cesses. It was the duty and the practice of the courts martial to be ordered to enquire and try. They in consequence first went into an enquiry, the result of which enquiry formed the criminal charge, if any thing criminal came out, and upon that charge the court tried the party so criminated, and passed sentence accordingly. In admiral Byng's case this matter was most clearly exemplified. The courtmartial were ordered to enquire into the admiral's conduct, and try him upon it. There was no specific charge before them. They began their enquiry with taking evidence of his conduct at St. Helens; his conduct in his passage to the Straits; his return to Gibraltar, and every circumstance relative to the whole of his operations, till he was superseded in his command. The court came to a great variety of resolutions, some not in the least criminal, others which went so far as to affect his life. Upon their very last resolution, the last of thirty-six, they founded their charge, and their sentence. The matter of law was referred to the twelve judges, who declared the whole proceeding to be perfectly legal. He said, he had read the charge preferred against admiral Keppel, and that when it was first laid on the table, he spoke only from mere recollection, but if he understood it right, there was no criminal charge contained in any one of the five articles: the only one which bore any appearance of specification was worded so loosely and drawn up so inaccurately, that the legal import, in point of effect, or as operating towards conviction, was entirely lost. He alluded to the admiral not doing the utmost, instead of his utmost, to take, sink, burn, and destroy the fleet of the enemy; which, in fact, amounted to just nothing. No man ever did, or ever will do the utmost: Julius Cæsar, Alexander the Great, or Prince Ferdinand, never had done the utmost; nay, it was impossible for any commander to do the utmost.

The Earl of Bristol said, he did not wish to enter fully into a debate which might lead him to the discussion of matters that were intended to be the subject of a future day. He perfectly coincided with the noble duke, respecting his sentiments of the Admiralty-board. It was not appearances, but facts, undeniable facts, that induced him to adopt these sentiments, which he was persuaded he should die in. The whole transaction presented the same countenance, in each of its respective stages. The want of confidence which

admiral Keppel experienced from the beginning, was exemplified in first sending him out with 20 ships against 30, in order to disgrace him in the eyes of the people, as his return into port was foreseen by those who sent him. The cool manner he was received on his arrival; the much cooler in which he was received on his second return, after the action of the 27th; the sending private thanks to the blue division, to be conveyed to the officers by the vice-admiral; and finally, the receiving the charge of an inferior officer against his superior, though the latter was known to have accused the inferior, in parliament, of a disobedience of orders, to his face. If, however, any doubt remained respecting the real disposition of the Admiraltyboard, there were sufficient indications given by that board, after the admiral had been most honourably acquitted; the omitting that part of the sentence of acquittal which related to the malicious andill-founded accusation brought against him, and likewise such parts of it as reflected honour on the conduct of the admiral, put the matter beyond question. The same spirit and the same rancour marked the footsteps of ministers throughout the whole of the session; and the present attempt to asperse by inference the conduct of that gallant commander, was exactly corres pondent with the whole of their precedent conduct; because, if sir Hugh were acquitted, the conclusion they and their friends would draw from it would be, that if any fault was committed, it could not be fairly imputed to the vice-admiral of the blue. His lordship denied that the noble earl who spoke last had stated the affair of Mr. Byng accurately: he contended that admiral Byng was sacrificed, in order to appease the nation, who had been artfully persuaded, that whenever a British admiral miscarried it was always the fault of the commander. His lordship insisted that officer was tried on a specific accusation, and that the British annals had not furnished a single precedent hitherto, of any naval officer having been brought to his trial, without at least giving him notice of the matter alledged against him, previous to his appearance in court.

The Duke of Richmond replied to the two law lords. To the animadversions of the learned lord on the woolsack, respecting the charges against the Admiraltyboard, his grace affirmed, that he was fully warranted in what he said, and in pushing every charge he urged much farther. The

the fortress of Fort St. Philip. He might have never been able to leave the Channel; it might have come out in proof, that he purposely delayed his passage; he might have staid at Gibraltar too long; or he might through negligence or design, have broke his orders; which facts could never be ascertained or decided upon, till the whole conduct was enquired into, and known, from his leaving the land. The fact was, that part of his instructions were, to debark a force on some part of the island of Minorca. He did not, or could not, comply with those instructions; that failure of duty formed one specific charge against him the other, that he did not do the utmost in his power to engage, defeat, burn, and destroy the enemy, was not a loose, general charge, but a specific one, confined to a particular transaction, upon a particular day. Was, then, the enquiry, in the language of the learned lord, an enquiry to know whether such an action happened on such a day?

