HC Deb 27 March 1833 vol 16 cc1142-8
Dr. Lushington

had a petition to present, to which it was his duty particularly to call the attention of the House, from a gentleman named Robert Robinson, late a captain in his Majesty's service, and who, after serving twenty-five years in various parts of the world was afterwards sent out, in 1825, being then a captain on the half-pay of the 17th Light Dragoons, to command a corps of out-pensioners in New South Wales. The petition complained of the treatment which that gentleman had met with from General Darling, Governor of New South Wales, during his residence there, and more especially of the illegal proceedings of a Court-martial by which he was tried and convicted. He had been requested to present the petition to a former Parliament; but such was the press of business arising from the discussions on the Reform Bill, that, from the period it had come into his hands, in consequence of the lamented death of his late right hon. friend Sir James Mackintosh, he had had no opportunity of bringing it forward till now, so particularly as he wished. It was difficult to state the contents of that petition without imputing very serious blame to General Darling, the Governor of that colony, and the persons who composed the Court-martial. At the same time, he must say, that he always held he was not bound to support the prayer of any petition he presented, unless he had some cause for believing that the matters therein-stated were grounded in truth. He had applied to his right hon. friend, the Judge-Advocate, with the view of ascertaining some of the facts stated in the petition; and, without undertaking to pledge himself to the correctness of every statement contained in it, he was, in his conscience, perfectly satisfied that their general truth was such as would justify him in supporting the prayer of the petition for the production of the Minutes of the Court-martial, which would enable the House to judge for itself whether the charges were or were not founded in truth. It appeared, that very shortly after the arrival of Captain Robinson in New South Wales, the corps, to command which he was sent out, was dispersed in various parts of the colony, and there was very good reason to complain even then of the conduct of General Darling. At the time that Captain Robinson left this country, not only had he an unimpeached character in the profession, but he also had many testimonials to that character. He remonstrated with General Darling against the attempts to do injustice to the persons who had come out under his command; and in consequence of those remonstrances being disregarded, he had considered it his duty to make a complaint to the Commander-in-chief in this country. By the Articles of War, if a remonstrance did not receive due attention abroad, the party making that remonstrance had the power of sending representations to the Commander-in-chief in this country, for the purpose, if possible, of putting an end to the grievances complained of. Captain Robinson having sent a remonstrance to this country, a correspondence took place, and finally, a Court of Inquiry was ordered to be holden on Captain Robinson. He should observe, that on the eve of holding this inquiry, a Lieutenant Sweeney belonging to Captain Robinson's company, received a letter from the military secretary of General Darling, warning him of the danger in which he stood, and advising him to pursue an honourable line of conduct. He conceived no other construction could be put upon that letter than this. It was intended to induce Lieutenant Sweeney to espouse a particular part on the inquiry then about to take place. After a Court of Inquiry, a Court-martial upon Captain Robinson was assembled, and Captain Forbes was the Judge-Advocate, who had served upon the previous Court of Inquiry which had been had with respect to Captain Robinson. The adoption of such a course was totally at variance with the general usage of the army, and totally incompatible with justice. The proceedings of the Court-martial went on, and seven or eight charges were propounded, which he had read, and he would take upon himself to declare that he never saw charges less specific, less clear, less perspicuous, or more confused. One part of the charge was disrespect to the Governor, in having sent home a complaint to the Commander-in-chief in this country. The petitioner complained that on the trial before the Court-martial, he was prevented from cross-examining witnesses produced against him; the questions which he proposed having been refused by the Court. The adoption of such a course, he (Dr. Lushington) was sure the House would be of opinion was a total violation of all law. The petitioner complained that one of the witnesses had been tampered with, and that evidence of an illegal character had been adduced. It was well known to every man that the rule was, from the highest tribunal to the lowest, that the best evidence should be produced; and so long as there was an opportunity of producing that evidence, so long it was impossible that secondary evidence could be received. It was obvious also to every man, that the great benefit of vivâ voce evidence was, that when you had an opportunity of cross-examining a witness, you might extract from him circumstances which might destroy the validity of the evidence itself, by proving the witness not entitled to belief. There was also a complaint of the manner in which the Minutes of the Court-martial were taken—of the evidence not having been taken on each specific charge, but in a mass, all mingled together, so that it was utterly impossible for any person, without much pains and labour, to make himself a complete master of the case, or do justice to the prisoner. Another complaint was, that one of the witnesses was permitted, before he underwent his cross-examination, actually to have a perusal of the evidence which he had given in chief. Now, that was a circumstance which he had never heard of in the whole course of his life. If the charges had been proved, they were not such, taking all the circumstances into consideration, as justified the sentence which had been pronounced. The sentence pronounced was dismissal from the service. Now, he would ask the House to consider what severe consequences must follow to a person so tried, so convicted, and so punished? This Gentleman had not merely served in the army twenty years, but his grandfather, father, six brothers, and two nephews, had been in the service. He was aware that when such a case as the present was brought before the House, it was met by saying that military men were aware of the risks they ran, and that it was dangerous for that House to open any case which had been decided by a competent tribunal. He was ready to admit that principle to a great extent, but he was not ready to say, that in our colonies, where the Governor was in possession of despotic power, being so far from home, that that House ought not to take cognizance of a case such as the present, where such a strong case for inquiry had been made out. He should inform the House that the petitioner was kept for two years under arrest, and that then an examination was gone into by the predecessor of his right hon. friend, the present Judge-Advocate. He did not intend to throw any imputation upon the gentleman who then held the office; for he knew that when a person had an immense mass of papers to wade through, it was impossible but that many important points would escape his attention. Since the petitioner had returned, he had made many applications for those Minutes, but they had been unsuccessful. He hoped now that they would be submitted to his inspection by his right hon. friend; and if that course were taken, it would give satisfaction to all parties. He had felt it his duty to trouble the House at length, because he considered it a case of the utmost importance. He was only anxious to make such statements as his duty required, and had not intended to step out of his way to vituperate any person. He had considered it proper to inform General Darling of his intention to present such a petition, so that the gallant Officer might instruct any of his friends in that House to answer it if necessary. The prayer of the petition was for the production of the Minutes of the Court-martial. If the subject were not taken up by the Government, he would take the earliest opportunity of submitting a motion on the subject. He sincerely hoped that he should not be driven to this course; for such a strong case of suspicion had been made out, that he trusted that Government would be anxious to refer the whole matter to the right hon. Judge-Advocate.

