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POLITICAL CLUB, &c.

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propofe; for if there be no evident neceflity for the oath itself, there is the lefs danger in any exception that may be thought proper to be made to it. The committee have already introduced one exception, with reA gard to courts of justice; and as we feem inclined to agree to that exception, it will look extremely odd, if we do not now introduce another, with regard to the two houfes of parliament. Is it impoffible to fuppofe, that a court-martial may behave so as to deserve to have their proceedings inquired into, and punifhed by parliament? Suppofe then, that a court martial fhould make itself an inftrument of oppreffion in the hands of an arbitrary, cruel and tyrannical general; and should by his direction proceed, in an arbitrary manner, to pass a most unjuft fentence. Suppofe fuch a courtmartial fhould condemn a colonel to be fhot for mutiny, because he did not march at the head of his regiment, according to his general's orders, to prevent our aflembling in this houfe. Would not fuch a courtmartial deferve to have their conduct inquired into and punished by parliament? But how fhould we inquire, whom could we punish? We might, perhaps, obtain a proof of the fentence; but we could have no proof as to thofe that agreed, or difagreed to it; therefore, we must either condemn or acquit by the lump; and though this fort of lumping juftice was once practifed by parliament, I hope, the precedent will never again be followed : At least, I hope, that we fhall never, by a law of our own, make it neceffary for us to follow it.

1751. PROCEEDINGS of the limb, but can be no argument for the oath of fecrecy propofed; and the other argument, that it will prevent officers being expofed to the refentment of one another, for their way of voting at a court-martial, is equally frivolous, Nay, I think it is worfe; for it carries with it an imputation, both upon the officers of our army, and upon our laws. Can we fuppofe, that any officer of our army would be afraid of doing juftice, left he should thereby incur the refentment of another officer? B Can we fuppofe, that our laws would permit any officer to fhew the leaft fign of fuch a refentment with impunity? This is, therefore, forming to ourselves an imaginary evil, and making ufe of that as an argument for introducing a real evil, and an C evil which will be a precedent for introducing the worst of all evils, which is that of a fecret and arbitrary tribunal; for does not every gentleman fee, that both this and the former argument are equally ftrong for keeping fecret the whole D proceedings of a court-martial? And having once eftablished fuch a fecret military tribunal, it will be a precedent for eftablishing fuch fecret tribunals in all trials at common-law. May it not be faid, that our common-law judges will be the E lefs liable to influence, the more fecret their proceedings are kept? Do not we know, that our common-law judges are liable to refentment, and fome have actually fuffered, for the decrees they have made, or the judgments they have pronounced? But fuch arguments will never, I hope, prevail with us to establish an inquifitorial method of proceeding in any of our courts at common-law.

But, Sir, as I am not to oppose this oath of fecrecy in general, I fhould not have taken up your time with faying fo much against it, if I had not thought it neceffary for inducing gentlemen the more readily to agree to the amendment I am to

F

Suppofe again, Sir, that a courtmartial fhould by their fentence be guilty of a breach of privilege, G against whom could the member complain who had fuffered by that breach? He must complain against every constituent member of that court-martial; and fuppofing we Should

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PROCEEDINGS of the FOLITICAL CLUB, &c.

Jan.

fhort bill, for enabling the officers to disclose the opinions of the feveral members of that court-martial, in purfuance of the exception contained in the oath, as it flood when first brought in. This, I fay, Sir, was, this is ftill my opinion, but [ fhall always readily fubmit, when I find the majority of this houfe to be of a contrary opinion; and for this reafon I fhall not now oppofe our agreeing to the amendment made

fhould think it fuch a heinous breach of privilege, as to deferve a punifhment fignally fevere, we must inflict that punishment upon every one, even though twelve of the five and twenty conftituent members of that court-martial had voted A against the fentence, and, confequently, were innocent of the crime; for by the oath, as it now ftands, we fhall render it impoffible for the innocent to make their innocence appear. Can a British parlia-by the committee; but I cannot ment agree to any law, which thus confounds the innocent with the guilty, and renders it impoffible to punith the latter without involving the former in the fame fort of pu. nishment? The injustice of this is fo manifeft, that I am perfuaded, even those who think this oath of fecrecy neceffary, will be glad of any expedient for extricating them out of this difficulty; and, therefore, I fhall 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

amendment.

Bagree to any further amendment, because I forefee that it would occafion fuch a number of others, as would render the oath quite infignificant; which may, perhaps, be the defign of those who are against the oath in general; but I must beg Cleave to differ from them in opinion; for, I think, the oath, as it now ftands, can be attended with no bad confequence, and will certainly prevent feveral mischiefs.

of D

This Motion being feconded, Cn. Fulvius food up and spoke to this Effect. Mr. Prefident,

I

SIR,

Was one of thofe that were against the amendment made by the committee, and I was against it, because I thought it quite unneceffary; for I fhall always be againft making an unneceffary amendment to any bill brought into this house. I then thought it unneceffary, and I ftill think it fo; because I cannot fuggeft to myself a cafe wherein it may become neceffary for an inferior court of juftice to inquire who voted for or against any fentence of a court-martial; and if the parlia ment fhould ever think it incumbent upon them, to inquire into the proceedings of a court martial, would be eafy to bring in and pass a F.

