HC Deb 06 August 1835 vol 30 cc127-36
Mr. Plumptre

rose to bring forward a case of what he deemed great individual hardship—a case of somewhat similar hardship from military laws he was aware had lately been before the House; but, in the present instance, there was one distinguishing feature;—it involved considerations of one of the nearest and dearest personal rights a man possessed, viz:—the right of conscience. It might be objected, that a very considerable lapse of time had taken place since the event had occurred; but although it occurred eleven years ago, it had never yet slept, and never would be suffered to fall asleep. Steps had been taken in different ways for obtaining that settlement to which it was entitled. He himself had brought the case before the House on the presentation of a petition, but the House would remember that it had never yet been brought to a vote; and he trusted that would be considered as a sufficient apology for bringing it forward again. He was also aware, it was objected that it was improper to bring cases of this sort before Parliament, and thus question the decisions of other legal courts of justice. But let the House consider, that he did not intend to refer the papers for which he moved to a select Committee, but merely to take the usual course on such occasions, viz.:—to move for the Minutes of the Court Martial as a ground-work for an address to the Throne—the last resort in this realm for justice or for mercy:—to appeal to his Majesty, whose prerogative it was, to remit punishment and reverse sentence as circumstances might require. He would briefly state to the House the circumstances of the case to which he referred. Captain Atcheson, in 1822, was stationed at Malta; and, after a stay of five months, was called on to take a part in some ceremonies connected with the religious worship of the Roman Catholic population of the island. On the first occasion he did not refuse compliance with the orders given him; but some five months afterwards he was again called on to take part in a similar service, the scruples which he felt before he felt much more strongly then, and he resolved to take the course which appeared to him proper, viz:—to request that he might be excused from the performance of the ceremony he was called on to assist in. Now, he believed that in the course which Captain Atcheson took he was perfectly justified by one of the articles of war, which he would beg leave to read to the House—it was to the following effect. "If any officer shall think himself wronged by any colonel or commanding officer of the regiment, and shall, upon application to him, be refused redress, he may complain to the general commander-in-chief of the forces, in order to obtain justice, who is hereby required to examine into such complaint, either by himself or the secretaries, and to make his report to us in order to receive our further directions." Under this article, Captain Atcheson feeling himself aggrieved in being called on to take part in the religious ceremonies of a class of persons from whose religion he differed, he made a request to his commanding officer that he might be excused (from taking part in the service required. The hon. Member here read the letter of Captain Atcheson on that occasion, which ran to the following effect:— Malta, August 9,1822. Sir; I have to acknowledge the receipt of the letter from Lieutenant Somerville, desiring me to proceed to Fort Angelo and apply to Lieutenant—for a letter addressed to me, requiring salutes to be fired on that day, and directing me to give orders that the firing should take place agreeably to those instructions; pursuant to those instructions, I found that salutes were to be fired, and that the castle bell was to be tolled, upon the anniversary of Saint Lorenzo, the tutelar saint of the island, at the periods therein stated. It is with the greatest concern I state, that I have found myself required to take a part in the ceremonies of an idolatrous act of worship, which I conceive to be improper. I feel that if I were to take any part in those ceremonies I should be violating my most conscientious principles as a Christian and a Protestant, and I most earnestly beg you will endeavour to have me exonerated from the execution of these orders. I have the honour to be, &c." Addressed to Major Adams. Now, this letter of Captain Atcheson was placed in the hands of Major Adams by the Captain himself: his request was received—no remark of displeasure at the refusal was uttered—the orders were not enforced—the duty was put on another—and Captain Atcheson felt himself justly entitled to believe he was released from the obnoxious service, and that no ill impression was created by his remonstrance. This seemed to him the worst part of the case: Captain Atcheson was charged with "disobedience to orders." He (Mr. Plumptre) denied he was guilty of any such disobedience, for he was warranted by the articles of war to remonstrate against the orders; he wrote the letter which he had just read, and which he must characterize as most respectfully and most properly worded, requesting that he might be excused from taking part in the execution of those orders, on the ground of religious principles. His request was acceded to, and he considered himself as in the same situation in which he would have been if the orders had not been issued. Under such circumstances, that an officer after having been left, as in the case of Captain Atcheson, for three months after the transaction, in the regular discharge of his duties, that he should then be arrested for disobedience to orders, and deprived of his command was, he must say, opening a door for tyranny in the army of the most oppressive nature. He did hope, too, that hon. Members would bear in mind what formed the disobedience to orders of which Captain Atcheson was accused, and for which he was dismissed the service, viz:—the requesting to be excused from the performance of a religious ceremony of the Romish Church—the request being acceded to without any displeasure being manifested at the supposed disobedience on the part of his commanding officer. But he would go further, and say that the remonstrance of Captain Atcheson was not only justified by the articles of war, but