Secretary at
War.

Mr. Fox.

out muster and inserting commission, there might be an army in the kingdom unknown to this House. It might appear as of trifling confideration, but little things, when once admitted, may become great. He was therefore of opinion that the amendment should be adopted, in order that the spirit and intent of the act might be preferved.

The Secretary at War remarked, that he had been attentive to the gentleman who started the objection, as he expected, that after the measure having been in existence a twelvemonth, he should have heard other reasons for the annulling it than those which had been deemed insufficient to prevent its being adopted on a former occafion; but as no one instance of any bad effect arising from it could be adduced, he held that circumstance to be the strongest conviction of its propriety. He said, that there were many cases in which it was not only proper, but the absolute duty of a fenior officer by brevet, to take upon him the command; as for instance, were an infurrection to arife in a garrifon town where a young officer commanded, would not he be happy to resign his command to the experience of an old officer? And would any call in question that officer's being liable to the jurifdiction of a military inquiry?-He had lately conversed with a gentleman of high military rank upon the fubject, who had declared, that until the moiment that the court martial on General Ross started them, he had never entertained the smallest doubts upon the fubject: it was therefore no new matter; it was only confirming an old established opinion.

Mr. Fox obferved, that nothing could be more ridiculous than the affertion that a brevet officer might take a command without a letter of service. Suppose (he added) that an officer by some means, either chance or defign, found hinself in India, and in posseffion of a brevet commission in point of date or rank superior or prior to that of Earl Cornwallis; and on producing that commiffion, let us suppose the noble Earl obliged to refign his command to that officer, would the honourable and learned gentleman (Sir Charles Gould) take upon him to fay, that the noble Earl would not, by this doctrine, be justified in giving up his command to which he was specially appointed by his Majesty? The idea was monftrous and abfurd! The King's commiffion, by these means, would be trod upon, and the wisdom of his councils rendered of no effect. It will be urged then (continued Mr. Fox) that fuch a man should be tried by military law; I say, No-It is the officer who furrenders his command that ought to be thus tried; let the other come under the laws of his country. The words of the olaufe fignify, (what we all agree in) that military men fhould be amenable

amenable to military law: but let us not include more under that denomination than there is really a neceffity for. There can be no neceffity for brevet officers to be thus confidered as men out of the protection of the juridical laws of their country; it must be the wish of every Englishman to be protected by them in all instances; and until a neceffity takes place, of his being under martial law, he ought not to be made amenable to it. The confideration of the half-pay officers being bound by the mutiny act is a serious matter, and ought not to be hastily mentioned.

Sir Charles Gould answered, that the right honourable Sir Charles gentleman must have mifunderstood his argument. Lord Gould. Amherst, whilft in America, had a special commiffion, and could not be superseded; and every governor, and even lieutenant governor, had appointments which rank could not affect.

Mr. Jolliffe faid, that he rose to trouble the Committee Mr. Jolliffe, on this question, not in a military light, but merely as it might affect the subjects of this country in their civil fituations. It had ever been his principle, and ever would be the first object of his life, to resist, so far as was in his power, any attempt to put any defcription of men under a military trial, who were not so by the military law, as it now stood. With respect to brevet officers affuming military authority, he had no doubt of saying, that they should be subject to military law, and the clause moved by the right honourable gentleman went completely to that; and on that ground it had been uniformly argued by the other fide, ex cept by one honourable gentleman (the Judge-Advocate). But were that the cafe for which this alteration in the law was attempted, the direct contrary would become avowed. The cafe however was this: General Rofs had written some letter, or published fome paper, supposed to be defamatory, against General Boyd, under whom he had ferved at Gibraltar, and on application to the judges they were of opinion, that for this supposed offence he could not be tried by a court martial. But did any man suppose that this offence might not have been tried by a jury? there was no doubt of it: then this alteration was proposed to render that to be a crime triable by a military tribunal which was merely a civil offence, because not committed under the command of General, but after his command had ceased. It had been faid by the honourable and learned judge, " but there may " be offences with which officers may be charged, which are " not triable by a jury, and for which such officers may be " driven from the society of their corps, unless they should " on investigation be fully acquitted thereof." Mr. Jolliffe faid, that he defied the honourable and learned gentleman VOL. XXI. Yy

to

1

Mr. Francis

Sir George
Howard.

Sir James Erskine.

to shew him any one offence which a brevet officer could

commit in his civil capacity, which was not triable at common law. He was sure that no such case, with respect to a brevet officer, could exist: this alteration therefore went to conftitute an infringement on the trial by jury; it took a description of persons out of that mode of trial and placed them under a military tribunal; it was therefore a material alteration of the law of the land, and being in no respect whatever necessary, he should certainly object to it.

Captain Phipps faid, that the great Duke of Cumberland acted in Scotland by brevet, and served without pay; and it was the right honourable gentleman's (Mr. Fox) intention, if his adminiftration had continued longer, to have a commander in chief (General Conway) without pay in this kingdom.

Mr. Francis supported his former opinion; and afferted, that if the precedent was once established to have ten officers in the predicament which the bill authorized, there might be 10,000, and this House know nothing of them.