Efq;

it

E

F

G

As to the danger fuggefted, Sir, that this oath of fecrecy may be made a precedent for introducing the fame fort 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 courts martial are neceffarily fo 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 fuggeited, I think, we have no bad confequence to apprehend from establifhing this oath of fecrecy, with refpect to the vote or opinion of the feveral members of a court-martial; nor is this without precedent, even in the proceedings of both houfes of parliament; for the members of both are bound not to difclofe what paffes in the house; and though, when we hear counfel upon any cafe or any point in difpute, we throw

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1751. PROCEEDINGS of the POLITICAL CLUB, &c.

our doors in a manner open, yet every one knows, that in both houses, the doors are fhut, and regularly every stranger excluded, when we come to argue and determine the cafe or point among ourselves.

B

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have a little more regard to their character for honour as well as courage, than is necessary in common life; and when the character of an informer is tack'd to perjury, they must have a very great regard to the Now, Sir, with regard to the A oath they have taken. This will be mifchiefs that may be in a great the cafe with regard to the oath now measure avoided by the oath of fe- under confideration: If any officer crecy propofed, I muft firft obferve, fhould, notwithstanding his oath, that in human affairs it is impoffible difclofe to the commander in chief to avoid every inconvenience, every the vote or opinion of any other evil: All that human wifdom can officer upon a court-martial, he do, is to chufe the leaft evil, and would be looked on not only as a not to expose ourselves to a great perjured wretch, but also as an ininconvenience for the fake of pre- former: No gentleman would then venting a fmall one. After having keep him company: No officer premiled this, I fhall without hefita- would roll with him; by which tion agree, that the judges of every means he must neceffarily be drove court ought to be made as indepen- out of the army. Therefore it is dent as poffible. With regard to C evident, that officers not only may, Our common-law judges, we have, but will depend upon their vote or fince the happy revolution, effected opinion being kept fecret from the this as much, I believe, as the na- commander in chief, as well as ture of things will admit. But with every one else, and confequently regard to the judges upon a court- will not be fo much under his influ martial, it is impoffible, it would be ence, with regard to any vote or abfolutely inconfiftent with the very Dopinion they may give in a courtnature of military fervice, to render martial, as they were before this rethem independent of the commander gulation was introduced. 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 E he refolves to make use of his influence for that purpose. 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 with any gentleman could fuggeft a more ef. F

fectual method than that of an oath of fecrecy.

I am not at all furprized, Sir, that gentlemen converfant in the law fhould be of opinion, that mankind in general are regardless of an bath. The fuggeftion is too true, IG believe, in all trials at commonJaw, and all difputes about private property; but it is not fo with the

ficers of the army. They must

As to the other mifchief propofed to be prevented by this oath, which is that of the heart burnings and animofities raised among officers, when their way of voting at courts-martial is known, the Hon. gentleman miftook, or forgot to mention the worst confequence of these heart-burnings and animofities. It is not, Sir, the perfonal danger to which officers may be thereby expofed, but it is the prejudice it may be of to the service; for when there is not a cordial friend ship among the officers employed in the fame expedition, or upon the fame command, it often occafions a mifcarriage or defeat. But even that of the perfonal danger which officers are exposed to, deferves our confideration, and ought to be prevented as far as poffible. The cafe of officers giving their opinion in a court-martial, and that of a judge

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delivering his opinion from the bench,
is widely different. The latter may
never, probably, converfe, or be in
company with any man he has of-
fended by that opinion: He fel-
dom appears but in a court of justice,
or amongft his intimate friends; and A
confequently cannot be much ex-
pofed to the refentment of the man
he has offended; but an officer
may happen the very next day
to be in company, perhaps fent
upon the fame command, with the
man against whom he voted at a
court martial; and tho' fuch man
may not seem to fhew any refent-
ment against him on that account,
he may pick a quarrel with him up-
on fome other account, and may
put an end to his life in a duel, with-
out its being poffible even for a court.
martial to determine, that the duel
proceeded from a fecret refentment
of what the deceased had done at
a court-martial; from whence we
fee, that it is impoffible to prevent
the fatal confequences of fuch heart-
burnings and animofities among of-
ficers, any other way than by pre-
venting a difcovery of the vote or
opinion of any officer upon a court-
martial; and for this purpose the
oath now propoled, if it stands as it
now does, will, I hope, be effectual.

PROCEEDINGS of the POLITICAL CLUB, &c. Jan.

