his only hope must be in joining a power-charge, that there was a difference of opiful faction; for his services, let them be nion concerning it in the House; for no ever so high, or his loyalty, ever so exem- jury would fix guilt upon doubtful words plary, would be insufficient for his secu- when the prisoner told them, that his acrity." This must put the meaning of the cusers themselves were not satisfied of the first passage out of doubt. The right criminality of his meaning. hon. gentleman had supposed, that the time past was alluded to, when the word smile' was used. He, for his part, conceived, that when any one was spoken of as possessing his Majesty's favour, his present favour was meant, not his past. He himself had once, for a little while, the honour to possess some part of his Majesty's favour; a noble friend of his, the noble lord in the blue ribband, whose absence he believed, every one regretted, had possessed a much larger share, and for a much longer time; yet he believed no person would talk of the King's favour protecting them now. He conceived, therefore, the sentence to mean, an undue interference of the King for the preventing of justice; though couched in the form of a panegyric on the House as if designed to convey directly the contrary. Mr. Pitt said, that could he be convinced of the passages fairly carrying such a construction, he would readily join in voting the resolution; but neither did the passage itself, nor the other which was brought into comparison with it, support, in his opinion, the inference at tempted to be drawn. In proportion as that inuendo, if supported, would aggravate the charge, so, if not supported, would it tend to weaken it. He therefore moved as an amendment, That the words to his Majesty, and' be left out. Mr. Adam apprehended the question to be, whether the inuendo, as stated in the motion, could be well laid in an indictment. He was of opinion it could. He then argued to this effect, that from the time at which the pamphlet was published, pending the trial of Mr. Hastings, it could have no reference back to the time of his arrival, when no prosecution being commenced, the supposition of the royal favour, as manifested at that time, must be totally inconsequential and futile. Then, admitting for argument's sake, the words to be equivocal, he reasoned from the purview of the pamphlet, that its design was to asperse, with a view of serving Mr. Hastings, the prosecution of the House of Commons, and weaken the hands of justice. Mr. Dundas observed, that it was a sufficient reason to relinquish this part of the Mr. Pitt insisted, from the grammatical structure of the sentence, that it carried no reflection on the King. Many of the nominative cases, or sentences, which stood for such, to the verb, would admit of only a past construction. For instance "his elevated situation," as there was nothing elevated in his situation now :— "his abilities,"" the voice of the people," meaning the reputation he was said to have possessed in India. So that if the "smile of the Sovereign," receive a present construction, it must differ, in reference of time, from the preceding nominative case; and it was easy to prove, that "cannot" referred to all the preceding members of the sentence. Therefore, if one of the nominative cases differed in sense from the others, it introduced a grammatical confusion, with which there was no occasion to charge the author. Though it was not every libel that was grammar, yet it was very hard to make a man write bad grammar, in order to prove his book a libel. Mr. Fox answered, that, in like manner, it was not every libel that was sense; and though he would not maintain, that the present was so, yet the sentence certainly appeared sense, till the right hon. gentleman had made nonsense of it. True, Mr. Hastings had been in a high situation; he had shown abilities; he had been in possession of popular applause, of royal smiles. But did the writer of this libel mean to argue entirely from claims which were past? Did he mean to say that Mr. Hastings no longer possessed the favour of the people, that their voice was silent, or that his popularity no longer existed? No! it was plain, on the contrary, that it was meant to confine the popularity and the royal favour to the present moment, and only to lament that they had not their effect in exempting Mr. Hastings from punishment. Mr. Sheridan argued also, that the allusion was obviously directed to the present situation of Mr. Hastings, as the complaint was, that the proceedings had been conducted in a mode which precluded the royal interference, and as the writer supposed, prevented any such interposition in favour of the delinquent. The Solicitor General thought it necessary to say, that he should give no opinion on this occasion, as, from his official situation, he might be the instrument of the House in the future prosecution. The question being put, that the words proposed to be left out stand part of the question, the House divided. Tellers. Lord Maitland YEAS Mr. Courtenay NOES Colonel Phipps } So it passed in the negative. amended question was then put, agreed to. 66 132 The Lord Rawdon introduced his motion with some prefatory observations on the late promotion of captains to flags, by which several whom he described as officers of indisputable merit had been passed by. This neglect, he contended, was contrary to the established practice of the service, and was without a precedent. He said, it was not his intention to impute improper motives to any one. He had therefore framed his motion so, that he hoped it would be found perfectly inoffensive and unobjectionable. The subject of it was, beyond a doubt, of the utmost importance to the naval service of