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A memorial from the Lords of the Admi ralty to the King, in relation to the fen. tence paffed upon Adm. Pyng.

year

May it please your Majefty, BY Y an act of the 22d of your Majefty's reign, intitled, An act for amending, explaining, and reducing into one act of parliament, the laws relating to the government of your Majefty's hips, veffels, and forces by fea, it is enacted, "That no fentence of death given by any court-martial held within the narrow feas (except in cafes of mutiny) fhall be put in execution, till after the report of the proceedings of the faid court fhall have been made to the Lord High Admiral, or to the commiffioners for executing the office of Lord High Admiral, and his or their directions shall have been given therein."

In purfuance of this act, the proceedings of the court martial held upon Adm. Byng have been reported to us for our directions therein: which proceedings we have taken into our moft ferious and deliberate confideration; and doubts having arifen, with regard to the legality of the fentence, particularly, whether the crime of negligence, which is not expreffed in any part of the proceedings, can, in this cafe, be fupplied by implication; we find ourfelves obliged most humbly to befeech your Majefty, that the opinion of the judges may be taken, whether the faid fentence is legal.

For this purpose, we beg leave to lay before your Majefty, a copy of the charge as delivered to Adm. Byng, and likewife a copy of the thirty-feven refolutions of the court-martial, upon which the fentence is formed; together with a copy of the fentence itfelf, and of a reprefentation of the fame date therewith, figned by the prefident and court-martial [45.]; and likewife copies of two petitions from George Lord Vifc. Torrington, in behalf of Adm. Byng; most humbly fubmitting the

whole to your Majefty's royal wisdom and determination.

The aforementioned trvo petitions to the, Lords of the Admiralty, printed in the

trial without dates.

I. The bumble memorial of George Lord Vifc. Tarrington, nephew of the unhappy Adm. John Byng, in behalf of himself and the rest of his family,

Moft humbly hereth,

THa

Hat the faid Admiral having been tried by a court-martial for a breach of the articles of war, was adjudged by the faid court to have fallen under part of the 12th article of an act of parlia ment paffed the 22d year of his prefent Majefty, for amending, and explaining, and reducing into one act of parliament, the laws relating to the government of his Majefty's fhips, vefels, and forces by fea and the faid court have fentenced the faid Admiral to be fhot to death, at fuch time and place as your Lordships fhall direct; but have in their faid fentence unanimoufly declared, that they did not believe his mifconduct arofe either from cowardice or difaffection, and therefore recommend him to your Lordfhips as an object of mercy; and decla→ red, that the faid court-martial were under a neceffity of condemning him to death, from the great feverity of the faid 12th article of war, which admits of no mitigation, though the offence be a mere error in judgment only.

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That, by the law of the land, every perfon who is indicted for any offence, and has been tried and convicted upon fuch indictment, has a certain time given him by law for moving in arreft of judgment, and offering to the court his reasons why the judgment fhould not be carried into execution.

That, from the nature of proceedings before a court-martial, no fuch motion can be made, as your memorialift is advifed, to the faid court martial; but by the act of parliament of the 2zd of his prefentMajefty, it is enacted, That no fentence of death given by any court-martial (except in cafes of mutiny) fhall be put in execution, till after the report of the proceedings of the faid court shall have

been

been made to your Lordships, and your directions fhall have been given therein. That neither in the fentence of the faid court-martial, nor in the letter of recommendation accompanying the fame, does the Admiral appear to have been guilty, nor is he found guilty of any offence intended by law, and particularly by the faid 12th article, to be punished with death. Wherefore the fentence paffed up. on the Admiral cannot, as your memorialift is advised, be juftified in point of law.

That the faid Admiral being now a clofe prifoner at Portsmouth, and inca pable of taking proper care of his own defence, your memorialift, as his nephew, and at the defire of the rest of his afflicted family, being advised, that ma ny very material things may be offered to your Lordships to fhew that the said fentence of the court-martial ought not to be executed upon the Admiral, are defirous of laying the fame before your Lordships, on behalf of the faid Admiral, if indulged with an opportunity of fo doing.

