HC Deb 08 March 1844 vol 73 cc760-74

The House in Committee of Supply.

Several sums were voted on account of the Army Estimates.

On the vote of 141,610l., for defraying the expenses of the widows of officers,

Viscount Howick

thought this a good opportunity to ask an explanation as to the fact of a pension being refused to the widow of the late Colonel Fawcett, on the ground that her husband had fallen in a duel. He wished the right hon. and gallant Gentleman to explain the grounds of the decision to which the Government had come; and also whether, having taken the step he had alluded to in this case, it was his intention to introduce some more general measure for the discouragement of duelling, both in the army and elsewhere, in order to carry into effect what appeared to be the object in view in the refusal of this pension.

Sir H. Hardinge

thought he saw in his place an hon. and gallant Officer who had a Motion on this subject fixed for this evening. He thought that gallant Officer informed him it was his intention to postpone his Motion until Monday. He thought it would be inconvenient to give an explanation on these two occasions, though, if the House wished, he was perfectly ready to go on with his statement. Was he to understand, then, that the gallant Officer consented to take the discussion now. [Captain Bernal: "No."] After that answer, he thought he should do best by confining his explanation to the statement that the grounds on which he refused the widow of the late Colonel Fawcett a pension, were such as, in his discretion, did riot justify him in recommending her to the favour of Her Majesty. Upon that being stated to his right hon. Friend (Sir Robert Peel), the right hon. Gentleman confirmed the view of the case which he (Sir H. Hardinge) had taken. As the gallant Officer still intended to bring forward the Motion of which he had given notice, he thought the noble Lord would see it was better not to persist in discussing the subject now.

