[356] Liv. lib. 22. p. 242.
[357] Polyb. lib. 6. p. 688.
[358] Our method of trying delinquents, either in the land or sea service, by a court-martial composed of their respective officers, has been judged liable to many objections, and has occasioned no little discontent in the nation. For as their inquiry is restricted to a particular set of articles in each service, I don't see how a commanding officer, vested with a discretionary power of acting, can strictly or properly come under their cognizance, or be ever liable to their censure, unless he is proved guilty of a direct breach of any one of those articles. But as a commander in chief may easily avoid an offence of that nature, and yet, upon the whole of his conduct in any expedition, be highly culpable; a court-martial, thus circumscribed in their power of inquiry, can never be competent judges in a cause where they are denied a proper power of examining into the real demerits of the supposed offender. Much has been said about trying offences of this nature, like other criminal cases, by juries: a scheme which, at the very first sight, must appear absurd and impracticable to the rational and unprejudiced.
As therefore instruction is the true end and use of all history, I shall take the liberty of offering a scheme, drawn from that wise and salutary institution of the Carthaginians, which is,—“that a select standing committee be appointed, to be composed of an equal number of members of both houses, chosen annually by balloting, with a full power of inquiring into the conduct of all commanders in chief, without any restraint of articles of war; and that, after a proper examination, the committee shall refer the case, with their opinion upon it, to the decision of his majesty.”
This scheme seems to me the least liable to objections of any I have yet met with. For if the numbers are chosen by balloting, they will be less liable to the influence of party. If they are chosen annually, and refer the case to the decision of the crown, which is the fountain of justice as well as mercy, they will neither encroach upon the royal prerogative, nor be liable to that signal defect in the Carthaginian committee, which sat for life, and whose sentence was final without appeal.
[359] Diodor. Sicul. lib. 20. p. 739.
[360] Polyb. Hist. lib. 6. p. 628.
[361] Id. ibid. p. 638-9.
[362] Polyb. lib. 3. p. 223.
[363] Δημοκρατία θηριώδης. Polyb. p. 638.