ཚུབ ཝཱ

1751.

57

JOURNAL of the PROCEEDINGS and DEBATES in the POLITICAL CLUB, continued from p. 20.

The laft Speech I shall give you in the Debate begun in your laft, was that made by M. Ogulnius, the Purport of which was as follows, viz.

Mr. Prefident,
SIR,

I

the overthrow of our conftitution, I should, as a member of this house, make no fcruple to vote every officer, who had concurred in that fentence, guilty of high treafon; and as the existence of fuch a cafe is far A from being impoffible, I fhall never give my confent to a law that would render it impoffible for this house to difcover who had or had not concurred in fuch a fentence, which, I think, would be the confequence of this oath without the amendment propofed.

AM furprised to fee fuch an oppofition made to the amendment propofed, fince every gentleman that has spoke against it in. fifts, that the words as they now ftand will include both houses of par- B liament. I cannot, Sir, fufpe&t fuch honourable gentlemen of infincerity; but if they are really fincere in the opinion they profefs, complaifance alone to a brother member should induce them to agree to what he has propofed. Nay, I will go farther; I will fay, that, to avoid the imputation of being actuated by a fpirit of perfecution, they fhould agree to this amendment; for if an officer, upon being called before you to be examined, fhould anfwer, that he could not with a fafe confcience, or confiftently with his own honour, call it which you will, declare how he or any other member of a courtmartial had voted, because of the oath he had taken, it would be downright perfecution to prefume fuch a man guilty, because of fuch re- E fufal, and to punish him as one who had concurred in an oppreffive, perhaps a treasonable fentence. I fay treasonable, Sir; for according to the law of parliament, there may be treafon against the conftitution as well as against the crown; and if an officer fhould, by the fentence of a court-martial, be condemned to be fhot for refufing to obey orders not only unlawful, but fuch as evidently and directly tended to G-I O

February, 1751.

I fhall be cautious, Sir, of saying any thing that may give rife to a contest between the two houses of parliament: Every gentleman ought, I think, to be extremely cautious in this refpect; but then we ought to Cbe equally cautious of faying any thing inconfiftent with the dignity of this houfe, or that may be interpreted as a furrender of the privileges of the commons of Great Britain. Did we ever yet acknowledge the other houfe as a court of juftice? DThe high court of parliament is a court of justice, and the highest court of justice in the kingdom; but the parliament confifts of two houfes, and neither house has hitherto acknowledged the other as a court of justice. Therefore, to prevent a future conteft between the two houses of parliament, we fhould agree to the amendment proposed; for without this amendment, fuch a conteft may very probably be the consequence of the oath now under confideration. Suppose the other house fhould think fit to inquire into the proceedings of fome future courtmartial, and fhould commit a member of that court-martial for not declaring before them as a court of juftice, how he and the reft voted in that court martial, I believe, this houfe

F

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58

PROCEEDINGS of the POLITICAL CLUB, &c. Feb.

houfe would take notice of fuch a

commitment, and would determine

it to be an incroachment upon the privileges of the commons. And, on the other hand, if we fhould commit a member of a court-martial for not declaring to this house as a court A of juftice, how he and the other members voted in that court-martial, the other house would probably take notice of it, and might find a method for bringing the cafe before them, which would certainly occafion not only a contest, but a breach, B between the two houses.

Thus, Sir, any gentleman, without being a conjurer, may foresee, that the oath, as it now ftands, may probably be attended with moft fatal confequences; therefore, if this oath of fecrecy be to ftand part of this C bill, I hope, the amendment propofed will be agreed to. But I confefs, I am against the oath itfelf; for I think the proceedings of all courts of justice ought to be in the most open and publick manner, that the impartial world may have an D opportunity to judge of them, and that the judges may meet with that general applaufe or cenfure they may deferve, which the publick, when fully informed, will always juftly beftow. A good and an upright judge will never defire to make a fecret E of any part of his proceedings; but a wicked one certainly will; for from the highest authority we know, who they are that love darknefs rather than light; and no man, I think, that has a due regard for that authority, can ever be for indulging them in their choice.

For this reafon, Sir, I am againft this oath of fecrecy in general; but if it paffes without this amendment, we fhall, in my opinion, fhut the doors of this house against that information which we ought carefully to feek after, and clofely attend to: I mean the behaviour and proceedings of courts martial; for not only the publick fervice, but the conflitution

F

G

A

and liberties of this country, may be

deeply affected by the behaviour and
proceedings of fuch courts, either by
fea, or land. If the members of
thofe courts fhould once come to be
more afraid of the refentment of
their general or admiral, than of the
resentment of this house, they may
manage it fo as in a few years to fet
that general or that admiral above
the refentment of either or both
houfes of parliament. But how fhall
we make our refentment terrible, if
we part with that power which alone
makes it terrible? What is it that
makes the refentment of this house
terrible to evil-doers? It is our
being the grand inqueft of the na-
tion. Can we perform that function,
if men are tied up by oath from
making any discovery?