Viscount Howick

said, it might be very well for the gallant Officer and the right hon. Baronet and gallant Gentlemen opposite to take this course, but he confessed he did not think the House ought to agree to this Vote without further expression of opinion on the point to which he had alluded. He knew perfectly well when a Motion was brought forward, on the question being put for the Speaker to leave the Chair, in order to go into Committee of Supply, they were always met with the objection that they were interfering with the progress of the public business, and most justly so. He for one, whether sitting on that or on the other side of the House, had invariably set his face against discussions on the question for reading the Order of the Day, unless on occasions of so pressing a nature as not to admit of delay. To bring Motions forward for redress in going into Committee of Supply, was, he thought, continuing the soundest and best Parliamentary practice. But that was a case quite different in its nature from the present. Fie believed, if they were not prepared to take the strong step of moving an address to the Crown on this subject, for which he confessed heat least was not prepared, the proper and Parliamentary opportunity of raising a discussion on it was that which was now offered to the House, on the Vote being proposed for a sum to grant pensions to widows of deceased officers. He had expressed to the gallant Officer behind him a strong opinion to this effect—he had no wish to take the discussion on himself—he should have much preferred, that the gallant Officer should have brought the matter forward, as he had given notice of it, but, seeing that notice of it had been given for to-night; having himself come down, as others had done, exclusively on this account, and no notice of postponement having been given, he had urged the gallant Officer strongly to bring it forward. As the gallant Officer had not done so, he should take the liberty of now offering the very few remarks he was anxious to make. With respect to the refusal of the pension, all he had to say was, that if Her Majesty's Government were seriously prepared to take up this most important question of duelling, if they were prepared to do all in their power to discourage and put down this, as he must call it, most unchristian and sinful practice, then he should acquiesce in the necessity, however painful that necessity might be, of refusing to the unfortunate widow of the late Colonel Fawcett the pension to which, under the circumstances, she would be entitled. But if Her Majesty's Government were not prepared to do this—if they meant to leave the subject in its present most unsatisfactory condition—if they meant to take no effectual means for putting down the practice of duelling, then he did say that the step they had taken with respect to Mrs. Fawcett was a step not only of great hardship and great cruelty, but of great injustice. He said, unless they made a great change in their practice, they had no right to do this. If he was not greatly misinformed, it had been the practice, up to the most recent period, to put on officers of the army the absolute necessity, under some circumstances, of fighting a duel. If he was not mistaken, not more than a year ago, an officer had been sentenced to suspension from his rank and pay, by the finding of a court-martial, for not having taken steps to obtain an immediate and legitimate redress for a gross outrage. Now, he knew perfectly well what the answer to this was. When the charge was offered in this shape, when an officer was accused of conduct unbecoming an officer and a gentleman for not taking steps to obtain redress for an outrage offered to him, the answer was, that the redress which he ought to have sought for was that which would have been obtained from the Horse Guards. But he said boldly, that this was a mere evasion. They all knew that the real redress an officer under such circumstances was expected to ask for was that which was now called demanding satisfaction from his adversary. He would go further, he would ask the right hon. and learned Gentleman, the Judge Advocate General, whether, even since that right hon. Gentleman had been in office, the sentence of a court-martial had not been submitted to him, in which the ordinary forms of evasion had been neglected, and in which the officer was, under this form, sentenced for having declined to fight a duel. His information might be incorrect, but undoubtedly he had heard it, and that the right hon. and learned Gentleman had found that the sentence in that shape was one which was decidedly illegal, and could not be allowed to pass. But the very fact that the charge might be submitted to the court-martial in that form—if he was correctly informed that such was the case—did prove that what was really expected from an officer under such circumstances, was not that he should appeal to the Horse Guards, but that he should take redress into his own hands. Now, he said, if this had been allowed to go on in the Army, if much more efficient means than had been hitherto adopted to put down this system of duelling were not taken, it would be the very height of injustice to refuse to the widow of an officer who had fallen in a duel, the pension to which she would otherwise have been entitled. Ministers told the House that there was difficulty in legislating on the subject, and he admitted that there was. But with respect to the Army, he maintained that Her Majesty's Government, without legislating, had it in their power, most completely and entirely, if they were inclined to exercise it, to put down the practice of duelling. What could be the difficulty of taking this course, to make it known in an authoritative manner to officers, that Her Majesty's Government would not permit this practice to go on, to call on all officers who might receive an insult, to submit their case to a superior authority, by means of a Court of Inquiry, if legal difficulties stood in the way of appealing to a court-martial? By means of a Court of Inquiry, the character of each case might be ascertained, and the prerogative of the Crown in the power of dismissing a guilty party, on the report of a Court of Inquiry, would give ample means of discovering persons guilty of an insult, which, in the ordinary course, would lead to a duel. If Her Majesty's Government were to take this course—to offer redress in this manner to those who were insulted; and, at the same time, to give notice that every party, principal or second, engaged in a duel, would instantly and summarily be dismissed from Her Majesty's service—no man could doubt that the practice of duelling would be very speedily put down. They might even go further. He thought the practice of duelling was so great an evil—so contrary to what every man in private felt to be right and consistent with a man's duty, that not only as regarded the military and naval services, but the community at large, Government ought to take some means to suppress the practice. That task he did not believe to be impossible. In his opinion, what was required was, simply to modify the severity of the existing law. He believed, that what now defeated the law, in nine cases out of ten, was, that its undue severity ran counter to the common feeling of justice in men's breasts. The offence of killing a man in a duel was, technically and legally, murder; but surely it was felt by all that, although a great crime, it was still one of a very different character, and deserving a different measure of punishment from that of deliberate and wilful murder. He thought that the offence ought to be taken out of that class, and that special provisions, with a moderate amount of punishment, ought to be appointed for cases of duel. Having thus modified the law, Government should take care that the law, so altered, was uniformly and impartially administered. Besides this, another step might be taken which would do much to prevent what was considered the necessity of duelling, and that was to afford parties receiving insults, and who are at present the parties who fight duels, some means of obtaining from the legal tribunals of the country a redress in proportion to the offence. He did not think there was any insuperable difficulty in forming some law which would enable persons aggrieved and insulted to obtain redress proportioned to the offence from one of the courts of law. There were two courses open to Her Majesty's Government with reference to this pension. Either they might allow things to remain as they now were; and if they did, if they shut their eyes to the practice of duelling, if they would do nothing but connive at its existence as hitherto, then he must say they ought to grant Mrs. Fawcett the pension of which she had been deprived. The other course was, that they should set themselves seriously to work to put down the practice altogether, and that they should not look in any case to see who were the parties concerned. No one could help remarking, that in a case which occurred very lately, a person in a very high and distinguished situation which made the offence in him infinitely more serious and aggravated than it could be in any military officer—in that most remarkable case in which be thought the high authorities in whose presence the offence was committed had grievously failed in their duty to the country and to the court in which they presided, Her Majesty's Government had passed over the offence as if it were one of a most venal and trivial description. He said there was no consistency in this conduct; one line or the other ought to be adopted. They ought to strive to put down duelling on principle, to act impartially and generally against all offenders, or if this they would not do, they ought not to be guilty of what he must consider the cruelty and injustice of refusing to the widow of one of the unfortunate victims of this most unhappy system a pension which very possibly her circumstances might render particularly necessary to her.