this country; and when he examined the list, and saw how many brave and deserving officers had been overlooked in that promotion, he felt himself called upon to stand forward as their advocate, and he trusted that their lordships would give their support to the motion which he should have the honour to propose, particularly as it did not point at any particular mode of redress, but left it totally to the wisdom of his Majesty to grant such relief as the exigency of the case might appear to him to demand. Notwithstanding that he lamented the situation of those officers, Mr. Fox declared, that he still entertained the opinion, that unless in cases of public libel, or of a libel on the Government at large, or legislature collectively, he did not think it becoming in that House to resort to the crown lawyers, as the instruments of prosecuting libels affecting themselves, interfering with their proceedings, or implicating a breach of their privileges. He then moved, "that an humble Address be presented to his Majesty, humbly desiring his Majesty, That he will be graciously pleased to give directions to his Attorney-general to prose-ficers to the rank of admirals in the navy, cute the author or authors, the printer or printers, and the publisher or publishers, of the said pamphlet, in order that they may be brought to condign punishment for the same.' according to the seniority of such officers upon the list of captains, regard only had to their being duly qualified for the rank to which they should be promoted. By a subsequent order of 1747, the Lords of the Admiralty are The motion was agreed to nem. con.* authorized to superannuate such captains of long and meritorious service as shall be disDebate in the Lords on the late Promo-abled from serving as admirals, by age or intion of Flag Officers.]t Feb. 20. The firmity, under the title of Admirals upon the order of the day being read, On the 9th of December 1789, the trial of Mr. Stockdale for the said libel came on in the Court of King's-bench, before lord Kenyon. After a trial of three hours, the jury withdrew for about two hours, when they returned into court with a verdict, finding the defendant not guilty. Mr. Stockdale's defence was entrusted to Mr. Erskine, who upon this occasion is acknowledged to have delivered one of the most able and eloquent speeches that was ever heard in a court of justice. See the speeches of the hon. Thomas Erskine (now lord Erskine) when at the bar, on subjects connected with the liberty of the press, and against constructive treason, Vol. 2, p. 205. ↑ By an order of council, dated in the year 1718, and addressed to the Lords Commissioners of the Board of Admiralty, they are directed to proceed, in the promotion of of Superannuated List, or, as it is commonly yet he confessed that he was too much | most proper and best qualified officer to alarmed at the danger of the precedent to command a fleet. It was painful for him, suffer it to pass without animadversion; undoubtedly, in the exercise of his discrefor did it not put the patronage of the tion, to set officers aside; nor could he in whole navy into the hands of a minister? a public assembly state the particular reaa patronage which a bad minister might sons which operated on his judgment in convert to the purposes of parliamentary the late promotion of captains to the rank corruption and the most undue influence. of admirals. It would be invidious in him He did not doubt but that the officers to explain them, as it would be cruel in the who had the good fortune, on a late occa- House to desire him to make such an exsion, to become the objects of favour, planation. He had acted to the best of were amply deserving of their honours; his judgment, and with the strictest imparbut they were not more so than those who tiality. With regard to the reasons which had been superseded. Were such the might direct the judgment of a first lord rewards which this nation set forth to the of the Admiralty to pass over any number veterans who had bled in its defence, and of captains in a promotion to flags, the by whose exertions every noble peer slept House would recollect that there might secure in his possessions? Under such be several. Those who were likely to be encircumstances, their country had no claim trusted with the care of our fleets, ought to their future services; for, what had to be men not only of firm minds, but they to expect? Perhaps to have a boy, possessed of bodily strength, to enable who had never seen a shot fired, put over them to endure the fatigues of the hard their heads, as the caprice of a minister service they might have to sustain. Offimight dictate. But, the Board of Admi- cers who had served ably and meritoriralty seemed to be conscious that they ously all their lives might not appear to the had done an injury to those men who had judgment of a first lord of the Admiralty been superseded, and, as some compensa- to be fit to be entrusted with the care of a tion, had offered every one of them the fleet, when the period of promotion to half-pay of a rear admiral. It could not flags arrived. Their bodily strength might therefore be on the score of economy not be equal to the necessary severity of that they had been overlooked. The duty. That officer who had displayed noble lord moved, "That, an humble great bravery in the command of a ship, Address be presented to his Majesty, might not be qualified to command a praying that he would be graciously pleased fleet. The noble lord knew that in the to take into his royal consideration the ser- army the same observation applied. A vices of such captains of his Majesty's serjeant of grenadiers, though an able and navy, as were passed over in the last pro- excellent soldier, might not