105 1755. JOURNAL of the PROCEEDINGS and DEBATES in the POLITICAL CLUB, continued from p. 63. The next that fpoke in the Debate continued in your left, avas C. Popilius Lænas, whofe Speech was in Subftance as follows. Mr. Prefident, AM far from pretending to un A flitutional, but it would, in my opinion, be very fufpicious; therefore, if I were at fuch a time a member of either houfe, I fhould abfolutely declare against it, becaufe I thould look upon it as a fort of tore-filing the approbation of parliament, before all the circumftances could be fully known. And indeed, in all derftand either our fatute or cafes where the king may confitu Hon. and learned gentleman who F tionally act by prerogative, the previous interpofition of parliament will generally be dangerous, becaufe plaufible reafons may be previously urged for obtaining our authority, which could not afterwards be urged, or not urged with equal weight, for obtaining our approbation; and as fuch reasons do not remain upon record, we could not afterwards condemn what we had before authorized, even tho' it should appear, that our authority had been obtained upon fuggeftions that were abfolutely falfe or groundless. For this reafon, Sir, I take it to be agreeable to the wifdom of parliament, and the practice of our anceftors, never to interpofe our authority in any cafe where his majefly may act by virtue of prerogative; and that he may by virtue of his prerogative authorize the exercife of martial law, where-ever or whenever it becomes abfolutely neceffary, cannot, I think, admit of any doubt; but whether he can delegate this, or any other of the royal prerogatives, is a queftion not fo cafily determined. In one cafe of this kind, the other houfe has taken care of themselves, by a judgment late'y pafied after a very folemn hearing; I mean, the cafe of the late earl of Stair, who had got a power from the crown to pals the. peerage in his family to any cne he ihould appoint by his laft will, which was, 106 PROCEEDINGS of the POLITICAL CLUB, &c. March was, in effect, a power to create a martial law can ever be exercised but by an act of their legislature; fo that it is properly the effect of the power they have to make by-laws for their own government and prefervation; and the people themfelves who are upon the spot, are the judges when the exercife of martial law becomes neceffary, how far it fhall be extended, and how long it fhall be continued. But the cafe is very different with respect to a set of merchants fitting in their directorial B chair here in London, who very probably may connive at a favourite governor's making ufe of martial law for the oppreffion of every man that has the misfortune to be within the limits of his government; and this is the more to be dreaded in the C Eaft-Indies, as no man can fafely or eafily remove from the place where he happens once to be settled, without leave from the governor or company Nay, it may, perhaps, be out of his power to communicate his complaint to any friend at home by letter; for there is no poft by land, and fhips may have orders not to receive or bring home any letters but fuch as are fent by the governor. I have therefore, Sir, the beft authority to fay, that the prerogative of creating a peer, is a prerogative which the king cannot delegate to any fubject, much lefs to a company or corporation; and the prerogative of authorizing the exercife or martial law, is iurcly of much greater confequence than that of creating a fingle peer. This power may be fafely trufted in the hands of the crown, because it is to be prefumed that the king will never make ufe of it at any time, or in any place, but when or where it is abfolutely neceffary; and that he will never extend it further, or continue it longer, than is neceflary; but no fuch prefumption can lie in favour of any fubject: On the contrary, it is to E be prefumed, that he would make ufe of it merely for increafing his own power, and oppreffing every man who fhould dare to oppofe or complain of his moft arbitary and tyrannical acts of power. I must therefore be of opinion, that to allow, and much more to authorize by act of parliament, the delegating of this power to any fubject or fociety, is abfolutely inconiiftent with our conftitution; nor can it be warranted by any thing that has been done with respect to our colonies or plantations in America; because in most of them the governor is appointed by, and in every thing acts by an authority directly derived from the crown; and in the others no I muft for thefe reafons, Sir, look upon the bill now before us, as a bill for a total alteration of our constitution; as a bill of the most dangerous confequence with refpect to what may hereafter be built upon this precedent; as a bill that may in time to come be the cause of infinite oppreffion upon fuch of our countrymen as F may hereafter go to refide in the Eat-Indies; confequently, as a bill that may ruin our trade in that part of the world; and laftly, as a bill highly unjuft with refpect to every man now in that country. It is, Sir, in my opinion, a total overG throw of our conftitution, as it seems to eftablish it for a maxim, that the exercife of martial law may be neceflary in time of peace as well as war; and as it enables the king to delegate one of the principal prerogatives POLITICAL CLUB, &c. 107 fovereign, for giving the countenance of law to his moft arbitrary acts of oppreffion, and for enabling fome future British Tiberius or Nero to boaft, that he has always made the laws of the land the rule of his goA vernment; for in the history of the Romans it is remarkable, that after the lofs of their liberties, and the establishment of a military government, the more tyrannical the emperor was, the more submissive their fenate always was to him. 1755. PROCEEDINGS of the gatives of the crown to a fet of men, fhall not fay the most worthlefs, but certainly not the most honourable in this kingdom, both which are abfolutely inconfiftent with our conftitution; and tho' I fhall not pretend to fet bounds to the power of the legiflature, yet in all fuch cafes I think we fhould follow the example of our ancestors, by faying, that before we can confider of any fuch matter, we must have a conference with thofe of our feveral counties and places who put us in truft; for B as this answer was made by parliament to one of the greatest and best of our kings, who was just returned from