But now, Sir, with regard to the amendment which the Hon. gentleman has been pleased to propofe, I must think it quite unneceflary, because, in my opinion, it is comprehended in the amendment made by the committee. Is not the high court of parliament a court of juftice? Surely, it is the highest court in this kingdom; and I hope, it will always be a court of justice. Suppofe then that we fhould think it neceffary to inquire into the conduct of a courtmartial, and should be of opinion, that they had been guilty of fome high misdemeanor, for which they ought to be punished: Our method of proceeding must be by impeachment before the other house; and in

that cafe, is not the other house to
be deemed a court of juftice? Can
we then think, that any officer would
be bound by this oath, as it now
ftands, not to discover the vote or
opinion of any member of that court-
martial? The cafe is to me fo clear,
that I wonder any one should doubt
of it; and therefore I was furprifed
to hear fuch an amendment propofed
by a gentleman, who was not only
bred to the law, but has a very ex-
tenfive knowledge of it.

B As to that of a breach of privilege,
Sir, I do not know how any court-
martial can be guilty of it; for as
they have nothing to do with pro-
perty: As they take no cognisance of
any thing but crimes, and of no
crimes but fuch as are of a military
nature, their jurifdiction can never,

C

I

think, interfere with any known privilege of parliament; for I do not know that we ever claimed any privilege with regard to crimes; and therefore any of our common-law courts, nay, even a fingle juftice of D peace, may commit a member to prison, if he has committed a murder, or been guilty of a riot; and this he may do without the least danger of being deemed guilty of a breach of privilege. For the fame reason, if a member of this houfe be an of

E

F

ficer in the army, his general may
put him under arreft, or may order
him to be tried by a court-martial,
without being guilty of any breach
of privilege; for if it were other-
wife, I am fure, it would not be
proper that any officer in the army
fhould ever be chofen a member of
this houfe, or any member of this
houfe preferred to be an officer in
the army.

With regard to a breach of privi-
lege therefore, Sir, I think it is hardly
poffible for one to fuggeft a cafe of
G that kind, where it might become
neceffary for us to inquire into the
vote or opinion of any particular
member of a court martial; and if
any fuch extraordinary cafe fhould

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1751. PROCEEDINGS of the
ever occur, we should then be acting
in our judicative capicity, as much
as any court of juftice is, when it in-
quires into and punishes a contempt
of court; confequently, no officer
would by this oath be bound up from
difclofing to us the vote or opinion A
of every member of a court-martial,
that had by their fentence commit-
ted a breach of the privileges of this
house.

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POLITICAL CLUB, &c. fequently more impartial. If there were any truth in this pretence, it would be a fort of impeachment of the wisdom or uprightness of the two generals I have named; and for this reafon, if there were none other, I fhould be apt to doubt the truth of it; but from many reasons I am convinced, that it will render our courts martial more dependent and more partial than they ever were heretofore. I fhall readily

C. Numifius flood up next, and spoke in grant, that the officers of our army

Subftance thus:

Mr. Prefident,
SIR,

A

C

B have always hitherto had a very great regard for their character both as to honour and courage, and while they continue to have this regard, they will be independent and impartial in all their proceedings upon courts-martial, as long as thofe proceedings are open and publickly known; because a man muft forfeit his character if he concurs in the condemnation of an innocent man, or the acquittal of a rogue, at the the inftigation of a commander in chief; but when fuch proceedings are carried on in fecret, and no man dare tell whether he concurred or no, in fuch an unjust sentence, as no one can preferve his character by oppofing it, every one will endeavour to recommend himself to his general by joining in it, and to others every one will pretend, or at leaft infinuate, that he opposed the sentence.

S the Hon. gentleman who fpoke laft, endeavoured to fhew the neceffity, or at least the utility, of this modern oath of fecrecy; and as I think it not only unneceffary and useless, but dangerous, I hope I fhall be indulged a few words in juftification of my opinion. As to the neceffity of this oath, we have an experience of above fixty years for convincing us, that no fuch D thing can be neceffary for any good purpose. I hope, I may fay, without derogating from the character of any of our prefent generals, that king William, and the duke of Marlborough, knew as well as any of them, what was neceffary for the E good government of an army; yet neither of them ever thought of introducing fuch an oath, and both of them governed our armies as well, and triumphed, at least, as often over our enemies, as any general of this age ever did. From the example, therefore, of these two great generals, I think, I have some reason to conclude, that no fuch oath ever was, or ever can be neceffary for the good government of the army.

F

But, Sir, I cannot but admire the ingenuity of the gentlemen, who G first introduced, and now fupport this oath, under the fpecious pretence, that it will render our courtsmartial more independent, and conRN, Efq;

I fay, Sir, that when there is no character to be got by oppofing, and the infamy is and must be shared by every member of the court, all of them, or at least the majority, will always be ready to concur in any unjuft fentence their general may please to require; for there is nothing more vain than to imagine, that you can, by any oath, prevent the general's coming at the knowledge how every man voted in a court-martial, which ufually confifts of a large number of members, when he lays himself out for obtaining fuch a knowledge. He will always, in fuch a number, find an in

former,

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