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they to derive that information, without and even then he understood the written which the House ought not to proceed evidence on each side was a great part of any farther? He cited the case of the it obliged to be gone into. He alluded to persons tried and convicted a few years Mr. Grenville's Bill for trying elections, since for the murder of lord Pigot at Ma- and spoke of the constitution of the new dras, which proved, that juries at least tribunal as an improvement on that authowere competent to try every size of East rized by Mr. Grenville's Bill. He menIndia delinquency likely to occur. He tioned the lingering and fruitless attempt reminded the House of the court of Star- to prosecute sir Thomas Rumbold, as a chamber, of the Commission court at New proof of the actual necessity for some such York, and of the abuses which those courts measure. After a variety of reasons to had committed, to the great oppression of shew that the sort of causes which would the subject. He alluded to the inventory in all probability come before this tribunal clause, now omitted, and that which had for trial, would be of a size infinitely too been introduced in its stead, declaring that great for trial before a common jury in the the second had proved worse than the courts of King's-bench or Common Pleas, first, inasmuch as, by the second, the par- his lordship took notice of the inventory ties were to deliver in the accounts of their clause being omitted in the present Bill, property in secret, and to lie wholly at the and said he was glad it was left out, as it mercy of the King's ministers. In the il. had occasioned great uneasiness; and that lustration of the danger of secret justiciary he thought a good ground for Government, proceedings, besides the Star-chamber, under certain circumstances, to relax and he desired their lordships to recollect the give way upon. celebrated trial at Athens before the thirty Viscount Stormont said, that his pretyrants, who condemned every one of the dictions two years since, that the clause persons tried before them; whereas had now omitted, must be left out, was become they, as had been the ancient custom, been history, and yet at the time every praise tried before the people, it was well known was bestowed on that very clause which that not one of the accused would have had been pronounced the most essential in been found guilty. How dangerous a use the Bill. 'The whole of it, however, he might a minister make of the new tribunal, was persuaded, must be abandoned, and by the influence which it would give him the sooner it was done the better. The over an Indian governor, to whom he might operation of the Bill must be productive of say, “ Do you let me have my way in In- much inconvenience, and there was no dia, and you may multiply crimes with necessity for any such measure. He cenimpunity, as you'll be tried when you come sured the constitution of the new court, home by a tribunal, over which I have con- and observed that judge and juror were siderable influence.” In conclusion, the now so blended, that in fact the court noble Earl moved to leave out all the would be without either judge or jury. words from the beginning of the second | He alluded to the trial of Mr. Stratton, clause, and to insert, by way of amend- and declared that the House seemed to ment, a clause repealing all the part of have adopted the vulgar error, and misthe former Bill which institutes and autho apprehended the reason why the sentence rizes the new tribunal.
had been so mild. The truth was, it was Lord Walsingham could not avoid con- proved that lord Pigot had overturned the tending, in opposition to the sentiments of government of Fort St. Geurge previous the noble Earl, that there was an absolute io his being seized ; and
he had likewise necessity for some new judicature to be snatched a signed minute out of the hands provided, in order to try those great East of a gentleman of the council, and sudIndia offenders, whose crimes were of a denly suspended that gentleman and annature so complicated, and the proof of other, and thus made a majority in his whose guilt must necessarily be so volu. own favour. These facts had been pleaded minous, that it would be impossible for any in mitigation, and they had weighed concourt and jury to go through the whole in siderably in the minds of the judges. After a day; and their lordships well knew, that assigning many reasons for the vote which if any ordinary jury were suffered to sepa- he should give for the amendment, enterrate pending a trial, they would be liable ing at length into the history of the Starto corruption. His lordship said, that at chamber and High Commission court, the trial of Messrs. Stratton, Floyer, &c. and speaking of the celebrated cause in the trial lasted an immense period of time, which a jury gave 100,000.. damages to (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 nécessity 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 Lord Camden declared, that if he him- debated its principle. Approving, as his self were to be tried, as an East Indian noble friends and he did, of the clause that delinquent, for his life, he should think it repealed the inventory clause in the former more safe in the hands of a court so con Bill, he begged to know how they were to stituted as the new tribunal, than in that debate the principle at all, but after the of any one court whatsoever. Instead of Bill had got into the committee ? He dehaving neither judge nor jury, it had the fied any noble lord to prove the necessity benefit of both so happily blended, that on which the Bill rested. Had there lately the judges became (what they never were occurred a case, where there was any great before) jurors. The ancient constitutional East India delinquent to be tried, for which custom of the courts of law was, the jury purpose the courts of law were not suffifound both the law and the fact; and where ciently well adapted ? The only instance there was a doubt as to the law, the judge in his memory had been the case of Stratwas to declare it, but he was not to dictate ton, Floyer, and others, which he bimself, to the jury, nor to refuse to take their ver. when Attorney General, had conducted dict ; that was entirely and wholly their in the court of King's-bench, and to a province; and, where a judge interfered full and complete trial and conviction of with it, be abused his trust, and did not whom he had not found the smallest diffido his duty. According to the constitu- culty. With regard to the length of time, tion of this new court the judges were let and the papers given in evidence not beinto the fact, and the jury into the law, so ing all read, he did assure the noble lords that they judged equally, which must be they were mistaken. The trial took up no a considerable advantage, and essentially more than a reasonable time, and there conducive to the purposes of substantial was not a piece nor a scrap of evidence at justice. His lordship spoke of the cases all material which was not fully gone into. to be tried by this new tribunal as singular Having the cause a good deal at heart at and difficult." He asked what could a jury the time, he had not missed any, as might of merchants tell of the zemindars, the well be supposed; and when he informed polygars, the rajahs, the ranas, the ryots, the House that the counsel against him the tanks, and all the strange list of names was Mr. Dunning, he would leave them of men and things in India? The great to judge whether it was likely that ang length of the causes, added to this, pecu- evidence which could at all serve the deliarly pointed out the necessity for such a fendants' cause was neglected. The fact new tribunal, because, in criminal causes, was, there was no difficulty. The sentence he never knew a jury separate but for a he, for one, did not think sufficiently se*momentary refreshment; and the reason vere. Others thought differently. It lay, was obvious—to avoid exposing them to however, altogether in the discretion of corruption. As to the last clause in the the court to determine what the sentence bill, empowering a court to proceed to should be, and he had that day heard from sentence an absent delinquent on the cause, the noble viscount weighty reasons to ache declared he had rather, were he the ob- count for the apparent slightness of the ject, that it should stand so, than ţhat sen- sentence. There was nothing therefore tence of outlawry should be incurred. Ile in the only trial within his memory to mentioned high treason as a crime upon prove that any new tribunal was necessary. which a court could even now proceed to Having stated this, he asked for what was try, and give sentence on the cause in ab. the proposed left-handed court to be insence of the culprit.
stituted? He warned their lordships against Lord Loughborough said, that he rose under the strongest emotions of uneasi- See Howell's State Trials, vol. 21, p. 1045.
consenting to change the laws of the land fiction, the dead man's bones were dug up unnecessarily. He mentioned the several and placed at the bar. He made numbercourts of a similar nature under which our less objections to the Bill, accompanying ancestors had groaned, such as the court them with arguments, and pointing out of Star-chamber, the court of Lords- the bad effects that its operation would, in marchers in Wales, the Commission-court all probability, produce. He concluded at York, the High Commission court and with solemnly and earnestly exhorting mithe King's-council, every one of which nisters, if they were determined to pass had been encroachments on the common the Bill, to take away the judges from the law, and pregnant sooner or later with court, and not to suffer any processes isgross abuses. His lordship pointed out suing from it to come into the courts of the era at which each of these several Westminster-hall. Let not, said he, the courts were instituted, and said, that, since pure stream of justice be contaminated; the Revolution, a brighter beam of liberty but if a new tribunal must be instituted, bad blazed than before ; things had been for which certainly not the least exigency better understood, and the common law arises, in the name of Heaven adhere abhad flourished and been less trenched upon solutely and exclusively to your new triby new-fangled tribunals. Having asserted bunal. that every new court was a new evil, he The Earl of Carlisle declared, that proceeded to state that there was not only after the defects of the Bill had been so no need of the tribunal provided, but that ably stated by his noble friends near him, the cause of justice would be worse served it would be impertinent in him to attempt after it was instituted than before. Its saying much more. He could not, howconstitution was radically defective, and, ever, avoid expressing his concern, that upon a comparison with a trial by jury, the present Administration should be so the latter was by far the most desirable unworthily inclined to diminish the rights tribunal for a delinquent. The making of the people. It was a matter which three of the judges act as jurors with the ought to alarm their lordships, and excite twelve members of the two Houses, he their vigilance, since they might rest asreprobated as the most absurd of all ideas; sured that nothing could be taken from and, by the definition of the duty of a the public which would not adhere elsejudge, as the courts are constituted at where, and, if put into a political crupresent, he shewed reasons for his opinion. cible, there would, he doubted not, be He examined several of the clauses of the found certain ministerial chymists who Bill, and said some of them repealed more would make it undergo a chymical prouseful statutes at present in being, others cess, which would leave the white flowers took away the Habeas Corpus, and de- in the retort, and every thing sublimated prived the delinquent, prosecuted before from the public body, would doubtless the new tribunal, of the advantage of that ascend and mix with that mass already writ; others again, he contended, barred too much swelled. To speak without a the use of a writ of error, and made the metaphor, and in plain English, he thonght decision of the new court final. He en- that he saw a seitled system in the pretered into a comparative description of the sent ministry, to destroy the rights of the constitution of juries as at present, and public one by one, a system which had the constitution of the new tribunal. He manifested itself in respect to trial by asserted that the latter were more exposed jury in particular; and he was confident, to be corrupted, supposing either of them that whatsoever the people might be decapable of being corrupted, than the prived of, would be thrown, with unconformer. Jurymen were unknown, and stitutional profusion, into the scale of the consequently inaccessible till the moment Crown. of trial. Members of parliament, on the The Marquis of Carmarthen said, that contrary, were well known; their con- as the noble earl had thought proper to Dexions, families, friends, mistresses, might intimate, that the present Administration be come at; they had their mata tempora had a settled system for the destruction
