CHAP. V. Case of Mr. Smith, the Missionary-Committals for Criminal Offences-Impressment of Seamen-Independance of South America-Protests against the Irish Insurrection, and Earl Marshal's Relief Bills-Prorogation of Parliament HOUSE OF COMMONS, June 1. -CASE OF MR. JOHN SMITH, THE MISSIONARY. Mr. Brougham rose and said, he wished, without farther preface, to proceed at once to the facts of the case. He would abridge his observations as much as possible; in the outset he would say, that from the beginning to the end of those proceedings there had been one continued series of illegality-one continued violation of justice (hear)—a violation of the most common forms of justice, as well as of its substance. (Hear.) He never, in history, had the misfortune to meeta case that equalled it, neither did he know any individual who had. Every person he had addressed out of doors-members of the legal profession, as well as others who had not had professional experience; he had never yet met with one who had objected to his condemnation of this transaction. (Hear.) It was now necessary to call the attention of the house to that unhappy state of things which governor Murray made known by his proclamation. Here the honourable member took a view of the state of things previous to the insurrection. The necessary and inevitable consequence of the circumstances to which he had referred, was to give rise to those [1824. proceedings which, however differently gentlemen might view the subject, they must all deeply lament. It appeared, that at the period to which he had called the attention of the house, Mr. Smith had been acting as an officiating minister for upwards of six years. He had gained the respect and esteem of all who knew him for his exemplary, religious, and moral character. (Hear.) He was honoured with the love and veneration, not only of the flock over which he more immediately presided, but there were, besides, one or two other very considerable districts, the population of which he had won over to him by his amiable and quiet deportment, and by the zeal and energy which he displayed in the discharge of his sacred duty. (Hear, hear.) Of that zeal and energy, the papers before the house furnished only a portion of proof, but it was quite sufficient for his purpose. This gentleman, thus usefully employed, was dragged from his house about three days after the revolt began. Yes, when the first violence of the insurrection was over-when the revolt was substantially quelled, he was dragged from his house, without being allowed time to accommodate himself with those conveniences 2 C which which, in other climates, might be considered comforts, but which were here absolutely necessary for the preservation of life. (Hear, hear.) In his case they were rendered still more absolutely necessary, because his life was at that time attacked in one of its principal seats by a disease which afterwards shortened it, and which, happen what might, must in a few years have deprived him of existence. With this indecent haste -with this unfeeling celerity, he was taken to prison; and in that sultry and unwholesome climate, he was confined in a place where he was daily exposed to the heat of the sun. The situation was afterwards changed, when his life was found to be in jeopardy. He was conveyed to a place which, in such a climate, was fit only for purposes of torturedamp, unwholesome, and in every respect unsuitable for an invalid. When he was arrested, the officer called on him under the shallow pretence that he was wanted to serve, under martial law, as a soldier. This, as might be expected, considering his functions, he refused to do. Under that pretext, however, he was seized, and his papers were taken away. Amongst those papers was his private journal, part of which was intended for his employers, but the greater portion of which was in tended for no human eyes save his own. (Hear, hear.) When thrown into prison, he was kept there till the whole revolt had entirely subsided. This was proved by the fact that general Murray wrote to the secretary of state on the 26th of August, that the revolt which had broken out on the 17th was nearly quiet; and on the 31st of August he stated further, that no fresh disturbance had occurred. It appeared that no insurrectionary movement of any importance took place after the 26th of August, and that none whatever occurred after the 31st of August. Every thing was then perfectly tranquil in the colony of Demeraramuch more so than it was preceding the 17th of August. Martial law, which was proclaimed on the 19th of August, was kept in force exactly for five calendar months-namely, to the 19th of January. During this period, Mr. Smith was kept in close confinement. The place he was confined was in a garret in the roof of the prison, where, for several months, he was exposed to the burning heat of the sun. At length, in the month of October, when the disturbance was wholly at an end-when all pretence of immediate danger had ceased when every thing was quiet-when the colony was undisturbed by aught except the apprehension of remote and possible danger-it was thought proper to bring to trial this minister of the gospel before a military courtmartial. (Hear.) Now, before he examined what this court-martial did, he would first entreat the house to look a little at the outside of the proceeding, its foundation, and its various accompaniments. The most learned member of that court had been called on to state under what law it sat; and the answer was, that the proceeding by martial law took place under the mutiny act. On the 19th of August the court began to sit, under this proclamation of martial law. He did not profess to understand, as a lawyer, a martial law of this description. It was unknown to the law of England. He did not mean to say there were no instances in which the principle of martial law was acted upon; but since this country had a settled constitution, no such thing had occurred. If it should be said that in the colonies, particularly the conquered colonies, where offences were committed, the laws of those colonies should, in deciding on such offences, be strictly attended to, and that such a course had been taken in this case, he would answer, that, constitutionally speaking, the crown had no right to conquer a colony, and, through the medium of that colony, to import into the constitution of this country something which was contrary to it, and which might operate prejudicially to British subjects in those colonies. (Hear, hear.) If the contrary were admitted, the crown had only to conquer possessions in Africa, or to send an expedition amongst the savages of the islands in the Atlantic, and adopt from one the custom of paving the yards of palaces with human skulls, from another the habit of scalping, and from a third the system of torture-and thus "all hideous, all unutterable things," might be denizened into our constitution by proclaiming war. Any thing contrary to the rights of British subjects could not, he contended, be imported into our constitution by conquest. These observations were perhaps unnecessary; because, as this was stated to have been a courtmartial under the mutiny act, the parties were estopped from pleading that they proceeded