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ception, with regard to courts of justice; and as we seem inclined to agree to that exception, it will look extremely odd, if we do not now introduce another, with regard to the two houses of parliament. Is it impossible to suppose, that a court-martial may behave so as to deserve to have their proceedings enquired into, and punished by parliament? Suppose, then, that a courtmartial should make itself an instrument of oppression in the hands of an arbitrary, cruel, and tyrannical general ; and should by his direction proceed, in an arbitrary manner, to pass a most unjust sentence. Suppose such a court-martial should condemn a colonel to be shot for mutiny, because he did not march at the head of his regiment, according to his general's orders, to prevent our assembling in this house: would not such a court-martial deserve to have their conduct enquired into and punished by parliament ? But how should we enquire? whom could we punish? We might, perhaps, obtain a proof of the sentence ; but we could have no proof as to those that agreed, or disagreed to it; therefore, we must either condemn or acquit by the lump; and though this sort of lumping justice was once practised by parliament, I hope the precedent will never again be followed ; at least, I hope that we shall never, by a law of our own, make it necessary for us to follow it.
Suppose again, sir, that a court-martial should by their sentence be guilty of a breach of privilege ; against whom could the member complain who had suffered by that breach? He must complain against every constituent member of that court-martial ; and supposing we should think it such a heinous breach of privilege, as to deserve a punishment signally severe, we must inflict that punishment upon every one, even though twelve of the five-and-twenty constituent members of that court-martial had voted against the sentence, and, consequently were innocent of the crime : for by the oath as it now stands, we shall render it impossil le for the innocent to make their innocence appear. Can a British parliament
agree to any law, which thus confounds the innocent with the guilty, and renders it impossible to punish the latter, without involving the former in the same sort of punishment? The injustice of this is so manifest, that I am persuaded, even those who think this oath of secrecy necessary, will be glad of any expedient for extricating them out of this difficulty ; and, therefore, I shall conclude with moving, That after the words, by due course of law,' the words, or by either house of parliament,' may be added, by way of amendment.
HENRY FOX, ESQ.
(Afterwards Lord Holland,) Was the father of the late celebrated C. J. Fox. Perhaps the reader
may be able to trace some resemblance in their manner of speak. ing'; the same close consecutive mode of reasoning, and the same disposition to go round his subject, and view it in its various asa pects and bearings.
His Speech in Reply.
was one of those that were against the amendment made by the committee, and I was against it, because I thought it quite unnecessary: for I shall always be against making an unnecessary amendment to any bill brought into this house. I then thought it unnecessary, and I still think it so; because I cannot suggest to myself a case wherein it may become necessary for an inferior court of justice to enquire who voted for or against any sentence of a court-martial ; and if the parliament should ever think it incumbent upon them to enquire into the proceedings of a court martial, it would be easy to bring in and pass a short bill, for enabling the officers to disclose the opinions of the several members of that courtmartial, in pursuance of the exception contained in the oath, as it stood when fist brought in. This I say, sir, was, this is still my opinion; but I shall always readily
submit when I find the majority of this house to be of a contrary opinion ; and for this reason I shall now oppose our agreeing to the amendment made by the committee ; but I cannot agree to any further amendment, because i foresee that it would occasion such a number of others, as would render the oath quite insignificant ; which may, perhaps, be the design of those who are against the oath in general ; but I inust beg leave to differ from them in opinion : for I think the oath as it now stands, can be attended with no bad consequence, and will certainly prevent several inischiefs.
As to the danger suggested, sir, that this oath of se. crecy may be made a precedent for introducing the same sort of regulation with regard to our courts of common law, I must think it altogether chimerical : for the nature of the military law is so very different from that of the common law, and the methods of proceeding in courtsmartial are necessarily so very different from those in our courts at common law, that no regulation in the one can ever be made a precedent for any regulation in the other. And as this is the only danger I have ever heard suggested, I think we have no bad consequence to apprehend from establishing this oath of secrecy, with respect to the vote or opinion of the several members of a court. martial; nor is this without precedent even in the pro. ceedings of both houses of parliament: for the members of both are bound not to disclose what passes in the house ; and though, when we hear counsel upon any case, or any point in dispute, we throw our doors in a manner open, yet every one knows, that in both houses, the doors are shut, and every stranger regularly excluded, when we come to argue and determine the case or point among ourselves.
Now, sir, with regard to the mischiefs that may be in a great measure avoided by the oath of secrecy proposed, I must first observe, that in human affairs it is impossible to avoid every inconvenience, every evil : all that human wisdom can do, is to choose the least evil, and not to expose Vol. I.
ourselves to a great inconvenience for the sake of preventing a small one. After having premised this, I shall without hesitation agree, that the judges of every court qught to be made as independent as possible. With re- . gard to our common law judges, we have, since the happy revolution, effected this as much, I believe, as the nature of things will admit. But with regard to the judges upon a court-martial, it is impossible, it would be absolutely inconsistent with the very nature of military service, to render them independent of the commander in chief ; therefore we have reason to apprehend, that the vote or opinion of gentlemen in a court-martial may be directed by the influence of the commander in chief, when he resolves to make use of his influence for that How is this to be prevented ? No way I can think of, but by preventing its being known how every particular member voted ; and I wish any gentleman could suggest
. a more effectual method than that of an oath of se. crecy.
I am not at all surprised, sir, that gentlemen conver. sant in the law should be of opinion, that mankind in general are regardless of an oath. The suggestion is too true, I believe, in all trials at common law, and all disputes about private property; but it is not so with the officers of the army. They inust have a little more re
. gard to their character for honour, as well as courage, than is necessary in common life ; and when the charac. ter of an informer is tacked to perjury, they must have a very great regard to the oath they have taken. This will be the case with regard to the oath now under consideration : if any officer should, notwithstanding his oath, disclose to the commander in chief, the vote or opinion of any other officer upon a court-martial, he would be looked on not only as a perjured wretch, but also as an informer ; no gentleman would then keep him company, no officer would roll with him ; by which means he must necessarily be driven out of the army. Therefore it is evident, that officers not only may, but will depend upon their vote or opinion being kept secret from the commander in chief, as well as every one else; and consequently, will not be so much under his influence, with regard to any vote or opinion they may give in a courtmartial, as they were before this regulation was introduced.
As to the other mischief proposed to be prevented by this oath, which is that of the heart-burnings and ani. mosities raised among officers when their way of voting at courts-martial is known, the honourable gentleman mistook, or forgot to mention the consequence of these heart-burnings and animosities. It is not, sir, the persoa nal danger to which officers may be thereby exposed, but it is the prejudice it may be of to the service; for when there is not a cordial friendship among the officers employed in the same expedition, or upon the same command, it often occasions a miscarriage or defeat. But even that of the personal danger to which officers are exposed, deserves our consideration, and ought to be pre- . vented as far as possible. The case of officers giving their opinion in a court-martial, and that of a judge delivering his opinion from the bench, is widely different. The latter may never, probably, converse, or be in company with any man he has offended by that opinion : he seldom appears but in a court of justice, or amongst his intimate friends ; and, consequently, cannot be much exposed to the resentment of the man he has offended; but an officer may happen the very next day to be in commany, perhaps sent upon the same command, with the man against whom he voted at a court-martial; and though such man may not seem to shew any resentment against him on that account, he may pick a quarrel with him upon some other account, and may put an end to his life in a duel, without its be. ing possible even for a court,martial to determine, that the duel proceeded from a secret resentment of what the deceased had done at a court-martial; from whence we see, that it is impossible to prevent the fatal conse. quences of such heart-burnings and animosities among officers, any other way than by preventing a discovery of