HC Deb 07 August 1835 vol 30 cc146-58
Mr. Maurice O'Connell

moved the appointment of the Committee on the conduct of General Darling, and read the names of the Members whom he wished to serve upon it.

Lord John Russell

Sir, I now rise to make the Motion of which I have given notice; viz. "That it be an instruction to the Committee appointed to inquire into the conduct of General Darling, that they do not extend their inquiries into the proceedings and finding of the Court-martial who sat on Captain Robison" which I shall do without entering at all into the merits of the general question, lately decided. Sir I think that there should be very grave circumstances in the case, to induce this House to take cognizance of the proceedings of such a tribunal; and I do not think, that were it convinced of the existence of such circumstances in this case, it would proceed in the manner proposed by the hon. Member, viz. the appointment of a Select Committee; but that it would rather proceed by asking for the Minutes of a Court-martial, and then addressing his Majesty to take such steps as might be necessary in case of injustice, partiality, or illegality of sentence. Sir, there can be no doubt that under that kind of superintendence, and supervision, which this House ought to exercise, there might arise cases which would require such a proceeding as I have hinted at; but I can hardly believe it possible, that any case whatever should induce this House to say, "We think the proceedings before this Court-martial were not justifiable, that the conduct of the officers composing it, were not according to Military law, and therefore, we will appoint a Committee of our own number to whom these proceedings shall be referred, and before whom this case shall be tried over again." Sir, I think, that were we to adopt such a course as that, there is no proceeding before a Jury between man and man, that there is no decision of any tribunal in this country, which might not on the same principle be referred to a Select Committee, and be made the subject of appeal, thus forcing the parties implicated to a fresh hearing, and a new trial. But Sir, with respect to the Question itself,—supposing the House should think it right to have a revision in certain cases of a trial before a Court-martial—I will ask whether this be such a case. I think almost the only cases,—there may be others,—but I think the only cases in which this House should call for the proceedings of a Court-martial, are those of gross corruption, or of some very gross violation of the law. Sir, with regard to any gross corruption or any undue motives in the members of this Court-martial, I must beg the attention of the House to the appeal of Captain Robison, himself, addressed to a Member of this House. He says, "I believe the Court was far from unanimous in their finding against me, but still I do not offer a word to the prejudice of the majo- rity that convicted me, I acquit them of all dishonourable motives, I impute to them only that human infirmity common to all men in similar circumstances." I submit, therefore, that there is no evidence of any dishonourable motives, or criminal conduct which would require the interference of a Committee of this House or of the House itself. On the contrary, if there were wrong at all it is, as Captain Robinson himself says, a question of "mere human infirmity," and there is no tribunal so immaculate that its decisions are not at times erroneous; but it would be a dangerous doctrine, to say, that because this House finds the decision of a Jury somewhat erroneous, that therefore the cause is to be tried over again at its Bar? Well then, Sir, I next ask, was this tribunal so utterly ignorant of law, or so misled by those who had to instruct it, that its verdict should be altogether set aside? With respect to this question, it must be recollected that this case has undergone investigation before. When an account of the proceedings were first brought home, it received, of course, that examination which the proceedings of all Court-martials do, by the Judge-Advocate-General, and by the Commander-in-Chief, and in consequence of their advice, it received that approbation from his Majesty which all Court-martials must have, to be confirmed. But in the next place it was brought regularly before this House, and at that time the question was most elaborately and ably argued by my hon. and learned Friend, the Member for the Tower Hamlets, (Dr. Lushington) and the then Advocate-General, Sir Robert Grant, now Governor of Bombay. He had paid the very greatest attention to the case, and examined into all the grounds on which the Court martial proceeded. He said, that the charges of Captain Robison against the Court-Martial, though numerous, might be resolved into three heads, first objections to the Constitution of the Court; next to the proceedings; and, lastly, to the decision and the sentence. Now if I can prove, Sir, that the constitution of the Court was legal; that its proceedings were legal; that its proceedings were right—the conclusions to which it came must be assented to by the House; if not, then the Court-martial must and ought to, receive its censure. Now, Sir, the conclusion to which Sir Robert Grant came, after his examination and his arguments (which I should only injure if I attempted to improve or even to repeat them to the House)—the conclusions to which he came were, that the constitution of the Court was legal, that its proceedings were regular; that, consequently, its decision was