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they to derive that information, without which the House ought not to proceed any farther? He cited the case of the persons tried and convicted a few years since for the murder of lord Pigot at Madras, which proved, that juries at least were competent to try every size of East India delinquency likely to occur. He reminded the House of the court of Starchamber, of the Commission court at New York, and of the abuses which those courts had committed, to the great oppression of the subject. He alluded to the inventory clause, now omitted, and that which had been introduced in its stead, declaring that the second had proved worse than the first, inasmuch as, by the second, the parties were to deliver in the accounts of their property in secret, and to lie wholly at the mercy of the King's ministers. In the illustration of the danger of secret justiciary proceedings, besides the Star-chamber, he desired their lordships to recollect the celebrated trial at Athens before the thirty tyrants, who condemned every one of the persons tried before them; whereas had they, as had been the ancient custom, been tried before the people, it was well known that not one of the accused would have been found guilty. How dangerous a use might a minister make of the new tribunal, by the influence which it would give him over an Indian governor, to whom he might say, "Do you let me have my way in India, and you may multiply crimes with impunity, as you'll be tried when you come home by a tribunal, over which I have considerable influence." In conclusion, the noble Earl moved to leave out all the words from the beginning of the second clause, and to insert, by way of amendment, a clause repealing all the part of the former Bill which institutes and autho rizes the new tribunal.
and even then he understood the written evidence on each side was a great part of it obliged to be gone into. He alluded to Mr. Grenville's Bill for trying elections, and spoke of the constitution of the new tribunal as an improvement on that authorized by Mr. Grenville's Bill. He mentioned the lingering and fruitless attempt to prosecute sir Thomas Rumbold, as a proof of the actual necessity for some such measure. After a variety of reasons to shew that the sort of causes which would in all probability come before this tribunal for trial, would be of a size infinitely too great for trial before a common jury in the courts of King's-bench or Common Pleas, his lordship took notice of the inventory clause being omitted in the present Bill, and said he was glad it was left out, as it had occasioned great uneasiness; and that he thought a good ground for Government, under certain circumstances, to relax and give way upon.
Viscount Stormont said, that his predictions two years since, that the clause now omitted, must be left out, was become history, and yet at the time every praise was bestowed on that very clause which had been pronounced the most essential in the Bill. The whole of it, however, he was persuaded, must be abandoned, and the sooner it was done the better. The operation of the Bill must be productive of much inconvenience, and there was no necessity for any such measure. He censured the constitution of the new court, and observed that judge and juror were now so blended, that in fact the court would be without either judge or jury. He alluded to the trial of Mr. Stratton, and declared that the House seemed to have adopted the vulgar error, and misapprehended the reason why the sentence had been so mild. The truth was, it was proved that lord Pigot had overturned the government of Fort St. George previous to his being seized; and he had likewise snatched a signed minute out of the hands of a gentleman of the council, and suddenly suspended that gentleman and another, and thus made a majority in his own favour. These facts had been pleaded in mitigation, and they had weighed considerably in the minds of the judges. After assigning many reasons for the vote which he should give for the amendment, entering at length into the history of the Starchamber and High Commission court, and speaking of the celebrated cause in which a jury gave 100,000l. damages to [K]
Lord Walsingham could not avoid contending, in opposition to the sentiments of the noble Earl, that there was an absolute necessity for some new judicature to be provided, in order to try those great East India offenders, whose crimes were of a nature so complicated, and the proof of whose guilt must necessarily be so voluminous, that it would be impossible for any court and jury to go through the whole in a day; and their lordships well knew, that if any ordinary jury were suffered to separate pending a trial, they would be liable to corruption. His lordship said, that at the trial of Messrs. Stratton, Floyer, &c. the trial lasted an immense period of time, [VOL. XXVI.]
