Lord Granville replied, that they would not speak even there, till their mouths were legally opened. That he had always disapproved the oath of secrecy; and now particularly, when his Majesty and the House of Commons were willing that the oath should be set aside, who could refuse it?
The Duke of Newcastle, as usual, echoed his oracle, and wished to have all the lights that could be had in twenty-four hours. The Duke of Bedford asked what objection there was to hearing them the very next day? There could but two questions be asked of them: “Were they willing to speak?” “Had they anything to say?” Lord Halifax pressed for the next day. Lord Temple defended them from private influence, and proved that their present behaviour was entirely consonant to their sentence and letter. When they found that all the difficulties on their minds, which they had hinted at in their letter, had no effect, could they do otherwise than apply to the Legislature to be empowered to set forth their difficulties at large? Lord Sandwich owned, that if he did not think the Bill necessary, he would oppose it, because he was astonished to find that an unprecedented message to the Commons was pleaded as a reason for the acquiescence of the Lords.
Lord Hardwicke caught up that argument, and said the Royal Message ought not to be pleaded there, since it had not been vouchsafed to that House. I hesitate to repeat the latter part of his speech. Will it not be thought that the part I took in this affair influenced me to misrepresent a man, to whose intrigues and authority I cannot help imputing in great measure the Admiral’s catastrophe? Who, when I paint a shrewd old lawyer, as weakly or audaciously betraying his own dark purposes in so solemn an assembly, but will suspect that I forged an event which seems so strongly to prove all that I have charged on him? In answer to these doubts, I can only say, that this was one of the events on which I formed my opinion; that it is strictly true; and that I would not venture to report it, unless it had passed in so solemn and public a place as the House of Lords, where all who there were present heard, and could not but avow that I speak truth—in short, Lord Hardwicke, as a reason for deferring to hear till Thursday the members of the Court-Martial, pleaded that there was an Irish cause depending before the House, which was appointed for the next day, (Wednesday.) If ever the least public business that pressed, had not made all law-suits give way, this might have been at least a precedented reason. But what was the Bill in question? Certainly in the then situation of affairs of as critical importance, and of as much expectation as had ever engaged the attention of the public; and to want to postpone it to an obscure Irish cause! Could good-nature in person forbear to surmise, that this demand of an intervening day was, could only be made, to gain time to tamper with the witnesses? Good-nature at least, would allow, that who suspects such men as Geary of being tampered with by the poor and powerless relations of a criminal, might be suspected of a disposition to tamper, when he had power,[82] and only wanted time; which too he had the confidence to demand—I say confidence, for Lord Hardwicke said authoritatively, “I adhere to Thursday.” Alas! he did not know how much he could do in half the time.
Lord Denbigh asked with indignation, “does that noble Lord put in competition with the honour of his country a cause of Irish bankruptcy?” And the Duke of Devonshire begged that the Court-Martial might be heard on the morrow, because some of them were under sailing orders. Lord Hardwicke, unmoved, said, “the Bill will not be before you to-morrow: the officers in question must be examined separately.” Lord Temple replied, that the wind might change by Thursday, and that some of them were going on expeditions of the utmost consequence to this country. He begged their retardment might not be laid at his door. He repeated the urgency of their sailing. The Duke of Bedford desired then to have the orders of the House reversed, and to have the second reading of the Bill fixed for the morrow. Lord Hardwicke (who, if I have suspected him wrongfully, was at least conscientiously impatient to do justice on those Irish bankrupts) persisted; and maintained that the orders could not be reversed, unless every Lord present consented. Have I dared to forge all this? The rest of the Lords, who did seem to think that winds and that fleets sailing in their country’s cause were of more instant importance than a case of Irish bankruptcy, prevailed even on the late scrupulous Chancellor to postpone private justice for one day, and the Court-Martial were ordered to attend the next.
March 2nd.—The day opened with a complaint preferred by Lord Sandwich against the publisher of a newspaper, who had printed the oath of secrecy with false additions. Lord Mansfield took on himself the management of the examination. To combat his ability and Hardwicke’s acrimony, the unhappy Admiral had no friend among the Lords but the Earl of Halifax; honest and well-disposed, but no match for the art of the one, or the overbearingness of the other, and on too good terms with both to oppose them in a manner to do any service; and Lord Temple, circumscribed both in interest and abilities from being thoroughly useful. The Chief Justice acquainted the House that the questions he proposed to put to the members of the Court-Martial were, “Whether they knew any matter previous to the sentence, which would show it to be unjust, or procured by any unlawful means? and, whether they thought themselves restrained by their oath from disclosing such matter?” Lord Temple said, “Everybody would be at liberty to ask any other questions;” and Lord Halifax said, “They would not be confined to those of Lord Mansfield.”