right; and, I think, after such an opinion ably delivered and argued in this House by such an advocate as Sir Robert Grant, we cannot say, that there was any gross ignorance on the part of the Court-martial which should induce this House to go into such an extraordinary proceeding. Upon the arguments of Sir Robert Grant, then, Sir, and of the other hon. Gentlemen, who then spoke, the House came to the decision not to ask for the Minutes of the Court-martial, and by a considerable majority. Upon this Captain Robison took the course of writing a letter which he addressed to Lord Althorp, requesting him to look over the statement he had made, and see whether, in his opinion, he had not overturned the arguments and the statements of Sir Robert Grant and whether he had not come to an erroneous decision on it. Now, Sir, the answer of Lord Althorp (who it must be recollected must have been a totally disinterested judge, on the question, was contained in a letter, dated 25th of September 1833, which I will read to the House, addressed to Captain Robison. It was to the following effect, "When I heard the debate on the subject of your dismissal, the impression on my mind was, that it was a case of clearly established abuse. In reading the printed Report of the debate the impression on my mind remained the same. I then turned to your letter and gave it all my consideration; you say your object was, to answer Sir Robert Grant's speech? I have carefully considered it, and examined whether you have succeeded in effecting your object, I am sorry to be obliged to tell you that in my opinion, you have totally failed." Here then was the opinion of a person of great learning and experience upon these subjects, Sir Robert Grant, and this was the opinion of this question formed by Lord Althorp, who certainly had no interest on the subject, and would not be misled by any technical arguments from doing what, according to his own sound and substantial judgment, he would consider to be justice. But Captain Robison went before the Court of King's Bench; a publication which was considered libellous being brought there for trial, there the Judges had the opportunity of considering the whole of the proceedings of this Court-martial, and the Judge, who pronounced the judgment of the Court on Captain Robison, who went into all the proceedings and circumstances of the Court-martial—after referring to those circumstances, stated the judgment of the Court upon them especially finding Captain Robison guilty of his offence, and that Judge stated that he did not consider the constitution of the Court illegal; and he then stated, with regard to a certain circumstance on which a great argument of Captain Robison was always based, viz., the letter of Captain Sturt to Lieutenant Sweeney—"We do not think that any person of correct feelings, but would coincide with the opinion expressed by the Court-martial, viz. that there was great impropriety in referring to such a letter, and from such a quarter." Thus the opinion of the Court of King's Bench, (generally speaking agrees with the proceedings of the Court-martial). And I think, Sir,—after such an opinion, after the opinions I have stated, of Sir Robert Grant, of Lord Althorp, and of Mr. Justice Littledale, it can hardly be affirmed that this Court-martial departed from the general principles either of law, or of substantial justice in their proceedings. With regard to the fact of the letter itself; the propriety or the impropriety of writing such a letter is not the question involved in my Motion; it is certainly liable to another construction than that which is the most charitable; viz. that it was written to Lieutenant Sweeney to deter him from giving any opinion on the Court-martial against General Darling. But at all events that is not now the question which we have to consider. I think, Sir, that, with these opinions, stated in the House of Commons, and in the Court of King's Bench, upon this Court-martial, this House will be of opinion with me, that this is not a case in which they ought to take such extraordinary proceedings as to allow a Committee of this House to make themselves judges of the proceedings, the finding and the sentence—regular proceedings, a regular finding, and a regular sentence, of a regular tribunal. I do not know that I need trouble the House any further; I will not enter, as I before said, into the general case either of General Darling or of Captain Robison. What I wish to guard the House against is assuming an authority which is properly given to Court-martials of this country, without extraordinary necessity, and without any sufficient reason, so that any person who may be hereafter led into improper conduct which may expose him to a Court-martial, may be told that he may have the whole question re-opened before this House, by whom there will be a different finding, and a different sentence, not acknowledged by the tribunal which had formerly tried and condemned him. Sir, I think that to establish such a precedent would be to shake the discipline of the army, and not only to relax obedience but to make all officers on Court-martials afraid to do their duty, in certain cases, under the apprehension of their being re-tried before a Committee of this House. I now move Sir, "that it be an instruction to the Committee appointed to inquire into the conduct of General Darling, not to include in their inquiries nor to take cognizance of the proceedings, finding, or sentence of the Court-martial which sat on Captain Robison in the year 1828.