the duke of York against Titus Oates, his | ness, such as, he believed, had imparted lordship went into the history of India, themselves to most of their lordships, to and said, he did not expect again to hear find again in the House a bill which had any boasts of our great wealth there, as a two years ago been introduced, and, after measure had been taken which would in- so long a trial, had been found so miseradeed have been unpardonable, had not ex- bly defective, that it stood in need of a treme necessity justified it, viz. all the bill of twenty pages to prop it up, and to Company's servants, who received above render it at all practicable. It had been. 301. a month salary, were obliged to take imputed, that there was something unthe whole of their salary's amount in Ben- candid in his noble friend's suffering the gal paper payable here in London. Bill to get into the committee before they debated its principle. Approving, as his noble friends and he did, of the clause that repealed the inventory clause in the former Bill, he begged to know how they were to debate the principle at all, but after the Bill had got into the committee? He defied any noble lord to prove the necessity on which the Bill rested. Had there lately occurred a case, where there was any great East India delinquent to be tried, for which purpose the courts of law were not sufficiently well adapted? The only instance in his memory had been the case of Stratton, Floyer, and others, which he himself, when Attorney General, had conducted in the court of King's-bench, and to a full and complete trial and conviction of whom he had not found the smallest difficulty. With regard to the length of time, and the papers given in evidence not being all read, he did assure the noble lords they were mistaken. The trial took up no more than a reasonable time, and there was not a piece nor a scrap of evidence at all material which was not fully gone into. Having the cause a good deal at heart at the time, he had not missed any, as might well be supposed; and when he informed the House that the counsel against him was Mr. Dunning, he would leave them to judge whether it was likely that any evidence which could at all serve the defendants' cause was neglected. The fact was, there was no difficulty. The sentence he, for one, did not think sufficiently severe. Others thought differently. It lay, however, altogether in the discretion of the court to determine what the sentence should be, and he had that day heard from the noble viscount weighty reasons to account for the apparent slightness of the sentence. There was nothing therefore in the only trial within his memory to prove that any new tribunal was necessary. Having stated this, he asked for what was the proposed left-handed court to be instituted? He warned their lordships against
See Howell's State Trials, vol. 21, p. 1045.
Lord Camden declared, that if he himself were to be tried, as an East Indian delinquent, for his life, he should think it more safe in the hands of a court so constituted as the new tribunal, than in that of any one court whatsoever. Instead of having neither judge nor jury, it had the benefit of both so happily blended, that the judges became (what they never were before) jurors. The ancient constitutional custom of the courts of law was, the jury found both the law and the fact; and where there was a doubt as to the law, the judge was to declare it, but he was not to dictate to the jury, nor to refuse to take their verdict; that was entirely and wholly their province; and, where a judge interfered with it, he abused his trust, and did not do his duty. According to the constitution of this new court the judges were let into the fact, and the jury into the law, so that they judged equally, which must be a considerable advantage, and essentially conducive to the purposes of substantial justice. His lordship spoke of the cases to be tried by this new tribunal as singular | and difficult. He asked what could a jury of merchants tell of the zemindars, the polygars, the rajahs, the ranas, the ryots, the tanks, and all the strange list of names of men and things in India? The great length of the causes, added to this, peculiarly pointed out the necessity for such a new tribunal, because, in criminal causes, he never knew a jury separate but for a momentary refreshment; and the reason was obvious-to avoid exposing them to corruption. As to the last clause in the bill, empowering a court to proceed to sentence an absent delinquent on the cause, he declared he had rather, were he the object, that it should stand so, than that sentence of outlawry should be incurred. He mentioned high treason as a crime upon which a court could even now proceed to try, and give sentence on the cause in absence of the culprit.
Lord Loughborough said, that he rose under the strongest emotions of uneasi
fiction, the dead man's bones were dug up and placed at the bar. He made numberless objections to the Bill, accompanying them with arguments, and pointing out the bad effects that its operation would, in all probability, produce. He concluded with solemnly and earnestly exhorting ministers, if they were determined to pass the Bill, to take away the judges from the court, and not to suffer any processes issuing from it to come into the courts of Westminster-hall. Let not, said he, the pure stream of justice be contaminated; but if a new tribunal must be instituted, for which certainly not the least exigency arises, in the name of Heaven adhere absolutely and exclusively to your new tribunal.