Mr. Hume

supported the prayer of the petition, with which he entirely concurred. He had long been informed of its contents, and if he had persisted in the Motion of which he had given notice with respect to the conduct of General Darling, that officer's treatment of Captain Robinson would have formed one of his charges. It was the duty of the Government to take up the case, so that the time of that House might not be occupied by matters immediately belonging to the Government. He was informed by many most respectable persons in this country, that every one of the allegations in the petition could be proved, and, of course, that gross injustice had been done to the petitioner. This was a question for the consideration of the Government, and one which they should be most anxious to sift to the bottom. He would take that opportunity of stating, that it was not his intention to bring forward his Motion with respect to General Darling's conduct at present, as he considered he would best consult the wishes of the House by abstaining from ripping up old abuses, but he trusted the present inquiry would be pursued with all diligence.

Colonel Verner

said, he could not let the opportunity pass without slating that he had the honour of Captain Robinson's acquaintance, and that, from what he knew of him, he would say, that he was incapable of doing anything that was unbecoming a gentleman. He had good ground for believing independently of Captain Robinson's own assertions, that the allegations of the petition were perfectly correct.

Mr. Robert Grant

said, that he was not in office at the period alluded to. From the nature of the petition, and from the manner in which it had been brought under the notice of the House by his hon. and learned friend, it was his (Mr. R. Grant's) duty, if in his power, to meet the allegations of the petition. But, besides other documents, the proceedings of the Court-martial alone comprised the contents of three enormous folio volumes. It was therefore impossible for him to go through such a mass of evidence in time to give any individual opinion; and he felt called upon to offer that explanation, upon the Motion that the petition do lie upon the Table. He would admit, that the statements made in the petition received great weight from the opinion expressed of them by his hon. and learned friend; and that such an application must receive an answer; bat without imputing any want of intentional courtesy to his hon. and learned friend, he must inform the House that the notice of the intention to present the petition had only been given yesterday. The hon. member for Middlesex had expressed a hope that the prayer of the petition would not be disregarded by that House, because the transactions had taken place some time ago, and had argued upon the presumption that the allegations of the petition could be fully borne out; but the House could not entertain that presumption until an inquiry had taken place. Nor should there be too much weight given to the opinion expressed by his hon. and learned friend, as some of the charges could only be verified by further inquiry, inasmuch as they referred to evidence which it was alleged was not, but ought to have been, taken before the Court-martial. There was only one other point to which he would allude. The hon. member for Middlesex had imputed general charges against General Darling as Governor of the Colony; but he hoped that the proceedings of a sworn tribunal—sworn to execute justice—would not be confounded with any general charges against the Government. The charges against the Government and against General Darling should be kept wholly distinct. He felt most strongly, that the decision of a competent tribunal, which had been confirmed by a competent authority, was entitled to respect; and with regard to the present authorities at the Horse Guards, he had found them most conscientious in revising and considering all sentences that were sent to them. He would give no opinion on the merits of the petition; but, without denying the petitioner the fullest opportunity for investigation which was demanded, he must say that at present he must hold that what had been done had been done legally.

Sir Francis Vincent

thought, that the imputation so affected General Darling's character, as an officer and a gentleman, that no friend of his would oppose the prayer of the petition. It would not only enable the petitioner to obtain justice, but would enable the gallant officer himself, if a full investigation were to take place, to place his proceedings in a clear point of view. There was one portion of the petition, wherein it was stated that a charge against Captain Robinson could not, in the Judge Advocate's opinion, be entered into, and yet the Court-martial had proceeded with it. That alone was sufficient to call for an inquiry. As to General Darling's not knowing until yesterday that the petition was to be presented to-day, he must have been aware that such charges were to be brought forward. It would be recollected that the petitioner did not come to that House until after he had tried all other means of redress without effect. He had even petitioned the King for an inquiry, and his petition had been referred to the Commander-in-chief.

Dr. Lushington

, in moving that the petition do lie on the Table, said, that he would have given General Darling a longer notice, but it was impossible for him so to do, as he did not know until Monday that he should be able to present the petition to-day. He trusted that, in presenting it, he had made use of no expressions from himself that reflected on that gallant Officer's character. In answer to his right hon. friend (Mr. Grant) who, he was glad to perceive, gave no opinion on the merits of the petition, he thought it the best and most satisfactory mode that the minutes of the Court-martial should be laid before the House. He, therefore, gave notice that on Thursday the 23rd May, he would move for the production of the papers.

Sir Henry Hardinge

regretted, that in consequence of being unavoidably absent elsewhere, he had been prevented from making certain statements in reply to the petition and charges of the hon. and learned member for the Tower Hamlets, relative to the conduct of his friend General Darling. As he understood, however, that the hon. and learned Gentleman had postponed his Motion to some day in May, he should then urge some statements in defence of his friend.

Petition to lie on the Table.