Mr. Maurice O'Connell

confessed that he was in an embarrassing situation, in consequence of the course adopted by the noble Lord that evening—a course which would preclude him from going into a mass of evidence most essential to the justification of a much-injured man, if it were adopted by the House. He thought that the Committee, if permitted to enter into that branch of evidence, would find that a case of a most terrific nature would be made out against General Darling, for his treatment of the two soldiers Sudds and Thompson. The noble Lord had asserted that this House ought not to be made a Court of Appeal from the decisions of Courts-Martial. Now, on the contrary, he would assert that, in the legitimate exercise of its functions, the House of Commons was a Court of Appeal from the decisions of such courts; and in making that assertion he was confirmed by the opinions which both the late and the present Speaker had delivered in that House in the year 1813. He had likewise consulted the Journals upon the subject, and he found that in the year 1744 the minutes of a dozen Courts-Martial had been laid on the Table; and that on revising them, the House had come to a decision, that in the case of Captain Norris the proceedings were unjust, arbitrary, cruel, and illegal. He had endeavoured to get at the proceedings of those Courts-Martial, but he found that they had been destroyed in the fire which recently consumed the House of Commons. The Court-Martial upon Captain Robison came within the category of gross ignorance or wilful misconduct, to which the noble Lord had adverted as a sufficient cause for the revision of the proceedings of a Court-Martial. The Members of that Court-Martial were deplorably ignorant of law, and they had been sadly misled by Captain Forbes, who acted as Deputy Judge-Advocate, and was a friend of Captain Sturt. He charged that Court-Martial with refusing to put to the witnesses certain legal questions which Captain Robison wished to ask them, and with violating the law in refusing to insert upon the minutes of the proceedings, the questions which they prevented that officer from putting to the witnesses. All the entry which they had made upon their minutes was, that the prisoner had put several questions to the witnesses, which the Court decided to be irrelevant, and had therefore refused to insert on the minutes. The prisoner was also entitled to know, at the commencement of the proceedings, who his prosecutor was. He asked that question. The Court refused to give him the information, and it was not till the close of the transaction that he learned that important fact from the evidence. The minutes of the Court-Martial were also taken every night by the Judge-Advocate to General Darling, who was enabled to shape his course accordingly for the proceedings of the next day. The Court-Martial too, instead of being continued from day to day, had been adjourned for several days. All this was a fit subject for inquiry in the Committee; for there must either have been gross ignorance or wilful misconduct on the part of the Court, and the existence of either one or the other was, according to the noble Lord, a fit cause for inquiring into its proceedings. The hon. Member went at great length into the examination of the evidence given by the different witnesses on that Court-Martial. He thought that this was a case in which the House was bound to inquire into the condition and character of the different witnesses examined on that occasion, but not into the proceedings of the Court-Martial itself. He ought to be allowed to prove that Captain Robison was a much-injured man, and that improper evidence, and also suborned evidence, was produced against him; and if upon the testimony given before the Committee on these points, the Committee should be induced to declare that there was nothing in the conduct of Captain Robison unbecoming an officer and gentleman, that would be a balm to that individual's wounded feelings, and would not interfere with the proceedings of the Court-Martial held upon him. The hon. Member concluded by moving, that after the word "inquiry" in the original motion, the words "or take cognizance of the proceedings" be left out, so that the amended motion would be to this effect—"that it be an instruction to the select Committee appointed to inquire into the conduct of General Darling, that they do not include in their inquiry the finding or sentence of the Court-Martial held on Captain Robison, at Sydney Barracks, in the year 1828."

Mr. Cutlar Fergusson

said, it was perfectly ludicrous to exclude the finding and sentence of the Court-Martial, and to extend the inquiry to their proceedings, for they were the most material part of them. He felt bound to oppose the motion of his hon. and learned Friend, which was perfectly and wholly unprecedented, and he was prepared to show that the Court-Martial had committed no injustice in any one of the cases to which he had adverted. The reason why certain portions of the minutes of the Court-Martial were not produced was, that Captain Robison had put questions concerning parties not in Court. The questions had no relevance to the subject matter of inquiry, but referred entirely to third parties. The right hon. Gentleman then went through the proceedings of the Court-Martial, and defended Captain Sturt and Sweeny from the charges brought against them by Captain Robison. The subject had come before the Court of King's Bench, and it had declared there was no ground to impugn the verdict; he, therefore, contended that an inquiry should not be granted.

