to feel an inclination to exercise that power tyrannically, and even to the enslaving of those subordinate to their authority; but it was the province of freemen to detect them; and when the freedom of Englishmen in India was taken from them, those in power there might with impunity carry into execution against the miserable natives whatever plans of slavery their abitrary and unfeeling dispositions might suggest.

The amendment was agreed to.

Debate in the Commons on the Clause in the Mutiny Bill, subjecting Brevet Officers to Martial Law.] Feb. 28. The House being in a Committee on the Mutiny Bill, Colonel Fitzpatrick complained of the alteration made in a clause of the Mutiny Act which passed last year, and was sorry to find it continued in the present Bill. The preamble to this Act, as judiciously penned by our forefathers, declares a standing army to be contrary to the law of the land, and wisely enacts, that no forces shall be paid and mustered in this kingdom but those provided for by this law. No innnovation should be made in its principle, or alteration in the language of any of its clauses, without good cause. For this reason, he rose to propose an amendment which would in fact restore it to the state it stood in for many years. The two reasons assigned for the late alteration must be in the recollection of every gentleman they were the cases of generals Stuart and Ross. The former gentleman held the local rank of major-general by brevet in the East Indies, besides his commission from the Company: the latter also was a major-general in the army by brevet. On complaint being made by general Boyd of the conduct of the latter gentleman, and a court-martial being summoned, they doubted their authority to try the complaint, and propounded a question to the judges, who declared, that brevet officers did not come within the meaning of the Mutiny Act. On this opinion, the alteration was made last session, wherein every officer in the army bearing the King's commission is subject to martial law. In a constitutional view this was truly alarming. That learned judge Blackstone had given his opinion in clear and explicit terms, on the dangerous tendency of extending martial law.

How alarming was it therefore to pass a bill, placing we know not how many of our fellow-subjects, out of the

pale of the juridical law of the land, and arming them we know not for what purpose, and these men not provided for by any vote of this House. It was not the present danger of their numbers he was afraid of, but the precedent, and the use which might be made of it. Of this opinion was the late earl of Chatham.-He then entered into a disquisition of its effects in the army, and drew some comparisons between the half-pay officer and the commission by brevet. It was supposed by some persons that half-pay was a reward to the officer for his past services; others concluded that it was a retainer only for the future, as he was liable to be called on at pleasure: but there was a wide distinction between officers whose corps were reduced, and of course their commissions determined, and brevet officers whose commissions remained. It is true, (he added) they cannot properly act without a letter of service; but as the former are not deemed within the meaning of the Mutiny Act, no more should the latter, until called into actual service. No man should therefore be looked upon as a military man, unless he is provided for by this House; as the spirit of the Mutiny Act is, that no man shall be liable to martial law but those who are mustered and in the pay of the nation, which is not the case of brevet officers. There is also another description of military men-the officers of the militia. They are very properly subject to martial law when called out; but if they were required to be under it at all times, they would reject the proposition with indignation. The colonel reverted to the cases of generals Stuart and Ross, who were not amenable to a courtmartial under the Mutiny Act, because they were not known by it as military men in this country; but his Majesty, by virtue of his prerogative, could in foreign service cause every officer and soldier to be subject to martial law. With this power in the Crown, where was the neces. sity of extending the provisions of the Act? In conclusion, he moved, that the words commissioned officers' be left out of the clause; and mustered, or called into service by proper authority,' be inserted in their room. The reason why he adopted the word mustered, was, that it was an old word, and implied pay, which was an essential requisite to make a man amenable to martial law.

Sir Charles Gould (Judge-Advocate General) contended, that he had never heard

to these articles, and liable to be punished by them: they extended to all officers. Therefore, as the question submitted to the judges related only to the construction of a clause in the Mutiny Act, the articles of war were not before them. He argued against the absurdity of compelling an inferior to be subject to regulations to which his immediate commander was not liable, and whom, by the laws of the army, the inferior must obey. He acknowledged the King's prerogative to hold courtsmartial abroad, and instanced that part of the articles of war, whereby an officer acting in a scandalous and ungentlemanlike manner was liable to be dismissed. His Majesty, it was true, might degrade him from his rank; but was it not better to be left to the decision of a court-martial? He was therefore against the amendment.