Admiral Smith, the President of the Court, was then called; a grey-headed man, of comely and respectable appearance; but of no capacity, of no quickness to comprehend the chicanery of such a partial examination. He, and the greater part of his comrades, were awed too with the presence of the great persons before whom they were brought. Moore, and one or two others, were neither awed nor haggled with their inquisitors. Lord Morton caused the twelfth Article to be read; and would have asked Admiral Smith, whether he then thought, or ever did think, that Article applicable to error of judgment? The impropriety of the question, and the intemperate warmth of the Lord who put it, when he was checked by Lord Talbot, broke in on the solemnity of the scene, and disturbed it. Lord Temple observed, that Smith had already answered the Earl’s question by stating in their letter the words, even by error of judgment. Lord Hardwicke said, that letter was not an oath, and hoped would be out of the question; yet he owned the interrogatory was most improper. Lord Temple insisted that they were under the virtue of their oath till the sentence was pronounced, and they were dissolved as a Court.
Lord Mansfield then asked the President, whether he knew any matter previous to the sentence which would show it to be unjust. He answered, “Indeed I do not.” Lord Mansfield—“If it was given through any undue practice?” Admiral Smith—“Indeed I do not.” Lord Halifax then asked him, if he desired to have the Bill? He replied, “I have no desire for myself. It will not be disagreeable to me, if it will be a relief to the consciences of any of my brethren.” Lord Halifax asked him farther, whether he could reveal anything relative to the sentence, that was necessary for the King to know, and to incline him to mercy? The Admiral said, “Indeed I have not, farther than what I wrote at that time to Lord Lyttelton, signifying that we were willing to attend, to give our reasons for signing that letter.” Lord Lyttelton said, “He had returned that letter to the Admiral, that he might read it there.” Lord Hardwicke asked, whether he thought himself restrained by his oath from mentioning those reasons? He answered, “The application for mercy was unanimous. I think I am at liberty to give the reasons why I requested that mercy.” Nobody chose to ask him those reasons—the friends of Mr. Byng, one must suppose, lest it should interfere with the necessity of the Bill. His enemies did not desire to know themselves, or that anybody else should.
Admiral Holbourn was then called, and to the two former questions of Lord Mansfield, and to the two of Lord Halifax, answered bluntly, “No.”
The next that appeared was Admiral Norris; a most weak man, who after resisting, from the friends of Mr. Byng, great solicitations to interpose in time in favour of the prisoner, to whom he was believed the best disposed, (except Moore, the greatest professor of tenderness to Mr. Byng’s family,) had at last sunk under great inquietudes of remorse; and had pressed most earnestly for parliamentary relief. If in effect he overturned all the consequences of that compunction, he was to be pitied more than blamed. Struck with awe of the tribunal before which he appeared, he showed how little qualified he had been for a Judge, when so terrified at superior Judges. He lost all comprehension, understood no questions that were asked, nor knew how or when to apply the very answers he came prepared to give. When Lord Mansfield put his question to him, whether he knew anything previous that would show the sentence to be unjust, he replied, that he desired to be excused from answering while under the oath of secrecy. Lord Mansfield said, to what did he apprehend his oath went? had he anything to tell, if released from the sanction of it? Lord Fortescue objected, that nobody had a right to ask him his reasons for desiring to be absolved from his oath; and Lord Ravensworth said, an answer in the affirmative would look like accusing himself—indeed it was difficult to know how the Court-Martial could complain of what they had done or submitted to, without accusing themselves in the heaviest manner. Lord Hardwicke declared, if this question was not answered, that he would vote against the Bill. “And why,” said he, “are these excuses made for Mr. Norris? he does not make them for himself. Ask him in the very words of the Bill.” It was evident that Norris thought, that in order to obtain the Bill he must not give the least satisfaction on any question. Accordingly, when questioned if he knew anything that would show the sentence to be unjust? he replied, “No.” If he knew anything of undue practices? still he answered “No.” Yet when Lord Halifax asked him, whether he was desirous the Bill should pass? he replied, “Yes.” Lord Halifax—“If he knew anything that was necessary for the King to know, and that would incline him to mercy?” He begged leave not to answer, and withdrew. The contradiction in this behaviour must be left to the comment of the reader. The only observation I would make, not only on Norris, but on his associates, (I speak not of those who evidently were influenced,) is this. If, as they all said, they knew nothing unjust, why did they solicit to be released from an oath of secrecy, under the lock of which they had no secret? Is it not more probable that they were ashamed of what they had done, and neither knew how to bear or avow it?
Admiral Broderick was short and steady in negatives to all the questions. Holmes as explicit, saying he knew nothing to incline the King to mercy but the sentence and their letter. Lord Halifax then informed the Lords, that Norris had recollected himself, and desired to return to the bar. Lord Cholmondeley and Lord Stamford objected to it, but even Lord Hardwicke could not close with such rigour, though he declared against repeating the like indulgence. Norris returning, and being asked if he knew anything proper for his Majesty to know, and that might incline him to mercy, replied, “At the time that I said I desired the Act might pass, I thought we should have an opportunity of explaining our reasons for signing the sentence.” These words, though obscure, and by no means adequate to what was expected from his desire of being reheard, seemed to imply that he had been drawn into the harshness of the sentence from some arguments of the improbability that it would be carried into execution. This in the utmost candour I own; it was what all the advocates for rigour insisted was the case: though the defence in truth is but a sorry one, for what can exceed the weakness of condemning a man, whom one thinks innocent, upon the supposition that he will afterwards escape?