learned lord was extremely welcome to put any construction on his words they would bear; but the noble earl now absent from his place, was not much indebted to him for his laboured commentary. His lordship had endeavoured to shew, or had rather asserted, that there were no proofs before the House that the Admiralty-board had acted improperly; and though they had, that that House was not the fit place to discuss such a question. To the first he should only answer, that the mode of proceeding was unprecedented, in the case now under consideration; and, secondly, that if the Admiralty-board either improperly exercised the power vested in them, or neglected their duty, they were criminal, and as such, amenable to the controul and censure of either House of Parliament. That House had an inquisitorial as well as judicial power; nor were the two jurisdictions at all incompatible: but the question here was neither inquisitorial nor judicial, but merely a proposition made to the House, upon facts, which were in proof at their lordships' bar. It imputed no guilt, nor threw the least censure, directly nor implied, on sir Hugh Palliser; it only went to condemn a mode of proceeding no less contrary to the established rules of legal process in such cases, than to equity and justice, for it involved one of these two things; the bringing a man to his trial, and keeping him totally in the dark respecting the accusation to be preferred against him; or, on the idea that a real trial was meant, under the mock forms of law, to let a criminal escape with impunity.

The learned earl who spoke lately asserted, that no specific charge had been made against admiral Byng. He was astonished to hear his lordship, who was so well acquainted with the whole transaction, assert what he must, if his recollection had not failed him, have known to be the very contrary of what he had represented it. Admiral Byng, it is true, was generally charged with misconduct, from the minute he quitted St. Helen's till his return to Gibraltar from the action; but why so? Because he was specifically charged with a breach of his instructions. And how could the truth or falshood of that charge be ascertained, without going into a general enquiry into the whole operations at sea since his departure from St. Helen's. He was ordered to repair to Gibraltar, and there take a regiment on board, for the reinforcement or relief of

He was astonished to hear the learned lord dwell so long on a circumstance, which if it carried any weight with it, made against his argument much more than for it, which was the distinction of

the' utmost and his' utmost. The fact was, the learned lord, by taking one part of the sentence, had hastily or designedly confounded the words; they were neither the' utmost, nor his' utmost, but the utmost in his power.' Men of much less abilities than any of the great names the learned lord had referred to, might perform the utmost in their power, though not the utmost. He was ready to agree with his lordship, that neither Cæsar nor prince Ferdinand ever did the utmost, but he nevertheless contended that every man, be his abilities ever so mean or slender, was equal to do the utmost in his power, which excluded every degree of censure, but what might be imputed to a want of zeal, or treachery, or cowardice. If then the utmost in a commander's power was no more than acting to the best of his skill and judgment, the negative of that imported cowardice or disaffection, and consequently subjected the criminal to a capital punishment.

To say, therefore, that the articles contained in sir Hugh's charge against Mr. Keppel were loose and indefinite, amounted in fact to maintaining that cowardice or disaffection were not capital crimes. But even supposing, for argument's sake, that the charge now commented on was not of

a capital nature, he would ask the noble lord what was the direct charge contained in another of the five articles in which admiral Keppel was accused of turning his back on the French fleet, and thereby disgracing the British flag? Was flying from the enemy, accompanying an assertion, that the admiral might and could have engaged the enemy to advantage, not a specific charge both in fact and construction? Did not such an accusation carry upon the very face of it a charge of cowardice, or disaffection, or both? He presumed, indeed, that the learned lord had but a very faint memory of the charge on the table, else he never could have so confidently affirmed that running away from an inferior and beaten enemy was not an instance of the most abject cowardice or disaffection,

He was much surprised not to hear the learned lord dwell more on the affair of Lestock and Mathews, because on that occasion there was a precedent enquiry, in the other House; but the learned lord wished to avoid entering into particulars, for a very obvious reason; his lordship knew that the enquiry went only to ascer tain the fact of miscarriage, which when the House was satisfied of, they ordered the parties to a court-martial, not upon loose, but upon defined and specific charges. He said, this mode of proceeding was analogous to every other mode of proceeding adhered to in our code of criminal law, Whenever any man was accused, he was made acquainted with the nature of his offence, that he might be thereby enabled to prove his innocence, should that be the case; otherwise no person could be safe, however innocent; because, being ignorant of the nature of the charge, he could never be prepared, either in the way of direct proof, by confronting of witnesses, or the various modes which the law had provided for its discovery, to meet his accuser; this knowledge of the witnesses would signify very little, were he to be kept in the dark as to the charge itself; but when in possession of the charge, and knowing who were to be the persons summoned to make it good, he had then every necessary means that inpocence could desire for its justification.

Before his grace sat down, he could not pass over what had fallen from the noble lord on the woolsack, that there was no proof before the House sufficient to justify the motion, and that the witness at the bar, so far from supporting the motion,

by any part of his evidence, had furnished the strongest proof, founded on precedent, in support of the present mode of proceeding, in respect of the lieutenant and boatswain who had been tried at Plymouth, the latter on the minutes taken on the trial of the former. So far as the precedent went, it carried with it some weight: but two things were observable; first, that Mr. Jackson did not undertake to state the case exactly, with all its circumstances; secondly, the offence charged was of a very different nature from that of an accusation, such as the vice-admiral was accused of: but als lowing the precedent its full force, the occasion, the tribunal, and the mode of conducting that trial, though it might furnish one instance of injustice, or rather illegal proceeding, for he thought the sentence, though not the mode of proceeding, a very proper one, was not a sufficient ground to depart from precedents much more applicable to the matter before the House, and of infinitely greater authority and impor

tance.