consenting to change the laws of the land unnecessarily. He mentioned the several courts of a similar nature under which our ancestors had groaned, such as the court of Star-chamber, the court of Lordsmarchers in Wales, the Commission-court at York, the High Commission court and the King's-council, every one of which had been encroachments on the common law, and pregnant sooner or later with gross abuses. His lordship pointed out the era at which each of these several courts were instituted, and said, that, since the Revolution, a brighter beam of liberty bad blazed than before; things had been better understood, and the common law had flourished and been less trenched upon by new-fangled tribunals. Having asserted that every new court was a new evil, he proceeded to state that there was not only no need of the tribunal provided, but that the cause of justice would be worse served after it was instituted than before. Its constitution was radically defective, and, upon a comparison with a trial by jury, the latter was by far the most desirable tribunal for a delinquent. The making three of the judges act as jurors with the twelve members of the two Houses, he reprobated as the most absurd of all ideas; and, by the definition of the duty of a judge, as the courts are constituted at present, he shewed reasons for his opinion. He examined several of the clauses of the Bill, and said some of them repealed more useful statutes at present in being, others took away the Habeas Corpus, and deprived the delinquent, prosecuted before the new tribunal, of the advantage of that writ; others again, he contended, barred the use of a writ of error, and made the decision of the new court final. He entered into a comparative description of the constitution of juries as at present, and the constitution of the new tribunal. He asserted that the latter were more exposed to be corrupted, supposing either of them capable of being corrupted, than the former. Jurymen were unknown, and consequently inaccessible till the moment of trial. Members of parliament, on the contrary, were well known; their connexions, families, friends, mistresses, might be come at; they had their mata tempora fandi. He condemned the clause ́empowering the new court to try a cause in the absence of the delinquent, and told a story from a reporter of Scotch cases, of a person who had been for some years dead, and had been tried; but, to favour the
The Earl of Carlisle declared, that after the defects of the Bill had been so ably stated by his noble friends near him, it would be impertinent in him to attempt saying much more. He could not, however, avoid expressing his concern, that the present Administration should be so unworthily inclined to diminish the rights of the people. It was a matter which ought to alarm their lordships, and excite their vigilance, since they might rest assured that nothing could be taken from the public which would not adhere elsewhere, and, if put into a political crucible, there would, he doubted not, be found certain ministerial chymists who would make it undergo a chymical process, which would leave the white flowers in the retort, and every thing sublimated from the public body, would doubtless ascend and mix with that mass already too much swelled. To speak without a metaphor, and in plain English, he thought that he saw a settled system in the present ministry, to destroy the rights of the public one by one, a system which had manifested itself in respect to trial by jury in particular; and he was confident, that whatsoever the people might be deprived of, would be thrown, with unconstitutional profusion, into the scale of the Crown.
The Marquis of Carmarthen said, that as the noble earl had thought proper to intimate, that the present Administration had a settled system for the destruction of juries, he could not sit still under an imputation which he felt to be so inju rious and so abhorrent to his nature. Most fervently did he hope, that whoever, whether in or out of administration, should afford reason for suspicion that he had any
such unconstitutional purpose in view, would meet with a firm resistance from their lordships, and the other House of Parliament. His opposition they should undoubtedly receive. The noble earl had opened the debate with many arguments against the Bill, of great weight, allowing that they were just and applicable. To them he had offered no objection, thinking it more becoming both to the noble earl and to the House to leave it to their judgment to decide whether the Bill was defective in the particulars which the noble earl had described, and whether what he had stated made it, in their opinion, necessary to adopt the amendment proposed; but, conscious as he was, that nothing could be farther from the intentions of Administration than any thing like a settled design to attack trial by jury, or to take away that valuable right in any case whatever, but where the peculiar circumstances made it indispensably necessary, he must take the liberty of declaring that such imputations were highly unjustifiable. The Bill then under consideration was a bill for the institution of a new court of judicature for the trial of offenders of a peculiar class, and of the crimes of peculation and corruption of an extraordinary nature. From the sort of cavil and objection which had been urged against it upon that day, it should seem as if it were a bill for the institution of a tribunal to try offences of a paltry and subordinate degree, and such as were likely to be committed every day, and were capable of the cognizance of every justice in every country village. Let the House recollect that the case was far different; the sort of offences, for the trial of which the new tribunal was to be provided, was distinct and different from any other, they were such as but seldom occurred; and a fairer or more equitable tribunal could not, he conceived, have been instituted for the purpose. After the cry which had gone forth, and the clamours which had prevailed two years ago on the subject of the enormities carried on in India by the servants of the Company, had his Majesty's ministers sat still, and produced no measure for their check and control, he was persuaded that they should then have heard enough of complaint, and that Administration would either have been charged with indolence, or, what was worse, with a wilful inattention to their duty.
The Earl of Carlisle answered, that
the sort of measures lately proposed by Administration, justified him in declaring that he thought he saw something like a systematic and baleful propensity to destroy the rights of the people, and particularly the right of trial by jury. In justification of this assertion, he should beg leave to mention the Bill for subjecting brevet officers to martial law, the Wine Excise Bill, the Bill then under discussion, and several others.
The committee divided on the amendment. Contents, 9; Not-Contents, 39.
