1755 9 JOURNAL of the PROCEEDINGS and DEBATES in the POLITICAL CLUB, continued from p. 545, of our laft Year's MAGAZINE. The next Debate I am to give you the Service of the Eaft India Com- Mr. Prefident, SIR, I AM glad to fee the important tended. I hope it is a fign that it was not to be tried by a jury, but determined by the records and judges, whether juftice at fuch a time, and in fuch a place, had her equal course of proceeding, or no. So careful were our ancestors to prevent the exercife of martial law in this kingdom in time of peace, that in order to prevent as much as poffible any pretence for its being neceflary, a law was made in the reign of Henry VI. by which it was made rejony for a foldier, engaged to ferve the king in his wars, not to go with, or to depart from his captain without a licence; and fuch offences were exprefsly made cognizable by the juf tices of peace, according to the courfe of the common law; which law became neceffary to be made at that time, becaufe we were engaged in a heavy and unfortunate war in France, for the profecution whereof many foldiers were daily lifted here at home, and many of them, after having received the lifting money, either, refufed to go, or afterwards deferited from the army in France and returned home; for neither of which offences they could be punished any other way than by a civil action for breach of covenant, therefore a new law for that purpose became neceffary; but the legiflature took care that the trial and punishment fhould be according to the courfe of the common law. This law, Sir, was revived in the reigns of Hen. VII. and Hen. VIII. and the benefit of clergy taken away from deferters, but fill the trial was to be according to the courfe of common law for until the reign of Fdward VI. no countenance was given by any law to the pumfhment of any foldier even by the commander in chief, and then it า was PROCEEDINGS of the POLITICAL CLUB, &c. Jan? B was restrained only to fuch officers fome new forts of crimes, or some or foldiers as gave or received li- new fets of people, have been made cences without the confent of the liable to be tried and punished by commander in chief, and extended martial law. In the first mutiny act, only to imprisonment at his difcreti- which, as I have faid, was paffed in on. From that time until after the the first year of William and Mary, Revolution we had no other law A our courtiers were pretty modeft, for for the punishment of any military no crimes were made liable to be offence, nor was martial law ever tried by courts martial but mutiny, exercifed in this kingdom in time of fedition, and desertion, and even for peace, that is to fay, when the peace- these crimes the courts martial had a able courfe of juftice was not ftopt power to inflict a lefs fevere punishby fome invasion or rebellion; yet ment than that of death; nor was during the whole time of Charles any foldier to be deemed guilty of and James Ild. a body of regular defertion, unless he actually left their troops were kept on foot under pro- majefties fervice, fo that if a poor per difcipline, and without being fellow, on account of ill ufage, left guilty of any irregularities; for if the company he was in, and lifted they could not have been kept under in another, he could not be tried or proper difcipline, I am fure, neither punished by a court martial for deof thefe kings would have been at C fertion, or indeed for any other crime. the expence of keeping them on Then as to the perfons fubjected to foot; and if they had been guilty martial law by this first mutiny act, of any irregularities, I am as fure we they were only officers and foldiers fhould have heard enough of it from muttered and in pay in the army the anticourt writers of thofe days within this kingdom only; and likeNay, I am apt to fufpect, that the wife as to the time of its continuance, irregularities committed by our troops this first act was very much confined, foon after the Revolution, were unfor it was not to continue in force but derhand fomented by the private di- from the 12th of April to the 10th rection of fome of our minifters at of November following, fo that I that time, in order to induce the am apt to believe, the chief reason parliament to agree to the firft writ- for paffing it, or at least the chief ten law we ever had for establishing reafon made ufe of for inducing the courts martial in this kingdom, which E parliament to pafs it, was in order to was the act paffed in the first of the enable his majefty to reduce Ireland, reign of William and Mary, inti- which was then almoft entirely under tled, An act for punishing officers or the dominion of the abdicated king ; foldiers who fhall mutiny or defert and this was perhaps one of the reatheir majefties fervice. fons why fo little was done during that fummer towards the reduction of Ireland, or the relief