Captain Bernal

said, perhaps it might be satisfactory to the right hon. and gallant Gentleman after what had fallen from the noble Lord the Member for Sunderland, to know that he did not acknowledge that he had fairly laid himself open to the lecture which the noble Lord had read him on constitutional law. He had consulted several Members of equal standing with the noble Lord in the House as to the course which it would be proper to take on this question. Nothing had fallen from the noble Lord which would stop him from bringing forward on the Order of the Day for going into Committee of Supply the Motion of which he had given notice.

Sir Hardinge

certainly thought that the speech of the noble Lord was not characterized by the usual fairness which marked his conduct in that House. The present case was to come forward on Monday next, and yet with that knowledge the noble Lord had taken this opportunity of discussing the whole discipline of the Army relating to duelling on an occasion when he must know that the Mutiny Act, and other opportunities, would enable him to bring forward this subject more conveniently than at present. Seeing that this question was to come forward on Monday, and that the gallant Officer (Captain Bernal) took a different view of it from him (Sir H. Hardinge) he thought it would have been more fair if the noble Lord had consented to postpone his observations till that occasion. Having already given the noble Lord all the explanation which he thought necessary on the subject of the soldiers' pension, he must decline entering into any further statement at present. With respect to the other part of the noble Lord's speech, whether the officers of the Army were expected to find their way out of every dispute into which they might get by duelling, and that this was connived at, as the noble Lord said, by individuals at the head of the Army—he must confess he was surprised that the noble Lord should bring forward such erroneous notions, notwithstanding the high office which he had held for several years as Secretary at War—he must give this part of the noble Lord's speech the strongest contradiction in his power. He did not believe that the statement of the noble Lord was borne out by facts. He was confident the noble Lord could not produce any instance in which officers had been brought to a court-martial and cashiered for not having fought a duel in consequence of having had an insult offered to them. He must observe, that there appeared to be in the mind of the noble Lord, as well as of other individuals, a great misunderstanding on this question. By the Articles of War, an officer was liable to be cashiered for fighting a duel, and it was stated, "that whoever should give, send, convey, or promote a challenge, or should upbraid an officer for refusing a challenge, should, if convicted thereof, be cashiered." Another Article said, "If any officer shall behave in a scandalous and infamous manner, unbecoming the character of an officer and a gentleman, he shall also be liable to be cashiered." Another Article said, "We do hereby acquit officers of any disgrace or opinion of disadvantage, which may arise from their refusing to accept a challenge, as they will only have acted in obedience to our own orders, and done their duty as good soldiers, who subject themselves to discipline." Having shown to the House what the Articles of War prescribed on this subject, he asked the noble Lord how it was possible that twelve or thirteen officers, men of education, put upon their oaths to judge in a case, and with this book the Articles of War open before them, could punish a man for declining a challenge? Officers were told they were not to accept one—that there was no disgrace in refusing it—but, according to the noble Lord's version of the discipline of the Army, an officer would be tried for scandalous and infamous conduct, unbecoming an officer and a gentleman, and might be cashiered, if the fact were proved, for refusing to fight a duel. Why, it would be a violation of their oaths in the members of any court to come to such a conclusion; it would be a violation of all decency and common sense. The noble Lord had had great opportunities, having been five or six years at the War Office, of proving the truth of this view of the subject; and if there were any defect in the Articles, it was the noble Lord's duty, when he filled that office, to recommend to Her Majesty any alterations which he might consider necessary to render them better adapted to the service. Under these circumstances, when the noble Lord told the Government of the present day, that they had it in their power to put down duelling, and that it ought to be put down in the Army, he was induced to ask what the noble Lord had been about during the five years of which he had spoken? Why did not the noble Lord put it down during that period? Why did he not take those steps which he found fault with the Government of the present day for not taking, when he had the Articles of War before him? He could assure the noble Lord that the subject had not escaped the attention of the present Commander-in-Chief and the Government, and though it did not become him to enter at length into this subject, because certain alterations in the forms of procedure had not yet received the sanction of Her Majesty, he would say that the question was under the consideration of the Government. With respect to the noble Lord's observations that officers were cashiered for not fighting duels, he would refer to the case mentioned, he believed the other day, by the hon. Member for Wycombe (Captain Bernal), namely, that the very last mail from the West Indies had brought the case of an officer who had been tried for having submitted to an insult, because he would not fight a duel, and the opinion was that he would be cashiered. Whether he was or not, he really could not answer, but he would read the charge brought against an officer as late as 1843, without mentioning names. It was— For scandalous and infamous conduct, highly unbecoming the character of an officer and a gentleman, in submitting to be repeatedly charged with ungentlemanly and blackguard conduct without further replying to said charges and language used to him, or reporting it to his commanding officer, or taking any measures for exculpating himself from charges so derogatory to his character. Now this officer was brought to trial for conduct unbecoming an officer and a gentleman, and he (Sir H. Hardinge) maintained that when this occurred this officer ought