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1751. JOURNAL of the PROCEEDINGS and DEBATES

in the POLITICAL CLUB, continued from the Appendix, 1750, Page 584.

to the proceedings, or the sentence 1 fall now give you a Debate we of a court-martial, no member there. bad our Club upon the Queflion,

of could be desired, much less re. Whether the Words (or by either quired, to disclose or discover the House of Parliament) should not be vote or opinion of any particular added at the End of the Oath of member of that court-martial ; for, Secrecy contained in the Bill againjt A furely, we could not defire a gentieMutiny and Desertion *; which man to make such discovery, when Queftion was first started by L. he is bound by his oath not to do so, Muræna, who upon this Occasion

unless we should assume to ourselves Spoke in Substance as follows, viz. a dispensing power, which; I hope)

no parliament, nor any court or inaMr. President,

gistrate in Great Britain ever will. SIR,

B I confess, Sir, I was always, and THE amendment made by the still am, against the whole of this

committee to the oath now oath of secrecy. It is an innovation

under our consideration, lately brought into our military law ; was an amendment which, so far as and it is an innovation which is init went, I highly approved of; and consistent with the whole tenor of I was glad to find my opinion sup: our laws, and the very spirit of our ported by some gentlemen, whose C conftitution. With us the courts of concurrence I shall always be proud justice have always been open, and of; but even then I did not think the judges thereof have delivered the amendment extensive enough. their opinions, and passed sentence or However, I resolved not to propose judgment in the face of the world. any further extension of it at that This will always have a good effect time, because I was apprehensive left in favour of justice ; for let men be it might have defeated what I then D never fo corrupt, let them be never aimed at, and because I knew, that so abandoned, they will always have a further amendment might be pro- Tome regard for their safety, if not posed upon the report from that com- for their reputation ; and will be mittee. I fall therefore now beg cautious of letting the people know, leave to observe the impropriety of that they have been the tools of our giving a greater power to the oppreffion, and the dispensers of courts below, than we give to, or re- E manifeft injustice. But if we once serve for, the high court of parlia- begin to have fentence passed in sement. By the oath, as it now stands, cret, and under an oath of secrecy, any member of a court-martial may be we shall soon begin to have the whole obliged by any of the courts in Welt. trial carried on in the lame manner ; miniter hall, to disclose or discover the and this Imells so itrong of the court vote or opinion of every particular of inquifuion, and of those terrible member of the court-martial, when it F reclule courts, which are in arbitr.becomes necessary to have a proof ry governments the initruments of thereof in any trial before them. But tyranny, that it muit give a just if a question should arise in this or alarum to every gentleman, who has the other house of parliament, relating a regard for our constitution, or the

-M, Esq; happiness of pofterity,
January, 1751.

B
* Sie zur Magazine forlaft yel', P. 313,

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10 PROCEEDINGS of the POLITICAL CLUB, &c. Jan.

One of the arguments made use most readily allow, that the danger of, Sir, for this oath of secrecy, is suggelted by those gentlemen, is far so far from being an argument in its from being imaginary ; but I canfavour, that it is an unanswerable not agree in the last part of their ar. argument for our returning to the

gument ; for I cannot suppose, that regulation of 1713, by which it this danger will be in the least ob. was provided, That no punishment A viated by the oath of secrecy proto be infli&led by the sentence of a poled. We know how little an oath court-martial should extend to life, is regarded by mankind, when it or limb ; and with respect to com- happens to be inconsistent with their mission officers, I think, the re- intereit, and when they may break ftraint should be carried even to that it not only with impunity but adof corporal punishment ; for that of

vantage. No officer will, therefore, breaking, suspending, or fining a B notwithstanding this oath, suppose, commission officer is, I think, the that his way of voting at a courthighest punishment we ought to al- martial can be hid from the crown, low a court-martial in time of peace or the general, or minister for the to inflict ; and in time of war we time being; consequently, the memhave no occasion for a mutiny bill, bers of a court-martial will still conbecause his majesty's prerogative then tinue to be under the same influence takes place, by which he may not C they are now. Nay, I think, they will only appoint courts martial, but be more so; because, as their way may furnish them with such powers of voting will by this oath be kept as he thinks necessary.