by the fact that the ceremony required of him was not at all military, but purely of a religious nature. It was not contained in any general garrison order, the requisition for its performance came from the priests; it was to be performed during a high religious festival of the Church of Rome, and under those circumstances, was it not natural that Captain Atcheson should remonstrate at being called on to take a share in the religious services of a church from which he conscientiously dissented? He hoped the opinion of the hon. and learned, the Member for Dublin, would have weight with the House on this subject, which he had stated on a former occasion in these words:—"What! Sir; are these to be called military duties, when I, as a Roman Catholic, know well that they are part of a religious ceremony commanded by my church!" Let the House mark that expression on the part of the hon. and learned Gentleman, and also-remember, that the hon. and learned Member added, "If he had been in Captain Atcheson's place he would have suffered himself to be torn in pieces before he performed the ceremony." Another point to which he (Mr. Plumptre) wished to call the attention of the House was this: he did not consider that Captain. Atcheson had the advantage of a fair trial. The president of the court-martial was a Roman Catholic; and though he was certain that gentlemen of that persuasion were not less honourable than those of the Protestant faith, yet, considering all the peculiar circumstances of the case, and the nature of the charge, it might be fairly questioned whether they would form the best tribunal on that occasion. Let the House further consider, that the real facts of the case were suppressed on the trial, which would not have been the case had the accusers been so confident of the justice of their charge as they ought to have been. The charge was, "disobedience to orders in not carrying into effect the order for firing salutes." Now, such order appeared, on a prima facie view of this charge, to have been a merely military matter—"firing salutes;" and it did appear to him, (Mr. P.) that there was in that a suppression of facts and circumstances not creditable to the framers of the charge. It was under this improper charge, thus partially framed, of "disobedience to orders," in "not firing salutes," that Captain Atcheson was held up most unjustly to the disgrace and ignominy of having been guilty of disobedience to military orders. He was aware it might be urged, that his Royal Highness the Duke of York felt very strongly upon this case, yet it appeared that the plain facts which he had mentioned, could not be gainsayed by any opinion merely, however high the authority from which it might be derived, prejudices had got into the minds of men on the subject, and it was at least as likely that they would reach to the Duke of York as to all others. He (Mr. P.) could only bring against an opinion, by none respected more than himself, in military matters, the simple case of uncontroverted, uncontradicted facts to which he had adverted. He anticipated an objection, that the bringing these cases forward would be setting dangerous precedents, and be likely to shake the grounds of military discipline. He (Mr. P.) was as anxious to keep lip military discipline as any man, though he could not agree with some, that a soldier had nothing to do but to obey. He, for one, hoped they were yet far from the day on which soldiers of this country should rely on nothing but the bare command of their officers. He was, indeed, willing to allow, that when a thing was plain matter of military duty, nothing was more clear, than that obedience was the duty of the soldier: such, for instance, as fighting on a Sunday, and scruples of that nature. But, in matters not plainly military, certainly soldiers were as much bound to exercise their conscience as any other men; and to think that they were to be restrained in that exercise by the dread of losing their commissions, was a monstrous assertion of power. It was to be recollected, that Captain Atcheson was a member of the Church of England, the second article of which strictly forbade the participation in any of the ceremonies of the Church of Rome: it was also to be considered, that by a special provision in the articles of war, Roman Catholic soldiers were clearly exempted from taking share in the religious ceremonies of other denominations—that regulation, dated "Horse-guards, August, 1811," expressly provided for that, and added the important provision that, "nothing contrary to the spirit of these resolutions should be enforced in the army." Was it to be supposed, that it was not the intention of the framers of the regulation referred to, to afford the same relief to Protestant as to Catholic soldiers? Certainly, it appeared to him that such intention must be implied in the words, "contrary to the spirit" of these resolutions. But, supposing after all that, Captain Atcheson might have been guilty of an error in judgment, though he did not admit that, yet still, was it right that for such an error he should be degraded, dismissed from the army, and from the service of his country by a Court Martial, when so many officers far more imprudent or even criminal were allowed to escape? He found, upon reference to a return which he had procured, that the result of many Courts-Martial was thus entered:—"tried; broken; reinstated." He had known many cases in which officers, after being found guilty of grave offences, had been reinstated; indeed, he had a list of many such cases, to which any hon. Member might have access. Amongst those would be found some, in every respect, parallel to the present case. And, upon a consideration of these circumstances he asked, was this officer, after twenty years' meritorious service, to be punished for not discharging a duty from which soldiers of another religious persuasion were exempted? He hoped his Majesty's Government would not sanction a doctrine of that kind, and that hon. Members of a different religious persuasion in the House, would have some consideration for a highly honourable man. The hon. Member concluded by moving—"That the Minutes of the Court-Martial, in the trial of Captain Atcheson, be laid upon the Table of the House."

