[CHAPTER X.]
Contract of Alderman Baker for Victualling the Troops—Parliamentary Inquiries limited to Minorca—Byng’s Sentence produces various impressions—It is referred to the Judges—Conduct of the Judges on the Case referred to them—Conduct of Fox—The Admiralty signs the Sentence—The Sentence notified to the House of Commons—Mr. Pitt demands Money for Hanover—Lord George Sackville declares for Pitt—His Motives for so doing—Approaching Execution of Byng—Debate in the House of Commons on his Sentence—Members of the Court-Martial desirous to be absolved from their Oaths—The Author urges Keppel to apply to the House of Commons—Sir Francis Dashwood applies for Keppel—The King’s Message—Court-Martial Bill passes the House.
Feb. 7th.—The younger of the brothers carried the war into another quarter, attacking Alderman Baker on a contract he had obtained from the Government for victualling the troops in North America; and falling severely on his uncle Newcastle, whom he abused, with more outrage than wit, in a very florid strain of satiric irony. Fox defended Baker; Nugent, his patron: Baker on a subsequent day vindicated himself, and cleared the fairness of his contract.
George Townshend and the Tories were displeased with these hostilities to Newcastle, who they feared would be driven to unite with Fox, with whom the Duke consulted for the defence of Baker. His Grace and Fox being already complicated in the late measures, a new accession of common interest might renew their league. These apprehensions operated so strongly on Fox’s enemies, that great coldness was shown on the matter of inquiries; and when George Townshend could no longer in decency defer to call for papers previous to the examination, as he did at last, February 8th, the inquisition seemed affectedly limited to the loss of Minorca, on which subject, Newcastle and Fox had had leisure for months to remove from all offices whatever papers could be supposed to affect them. All discussion of the neglects in America, so extensive, so numerous, and so easily to be proved, were cautiously avoided. Indication sufficient, that the late Ministers had left no evidence against themselves, was, that in a Parliament constituted almost entirely of their friends, not a single objection was made by any of their dependents against the scrutiny into their conduct. The most upright Ministers had never met popular attacks with indifference—were Newcastle, Anson, Fox, more bold, or more innocent, than any of their predecessors? The farce of national justice had never appeared in more glaring colours: Mr. Byng had been kept a close prisoner from the instant of his arrest; thirty witnesses that he had demanded had been denied to him; every evidence that could possibly affect him had been produced—when the more powerful criminals were to be charged, a single part of their administration was selected, papers were demanded by guess, and it was left to the discretion of offices full of clerks, all creatures of the late Ministers, to send, omit, secrete, mangle, what part of those papers they pleased. No Committee was appointed to conduct the inquiry, nobody empowered to procure or manage evidence, or even to examine whether what was so partially demanded, was not still more partially granted. Mr. Pitt protracted a commodious gout—George Townshend, the other mock-champion of the people, was negotiating with Lord Granby, to unite the patriot Minister with the late chief of the criminal Administration.
During these clandestine treaties and juggles, the sentence pronounced on the Admiral grew a serious affair. The first impression taken was, that he must be pardoned. Many lawyers declared the sentence was illegal: at St. James’s it was received as definitive: the Sovereign, the Duke, Princess Emily, and their train, treated the notion of mercy as ridiculous; and no whispers from any of their late partizans breathed a more gentle spirit on the Court. At the Admiralty, on the contrary, a very different temper discovered itself. Admiral West, the friend of Pitt, and relation of Lord Temple, loudly demanded a revision of the 12th Article; and though, he said, he would not decline immediate service to which he was appointed, he declared his resolution of resigning, unless the Article was abrogated. Admiral Smith, natural brother of Lord Lyttelton and Sir Richard, who had been President of the Court-Martial, and was really a humane though weak man, wrote the most earnest letters to his brothers, to interest themselves in the safety of Mr. Byng, as the only method of quieting his (Smith’s) conscience. The Peer, blindly devoted to Newcastle and Hardwicke, returned an answer, that, to say no worse of it, did not breathe more humanity into a conscience already wounded.
Sir Richard, on the contrary, interested himself warmly for the condemned; and Lord Temple took part enough to make it a measure in the Admiralty to refuse to sign the warrant for execution, unless they were better satisfied on the legality of the sentence—if their consciences could be tranquillized by such opiates as the casuists of Westminster Hall could administer, Lord Hardwicke had no apprehension but the warrant might still be signed. Accordingly, the King referred the sentence to the Judges; and as there was no difficulty but what they could solve by pronouncing an absurdity legal, they soon declared, that a sentence, which acquitted of two crimes, and yet condemned, without specifying a third, was very good law. And thus, without an instance of interpreting a new, obscure, and doubtful statute in the most unfavourable sense, and contrary to the stream of precedents by which criminals recommended to mercy were constantly pardoned, the people of England (that some revengeful men might be gratified, and some guilty men might have their crimes atoned by the sacrifice of another man) obtained the alarming precedent of a sentence pronounced by implication! And this was the more alarming, as it was known that the word negligence[76] had been proposed in the Court-Martial, and had been rejected by them. Consequently, they had thought it their duty to condemn for no crime; and the Judges discovered the virtue of a crime in words, which the persons who framed the sentence had intended should not express it.
What added to the criminality of the Judges was, that the young Lord Torrington, the Admiral’s nephew, having petitioned the Admiralty for leave for his uncle to appeal against so unprecedented a sentence, they desired to see his reasons, and having received them, laid them before the King and Council, by whom they were referred to the Judges. The Judges, who had desired to see all the sentences in capital cases that had been given by Courts-Martial since the Revolution, excused themselves from examining Lord Torrington’s arguments, equally referred to them by the Council. One can hardly avoid saying on such inconsistent behaviour, that the Judges knew what was the inclination of the Council on the different papers referred to their consideration; and that they accordingly rejected an appeal from a novel sentence, which they pronounced law from precedents which had all taken their rise under the abrogated law.
There had been periods when Fox would not have suffered such casuistry in the profession to pass uncensured:—what was the part he now took?—It was not, in truth, an age to expect that a Regulus should exhort his country to pursue measures which would advance his own destruction. Few men would devote themselves, when other victims were marked for sacrifice. We will suppose, that Mr. Fox, implicated in the miscarriages of the last year, might not be sorry to see the busy timidity of Newcastle, or the dark councils of Hardwicke, transferring his, their own, and Anson’s neglects and mismanagements to Mr. Byng, and sweeping Court, Navy, Parliament, and Law, into a combination to cut off a man whom they had made obnoxious to the nation, because he was so to themselves—but what more crooked policy was that, which, not content with sheltering itself behind Mr. Byng, sought to ruin Mr. Pitt too, by painting him to the multitude as the champion of the condemned Admiral? It is irksome to me to tell what whispers, what open speeches, what libels, Mr. Fox and his emissaries vented to blacken Mr. Pitt and Lord Temple, for feeling symptoms of humanity towards a traduced, a condemned, a friendless man! Hardwicke moved steadily towards his point, the death of the criminal:—Fox sported with the life of that criminal, and turned mercy itself into an engine of faction to annoy his antagonist. Had Mr. Pitt effectually interposed, had the seal been set by his influence to Mr. Byng’s pardon, (however generous morality would scorn the office,) policy might have excused Mr. Fox for traducing such humanity:—but previously to make mercy impossible, by making it dangerous, by making it odious!—I know not where ambition would stop, if it could leap over such sacred sensations!