Mr. Horace Twiss

trusted that the House, by sanctioning the motion on this subject on a former evening, would not establish a dangerous precedent. He was not acquainted with General Darling until after the debate he had alluded to. In consequence of the part he (Mr. Twiss) had then taken, the gallant Officer had called upon him, and asked him to consent to serve on the Committee, should he be appointed a member of it. He took that opportunity of asking General Darling a question relative to a point stated in the former debate by the hon. and learned Member for Dublin. And here he might be permitted to observe that he had made up his mind not to interfere farther in the matter, if the circumstances of the case had turned out to be as they were described by the hon. and learned Gentleman. He asked General Darling whether he had any cognizance of the letter sent to Lieutenant Sweeny. The gallant General denied, in the most solemn manner, that he had the slightest knowledge of such a letter having been sent, or even of the existence of it, until Captain Robison made his statement. He offered to make affidavit of this before a magistrate, and had one drawn up stating clearly the facts of the case, and took it to a magistrate, who refused to swear him to the truth of its contents in consequence of its being a voluntary affidavit. General Darling, however, had written a letter to him containing, as he thought, a complete answer to any allegation made against the gallant General on this point, and which was as satisfactory as any affidavit could be. In this letter he stated, that the letter of Captain Sturt to Lieutenant Sweeny was not only written without his authority or request, but that it was written and sent without his knowledge or privity, and that he was not aware, nor had he reason to suspect, that any such letter had been written until he had been informed of it by Captain Robison. Immediately he heard of this, he had written to Lieutenant Sweeny for an explanation, the nature of which the House was already acquainted with. If there should appear to be anything equivocal in his conduct in this or any other point, General Darling was not only willing but anxious to be examined before a Committee or any other tribunal, when he would give what he felt assured would be a satisfactory explanation and vindication of his conduct. He agreed in the suggestion of the hon. and learned Member, that they ought not to go into any investigation connected with the Court-Martial, unless they were to enter upon a full examination of the whole case.

Lord Dudley Stuart

thought that it would not be satisfactory either to the House or the country, if they did not enter upon an inquiry into the whole subject. It would even be a great injustice to General Darling if they did not do so after the vote the House had come to on a former occasion, and after the serious charges that had been brought against that gallant General. The Motion which his noble Friend the Secretary for the Home Department had that night proposed, went to rescind the vote which the House had come to the other night. He could not help saying that it required a degree of assurance on the part of any Minister, to come down with such a proposition. Why did not his noble Friend come down with his friends and supporters on the former night this subject was discussed, and oppose inquiry? It appeared that he had neglected to do so, and yet he came down now and asked the House to rescind the resolution they had come to on the subject. He (Lord Dudley Stuart) had not been present when his right hon. Friend the Judge Advocate addressed the House. His noble Friend the Secretary at War cheered him when he said that he had not heard the whole of the speech of the Judge Advocate; but he would tell his noble Friend that he had neglected his duty in not being present on the former occasion, when a question concerning the department over which he presided was under discussion. He contended that there were many instances where the House had instituted inquiry into the proceedings before Courts-Martial.

Sir John Hobhouse

objected to opening the proceedings before the Court-Martial on Captain Robison, because it would tend to make the House a Court of Appeal from the decision of judicial tribunals. There might arise cases of an extraordinary nature, in which inquiry might be necessary; but this certainly was not such a case. He was satisfied that his hon. and learned Friend had not made out a case to justify the interference of the House in the proceedings of the Court-Martial.

Mr. Maclean

said, that during the discussion sufficient credit had not been given to the character of General Darling. An hon. Member opposite said that a terrific case had been made out against General Darling; he therefore thought that officer should be allowed every testimony and every means of defending his own character. In 1829 that House had negatived a motion for copies of the minutes of the Court-Martial. It was not fair now to say that a case had been made out against General Darling, when the Court of King's Bench had decided so long ago that no case at all had been made out against him. The question of the Court-Martial had been brought before the King's Bench. They had the opinions of two Judge-Advocates, and of several Administrations, and of the highest tribunal in the country, as to the nature of General Darling's offence, and it was too bad that Captain Robison should urge it forward again. Upon those grounds alone he opposed the motion, although he knew that General Darling was most anxious that every part of his administration of the colony of New South Wales should be inquired into—that the whole of his conduct should be investigated, though he had testimonials from Government approving of his conduct, and sufficient to prove that he was totally incapable of being guilty of the charges brought against him.

