§ General Porter
said, he rose in pursuance of the notice he had given with reference to one of the members of that house. He felt himself unfortunate in his inability to perform the task he had undertaken, in the manner its importance demanded. He assured the house, that he had not the slightest enmity or rancour towards the person who was the object of his motion and he had therefore neither claimed nor solicited the support of any individual He had felt himself called upon by an imperious sense of his duty as a member of the house, but above all, by his sincere wish to maintain the honour and character of the profession to which he had been attached for upwards of 30 years. Actuated as he was by these sentiments, it could not be surprising that he should look up with respect to the decisions of those courts martial whose proceedings he was persuaded were uniformly dictated by justice and impartiality. Thinking as he did, he felt that a person who had been tried by 16 of the most respectable characters among the officers of the army, and found guilty of 11 charges out of 14, and who had been convicted of a crime only short of felony, was not a fit person to sit among the representatives of the country. He wished the house to be in full possession of the case and then to put it to the dignity and honour of the house, whether a person who had been so stigmatized was worthy of a seat in parliament? He should conclude with his motion; at the same time he trusted that if a debate arose, he might have the privilege of expressing himself more at large. He moved, "That the Charges made against John Fenton Cawthorne, esq. a member of this house, and the sentence pronounced against him in consequence by the Court Martial appointed to try him, together with the proceedings of the house thereon in session 1795–6, be now read." The motion was seconded by Mr. Spencer Stanhope.
wished the hon. general had stated more fully his sentiments, and 516 had adduced precedents which might have induced the house to go immediately and without delay into the proceeding. There were certainly many precedents for expulsion, but not one of them rested on the grounds on which the present case stood. In the whole code of British juris–prudence there was no r[...]le more strong than that any man who had been acquitted or condemned could not again be tried for the same offence. This was a principle of our established law, rooted as he hoped in every man's breast, and against which he trusted that no one would dare to set his face. There was another circumstance which ought to weigh heavily in the con–sideration of the house. He stood there legally qualified; he had been returned, and returned without opposition, by a very large body of electors. If he had been thought ineligible, the moment of election had been the time for stating that ineligi–bility; but no such attempt had been made, and he had been unanimously re–turned for one of the largest county towns in the kingdom. He would not enter into any discussion of the merits of the sentence by the court martial, although that was a subject from which he would never shrink when it came regularly before the house. With regard to precedents of expulsion, there were several in the cases of Mr. Wilkes, Mr. Walpole, and others; but he contended, that none of these cases was applicable to his own. The hon. general had disclaimed any feeling of personal hos–tility towards him. It was certainly very kind of him to bring the subject forward. This he would declare, that when he stood in a similar situation before, he felt much more depressed, and much more oppressed than he then did. But had he at the time to which he alluded known what he then knew, he would not have troubled that house for a moment on the subject. He meant, had he known that the first law officer in the house, the Attorney Ge–neral of that day, had declared that the sentence of a court martial was too flimsy a ground on which to found the proceed–ings which had terminated in his expulsion from the house.