to have gone before his brother officers and his commanding officer, and said, "Try me, I am ready to exculpate myself and disprove the charge brought against me." But, according to the erroneous version of the noble Lord, it would follow that twelve or thirteen gentlemen, sitting in a court with the Articles of War before them, were to suppose that this individual ought to have fought a duel, and ought not to have exculpated his character from these defamatory charges. He (Sir H. Hardinge) would only say he had been forty years in the Army, and he had never known one case at all approaching to such a result as the noble Lord had stated. He knew what the circumstances of the case he had alluded to were. The individual had acted in so dishonourable a manner, that he did not dare to demand an inquiry to exculpate himself, and his brother officers, therefore, forced him before a court-martial under the clause he had read which enacted that an officer might be brought to trial for scandalous and infamous conduct, unbecoming an officer and gentleman, and if convicted might be cashiered. It was said that an individual thus tried was brought to a court-martial for not fighting a duel; he contended that it was because he did not dare to attempt to vindicate himself, and was afraid to have his conduct inquired into. Could it be supposed that twelve or thirteen gentlemen, with the book from which he had quoted open before them, would be so lost to all sense of their duty as men and Christians, and to all regard for their oaths as to convict a man for refusing a challenge? He said, no such thing was ever done. In the same year (1843)—he took the most recent cases, because the noble Lord said the system was still being acted upon at the present day, and that officers were driven to the unchristian and unreasonable act of fighting a duel, when they ought to have a court of inquiry—in April, 1843, an officer was tried for scandalous and infamous conduct, in having submitted to be stigmatised as a liar and a scoundrel, and other opprobrious epithets, by another individual, for which the court found hint guilty, and, of course, the individual was cashiered. When he (Sir H. Hardinge) made inquiries, what did he find? That that individual had conducted himself in such a disgraceful manner, that he did not dare to face a court of inquiry composed of his brother officers, and they had, therefore, brought him to a court-martial to exclude him from the regiment. How these cases could be construed into the view the noble Lord had taken of them, he could not understand. He could understand, if an officer had insulted another, and by his slackness in resenting insult, had exposed himself to odium, he might be sent to Coventry by his brother officers, and under such circumstance he might find his position so extremely unpleasant that he would be obliged to leave the regiment. He knew an instance in which a field officer, having a high sense of religion, and being a man of very conscientious mind, declined to fight a duel, because he would not sin against the command of God. The officers of the regiment knowing the inconvenience to which they were exposed by having a member of the regiment liable to such imputations, felt highly aggrieved. What was the consequence? The present Commander-in-Chief protected that individual to the full extent which the good of the service required; he caused an inquiry to be made respecting the transaction which had been the cause of quarrel between these parties, and the blamelessness of that officer's conduct having been fully established, the objection against him was withdrawn by his brother officers, and the gentleman, acting on the noble Lord's principle, of refusing to fight when he could not reconcile it, to his conscience, was now in the service, a highly respected field-officer. He believed this course had been pursued in almost every instance; wherever an opportunity of discouraging duelling had offered itself, it had been discouraged. He could show by an extract what was the opinion of Sir Charles Morgan, who was Judge Advocate General several years ago. When he suspected that the wording of a charge which was brought against an officer, might be construed into an accusation for not fighting a duel, he caused the officers to be written to. The case occurred in 1804: the party was charged with "associating and being in habits of intimacy, at different periods since the 13th December, with Assistant-surgeon such-a-one, notwithstanding that he had been collared and struck by the Assistant-surgeon on the evening of the day previous, and for thus behaving himself, &c." The officer was struck and took no notice of it; he was brought to a court-martial; and Sir C. Morgan, thinking it possible there might have been some intention to punish him for not fighting, wrote this note—"the investigation of the second charge against Lieutenant—having ended in an acquittal, it is necessary to observe, that had I been aware of this previous to the trial, I should not have referred the case to a court-martial, as it appears to me that in substance, though not in direct terms, this charge comes little short of imputing to him as a crime that he did not challenge or fight a duel with the Assistant-surgeon." The Lieutenant was acquitted. There was no such intention on the part of the Court towards this officer, but merely because there was that suspicion of such an imputation, the Judge Advocate had entered this opinion. He could only assure the noble Lord that, in every case which had come before him having made every possible inquiry, both at the Horse-Guards and from his right hon. Friend near him, the Judge Advocate General since the hon. Member for Wycombe gave notice of his motion, he could not find a single instance in which any officer of the army had been brought to a court-martial because he had been wanting in courage to fight a duel. On the contrary, the cases in which trials growing out of transactions of this kind had occurred, were cases in which the per- sons brought to trial had stooped to disgraceful conduct, and did not dare to vindicate himself. He must withhold from the noble Lord any further statement as to the pension to the widow of Col. Fawcett; but he trusted that he should be able to satisfy the House, when the matter was brought before it, that he had acted as his duty required. He was the person responsible for the step that had been taken and he hoped he should be able to show that the discretion he had exercised had been a proper one.