The Earl of Mansfield, in proof that it was the practice of courts-martial to proceed loosely, stated the peculiar nature of such modes of trial. He said, that for the sake of military discipline, they differed essentially from trials at common law. In the latter, a specific charge is given in upon oath to a grand jury, who must upon their consciences, and on the conviction of their reason, find the charge relevant before the process could go a step farther. In courts-martial no charge on oath was made, and, except where the accuser was a private person, nothing like a specific charge was exhibited. In sir Hugh Palliser's accusation of Mr. Keppel, the charge was not upon oath, neither was the charge specific. It was consonant to practice, and perfectly agreeable to usage, to order a court-martial to enquire and at the same try the person accused for other parts of his conduct, besides those actually referred to the court; the case was so in the affair of Mathews and Lestock, and more particularly in that of admiral Byng; but there was a later case, which clearly and incontrovertibly proved what he said, the case of Mr. Brereton, captain of the Duke. The court were directed to try him for his conduct touching the business of July 27th. In the course of their enquiry, in order to found a charge, it appeared that he behaved improperly, by getting drunk the day before and the day after

the battle: the court made that matter the charge, and grounded the sentence upon it, thereby depriving captain Brereton of his command, not for behaving ill on the 27th of July, but for getting drunk on the 26th and 28th. His lordship urged several other matters, in order to prove that though the court were directed to enquire into a particular fact, they were not thereby restrained from going into other circumstances: so that if the order for trial only related to what passed in the action, yet the court were at full liberty to go into the whole of sir Hugh Palliser's conduct on the 28th, as well as in the action of the 27th of July.

The Earl of Bristol, after declaring the learned earl was mistaken in his account of admiral Byng's trial, said, if military discipline depended on a violation of justice and freedom, away with such discipline! for it would be vain to expect that seamen, who had been for years esteemed the bulwark of this country, could do their country service, if they were made slaves of, or subjected to laws which were opposite to every principle of freedom and justice. His lordship adverted to the articles of war, and having understood the earl of Mansfield to have declared that he was concerned in framing the code of martial laws which he had spoken of, said, he hoped the learned earl had no hand in framing the article which subjected officers on half pay to the same martial law and the same discipline which those in actual service necessarily were governed by: an article which he remembered created such a spirit of opposition in the navy officers, at the time that the code of laws was under the consideration of parliament, as to obtain the omission of that article, strongly as it had been supported.

The Earl of Mansfield desired to set the noble earl right, by repeating what he had said early in the debate, that he had no hand in framing the law alluded to by his lordship. All he meant to say was, that he was concerned in carrying them through parliament, under the sanction and with the support of the late duke of Cumberland and lord Anson.

The Duke of Richmond said, admiral Byng's case was truly a calamitous one, and the learned lord could not soon, he believed, forget the part he acted in that business, were it not for something which fell from him this day, that indicated a total forgetfulness of the greatest part of that melancholy catastrophe. The noble earl

said that Cæsar, nor no other great captain or commander, had ever done the utmost, and yet the learned lord, upon recollection, must remember that in the case of admiral Byng, an act of the highest criminality was, at least by inference of law, affixed to a moral impossibility; that unfortunate gentleman was acquitted by his judges of cowardice and disaffection, and yet, nevertheless, was brought in guilty, for not doing the utmost to sink, burn, destroy, &c. He would have imagined that the learned earl had forgot the part he had acted in that business, had his lordship not mentioned the opinion of the twelve judges, who, he said, had been unanimous in their approbation of the sentence, at the head of which was the then chief justice of England? He would, therefore, recommend to his lordship, to endeavour to reconcile the opinion of the twelve judges with that given this day by the learned earl, and decide in his own mind, whether a charge under the same law in 1778, and framed in the same words, as to the article in question, was not a specific charge, sufficient to draw after it a capital punishment, when an officer of long and tried service suffered on a similar charge in 1757, and the sentence under which he suffered was confirmed by the opinion of the twelve judges. He remembered that though then but very young, he could not say but that affair made a very deep impression upon him, being present in the gallery of the other House, when several of the members* desired a law, in order that they might be absolved from their oath of secrecy, for the purpose of submitting their doubts to the House, which being complied with, they accordingly did, but the question proposed involving in it a point of law, as he observed before, it was referred to the judges, with the chief justice at their head, who at length decided the fate of that devoted man, who had, in fact, fallen a sacrifice to ministerial timidity and court intrigue. His grace said, he was happy in having an opportunity of delivering his sentiments on the subject; and withdrew his motion, on a presumption, he said, that the object he wished to obtain would be the consequence of his agitating the question.

Debate on the Earl of Bristol's Motion for the Removal of the Earl of Sandwich, The order of the day being read, First Lord of the Admiralty.] April 23,

*See Vol. 15, p. 803.