Sir John Beckett said

, that the question involved the consideration of the point whether a subordinate officer should or should not obey the orders of his commanding officer. The question was, whether the refusal of Captain Atcheson to obey the orders which he had received, was defensible on (he grounds stated by himself, or whether that which was requir- ed of him did not completely fall within his military duties. He was decidedly of opinion that it did; and he must say, that if the House consented to the production of the minutes of the Court-Martial, they would inflict a fatal blow on military discipline.

Mr. Hardy

defended the conduct of Captain Atcheson, and contended that he had been guilty of no disobedience of orders, but had merely remonstrated in the most respectful manner against being compelled to do an act which violated his religious and conscientious feelings.

Mr. Cutlar Fergusson

said, he would oppose the motion. It was impossible the House could accede without opening the way to numerous evils, which it would find difficult to resist. Once admit this complaint, and every officer and soldier would constitute himself the judge of the propriety of obeying or disobeying orders; and then military discipline was gone, to the ruin of the service, and to the injury of the national interests. The charge was disobedience of orders. It was alleged on the other side, that Captain Atcheson did not disobey orders; but surely the non-execution of orders given him by the Governor himself could not but be looked on as disobedience; and, of course, punishable so long as military discipline was to be maintained in the British army. Malta was delivered up to England on the express condition that the religion and religious rites of the population should be respected and upheld. These conditions were scrupulously observed before Captain Atcheson's time, every respect was paid to the religious ceremonies of the people. Captain Atcheson had directions to respect these ceremonies, and he did not. If he (Mr. C. Fergusson) were in command, he would enforce obedience to the orders. The Court-Martial which sat on Captain Atcheson, and was the best judge of what constituted disobedience of orders, pronounced him guilty. If every one was thus allowed to make himself the judge of the propriety of military orders, the service could not stand. One man would have a scruple of conscience about firing a shot, another would have a scruple about marching on Sunday. It would be impossible, in his opinion, to allow the minutes of evidence (which, however, were so short that every one might put himself in possession of them in a quarter of an hour) to be laid on the Table of that House, without incurring all the evils to which his hon. Friend had adverted.

Sir John Elley

, as a military man, felt serious apprehension that the present attempt to set aside the solemn decision of a Court-Martial was likely, if successful, to sap the foundation of all discipline in the British army. He conceived it to be the duty of every British officer and soldier, when stationed in a foreign country, to respect the religious ceremonies of the country in which he might happen to be; whatever might be his own private religious opinions. Did the House wish the army to become a deliberative body? If they did, where was their boasted discipline? The duty of the British soldier was to obey the order of his commanding officer, and not to argue the propriety of his commands.