Colonel Fox

said, he would grant, that officers were seldom brought to a court-martial for not fighting duels, but he would ask if instances were not well known in which the Sovereign had dislensed with the services of officers for the only reason being that they had been put into Coventry for not fighting a duel? That was the manner in which the case was disposed of, and all who were acquainted with the subject knew it well.

Sir H. Hardinge

said, the gallant officer, whose conduct in that House was always very fair, had made a statement which quite astonished him, when he declared that the Sovereign of the country was a party indirectly to punishing officers who refused to fight a duel, by telling them that their services were dispensed with. He knew no instances of that description; he had known instances in which quarrels had taken place, in which duels had been fought, and where it was necessary for the harmony of the regiment that certain officers should be removed from it. But he would tell the noble Lord and the gallant officer that if they persisted in pushing the question to this extremity, if they wished to assume that restrictions and restraints were to be imposed on officers of the army to which other members of the community were not to be subject, no legislation of so unjust a character would satisfy the Army. Instead of extirpating the evil of which all complained, he was convinced the noble Lord would aggravate it. All you could do until the general voice of the community agreed with the noble Lord—and he (Sir Henry Hardinge). for his part fully adopted the noble Lord's views, that duelling ought to be put down—all you could do was to modify the evil. When you had done that, the country would go with you. He would say that he did not believe there was more duelling in the army than among other portions of the community. He would instance the noble corps of the Royal Artillery, at Woolwich, in which he believed for a period of twenty years, with sixty or seventy officers sitting down to dinner every day at the mess, not a single duel had occurred. Government were anxious to take every possible step to discourage and suppress the practice of duelling in the Army; and when such unhappy cases as those of Lieutenant Munro and Colonel Fawcett occurred, it was their duty to watch and see whether they could take any course to correct the propensity to have recourse to this mode of adjusting disputes. But as to the noble Lord's statement, he might say he had never heard from any hon. Member of that House remarks which contained a greater portion of exaggeration.

