilty of many of the things of which he had been accused by Captain Robison.

Sir Edward Kerrison

said, that, notwithstanding the opinions of the hon. and learned member for Dublin, British officers were equal to the proper discharge of their duties on Courts-martial. Those officers acted upon their oaths, and he would venture to assert, that no nine officers in the British army would be found capable of being intimidated from a proper discharge of their duty. He had himself been a long time in the service, and he had never known any instance of the kind. He would say, too, that he had long known General Darling, and had always known him as an honourable and upright man. The hon. member for Dublin might enter as he pleased into the more minute points of the law; with these he did not pretend to be acquainted; but he would say, that the officers of the British army carried about them as much common sense and understanding as any lawyer.

Mr. Hume

protested against the character of General Darling being brought forward to prevent an act of justice being done to an individual. The character of Captain Robison stood as fair as that of General Darling, and perhaps purer, in the present matter. No Court-martial in any colony had been regarded as more oppressive than the one in question.

Colonel Evans

observed, that there was great difference of opinion in the House on this subject. It was quite as essential to the honour and character of General Darling and the Court, in his opinion, as to Captain Robison's, that the minutes should be produced. If ever the production of such records was necessary, it was necessary in this case.

Dr. Lushington replied.

The House divided: Ayes 42; Noes 73—Majority 31.

List of the NOES.
ENGLAND. Cockerell, Sir C.
Althorp, Viscount Davies, Colonel
Baring, F. T. Duncannon, Visct.
Bentinck, Lord G. Ellice, Right Hon. E.
Blake, Sir F. Foley, J. H. H.
Bolling, W. Forster, C.
Bouverie, Captain Gaskell, J. M.
Bulteel, J. C. Gladstone, W. E.
Byng, Sir J. Graham, Rt. Hon. Sir J.
Calcraft, J. Grey, Hon. Colonel
Campbell, Sir J. Gronow, Capt. R. H.
Hall, B. Verney, Sir H.
Halse, J. Vyvyan, Sir R.
Hardinge, Rt. Hn. Sir H. Ward, H. G.
Henniker, Lord Wilmot, Sir J. E.
Horne, Sir W. Wood, C.
Irton, J.
Jerningham, Hn. H. SCOTLAND.
Kerrison, Sir E. Arbuthnot, General
Knatchbull, Sir E. Bruce, C. L.
Lennox, Lord G. Dunlop, Captain J.
Elliott, Captain G.
Lowther, Viscount Fleming, Admiral
Lumley, Viscount Gordon, Captain W.
Maberley, Colonel Hay, Sir J.
Martin, J. Hay, Colonel A. L.
Molyneux, Lord Johnston, A.
Moreton, Hon. A. H. Mackenzie, J. A. S.
Neeld, J. Pringle, R.
Paget, F. Wemyss, Captain J.
Palmerston, Viscount
Peter, W. IRELAND.
Poyntz, W. S. Cole, Lord A.
Rolfe, R. M. Daly, J.
Scarlett, Sir J. Howard, R.
Stanley, Rt. Hn. E. G. Macnamara, Major
Stanley, E. Stawell, Colonel
Stuart, C.
Throckmorton, R. G. TELLERS.
Troubridge, Sir E. T. Donkin, Sir R.
Tyrell, C. Grant, Right Hon. R.
List of the AYES.
ENGLAND. SCOTLAND.
Aglionby, H. A. Gillon, W. D.
Beauclerk, Major Murray, J. A.
Brodie, W. B. Oswald, R. A.
Brotherton, J. Wallace, R.
Bulwer, E. L. IRELAND.
Bulwer, H. L. Nagle, Sir R.
Chichester, J. P. B. O'Brien, C.
Collier, J. O'Connell, D.
Curteis, Captain E. B. O'Connell, J.
Evans, Colonel O'Connell, M.
Faithfull, G. O'Connor, F.
Gully, J. O'Dwyer, A. C.
Halcormb, J. Perceval, Colonel
Harvey, D. W. Ruthven, E. S.
Heathcote, J. J. Ruthven, E.
Hnghes, H. Sheil, R. L.
Hume, J. Sullivan, R.
Lamont, Captain Verner, Colonel W.
Leech, J. Vigors, N. A.
Lloyd, J. H. Wallace, T.
Pease, J. TELLERS.
Pryme, G. Lushington, Dr.
Tennyson, Rt. Hon. C. Vincent, Sir F.