hid from the world, they will with When I thus talk of the argu- the more freedom abandon them. ment brought in favour of this oath, selves to that influence, and miniI believe, every gentleman will sup- tters, or generals, will with the less pole, I mean that by which it is D reftraint make use of it. laid, that as officers depend for their fent, or at leait before this oath was preferment, as well as for their con- introduced, a man's way of voting tinuence in commission, upon the ar- ac a court martial was publickly bitrary will of the crown, or rather known, and if any one voted against of the prime minister, or general what was supposed to be che inclina. for the time being, they may, when tion of the minister, or general, upon a court-martial, be determined E and was afterwards dismissed the by the influence of that minifter, or fervice, or disappointed in his pregeneral to acquit, or condemn and

ferment, the world of course suppunish, not according to justice, but posed, that it was on account of his according to his will and pleasure. having voted according to consciThis they allow to be a danger that ence, which was an imputation that ought to be appreherded, and this

a wile minister, or general, would danger they pretend to obviate, by F chuse to avoid ; but no minifter, or obliging every officer, upon oath,

general, can now be in danger of not to disclose the vote or opinion of any such imputation, and, therefore, any particular member of the court- they will with the more freedom martial,

dismiss, or disappoint, any officer In the first part of this argument, who dares to vote at a court-marSir, I most heartily agree with those tial contrary to their direction. gentlemen : We know how liable G

This argument is, therefore, Sir, our common-law judges were to mi- what may be called argumentum ad nisterial influence, when their com- hominm, for reftraining courts-marmillions depended upon ministerial tial, in time of peace, from inflicting pleasure ; and, therefore, I ftall any punishment extending to life, or

Ac pre

1751. PROCEEDINGS of the PolitiCAL CLUB, &c.

II limb, but can be no argument for propose ; for if there be no evident the oath of secrecy proposed ; and necessity for the oath itself, there is the orher argument, that it will pre- the leis danger in any exception that vent officers being exposed to the may be thought proper to be made resentment of one another, for their to it. The committee have already way of voting at a court-martial, is introduced one exception, with reequally frivolous, Nay, I think it A gard to courts of justice ; and as is worse ; for it carries with it an we seem inclined to agree to that imputation, both upon the officers exception, it will look extremely of our army, and upon our laws. odd, if we do not now introduce Can we suppose, that any officer of another, with regard to the two our army would be afraid of doing houses of parliament. Is it impofiijustice, left he should thereby incur ble to suppose, that a court-martial the resentment of another officer? B may behave so as to deserve to have Can we suppose, that our laws would their proceedings inquired into, and permit any officer to shew the least punithed by parliament? Suppose fign of such a resentment with im- then, that a court martial Mould panity! This is, therefore, forming make itself an instrument of oppres. to ourselves an imaginary evil, and fion in the hands of an arbitrary, making use of that as an argument

cruel and tyrannical general; and for introducing a real evil, and an C should by his direction proceed, in an evil which will be a precedent for arbitrary manner, to pass a most unjust introducing the worst of all evils,

sentence.

Suppose such a courtwhich is that of a secret and arbi. martial should condemn a colonel trary tribunal ; for does not every to be shot for mutiny, because he gentleman fee, that both this and did not inarch at the head of his the former argument are equally regiment, according to his general's ftrong for keeping secret the whole D orders, to prevent our aflembling in proceedings of court-martial ? this house. Would not such a courtAnd having once established such a martial deserve to have their confecret military tribunal, it will be a duet inquired into and punithed by precedent for eltablishing such fe- parliament ? But how should we in. cret tribunals in all trials at com- quire, whom could we punish? We mon-law, May it not be said, that might, perhaps, obtain a proof of our common-law judges will be the E the sentence; but we could have no less liable to influence, the more proof as to those that agreed, or secret their proceedings are kept ? disagreed to it ; therefore, we must Do not we know, that our com- either condemn or acquit by the mon-law judges are liable to resent- Jump ; and though this sort of ment, and some have actually suf- lumping justice was once practised fered, for the decrees they have by parliament, I hope, the prece. made, or the judginents they have f dent will never again be followed : pronounced ? But such arguments Ac least, I hope, that we shall never, will never, I hope, prevail with us by a law of our own, make it necefto establish an inquisitorial method fary for us to follow it. of proceeding in any of our courts Suppose again, Sir, that a courtat common-law.