Mr. O'Connell

most strongly protested against the slavish doctrine which the hon. and gallant Member had ventured to advance before a deliberative assembly of freemen. He had told a British House of Commons that the soldier had nothing to do with the orders of his commanding officer but to obey them. The soldier was bound to obey every order that was legal, but if the order were illegal, he obeyed it at his peril. Thank God, the command of a military officer was no justification of an illegal act. Let that be well understood. The contrary doctrine was fit for the despotic regions of St. Petersburgh, but it was utterly unfit for the meridian of London. The soldier and the officer were alike amenable to the law. The law was the master of both soldier and officer, and not their servant. Nobody respected the hon. and gallant officer (Sir J. Elley) more than he did for his gallant conduct, and for the rank he had attained by his merits; but nobody repudiated more strongly than he, the slavish doctrine which that gallant Officer had promulged. In the whole course of the debate, nothing had been said against the character of Captain Atcheson; but if he had had the honour of being consulted upon the subject, he certainly should have advised an inquiry into the legality of the order which was issued by the commanding officer, instead of a motion for the minutes of the evidence before the Court-Martial. He did not deny that Captain Atcheson had been guilty of disobedience; but he did most strenuously deny the legality of the order so disobeyed.

The Earl of Darlington

opposed the motion. He was willing to allow that there were circumstances in extenuation of Captain Atcheson's conduct, but he was bound to say that that Officer had been guilty of a military offence.

Mr. Philip Howard

was anxious to vindicate himself from any charge of intolerance which might seem to attach itself to the vote he was about to give. He thought that Captain Atcheson ought to have obeyed orders and tired the salute; in so doing he could not have been chargeable with an act of religious conformity any more than a Catholic High Sheriff who, in the discharge of an official duty, attends the Judge (for whose personal safety he is liable) to a Protestant place of worship. He would, however, adduce a case from a source from which the hon. Gentleman who introduced the motion could not appeal—from Holy Writ—from the 5th chapter of the 2nd Book of Kings. Naaman, the Captain of the Syrian hosts, and a convert to the faith of the Hebrews, propounds the following question to the prophet Elisha. He (Mr. Howard) cited the passage from the version of the Church of England. "In this thing the Lord pardon thy servant, that when my master goeth into the house of Rimmon to worship there, and he leaneth on my hand, I bow myself in the house of Rimmon: when I how down myself in the house of Rimmon, the Lord pardon thy servant in this thing. And he (the prophet) said unto him. Go in peace." No case could more clearly show that the performance of a civil duty could not be construed to involve an art of religious conformity. At the same time, however, that he expressed his conviction that Captain Atcheson had been as faulty in his conduct as he was mistaken in his views, no one would more rejoice to hear that the Royal clemency had been extended to an otherwise deserving Officer. No one would learn with feelings of greater satisfaction that, like Sir Thomas Wilson and Lord Cochrane, he had by a gracious Sovereign been restored to his rank in the British army. The authority of the law had been already sufficiently vindicated. Military discipline having been asserted, the clemency of the Crown might, without danger to the service, be extended to this Officer who had gallantly served his king and country.

The House divided on the Motion: Ayes 27; Noes 54: Majority 27.

List of the AYES.
Baines, E. Perceval, Colonel
Bish, T. Plumptre, John P.
Brotherton, J. Raphael, Mr. Sheriff
Buxton, J. F. Scholefield, J.
Collier, J. Sheil, R. L.
Crawford, Sharman Thompson, Colonel
Finch, George Tooke, W.
Gaskell, D Wakley, Thomas
Hardy, J. Wallace, R.
Hindley, C. Wilks, J.
Hughes, Hughes Williams, W.
O'Brien, C. Wilson, Henry
O'Connell, D. Young, G. F.
O'Connell, Maurice