be qualified to motion of admirals." command a body of troops on a forlorn hope. These and other considerations, had necessarily operated on his judgment in the late promotion. If the House thought proper to take upon themselves the promotion of military officers, he should feel himself eased of the greatest anxiety in his situation, and of course escape from the painful responsibility of office. But he could not so far forget his duty to his country, as to desire their lordships to ease him of a responsibility, which could not, by any means, so well rest as where it did. He assured their lordships, that patronage was not so desirable as it might be imagined. Whenever a vacancy in the appointments in his nomination happened, there were always twenty candidates for it, at the least. He was sure therefore to disappoint nineteen, and was not always certain of pleasing the twentieth.-Had the officers who were passed over enjoyed their rank, and not Viscount Howe entered into a statement of the different rules of proceeding which had governed the Board of Admiralty in promotions to the flag, for many years past, marking the periods when any new rule obtained, and producing the orders of council and various documents of authority, by which each particular alteration had been warranted. He contended that the first lord of the Admiralty was responsible for the good conduct and well-being of the service; and with the responsibility he must necessarily be entitled to exercise his own discretion in every branch of the executive duty of the Admiralty Board; and, therefore it was incumbent on every man standing in a situation similar to his own, to be careful in the promotion of officers, and more especially in the promotion of captains to flags. He was bound to consult the good of the service only, and to ask his judgment which was the been called into service, they must have | tion, he was persuaded were not aware gone through the superior degrees of pro- of the infinite mischiefs which might ensue. motion, that of vice admiral and of admiral, The parliament of Great Britain stood before the officers from whose service the high in the opinion of all Europe; it had country were to derive advantage; and acquired abundant credit from the prothus the officers who did not serve, would priety of its proceedings, from confining have stood in the way of those who did itself to its proper province, and from not serve. Would such a circumstance have assuming offices and functions which did been fair or warrantable? He stated to not belong to it, but leaving them where the House the existence of an establish- the constitution had wisely placed them, ment planned by a wise Board of Admi- in the hands of the several departments ralty in 1747, for the maintenance and of the executive government, Let their support of such officers as were passed by lordships for a moment consider the emin a promotion of captains to flags, and, barrassments which must be felt, if promothis was the first (as it was commonly tions of admirals were to be made by the called) of Yellow admirals. In order to House of Lords. The idea was revolting make a suitable provision for captains not and monstrous in the extreme. A want promoted to flags, and to enable them to of knowledge of the qualifications of the spend the latter years of their existence different candidates, would present itself in ease and retirement, that list was estab- in the first instance, and ultimately lead to lished, and all upon it received 300%. a the destruction of the service. The inyear. If the superannuation pay appeared fluence used to obtain promotion would too small, let it be increased. That House be at once most absurd and ridiculous. would then consider, that the patronage If the House of Lords took upon themof the first lord of the Admiralty would selves a promotion of admirals, one lord be increased in the same proportion, and would rise in this place and say, "Pray he had more to give away than he could don't pass over my brother, make him an well dispose of already. If in the late pro- admiral!" another would start up in that motion of captains to flags, he had been place and intercede for his relation. Nor guilty of error, let the error be shown, would applications be confined within and he should not feel ashamed to 'ac- those walls; each noble lord would be knowledge it. That the half-pay of a pestered at home to intercede for different rear-admiral had been offered to those offi- captains; nay, even the ladies-and the cers who were superseded, was certainly House well knew the irresistible fascination true; but it was upon no other ground of female influence would catch hold of a than as a compensation for past services; peer's hand, clasp it with ardour, and say, nor did such a measure need the countenance of a precedent. One, indeed, of this nature took place when a late gallant lord (Hawke) sat at the head of the Admiralty department. Lord Hawke rose to vindicate the conduct of his father, and denied that it was a precedent in point, because that promo tion had taken place with the approbation of parliament. He reprobated that system of naval distinction which overlooked the veteran officers, in order to get at the man who had the chance of being the longest liver. It was a system which every man who had at heart the honour of the service, must view with indignation. He would therefore, give the motion his cordial support. My dear lord, pray get my son made an admiral!" If parliament must go out of its way, and take military promotion into their hands, he really thought it would be better for the House of Commons to have the promotion of admirals in their hands, than the House of Lords. The Commons would, no doubt, receive