I fhall grant, Sir, that, notwith-
ftanding this oath, we may have a
proof of the fentence, and of fome
part of the proceedings, because
we may order them to be laid before
us; and from these we may be con-
vinced, that every interlocutory re-
folution as well as the final fentence
were most unjust and oppreffive,
or of the most dangerous confe-
quence to our liberties: We may
even vote them fo, with a nemine
contradicente prefixed to our refolu-
tion; but this would ferve only to
bring us into contempt with the
people, as well as the army; for
we could proceed no further: We
could neither impeach nor order in
a bill of pains and penalties, with-
out fome proof as to the particular
men who concurred in that fentence,
or in those resolutions, and this we
fhall effectually debar ourselves of,
if we reject the amendment pro-
pofed; for by the fentence and re-
folutions all would appear to have
concurred, and confequently to be
equally guilty; and fuch a court-mar-
tial would certainly take care, that,
when they came to vote, there should
be no by-ftanders nor listners.

Thus,

1751. PROCEEDINGS of the POLITICAL CLUB, &c.

Thus, Sir, with respect to the army at least, we fhall render it impoffible for us to perform that office, which has always hitherto made this houfe a check upon the ambition of wicked men ; and whether this be confiftent with our duty, or with the fecurity of our liberties, I hope, gentlemen will ferioufly confider, before they give a negative to this queftion.

A

I fhall next give you a Debate we
bad in our Club upon this Queftion: B
Whether a Claufe ought not to be
added to the Mutiny-Bill, for
pre-
venting any Non-commiffion Of-
ficer's being broke, or reduced in-
to the Ranks, or any Officer or
Soldier's being punished, but by
the Sentence of a Court Mar- C
tial: Which Question was intro-
duced by C. Trebonius in a Speech
to the following Effect:

I

Mr. Prefident,
S 1 R,

59

tent with the fervice; and I likewife know, that whilft courts-martial preferve their integrity, a man's liberty and property is as fafe under their jurifdiction, as under the jurisdiction of common law. He knows the laws, he knows the methods by which he is to be tried; and by a careful obfervance of his duty, he may prevent his being ever in danger of fuffering by their fentence. What I mean, Sir, is a man's being subjected to the arbitrary will and pleasure of his commanding officer, and unavoidably expofed to the danger of fuffering in his perfon or property, by the whimsical and unmerited refentment of fuch officer; for a man in these circumstances may truly be faid to be a flave, and very often fuffers for what he ought to be rewarded.

When I talk of the properties of foldiers, gentlemen may perhaps, Sir, make themselves merry with what I fay; for I fhall allow, that very few of them can ever arrive at any property; but I hope, it will be granted, that every officer, commiffioned or non commiffioned, has fome property. His office or rank is his property, as well as the pay which belongs to it; and it is a property, which we are to fuppofe, he has purchased by his fervice. I fhall admit that this is not always the purchase; for in the army as well as in other departments,

men

Believe every gentleman will ad- D mit, that one of the ends great of our fitting here is, to take care not only of the liberties and properties of the people in general, but of every man and every fet of men in particular; and there is no fet of men in the kingdom whofe liberties and E properties we ought to be more careful of, than those of our foldiers and failors, both on account of their diftinguished merit, and on account of the danger accruing from their being once brought into a state of flavery; for if this should ever happen, they will probably, and may easily, enable fome future ambitious prince or prime minister to bring the rest of their countrymen into the fame condition with themselves. When I talk of the liberty and property of foldiers and failors, I do not mean, G that they should be exempted from military law, or a military jurifdiction; for that, I know, is inconfifG T -d. • See our Magazine for laßt year, p. 313, col. 2.

are fometimes preferred for what they ought to be cafhiered; and fome, I believe, especially of F the non-commiffioned officers, are raifed (as one officer wittily faid to another, who had a handsome wife) not by the fword but the fcabbard. But in general, I hope, we may fuppofe, that no officer, not even a corporal, obtains his preferment but by the merit of his fervice, and that I muft reckon a much more valuable confideration, at leaft with regard to the publick, than if he had bought H 2

it