Sir George Howard declared, that he never heard it afferted that military men should not be under military discipline he never looked on half-pay as a reward; but always confidered the officers' commiffions to lie dormant, and not to be annihilated. When officers thus fituated are called into fervice, they must have a new commiffion, but that one placed them in their old rank. He mentioned, that in the year 1745 an invafion was apprehended by the citizens of Briftol; and the Duke of Cumberland was requested to fend officers' to command the troops and embodied citizens there; but his Highness did not fend officers of rank, and only nominated four half-pay officers to the service. This was a cafe in fupport of the opinions of the honourable gentlemen who were for the clause.

Sir James Erskine begged leave to draw their attention to the vote which they were about to give; as the words originally stood, they at least involved a doubt in respect to the half-pay officer; by the amendment propofed all doubt was done away, as if it was determined hereafter that officers acting by brevet were serving under proper authority, as worded in the amendment, it must of course meet all their ideas.

Colonel Fitzpatrick instanced the case of Lord Rawdon, when on a feparate command at Charlestown. He there found a brevet officer, who demanded the command of his troops; but the noble Lord refused to refign it, as it was a detached army under Earl Cornwallis. In answer to the Secretary at War (Sir George Yonge's) observation of new ground to support his motion-Colonel Fitzpatrick obferved, that he understood it to be his (the Secretary's) duty to instruct officers, and in that capacity he was ready to obey him; but as a director of his conduct in Parliament, it was the first notice he had of the honourable gentleman

poffeffing fuch authority.

The Committee divided:

48

Majority for the clause as it stood

The bill was then gone through, and the usual blanks

were filled up, and it was ordered to be reported.

The House adjourned.

Thursday, 1st March.

On the report of the mutiny bill being brought up,

Colonel Fitzpatrick lamented the lofs of the amendment Col. Fitzwhich he propofed in the Committee on the preceding day; patrick. and read part of the preamble to the bill, which he contrafted with the objectionable clause, and argued that the meaning and intent of the bill excluded officers with brevet commiffions from its regulations and restrictions. In this opinion he did not stand alone, as several honourable and learned gentlemen confidered it in the fame light: he appealed to the Attorney General, and begged to have his opinion.

The Attorney General, after declaring that it was a species Attorney of law which he did not confider as belonging to his depart- General. ment, acknowledged that he had not given the bill, nor the clause under confideration, the smallest attention until the appeal made to him by the right honourable gentleman; and that as far as a hasty opinion could direct him, he did not think there were grounds for the objection.

The Judge-Advocate remarked, that he had always confi- The Judgedered, until the late decifion of the judges, that brevet of Advocate. ficers were amenable to the mutiny act: he did not doubt but the learned judges were perfectly right in their opinions, and confidered the clause in question to include every officer bearing the King's commiffion.

The Attorney General now faid, if the right honourable Attorney gentleman has cause of objection, it certainly should be al- General. tered; but as far as I can discover in five minutes perusal, (and gentlemen of my profeffion are not much in the habit of giving hafty decisions) I am of opinion that the clause is comprehended in the spirit of the bill.

The Report was agreed to without a division or amend

ment, and the bill ordered to be engroffed.

Yy2

The

Mr. Chan

The order of the day was read for a Committee of the whole House on the fimplification of the Customs. Mr. Steele in the Chair.

Mr. Chancellor Pitt faid, that he would not bring forcellor Pist. ward any motions in which any other alteration in the duty would take place, excepting the fractions being made whole numbers, without giving notice; and that he would, at present, propose some resolutions, where no other alterations were comprehended than those he had mentioned.

He then proposed several resolutions under the letters B. C. D. in the Schedules, which were agreed to. He declined going into the drugs, as a regulation would take place, in order to approximate the duty nearer to the real value of the articles than it is at present. He also mentioned, that he purposed making an alteration in the duty of several articles under the denomination of grocery; particularly pepper, which paid at present about four pence half-penny per pound, he intended to raise to fix pence; and pimento, which at present paid about two pence per pound, should be raised to three pence: this would not affect the exportation of those articles, as the drawback was to be advanced in proportion, and it would rest entirely on the home cons sumption.

The House adjourned.

"Friday, 2d March.

Major Scott moved, that a copy of the minutes on the council board at Bengal, in the year 1777, by General Clavering, be laid before that House. This was agreed to.

Mr. Wilberforce rose to request the attention of the House berforce. to a fubject of national importance as well as personal confideration to the gentleman to whom it immediately related. Mr. Lucham having, at his own risk, expended thirty thoufand pounds by endeavouring to make convenient harbours and shelters for our vessels from the damages they sustained by being exposed to the nonfoons, was neceffitated thus to submit his case to Parliament. The poor man had expended the greatest part of his property in this public and very laudable undertaking: he had applied for patronage to the India Company and the Board of Control, and after having been five years in England on this business, he had received no promife of patronage, or even of indemnification. All he wished therefore was, that Parliament would confider of some mode that might prevent this gentleman from being, at least, at the entire loss of what he had rifked on this public effort, and to afford him an encouragement to pro