Wherefore your memorialist most humbly prays your Lordships permiflion to lay before your Lorfhips, by counfel to be appointed on behalf of the faid Admiral, such reasons as may be offered to your Lordships against the carrying the faid fentence into execution; or that the faid Admiral may have fuch other relief in the premiffes as to your Lordships, in your great, wifdom and goodness, fhall feem

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fentence of the court-martial should not be executed on the Admiral; your petitioner immediately thereupon applied to fome gentlemen of eminence in the profeffion of the law, to advise and affift your petitioner in affigning the faid reafons: which they are willing to do; but alledge, that, by their indifpenfable attendance on the feveral courts of law and equity towards the clofe of the term, they cannot fo foon be prepared to advife and affift your petitioner therein. Wherefore your petitioner moft humbly prays your Lord fhips indulgence, to grant him a few days only to deliver to your Lordships the reafons in writing againft executing the faid fen

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The King's order in council, for tranfmitting a copy of the report of the twelve judges, in relation to the jentence upon Adm. Byng, to the Lords Commiffioners of the Admiralty with a copy of the judges report annexed thereto.

At the court at St James's, the 16th day of February 1757; prefent the King [and thirty-one members, among whom were the Duke of Argyll and the Earl of Hyndford.].

Hercas his Majefty was pleased,

upon a reprefentation from the Lords Commiflioners of the Admiralty, to refer the fentence of the court-martial of the 27th of January laft, upon the trial of Adm. Byng, to the twelve judges, to confider thereof, and report to his Majefty at this board their opinion, whether the faid fentence is legal; and whereas all the said judges have reported to his Majefty at this board, that they have confidered the faid fentence, together with the 12th article therein referred to, and are unanimously of opinion that it is a legal fentence: his Majefly in council is thereupon pleafed to order, that a copy of the faid report of the twelve judges (which is hereunto annexed) be tranfmitted to the faid Lords Commiffioners of the Admi ralty. [Signed,] W. Sharpe.

To

To the King's Moft Excellent Majefty in

council.

May it pleafe your Majefty,
IN obedience to your Majefty's com-
mands, fignified to us by an order
bearing date the 9th of this inftant Fe.
bruary, whereby it is referred to us, to
confider the fentence of the court-mar-
tial of the 27th of January laft, upon
the trial of Adm. Byng, a copy whereof
is thereunto annexed, and to report to
your Majefty at the council-board,
whether the faid fentence is legal:
We have confidered the faid fentence,
together with the 12th article therein
referred to; and are unanimoufly of opi-
nion, that it is a legal fentence.-
[Signed,] Mansfield. J. Willes. T. Par-
ker. T. Dennison. M. Fofter. E. Clive.
Tho. Birch. H. Legge. S. S. Smythe. Rich.
Adams. Hen. Bathurst. J. E. Wilmot.
[Dated,] Feb. 14. 1757.

A warrant from the Lords Commiffioners of
the Admiralty, for carrying the Sentence
palled upon Adm. Byng into execution.
By the commiffioners for executing the office
of Lord High Admiral of Great Britain
and Ireland, &c.

W
Hereas at a court-martial affembled
on board his Majefty's fhip the
St George in Portsmouth harbour, upon
the 28th of December 1756, and held
every day afterwards, Sundays except
ed, till the 27th of January 1757, in-
clufive, Thomas Smith, Efq; Vice-
Admiral of the Red, Prefident, a fen-
tence was given to the effect following,
viz.- [Here the whole fentence is re-
cited, excepting the laft clause, begin-
ning, But as it appears [45.], recom-
mending the Admiral to mercy.]:

And whereas, upon laying the faid fen-
tence before the King, his Majefty hath
been pleased to confent, that the fame
fhall be carried into execution; we do
therefore, in purfuance of his Majefty's
confent, hereby require and direct you
to carry the fentence of the faid court-
martial into execution accordingly, on
Monday, the 28th inftant, by caufing
him, the faid Admiral John Byng, to
be fhot to death, by a platoon of ma-
VOL. XIX.