fubduing our enemies in Scotland, and preparing to go and fubdue our enemies in France, no future king of this realm could take C fuch an answer amifs from his parliament, but, on the contrary, would have reason to be pleafed with it, because those who have a due regard for their truft from the people, will never fail in their duty to the king; as that king afterwards experienced in the memorable fields of Crefly and Poitiers. D Then, Sir, with regard to the precedent, no one can pretend to limit what may hereafter be built upon it, In all our late debates upon the army, I have never heard it fug- E gefted even by the most zealous advocates against a standing army, that this nation can ever be without a fmall number of regular troops; and if it be once established as a maxim, that martial law is abfolutely neceffary even in time of peace, for re taining fuch troops in their duty, and for making them obferve an exact difcipline, the next step will naturally be, a perpetual law here at home for punishing mutiny and defertion, and for the better payment of the army and their quarters; G from which time we may expect, that our parliament, like the fenate of Rome, will become nothing but an inftrument in the hands of the F As to the oppreffion, Sir, which this bill, if paffed into a law, may be the caufe of, it must appear evident to every one who knows the method of proceeding in courts martial. In fuch courts the commander in chief, or governor, muft always have great influence, and in the EaftIndies will probably have an irrefiftible influence; fo that he will have an arbitrary power not only of life and death, but of torture, over every man belonging to the troops within his government. I fay torture, Sir, for there are feveral forts of military punishments which I must look on as a very cruel fort of torture; and whether this be a power fit to be trufted in the hands of perhaps a very low fellow of an Eaft-India governor, I leave to gentlemen to confider. It is a power, Sir, which the greatest general here at home never has; becaufe in most cafes the fentence of the court martial must be laid before the king, and confirmed by him, before it can be put in execution; and tho' fentence of death may be paffed for feveral very trifling forts of crimes, yet we know, that, here at home, fuch a sentence is very feldom in time of peace carried into execution, because his majesty generally interpofes with a mitigation, or a pardon; but in the EaftIndies there can be no room for any fuch royal and merciful interpofition: The whole must be left to a cruel, perhaps a revengeful Eail-India go 108 PROCEEDINGS of the POLITICAL CLUB, &c. March trial, and to thefe extraordinary punifhments, and confequently to have given up his birth-right as an Englifhman, with his own free confent. Therefore our having taken care to infert this provifo, in every mutiny bill for fo many years, is a proof of its being the opinion of parliament, that no man can juftly be fubjected to be tried by a court martial, or to thefe extraordinary military punishments, without his own previous and free confent. But were thefe sections ever read to any man now in the fervice of the Eaft-India company as a foldier? Could any man fuppofe, that he was to give up his birth-right as an Englishman by lifting in their fervice? Therefore, I will fay, that if you deprive thofe men of their C birth-right by a law ex poft facto, you do them a manifeft injuftice even in your own already declared opinion, as the mutiny bill, which you have already paffed in this very feffion, has this very clause in it. B When I confider this, Sir, I must think that, if this bill pafles into a law, no one but a madman will ever engage as an officer or foldier in the fervice of our Eat-India company; and this may not only prevent its being poffible to fupply their garri- A fons in that country, but it may have a fatal effect in cafe any of them hould be attacked; for upon every fuch occafion it has been cuftomary for all the clerks and writers belonging to the factory to take arms, and to ferve as foldiers in defending the fort; but this can no longer be expected, as their engaging in fuch fervice will fubject them to the martial law. Nay, it will be dangerous for any man to go over even as a clerk or writer in the company's fervice; for as moft men love to extend their power as far as they can, the governor will probably take meafures for obliging every clerk and writer to lift himfelf in the troops, on purpofe that he may have them all fubject to his arbitrary rule. From all which I muft conclude, that this bill, if paffed into a law, may prove the ruin of our trade to the Eaft-Indies, fo far, at leaft, as it depends upon our having forts or garrisons in that country. Laftly, Sir, as to the injuftice of this bill, it muft plainly appear even from the mutiny act annually paffed here at home; for it is always provided by one of the claufes of that act, that no man fhall be deemed lifted, or obliged to ferve as a foldier, unless the fecond and fixth fections of the articles of war were read to him at the time of lifting. Now as thefe two fections point out to him the extraordinary method of trial, and mof of the extraordinary punishments which he becomes fubject to, by lifting as a foldier, after hearing them read, and taking the oath appointed in the third fection to be taken by every foldier, he is moft july prefumed to have fubmitted to this extraordinary method of 3 D E F G This flagrant piece of injuftice, Sir, you cannot avoid doing to thofe honeft fellows who have fo lately behaved fo bravely as foldiers in the company's fervice, but by adding a claufe for declaring every one of them free from all former engagements, and for obliging the company to be at the expence of bringing every man of them home, who fhall not voluntarily and freely engage again in their fervice under the conditions prefcribed by this act; but if you fhould add fuch a claufe, I believe, the company would then be as fanguine for having the bill rejected, as they now are for having it paffed into a law; because by fuch a claufe they would, I am apt to think, think, be obliged to bring home more foldiers than they could replace for two or three years to come; and it would faddle them with an expence they have never been much accustomed to; for whatever becomes of thofe poor men who lift as common foldiers in the company's fervice, |