in conformity with the Dutch law, of which, he believed, they knew as little as he did. They were estopped from using that plea, because they relied for their title on the British mutiny act, which was constantly referred to, and which gave rise to many arguments. How, he asked, did this mode of proceeding operate on the trial of this missionary? He was tried by court-martial, and general Murray declared, "it was all one— for if he had been tried in any other way, he would only have had a more prejudiced tribunal." Now, he had no hesitation in saying, that if he (Mr. Brougham) had been the party accused, or his counsel, on that trial, he would have perferred the ordinary jurisdiction instead of that anomalous proceedings of a military commission. Now, let the house look to the tribunal before which Mr. Smith was really tried. He had been tried by a court-martial; but by a court-martial so constituted, as to leave him even without the show of that fair hearing to which, as a British subject, he was entitled. The very first name upon the list of officers of whom that court had been composed, was that of the honourable Mr. Wray, the president of the court of justice of the colony. Mr. Wray had entered into the functions of judge upon a court-martial under the title of lieutenant-colonel, having only a day or two previous taken on himself the quality of a militia officer. He had done so for the express purpose of qualifying himself-a lawyer and a civil judge-to take his seat for the time being as a soldier, and try causes upon a military prosecution. Mr. Wray must, no doubt, have done this under compulsion. Martial law, at the time in question, had been established in the colony; and to that law he, as an inhabitant, stood bound to yield obedience. The government issued its proclamation, and under the order of that government he was bound to act. In lieu, there fore, of his civic gown, he had found it necessary to put on the armour of the day, and to come into court exercising a mock jurisdiction, part lawyer and part soldier. Overwhelmed, necessarily by a majority upon all points of the military, he being the only lawyer in the body, and suffering that injustice to be perpetrated before him, those principles and forms to be openly violated in his presence, the mere question of which he would have been compelled to protest against, sitting in his black gown as judge in a court of civil law. But this was a slight example an instance not worth dwelling uponof the general mockery of reason and justice exhibited in the constitution of the court in question. The judgeadvocate, although he stood in the character of public prosecutor, yet it was his duty also to stand between the prisoner and the court. If he was prosecutor for the crown, he was also counsel for the prisoner; in fact, upon every well-regulated court-martial, his business was less that of a prosecutor than of an assessor; and where a reasonable doubt existed, to incline to the side of the prisoner-a duty which certainly never belonged to the prosecutor, as that character stood in suits between party and party, and still less, was to be found in any portion of the advocate of Demerara's charge, or rather, he might say, in the charge of the judgeadvocates, for, one not being sufficient, two deputies, and an assistant, had been appointed to relieve him;-all these persons, with a care, and a subtilty, and a vehemence, unequalled, pressing against the prisoner, and with a kind of unfairness, moreover, which never was attempted against a prisoner in any court, and against which, if it were attempted, even remotely, there was no judge who would not set his face. For the whole labour of the judge-advocate seemed to be to conceal from the prisoner the charge upon which he was to be tried. The charges were so drawn as to convey no information. They were short-general vague-obscure, and concise; and local local interests of officers so situated; but it was curious enough to observe that the president of the court, lieutenant-colonal Goodman-that gallant officer, than whom none could hold a higher character in his profession, besides bearing the king's commission-held an office in the colony which pointed him out expressly as the last man who should have been president of Mr. Smith's court-martial. The house would take notice that the reason given by lieutenant-general Murray for trying Mr. Smith by a court martial was, that he should not only have substantially a fair trial, but the full appearances of one; and yet, who was named the president of the courtmartial that tried Mr. Smith for exciting an insurrection among the negroes, but colonel Goodman, who was vendue-master of the colony, and had a profit, consequently, upon every negro that was sold by auction in it! And it did happen, too, by a curious coincidence, that only three days before this insurrection had broken out, a very considerable sale of negroes had taken place by auction in Demerara. Between seventy and eighty unfortunate individuals had been torn from their families and the places of their birth, to be sold out of the colony for the benefit of their owners. This sale had excited great discontent. Fifty poor creatures had gone in one lot. Some advertised as carpenters, others as ship-builders and blacksmiths. Another lot was a woman with three children. A third, a young girl with child. Under ordinary circumstances, too, an appeal would have laid from the sentence of the court; but that appeal was to Mr. Wray, the president of the court of justice, and by getting Mr. Wray into the court martial as a member, that appeal was avoided altogether. And one word more here as to the jurisdictionsuppose it to be admitted, for the argument, that under the pressure of great emergency-in cases of invasion or of rebellion, which allowed no time for the cumbrous slow proceedings of the civil law-suppose it to be agreed that, under such circumstances, a proclamation of martial-law being issued, all forms of common law would be for the time suspended, and every offence liable to be tried by a military tribunal; yet, suppose all this to be admitted, the evil was only admitted for the time of the necessity; but let the measure last one hour only beyond it, and it became an oppression not to be endured. But then the mártial law in this Demerara case lasted five months; and the court-martial was not assembled till after the first two. That act was done in the midst of tranquillity, which nothing but the presence of invasion or rebellion could legalize the trying a clergyman-a civil individual, a person not a soldier by a military court, instead of a court of common law. To leave, then, for the present, the question of jurisdiction; and independent of that objection he should show that there had been no shadow of regard to justice in the proceedings under which Mr. Smith had been tried. In the first place on this head, he desired to observe that the printed minutes before the house were insufficient. He did not mean to say that they contained a false account of the transaction-what they did give was just; but they did not give all, and the omissions were very important. In the evidence the questions were not often given, and among those suppressed were a vast number |