6

Mr. Francis said, that the great intent of the Mutiny Act was, to prevent the Crown from having one man more in the army than was voted by the Commons, and that all the former Acts declared they must be mustered, or in pay; but by taking out muster' and inserting commission,' there might be an army in the kingdom unknown to this House. It might appear of trifling consideration; but little things, when once admitted, might 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 preserved.

any objection made by military men to the clause now under consideration; on the contrary, he recollected two instances of brevet officers, one of whom is an aidde-camp to his Majesty, sitting in a juridical capacity on the trial of an officer: they were gentlemen in much esteem for their knowledge and high sense of honour, and he was certain that they would not have taken a function upon them, unless they were satisfied that they were entitled to it. Another much respected officer, some years ago, resigned all his military employments, but retained his commission by brevet as lieutenant-colonel, merely that he might be liable to the authority of courts-martial for any act done by him whilst in command. He mentioned the case of general Ross, who was supposed to have written disrespectful letters to general Boyd, and the opinion of the court-martial summoned to try him, as also the opinion of the judges thereon: he also noticed general Stuart's case, who on the death of sir Eyre Coote succeeded to the command of the King's forces in India by virtue of his rank in the army by brevet: the general likewise had a commission from the Company, and of course commanded all the forces. Was it, therefore, proper that an officer vested with such high command should not be amenable to the laws established for the regulation of the whole army? With respect to the observation that if you include brevet officers, you should also include half-pay officers in the Mutiny Act; the opinion of the Legislature was perfectly clear, that the latter were not within the meaning of the statute. He then put several cases, wherein a brevet officer would be justified in taking upon him a command without a letter of service; and that the officer in actual rank, but inferior to the nominal one, would be justified in submitting to such command. The cases were supposed to be those of extreme necessity; such as an invasion, rebellion, &c. and where the officer was young in service. But even in these cases, if the brevet officer committed mal-practices in in that command, he should certainly be liable to the jurisdiction of the courtsmartial: this he thought absolutely necessary, and he believed that it was the opinion of the army in general. The King had the power to add to and regulate the articles of war as he thought proper, provided no new offence was made capital; and every person in the army was subject [VOL. XXVI.]

The Secretary at War remarked, that as no one instance of any bad effect arising from the clause 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 senior officer by brevet, to take upon him the command; for instance, were an insurrection to arise in a garrison 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 jurisdiction of a military inquiry? He had lately conversed with a gentleman of high military rank, who had declared that until the court-martial on general Ross started them, he had never entertained the smallest doubts upon the subject: it was therefore no new matter; it was only confirming an old established opinion.

Mr. Fox observed, that nothing could [2 T]

be more ridiculous than the assertion that a brevet officer might take a command without a letter of service. Suppose that an officer by some means, either chance or design, found himself in India, and in possession of a brevet commission in point of date or rank superior or prior to that of carl Cornwallis; and on producing that commission, let us suppose the noble earl obliged to resign his command to that officer; would the Judge Advocate take upon him to say, 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 monstrous and absurd! The King's commission, 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 such a man should be tried by military law; I say, No. It is the officer who surrenders his command that ought to be thus tried; let the other come under the laws of his country. The words of the clause signify -what we all agree in-that military men should be amenable to military law: but let us not include more under that denomination than there is really a necessity for. There can be no necessity for brevet officers to be thus considered 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 necessity takes place of his being under martial law, he ought not to be made amenable to it. The consideration 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 lord Amherst, whilst in America, had a special commission, and could not be superseded; and every governor, and even lieutenantgovernor, had appointments which rank could not affect.

Mr. Jolliffe rose to trouble the committee on this question, not in a military light, but merely as it might affect the subjects of this country in their civil situations. It had ever been his principle to resist, so far as was in his power, any attempt to put any description of men under a military trial, who were not so by the military law, as it now stood. With respect to brevet officers assuming military authority, he had no doubt that they should be subject to military law, and the clause moved by the right hon. gentleman

went completely to that; and on that ground it had been uniformly argued by the other side, except by the Judge Ad vocate. But were that the case for which this alteration in the law was attempted, the direct contrary would become avowed. The case however was this: general Ross had written some letter, or published some paper, supposed to be defamatory, against general Boyd, under whom he had served 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 a general, but after his command had ceased. It had been said by the judgeadvocate, "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." He defied the learned gentleman to show 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 constitute 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 said, that the great duke of Cumberland acted in Scotland by brevet, and served without pay; and that it was Mr. Fox's intention, if his adminis tration had continued longer, to have a commander in chief (general Conway) without pay in this kingdom.