Debate in the Lords on the Militia Bill.] June 16. On the order of the day for the second reading of the Militia Bill having been read,
Viscount Townshend spoke as follows: My lords; I rise to express my concern at the clause in this Bill, which exempts one third of the militia from being called out and trained, in deviation from the principle of this national establishment. The protection of this country by a militia, and indeed of every other, by its natives, does not, I conceive, depend so much on the accuracy in field manœuvres and splendour of accoutrements, as on their numbers and zeal, and the facility of extending this constitutional defence upon every check it may receive. If it is to be limited, contracted, and high polished, why not have more regular regiments? But if the object be the protection of the kingdom, in the absence of the regular troops for the preservation of our colonies and distant dominions, why not avail ourselves of that resource which an attachment to the property and constitution of this country must always produce?-an armed multitude of freemen, under proper constitutional regulations, which must outnumber any force an invader can bring against us. This, my lords, was the prin ciple on which I introduced the first Militia Bill in the year 1756, and which the illustrious father of the present minister seconded and supported; and he was ready, at all times, from a sick bed, to attend the measure. How far this principle has been deserted, the system mangled, and vitiated in its execution from time to time, I submit to the conscious reflection of every friend to the stability of this country. The unnecessary rivalship of the regular troops in the parade, and formality of a camp; the ambition to outvie the new levies, or even veteran regiments by the superior size of the men,
when the rotation of the militia service | cient motive for their allegiance and acought to have strengthened the country in tivity. Shall we, shall Britons be wantgeneral, and which has also so much in- ing in this? Let us look at Switzerland, terfered with the recruiting the army; which, in the midst of the most powerful and lastly, the ingrafting into the militia monarchies, maintains its independence by corps officers of no connexion, or legal a strong militia; nor do I know any of qualification whatever, have been devia- these states which needs any other protions, equally unconstitutional and un- tection, but that which pleases to call in warrantable. The present period I flat- a foreign power. In this view, my lords, tered myself was a proper one to correct I must own I cannot reconcile myself to these deformities, and restore the primitive the parsimonious defalcation of one-third principle of this national measure. Its of the militia—a saving, I hear, of about principle had prevailed over all the jea- 10,000l. a year; nor can I admire the lousies of power and lucrative expedi- enrolments for six years, though a meaency; its service had been experienced sure to prevent the interfering with the both in the field and in the disgraceful army. It is rotation which was, and I devastations of this metropolis; and, un- conceive is, the first principle of the mithanked and unregistered as it was at litia; and if this was regularly adhered to, the conclusion of the last war, its utility I think the army would have a fair scope was acknowledged by all. To diminish for recruiting. But, my lords, could I then its numbers, appears founded on no flatter myself my poor ideas would prevail, good policy, at a time especially when the I would wish to put the three services at great bulwark of this nation, our navy, is once on such a footing that they should by no means superior to our national ene- reciprocally aid, and not embarrass each mies, and when most extensive, as well as other. I would always consider the navy expensive fortifications have been pro- as the elder brother, the army as the posed, which, if not properly garrisoned, second, and the militia, though the third, might be turned against ourselves; that as no less respectable, indigenous to the the best defence of this country, as well soil. I could wish that the army, and as of all others, next to that which must marines especially, should ever assist the prevent an attack by sea, is an active, ani- navy; that whenever there was a propenmated militia, is a truth equally established sity in the soldier he might resort to the in history. Without dwelling upon the navy; that the limitation of the militia former, replete with instances of this kind, service might, under like circumstances, let us only for a moment look at the policy feed the army; and that humanity should of other states, our rivals; in particular, dismiss the veteran at a period equally France has a numerous militia. Why? capable to improve the militia or his native to enable her regular troops to act offen- soil.-As I am not vain enough to supsively. Spain has 60,000. They did great pose that these ideas will prevail at this service at the siege of Gibraltar; they are period, I can only lament that a degree of exercised in time of peace, twice a year, jealousy should counteract what I conand are highly esteemed. If I am asked ceive would tend to great national harhow disciplined? My answer is, they have mony and strength, and that the great a character to lose in their parishes amongst bulwark of this nation seems rather distheir neighbours, if they behave ill. The united and discouraged than countenanced king of Prussia has a species of militia, for and extended. The exception of onehe disbands one-third of his regiments third of the militia may be attended with every year for ten months, and they are great partiality, at least solicitation; and forthcoming on the first emergency, as though I by no means wish to see a miliwell as to an annual exercise; or on any tiaman a splendid soldier, yet that any check his arms receive, he is reinforced number of men should be called out on an with recruits of disciplined subjects; nor emergency without the knowledge of the does he keep a poor debilitated veteran weapon they are to handle, I conceive to to the last moment, and then send him be an absurdity, and repugnant to those forth a beggar past labour: rotation sentiments upon which military confidence and renovation is his object. The em- must rely. The saving is surely a poor peror has a militia of 60,000 men in one, when compared with the objects of his frontiers of Hungary and Transil- public expenditure which have been gravania, horse and foot; they have lands, tified. My reverence for public economy, and no pay: the former he deems a suffi- as well as my attachment to this national