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GEORGE R.

HIS Majefty, agreeably to his royal

word [xviii. 408.], for the fake of juftice, and of example to the difcipline of the navy, and for the fafety and honour of the nation, was determined to have let the law take its course, with relation to Adm. Byng, as upon

Monday next; and refifted all folicita

tions to the contrary.

But being informed, that a member of the houfe of Commons, who was a member of the court-martial which tried the faid Admiral, has, in his place, applied to the house, in behalf of himself, and feveral other members of the faid court, praying the aid of parliament to be releafed from the oath of fecrecy impofed on courts-martial, in order to disclose the grounds whereon fentence of death paffed on the faid Admiral, the refult of which discovery may fhew the fentence to be improper; his Majefty has thought fit to refpite the execution of the fame, in order that there may be an opportunity of knowing, by the feparate examination of the members of the faid court, upon oath, what ground there is for the above fuggeftion.

His Majefty is determined ftill to let this fentence be carried into execution, unless it fhall appear, from the said examination, that Adm. Byng was unjustly, condemned. G. R.

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The fame day, on a motion made to the Commons, fo much of the aforementioned act 22° Geo. II. as relates to the oath of fecrecy was read; leave was given to bring in a bill, to release from the obligation of that oath, the members of the court-martial appointed for the trial of Adm. Byng, pursuant to the exception contained in the oath; Mr Potter and Sir Francis Dashwood were ordered to prepare and bring in the bil!; Mr Potter prefented it; it was read a first and fecond time, and committed; the report was made; and the bill was ordered to be ingroffed. It was paffed on the 28th, and ordered to be carried to the Lords by Mr Potter.

Of the bill fo passed an abstract follows, viz. "Whereas by an act 22° Geo. II. it is enacted, That upon all trials by court-martial, all the officers who conftitute the fame fhall take an oath, that they will not, upon any account, at any time whatsoever, disclofe or discover the vote or opinion of any particular member of the fame courtmartial, unless thereunto required by act of parliament; and whereas Adm. Byng has been tried by a court-martial, and fentenced to be fhot to death; and whereas application has been made by a member of the faid court-martial, in behalf of himself and several other members of the faid court, praying earneftly to be releafed from that part of the oath, and alledging that they have fomething to difclofe relative to the faid fentence, which greatly affects their own confciences, and which it is neceffary fhould be difclofed in arder to do juftice to the faid Admiral; be it enact ed, That it fhall be lawful for all and every the perfons who conftituted the faid court-martial, and they are hereby required, to difclofe or difcover, upon oath, before his Majefty in council, or before a committee thereof, all and every the votes or opinions of any member or members of the faid court-martial. Provided, That nothing in this act fhall oblige any of the faid members to difclofe or difcover any thing other than fuch as he might voluntarily have difclofed or difcovered in cafe he had not taken the faid oath of fecrecy."!

P. S. This bill was carried to the Lords, March 1. It was then read a first time; and it being moved to be read a fecond time next day, the motion, after debate, was agreed to, and the Lords were ordered to be fummoned. All the members of the court-martial were ordered to attend, in order to be exami ned. As Capt Keppel, Douglas, and Denis, three of them, are members of the other house, leave was asked of, and granted by the Commons, for their attendance. Such of the judges as were in town were likewise ordered to attend.

It was accordingly read a fecond time March 2. And it was agreed, that the feveral perfons to be examined, fhould be called in separately, and examined upon oath; that the questions and anfwers fhould be taken down in writing at the bar by the clerk; and that the oath of fecrecy directed by the act 22° Geo. II. fhould be previously read to each.

Vice-Adm. Smith was called first. After reading the oath of fecrecy, the 12th article of the act 22° Geo. II. [46.] was read. Then it was proposed, that the Vice-Admiral fhould be afked, "Whe ther he now thinks, or, as far as he can recollect, ever did think, that he could have applied any part of that article, to a man whofe conduct he thought proceeded from error of judgment only?" Which being objected to, the question, after debate, was waved for that time.