of the dif treffed Proteftants in that kingdom, in order that the fame prevailing argument might be made ufe of for pafling a new mutiny bill in the next feffion of parliament. D F How dangerous, Sir, is any precedent that may in the leaft contribute towards the eflablishment of ar bitrary power! For this precedent being once made, we have ever fince had martial law annually established by parliament with very little interruption, except for about 14 or 15 months during the year 1691, and G part of 1692, and except between three and four years after the peace of Ryfwick; and what is ftill worse, the danger has been growing upon ever fince; for almost every year, Before I have done with this act Sir, I muft further obferve, that the king was not thereby enabled to establish any articles of war, with fevere punishments annexed, to be of force in this kingdom; nor was the act of the 1755. PROCEEDINGS of the POLITICAL CLUB, &c. II its continuance, this new act was made to continne for a whole year; fo that it was almost in every respect more extenfive than the former. At Thus, Sir, we may see how quickly this precedent in favour of atAbitrary power was improved, and it has been improving ever fince; but it would be tedious, and almost endlefs, to take notice of all the improvements and alterations that have been made in this annual perpetual law; therefore I fhall only observe, B that from its first appearance upon our records until after the peace of Utrecht, it was never paffed but when the nation was involved in war abroad tho' not at home. that remarkable æra, as the parliament did not meet till April 9, 1713 the mutiny act which had been par fed in the former feffion had expired the 25th of March preceding, fo that we continued without any mu. tiny act until July 25 following and without any power in the crown, as it was then a time of profound peace both abroad and at home, to exercise martial law, by virtue of prerogative; and yet during that whole time no one officer fo much as threatened to throw up his com miffion, nor did any of the foldiers of any regiment, troop, or company in the queen's fervice, fo much as attempt to difband. This, Sir, is extremely remarkable, and it is the more remarkable, as there was then as violent and as well fupported an oppofition to the administration as ever was in this kingdom, and this oppofition, with regard to the be haviour of the army, the more to be dreaded by our minifters, as it had at its head the most fuccefsful, the most favourite general, I believe, that ever liet and died a fubject. This, I fay, Sir, is ex. tremely remarkable, because it shews Ghow vain the hopes of fome gentle the 31st of king Charles II. againft men are, who fondly imagine, that a ftanding army once fully established, with an ambitious, prince at its B 2 head, PROCEEDINGS of the POLITICAL CLUB, &c. Jan. extent; for it is in effect a law for enabling the king, by his fole authority, to make what laws he pleases for the government of his army'; which we have, indeed, of late got in fone degree limited; but confiAdering the feverity of fome military punishments which do not extend to life or limb, the limitation can have little or no effect; for we know that if a poor foldier happens to be ear expiring before he has receive the number of lashes allotted him, carried off and pampered u a few days, in order to be m new fpectacle of military fev Who would not suffer death r than undergo fuch a punishment B C I fhall not trouble you, Sir, an account of the growth of noxious weed which has already moft over fhadowed our conftitut any further than to take notice the clause I have mentioned for It is true, Sir, that at the time I am fpeaking of, our minifters fo far prevailed as to get a fort of mutiny bill paffed in the enfuing fellion, but as it was the firit that was ever paffed when the nation was in peace abroad, as well as at home, no punishment to be inflicted by martial law was to extend to life or limb; and every foldier was a ter three years intitled to demand and have his difcharge if he thought fit. But tho' this act was fo moderate as to punishment and fervice, Occafion was taken from the title of it, which was, An act for the better regulating the forces, to extend: the power of courts martial to a multitude of other offences; for by a clause in this act courts martial were impowered to inflict corporal punishment, not extending to life or dowing foldiers to demand their limb, on any foldier, for immora charge after three years notice, w lities, misbehaviour, or neglect of in the first of the late king mac duty. Which claufe has been care D conditional, upon their giving thre fully continued ever fince, and to months notice of their intention this are owing the many cruel whip- and in the very next mutiny' act, pings we now daily near of. Upon which was paffed the fame