Mr. O'Connell

said, it was difficult to know whether the hon. Member who last spoke would vote for the Motion or the Amendment. The question now was, whether the proceedings of the Court-Martial should be put out of the inquiry, or whether it should be limited, and only go to a certain extent, exclusive of the sentence. It appeared that the hon. Member for Bridport (Mr. Twiss) was of opinion, that the original Motion would shutout General Darling from an opportunity of vindicating himself; he therefore thought that they were entitled to the hon. and learned Member's vote for the Amendment of the hon. and learned Member for Tralee. The blank affidavit that the hon. and learned Member for Bridport spoke of ought to have been made before the Court of King's-bench. He thought that the letter from Captain Sturt to Lieutenant Sweeney, was one of the worst features of General Darling's conduct. He hoped that the inquiry would not be limited, and that an opportunity would be given both to General Darling and Captain Sturt to vindicate their conduct before the Committee. He put it to the noble Lord whether he ought not to allow the Amendment of the hon. Member for Tralee to be carried, especially when it was seen that the friends of General Dar- ling were so anxious that that officer should have an opportunity of vindicating himself? It was only by a full inquiry that the question could be set at rest, and he hoped, for the sake of General Darling and Captain Robison, that the Amendment would be allowed to pass.

Mr. Maclean

, in explanation, said, that the hon. and learned Member for Dublin had not fully understood him. What he (Mr. Maclean) said was that he knew General Darling to be exceedingly anxious for inquiry into his conduct; but at the same time he (Mr. Maclean) said that after what had fallen from hon. Members opposite, and after the repeated decisions on the subject, the granting of the inquiry would be an unconstitutional proceeding.

Mr. Shaw

objected to the inquiry upon principle. No doubt that House might, in extreme cases, revise the proceedings of a Court-Martial, confining itself to the matter which had been before the Court-Martial; but to re-hear the case, and open it to new evidence, was without precedent, and would lead to infinite inconvenience. So far as the feelings of General Darling were concerned, he would be ill-treated, now that the inquiry was granted, if it were not allowed to be complete. He thought the Government would act a much more manly part if they moved to rescind the whole resolution, as they had first opposed it. It was hard upon an old and distinguished officer, who had administered the difficult government of a convict settlement, having retired many years, to be now dragged before the public under accusations which had been already the subject of frequent trials and inquiries, that had all terminated in his exculpation. As regarded the letter of Captain Sturt, it might have been improper in Captain Sturt to write it to Lieutenant Sweeny, but it was clearly more unjustifiable of Captain Robison to read it, and for neither was General Darling responsible, for it was proved that the letter was written wholly without his knowledge. He was surprised at the special pleading of the hon. and learned Gentleman (Mr. O'Connell) on the deposition of General Darling's, which had just been read to the House. Surely no Gentleman in the House could hesitate to believe it as implicitly as if it had been sworn in a court of justice. He was quite a stranger to General Darling—had never seen him but once, and knowing many friends and con- nexions of Captain Robison's, he was really anxious, if possible, to serve him; but still he must act consistently with justice and principle.

Mr. Phillip Howard

could not think it consistent on the part of that House, to agree to a Resolution one day, and the next to rescind it. On this ground he should vote against Ministers on the present occasion.

The House divided on the original Question; Ayes 89; Noes 46:—Majority 43.

List of the NOES.
Aglionby, H. A. O'Brien, C.
Attwood, Thomas O'Conner, Don
Barnard, E. G. O'Connell, Daniel
Bowring, Dr. Palmer, General
Brabazon, Sir William Pease, Jos.
Bridgman, H. Potter, R.
Buckingham, J. S. Power, Jas.
Cave, Otway Pryse, Pryse
Collier, John Roche, D.
Crawford, Sharman Ruthven, E.
Ewart, William Smith, B.
Fielden, John Thompson, Col.
French, F. Thornely, Thos.
Grote, George Tooke, Wm.
Harvey, D. W. Tulk, C. A.
Hawkins, J. H. Vigors, N. A.
Hector, C. J. Wakley, Thos.
Hoskins, K. Warburton, Henry
Howard, P. H. Whalley, Sir Saml.
Hume, Joseph Williams, Wm.
Humphery, John Wyse, Thos.
Jephson, C. D. O. TELLERS.
Maher, John O'Connell, Maurice
Musgrave, Sir R. Stuart, Lord Dudley.
Paired off against.
O'Connell, Morgan Power, Patrick
O'Connell, John Ruthven, E. S.
O'Connell, M. J. Sheil, R. L.
Oswald, J. Walker, C. A.

Original Motion agreed to.