martial should by their sentence But, Sir, as I am not to oppose be guilty of a breach of privilege, this oath of secrecy in general, 1 G against whom could the member should not have taken up your time complain who had suffered by that with saying so much ag init it, if I breach? He must complain against had not thought it necessary for in. every conftituent member of that ducing gentlemen the more readily court-martial ; and fupposing we to agree to the amendment I an to

Thould

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PROCEEDINGS of the FOLITICAL Clue, &r. Jan.
Thould think it such a heinous breach short bill, for enabling the officers to
of privilege, as to deserve a pu. disclose the opinions of the several
nishment tignally severe, we must members of that court martial, in
infliet that punishment upon every pursuance of the exception con-
one, even though twelve of the tained in the oath, as it stood when
kave and twenty constituent members first brought in. This, I say, Sir,
of that court martial had voted A was, this is still my opinion, but I
against the sentence, and, conse. Mall always readily submit, when I
quently, were innocent of the find the majority of this houfe to be
crime ; for by the oath, as it now of a contrary opinion; and for this
stands, we shall render it impossible reason I shall not now oppose our
for the innocent to make their inno. agreeing to the amendment made
cence appear. Can a British parlia- by the committee ; but I canno
ment agree to any law, which thus Bagree to any further amendment,
confounds the innocent with the because I foresee that it would occa-
guilty, and renders it impossible to fion such a number of others, as
punith the latter without involving would render the oath quite inligni-
the former in the same sort of pu. ficant ; which may, perhaps, be the
nishment ? The injustice of this is design of those who are against the
so manifeft, that I am persuaded, oath in general ; but I must beg
even those who think this oath of Cleave to differ from them in opi-
secrecy necessary, will be glad of 'nion ; for, I think, the oath, as it
any expedient for extricating them now stands, can be attended with no
out of this difficulty ; and, there- bad consequence, and will certainly
fore, I shall conclude with moving, prevent leveral mischiefs.
That after the words, by due course of As to the danger suggested, Sing
inw, the words, or by either house of that this oath of secrecy may be
parliament, may be added by way of D made a precedent for introducing the
amendment.

same sort of regulation, with regard

to our courts of common law, I must This Mation being seconded, Cn. Fulvius think it altogether chimerical ; for food up and spoke to this Efect. the nature of the military law is so

different from that of the com

very Mr. President,

mon law, and the methods of proSIR,

E

ceeding in courts martial are necesWas one of those that were sarily lo very different from those in

our courts at common law, that no
the committee, and I was against it, regulation in the one can ever be
because I thought it quite unnecel- made a precedent for any regulation
sary ; for I shall always be against in the other. And as this is the
making an unnecessary amendment only danger I have ever heard fug-

F
to any bill brought into this house. gelted, I think, we have no bad
I then thought it unnecessary, and consequence to apprehend from elta-
I still think it so ; because I cannot blishing this oath of secrecy, with
suggest to myself a case wherein it respect to the vote or opinion of the
may become necessary for an inferior several members of a court-martial ;
court of justice to inquire who voted nor is this without precedent, even
for or against any sentence of a G in the proceedings of both houses of
court-martial ; and if the parlia- parliament ; for the members of
ment should ever think it incumbent both are bound not to disclose what
upon them, to inquire into the pro- palles in the housc ; and though,
ceedings of a court martial, it when we hear counsel upon any case
would be easy to bring in and pass a of any point in dispute, we throw
III- Esq;

Our :

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I again the amendment made by

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