Sir A. L. Hay

would not enter upon the subject of the pension. There were courts of honour attached to every regiment, to which appeals ought to be made in such cases. Was the stigma to be removed by the person going before a Court-martial, and shielding himself under that court? He denied the fact. The question was beset with difficulties. It was asserted that there were more duels in the army than in civil society. He did not think that such was the case. This was a question which ought not to be taken up lightly. It must not be forgotten that there were connected with this matter circumstances allied with the best interests of the State, upon which it was not so easy to legislate; and it was under these circumstances that he believed the Army might be placed on a different footing, and that duelling might be done away with.

Mr. Bernal

wished to know whether the subject of duelling was now to be discussed, or whether it was to be postponed until Monday, when his hon. relative had given notice of his intention to submit a Motion to the House. A wide field had been to-night opened by the noble Lord the Member for Sunderland; but if this discussion was not to terminate to-night, it would be better that not one word more should be said about it. The question was one which not merely affected officers in the military service of the country, but it was one which affected the country at large. There were upon the Statute-book laws which pronounced the offence of duelling to be murder; but juries evaded the law, and Judges gave the go-by to it. The subject was much too large to be discussed upon one vote of the Army Esti- mates. The question of duelling ought, in his judgment, to form a substantive Motion, and ought not to be discussed, on the vote of an amount of money for Widows' Pensions. He hoped, therefore, any further discussion on the question would now be waved.

Dr. Nicholl

said, that having been appealed to by the noble Lord the Member for Sunderland, he begged to state that in the case mentioned by the noble Lord he (Dr. Nicholl) had found fault with the finding of the Court-martial, because the offence charged was that of not reporting the matter to the Commanding-officer (which was a military offence), and on that ground he, as Judge Advocate, had le-commended the proceedings to be revised.

Mr. P. Borthwick

thought, that as at present advised, it was most unjustifiable to visit upon the widow of Colonel Fawcett the punishment of withholding her pension. That unfortunate lady was the last person in the world who ought to suffer for the faults of others.

Viscount Howick

briefly replied. He could not but complain of the miserable spirit of personality in which the right hon. and gallant Officer the Secretary-at-War had indulged. The right hon. and gallant Officer had given no answer to the arguments he had submitted to the Committee on the present occasion. The right hon. and gallant Officer had turned to the Mutiny Act and asked him, why, if it was not sufficient to put down duelling, he had not altered it? If the right hon. and gallant Officer thought it right and becoming to raise that question, he (Lord Howick) would at once give his answer. During the time he had the honour to fill the office of Secretary-at-War he had never been called upon to consider the case of the widow of an officer who had fallen in a duel, but if the exercise of that painful discretion had devolved upon him, he would not have advised the suspension of the pension to the widow, unless he had been at the same time prepared to put down duelling in the Army. At present an officer had the alternative of being sent to Coventry or becoming involved in a duel; one course or other ought to be adopted by the Government.

Captain Bernal

hoped the right hon. and gallant Officer the Secretary at War, would not be tempted to-night to enter upon the discussion of a question of such vast interest. He could not but think that the attack made by the noble Lord upon the right hon. and gallant Officer the Secretary at War was most unfair. He hoped the right hon. and gallant Officer would maintain a judicious silence. The question was one upon which four or five of the oldest and most experienced Members of the House were anxious to declare their sentiments, and as the subject would on Monday regularly come on for discussion, he thought the tight hon. and gallant. Officer was justified in giving no answer to the attack made upon him by the noble Lord the Member for Sunderland.

Sir H. Hardinge

observed, that the noble Lord opposite had talked of miserable personalities. Now, he appealed to every hon. Member who heard him, whether the whole amount of his attack upon the noble Lord was not confined to this—that you, who were five years in office, did not rectify errors which you expect those who have been only two years and a quarter in power and authority to have corrected. The noble Lord had exhibited a degree of ill-temper which was not justified by the circumstances.

Lord J. Manners

entertained a strong conviction, that any attempt to establish a Court of Honour must fail. He was sure that it would be in vain to look to legislation for a remedy for this evil, which could only be put an end to by popular feeling.

Vote agreed to, as were several other Votes.