Sir George Howard declared, that he never heard it asserted that military men should not be under military discipline: he never looked on half-pay as a reward; but always considered the officers' commissions to lie dormant, and not to be annihilated. When officers thus situated are called into service, they must have a new commission, but that one placed them in their old rank. He mentioned, that in 1745 an invasion was apprehended by the

the side, and lost his right arm. That, for these services, captain Brodie was honoured with a letter from the then Lords of the Admiralty. Captain Brodie was made a post captain in March 1747, and commanded the Canterbury at the taking of Port Louis, and the attack of St. Jago da Cuba. He commanded the Strafford in the engagement off the Havannah, in the year 1748, in which he took the Conquestadore of 64 guns, the only ship taken in the action.

"That this House is therefore induced humbly to beseech his Majesty, that his Majesty will be graciously pleased to confer some mark of his Majesty's favour on the said David Brodie, esq., this House being convinced that such a measure must be highly conducive to the advantage of his Majesty's navy, by encouraging that zeal and gallantry of which there are so many instances herein contained; whereas so honourable a series of services and sufferings not meeting with regular promotion, may tend to extinguish that spirit of emulation and enterprize which has hitherto animated the British navy, and characterized it in every part of the globe."

Sir John Miller observed, that, in seconding the motion, he felt the highest gratification, inasmuch as he had been for many years the neighbour of the worthy veteran, whose case was now under consideration; and who was as much esteemed for his personal virtues in private and retired life, as he had been respected by men of eminence and discernment in the navy, for his services and exertions in the line of his profession. Captain Brodie's memorial (which he held in his hand) crowded into a very narrow compass, services which would have dignified the longest life-services which the country should be proud to acknowledge-services which the House, he thought, would certainly have sent up to the Throne for acknowledgment on the 11th of last May, by a respectable majority. Had the present question come before them at that time, which would have proved the case, but that it appeared to the friends of captain Brodie, who were then present, that it would be more for the honour of Parliament, of the nation, as well as of the meritorious officer himself, to permit a becoming requital to descend upon him graciously and spontaneously. The extent of captain Brodie's services entitled them to notice; sixty years constituted no common length of

military service; and suggested to him an observation, that when this gentleman first entered into the naval line, some of our present admirals were not born, two of them he could assert were not. It might be asked, what prevented captain Brodie obtaining from former administrations what he now solicited through the intercession of that House? The reply was,-that it was known to every man in the nation, that Administration, and that Board of Admiralty which had so long disgraced, and which in the end had nearly ruined the country, had been distinguished beyond all others for little mean prejudices, jealousies, factions, partialities, jobs, and acts of injustice, to which the brave and the generous were frequently the victims. And of this captain Brodie experienced the truth in all his applications for justice or redress. Thank Heaven! Sir, added sir John, the Administration of this day has far other features and characteristics. Thank Heaven! Sir, such meannesses no longer preside in our navy. The noble person now at the head of the Admiralty has always been distinguished for firmness and justice; for coolness and intrepidity in war; for a faithful œconomy of public money, and an intense and unceasing application to the duties of his situation in peace. To such an Administration, and to such a Board of Admiralty, may not age and service look up for shelter? Let no man imagine that captain Brodie comes to this House to look for private profit or emolument. No, Sir: fortune, who has hitherto refused him his fondest wish, has put him far beyond the reach of all pecuniary necessity. But captain Brodie comes to this House, for a testimony of his long and faithful services; he comes to us for a reparation of his injuries, and, with his injuries, of the injuries of his whole profession. The additional expense of the nation by this act of justice to captain Brodie, would, I understand, amount to nearly 1207. per annum, no very great nor very lasting incumbrance for the remainder of a life now verging to its 78th year, wasted, broken, and shattered by climates and hardships, and wounds and injuries.

Captain Leveson Gower having premised that the notice of the intended application had pointed it out as necessary to have a reference to the books of the Admiraltyoffice, in order to ascertain what had been the proceedings there with respect to captain Brodie, added, that he therefore