feffion of the expiration of this act at Lady parliament, this indulging clause was day, 1714, we were again without entirely omitted, as it has been ever any law for the exercite of martial fince; from which time every lifted law, until June 5, following, yet no E foldier became a foldier for life, and difbanding enfued; and a new mu- fo he ftill continues to be, unless he tiny act of the fame tenor with the can obtain a discharge from his comi former having then taken place, it was manding officer, upon a proper a renewed in the first of the late king, greement between them, and often, but prefently after, and in the fame fefwe may believe, upon as valuable a fion, a new mutiny act was paffed with confideration as it is in his power to all the terrors and feverities of any give. I muft likewife take notice, former; and with a new and extra- that in most of our mutiny acts there ordinary clause for impowering his has been a claufe for declaring that majefty by his fign manual to make a conviction or acquittal fhall be and conflitute articles for the better a bar to any future trial for the fame government of his forces, and inflict- offence, yet of late years there has ing penalties by fentence or judgment been introduced what they call a reof courts martial even here at home, G vifion: That is to fay, if the com and in time of peace; which clause mander in chief does not like the has likewife been ever fince contiacquittal or the fentence pronounced,' nued, and is really carrying the ex- he may order a rivifion of the trial, excife of martial law to its utmost upon which an officer or foldier, F who 1755. PROCEEDINGS of the POLITICAL CLUB, &c. who has been acquitted, may be condemned and fhot; but as this affair has been fo lately before the houfe, I need not take up your time with fhewing what oppreffion and tyranny it may be the cause of B D 13 the crown itself. Our Eaft-India company, Sir, was first established by a charter from queen Elizabeth, and by that charter had granted them an exclufive trade to the Eaft-Indies, which was illegal, notwithstanding its being granted by that wife and gracious queen: They had a new charter from James I. with the fame exclufive privilege, and confequently as illegal as the former: From Charles II. they had another new charter, ftill with the fame exclufivè privilege, and fill illegal. However, they continued to enjoy this exclufive privilege, but exercised it with great caution, becaufe even they themselves doubted the legality of it, as monopolizing charters of all kinds had been loudly complained of in parliament towards the end of queen Elizabeth's reign'; therefore when the famous, or rather infamous Jeffreys was raifed to the bench, they took an opportunity to have their exclufive privilege de clared legal by him; for they were fure they had then a judge who would decide in favour of every thing that tended to exalt the power I beg pardon, Sir, for giving you fo A much trouble, but I thought it neceffary to fhew the rife and rapid progrefs of the exercise of martial law in this kingdom, and fhall conclude with obferving, that tho' our first mutiny cts extended only to the land offi ers and foldiers within this king lom, yet that of the 4th and 5th of William and Mary was made to tend to Jersey and Guernsey; that of the 8th and 9th of king William was made to extend to all officers ind foldiers in the marine fervice; hat of the 13th of king William C vas made to extend to Ireland as vell as England, and indeed to all he forces his majesty should have on oot any where in the world; that of the ift of queen Anne was made o include likewise all those belong. ng to the trains of artillery; and that of the 10th all the invalid com. panies; the 2d mutiny act of the ift of his late majefty's reign was made to extend to Gibraltar and Mi What was the confequence, Sir? norca; and ever fince the beginning they began presently after, to act in of his prefent majefty's reign, our fo oppreffive a manner abroad, that mutiny acts have been made to ex- E great complaints were brought home tend to all his majesty's dominions against them, which they had influ beyond the feas, befides all the ence enough to ftile, probably by places I have before particularly the fame means they practifed for obtaining a new charter and act of parliament foon after the Revolution! for when their affairs were brought F under the confideration of parlia? ment in 1695, it appeared, that they had bribed feveral members of par liament, and had attempted even to bribe the crown itself by an offer of 50,000l. and that for thefe cor rupt purpofes they had laid out a very large fum of money, and were to have laid out a much larger, in cafe their intended act had paffed, amounting in the whole to between 3 and 400,000l. To this amount, mentioned. *Thefe extenfions of our now writ of the crown. I |