numberless petitions from the different boroughs represented, and their constituents would send them up instructions who was fit to be voted for. But, ridicule apart, he felt it his duty to conjure the House to let military promotions remain, where only they could rest with propriety, in the hands of the executive government. Let parliament place a due confidence in the first lord of the admiralty, and suffer him. The Earl of Sandwich thought it ex- to exercise the discretion that belonged to tremely improper for that House to inter- his situation, unmolested by their interfe fere with the executive government. They rence. The responsibility lay with that had much better leave it to itself, and officer and the board; and there the disthose noble lords who would advise the cretion ought to rest likewise. Whenever House to accede to the present proposi-a complaint was formally made of breach [18 of trust, or improper conduct in any res- annuated List had been originally received ponsible member of administration, the with universal applause, and generally conHouse had a right to institute an inquiry, sidered as a humane and benevolent instiand upon sufficient proof of the facts al- tution. Those captains who were put upon leged, to address his Majesty to remove it were not stigmatized, as the noble mover the minister so misconducting himself. had contended, nor in any degree disThat was the constitutional power of par-graced; but it was an honourable retreat liament, and one of its most important from service.-The noble lord had also and salutary privileges; but it was widely stated, that the late promotion had been distinct from that or the other House ta- altogether without a precedent. No such king upon themselves to exercise the thing. There were a great number of functions of the executive government. precedents for it. In short, there was For his own part, he would not enter into scarcely a precedent to the contrary.any discussion of the late promotion of Besides, what did the present motion captains to flags, because he did not mean? It desired his Majesty to take think that House the proper place the case of the officers in whose behalf the for such a discussion; but, having himself motion was made, into his consideration. had a share in forming the establish- That had been done already, since, he had ment which, in vulgar words, was termed no doubt, the noble viscount at the head the list of Yellow Admirals, but the of the Admiralty knew his duty too well, true name of which was the Superan- not to have consulted his Majesty, and nuated List, he would state to the House stated his reasons before the promotions the origin of the establishment. It had were decided. Was it his Majesty's better been found at different periods, extremely consideration of the case of the officers inconvenient and detrimental to the service that was desired by the motion? If so that promotions to flags should be go- let their lordships consider, for a moment, verned by seniority. In 1747, a promotion the gross impropriety of their interfering to flags was necessary, and those then at with the prerogative in a case of that the Board well knew that there were on nature. If they did it in one instance, the list of captains several officers in a they would be called on to do it in superior degree qualified to command another and what infinitely mischiev fleets: but the difficulty was how to come ous consequences might not such an at them, without loading the public with unwise confusion of the distinct funcan intolerable expense. In concert, there- tions of the distinct branches of the legisfore, with two noble lords, for whose lature lead to! With regard to the noble memory the country ought to entertain viscount's reasons for having passed over the most grateful respect, the Superan- some captains, undoubtedly it must have nuated List had been formed. The noble been painful for him, as a professional persons to whom he alluded, were, the one man, to have considered it his duty so to a land, the other a naval character, both regulate the promotion. No first lord of men of acknowledged judgment, ability, the Admiralty, who had any feeling, had and zeal for their country. He meant the made a select promotion of officers to flags, late duke of Bedford, and the late lord without being impressed with sensations Anson. With them he had taken his extremely painful; but, whatever had been share in planning the Superannuated List, the reasons by which either the noble and he had been the person in whose hands viscount, or any former lord of the Admiit had principally been brought to bear., ralty had been governed, it would prove in The object of it was, to provide an income the highest degree improper publicly to for such captains, as, in a promotion to state them. It was not in human_nature flags, the Board of Admiralty did not for any man to think himself insufficient: appoint admirals, not meaning to call them and, undoubtedly, one officer believed out into farther service. At the time of himself to be as fit for an admiral as aninstituting the establishment, the object other. Would it, therefore, be humane, was to make eight admirals only, and in or even justifiable, for a first lord of the order to that, nineteen captains were passed Admiralty to single out and characterize over; and yet, there was no complaint what he held to be such disqualifications then, no motion before that House to as rendered it incompatible with the good address his Majesty on the subject, nor of the service for such and such captains any idea of injustice or partiality enter- to be promoted to flags? He was aware tained. The establishment of the Super-that it might be deered improper in him [VOL. XXVII. ] [C] |