Four questions were then put to the Vice-Admiral; and they were repeated upon the examination of every other member of the court-martial, viz.

1. "Whether you know any matter that paffed previous to the fentence pronounced upon Adm. Byng, which may fhew that sentence to have been unjust ?"

2. "Whether you know any matter that paffed previous to the said sentence, which may fhew that fentence to have been given through any undue practice

or motive ?"

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tive to the cafe of and the sentence paf- whole court, to a Rt Hon. member of fed upon Adm. Byng, which you judge this houfe (Lord Lyttelton), fignifying, neceffary for his Majefty's information, that if it was neceffary, the members and which you think likely to incline would willingly attend, to fet forth the his Majefty to mercy ?" reafons that induced them to recommend him to his Majefty's mercy.- 2. Whether you think yourself restrained by your oath of fecrecy, from laying before his Majefty thofe matters for inducing his Majefty's mercy, which are mentioned or referred to in that letter to my Lord Lyttelton? A. As the sentence, and application for his Majefty's mercy, were the unanimous refolutions of the court, I apprehend that I am at liberty to give the reafons why I requested that mercy.'

The first question was anfwered in the negative by them all, except Rear-Adm. Norris. His answer to it was, "I beg to be excused answering to that question while I am under the oath of fecrecy." Then the following queftion was proposed to be put him, viz. "Whether you have any matter to difclose, that would fhew the fentence to be unjust, if you was released from the oath of fecrecy?" Which was objected to; but was put, after debate. He anfwered, "No."

The fecond question was answered in the negative by them all.

The third question was anfwered in the negative by Vice-Adm. Smith, Rear Adm3 Holburne and Brodrick, and Capt Holmes, Geary, Boys, Simcoe, Douglas, Bentley, and Denis.- The an fwers of eight of thefe ten were fimply negative. Those of the other two follow, viz.: ·Vice Adm. Smith's: "As for myself, I have no defire of it; but if it will be a relief to the consciences of any of my brethren, it will not be difagreeable to me."-Capt. Geary's: "No, my Lords; but I have no objection, if it will be to the fatisfaction of any perfon."

Three answered to this question in the affirmative, as follows, viz. Rear-Adm. Norris: "Yes.". Capt. Moore: "I am very defirous it fhould, that I might be abfolved from the oath. I have been under great concern when I have taken the oath, I don't mean upon this trial."Capt. Keppel : "Yes, undoubtedly."

To the fourth question, Rear-Adm3 Holburne and Brodrick, and Capt Boys, Simcoe, Douglas, Bentley, and Denis, answered in the negative, fimply.- -The anfwers of the other fix follow; with fuppletory queftions put to fome of them, and their answers.

Vice-Adm. Smith. "I have not, indeed, further than as I wrote, what feemed to be at that time the fenfe of the

Rear-Adm. Norris." I must beg leave not to answer to that question.' After Meff. Brodrick and Holmes were examined, the houfe being informed, that Mr Norris was willing to answer to the question, he was called in again, and the queftion put. He answered, "At the time I faid I was defirous the act fhould take place, I understood that we fhould have an opportunity of delivering our particular reafons, for figning the fentence, and letter of recommendation."

Capt. Holmes. "I know nothing more, but the fentence, and the letter, which all the gentlemen figned, to the admiralty."

Capt. Geary. "No, my Lords; nothing but what I have figned to, by the fentence, and letter of recommendation.

-2. Whether if the act was paffed, you could better explain that fentence and letter than you are now able? A. My oath of fecrecy won't permit me to fay any more. Q. Whether you think, by your oath of fecrecy you are restrained from difclofing any thing, but the vote and opinion of the members? A. I am one of the members, and I humbly beg leave to think it my own opinion.'

Capt. Moore. "I do not think myfelf at liberty, while I am under this oath, to answer that queftion. 2; Whether if this bill was paffed, you could better explain the fentence, and letter of recommendation, than you are now able? A. I could give better inforQ 2

mation,

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