fandi. He condemned the clause em- of juries, he could not sit still under an powering the new court to try a cause in imputation which he felt to be so inju. the absence of the delinquent, and told a rious and so abhorrent to his nature. Most story from a reporter of Scotch cases, of a fervently did he hope, that whoever, wheperson who had been for some years dead; ther in or out of administration, should and had been tried; but, to favour the afford reason for suspicion that he had any such unconstitutional purpose in view, the sort of measures lately proposed by would meet with a firm resistance from Administration, justified him in declaring their lordships, and the other House of that he thought he saw something like a Parliament. ' His opposition they should systematic and baleful propensity to deundoubtedly receive. The noble earl had stroy the rights of the people, and paropened the debate with many arguments ticularly the right of trial by jury. In against the Bill, of great weight, allowing justification of this assertion, he should that they were just and applicable. To them beg leave to mention the Bill for subjecthe had offered no objection, thinking it ing brevet officers to martial law, the more becoming both to the noble earl and Wine Excise Bill, the Bill then under to the House to leave it to their judgment discussion, and several others. to decide whether the Bill was defective The committee divided on the amendin the particulars which the noble earl ment. Contents, 9; Not-Contents, 39. had described, and whether what he had stated made it, in their opinion, necessary Debate in the Lords on the Militia to adopt the amendment proposed; but, Bill.] June 16. On the order of the day conscious as he was, that nothing could for the second reading of the Militia Bill be farther from the intentions of Adminis- having been read, tration than any thing like a settled de- Viscount Townshend spoke as follows: sign to attack trial by jury, or to take -My lords; I rise to express my concern away that valuable right in any case what at the clause in this Bill, which exempts ever, but where the peculiar circumstances one third of the militia from being called made it indispensably necessary, he must out and trained, in deviation from the take the liberty of declaring that such im- principle of this national establishment. putations were highly unjustifiable. The The protection of this country by a mi. Bill then under consideration was a bill litia, and indeed of every other, by its for the institution of a new court of judi- natives, does not, I conceive, depend so cature for the trial of offenders of a much on the accuracy in field maneuvres peculiar class, and of the crimes of pecu- and splendour of accoutrements, as on lation and corruption of an extraordinary their numbers and zeal, and the facility of nature. From the sort of cavil and ob- extending this constitutional defence upon jection which had been urged against it every check it may receive. If it is to be upon that day, it should seem as if it limited, contracted, and high polished, were a bill for the institution of a tri- why not have more regular regiments ? bunal to try offences of a paltry and sub- But if the object be the protection of the ordinate degree, and such as were likely kingdom, in the absence of the regular to be committed every day, and were troops for the preservation of our colonies capable of the cognizance of every jus- and distant dominions, why not avail ourtice in every country village. Let the selves of that resource which an attachHouse recollect that the case was far ment to the property and constitution of different; the sort of offences, for the this country must always produce?-an trial of which the new tribunal was to be armed multitude of freemen, under proper provided, was distinct and different from constitutional regulations, which must outany other, they were such as but seldom number any force an invader can bring occurred; and a fairer or more equitable against us. This, my lords, was the printribunal could not, he conceived, have been ciple on which I introduced the first Mi. instituted for the purpose. After the cry litia Bill in the year 1756, and which the which had gone forth, and the clamours illustrious father of the present minister which had prevailed two years ago on seconded and supported; and he was the subject of the enormities carried on ready, at all times, from a sick bed, to in India by the servants of the Company, attend the measure. How far this prinhad his Majesty's ministers sat still, and ciple has been deserted, the system manproduced no measure for their check and gled, and vitiated in its execution from control, he was persuaded that they time to time, I submit to the conscious should then have heard enough of com- reflection of every friend to the stability plaint, and that Administration would of this country. The unnecessary rival. either have been charged with indolence, ship of the regular troops in the parade, or, what was worse, with a wilful inatten- and formality of a camp; the ambition to tion to their duty.
outvie the new levies, or even veteran The Earl of Carlisle answered, that regiments by the superior size of the wen,
· 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 had prevailed over all the jea10,0001. 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 fatter 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
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, I 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