would not have said any thing upon this motion, had it not been for some expressions which fell from the hon. mem–ber who had spoken last. He apprehended that that hon. member had mistaken the na–ture of the case entirely, when he talked about another trial for the same offence, 517 about his election and his qualification. This was not a question of election or qua–lification. The objection did not stand on these grounds. The view which his hon. friend had taken of the case was this: whether it was consistent with the dignity, the purity, and the honour of that house, that a person labouring under the stigma attached to his character, by the sentence of a court martial, and the proceedings on which it was founded, should be consider–ed as a fit member to sit among them? The question was, whether the house pos–sessed the power of re-expulsion, and if it did, whether it was fit and proper to ex–ercise it in this particular instance? It was a proceeding undoubtedly of the utmost importance; for whether it was considered as affecting the character of the individual, and the character and purity of that house, or as involving those great constitutional principles that ought to govern the right of election, there was no question more deserving of the serious attention and care–ful examination of every person who had to decide upon in merits. It had afforded him, and must have afforded to others, great satisfaction to observe, that in bringing forward this business no mixture of passion or personal rancour had appeared. His hon. friend, from the manner and temper with which he proposed his motion, had evinced, what indeed be was well aware of before, that he acted from prin–ciple and not from passion—that he had truly stated that he was not an oppressor, but that he was actuated only by a con–scientious regard to the best interests of his profession, of the house, and of the public. In this temper he hoped the in–vestigation would be pursued, and therefore be was very much disposed to accede to a suggestion that seemed to be thrown out by the person who spoke last, when he said, that he rested his case on precedents. In order to ascertain what precedents were analo–gous to the present case, or in any degree bore upon it, it was his intention, if the motion had passed, to have moved for the appointment of a committee to search into precedents. Cases precisely similar to the present, perhaps, they could find none, but they might find many cases analogous to it, and some of these might probably be in the recollection of several members of that house. At all events, it would be of advantage to proceed with our judgments instructed by a careful exami–nation of the journals of the house. This 518 was so clear, that he believed he need say nothing further in support of it. He was not aware that any objection whatever could be urged to this method. The interest of all parties concerned would be best consulted by proceeding upon sound and constitutional principles, by adhering to the general rules of justice, and keeping the individual case as much as possible out of view, except in so far as it de–pended on these rules and principles. The only objection to this which he could pos–sibly anticipate was the delay which it would occasion, and the consequent painful suspense in which the individual might thus be involved. But the delay would not be very long, and the individual ought to recollect that he now stood in a situ–ation in which he was sorry that, after what had passed, he had placed himself. After this motion had passed, he would move for a committee to search into the precedents, and, after the report of that committee should be on the table, then his hon. friend would have an opportunity to propose whatever he thought best becoming the dignity of the house, the ho–nour of the profession, and the interests of the public.
Mr. Spencer Stanhope ,
having seconded the motion, would say merely that he had intended to submit to the house, after the disposal of the present motion, a motion similar to that which the noble lord had just declared it was his intention to pro–pose. For the question ought assuredly to come to a solid and impartial decision, and were it even only pro formâ, it would he the duty of the house, on such a solemn occasion, to appoint a committee to search the Journals for precedents.
§ Mr. W. Herbert
observed, that it was not his intention to oppose the motion; but he felt himself called upon to express his opinion. With regard to the question, it did not appear to him to be one which could rest on precedent. The only question was, whether the house, had a pri–mary right of expulsion, and whether it had a right of re-expulsion? Then the only remaining question would be with re–gard to the propriety of enforcing that right, and whether there were grounds for exercising that discretionary power? The proof of this right could not rest on prece–dent. No person could deny the exis–tence of the primary right of expulsion. If that was allowed, the other right of re-expulsion must follow as of course. It 519 was a question, consequently, not of pre–cedent, but of principle. He conceived that it was a right which was vested in the house, for the maintenance of its own rights, principles, honour and dignity. He was aware that some persons would argue, that the exercise of such a right by the house trenched upon the right of the electors. That he denied: he conceived it was a right inherent in the house for its own protection. There could be no right in the electors in contradiction to the right of the house; without such a right in the house, accumulated disgrace might attach to its character. The same individual might be sent back to parliament, whom it had stigmatized in the face of Europe and the world. As it seemed to be the opinion of the house that this question should be referred to precedent, he had no objection that it should be put in posses–sion of every possible information, and should therefore not resist the motion.
§ General Gascoyne
asked, why the house was to be kept in suspence upon such a question? It appeared to him that the pro–position of the noble lord was the sugges–tion of the member against whom the mo–tion was directed; and yet the noble lord had said, that he should not have risen had it not been for what had fallen from that member. What were the precedents to which the noble lord thought fit to refer the house? If he was inclined to trespass upon the time of the house, he would take every one of the precedents, and would shew that they had no more to do with this question than they had to do with a ques–tion of bankruptcy. If the house an–xiously wished to see precedents, he had no objection; but upon the principle of their conveying any information to the house, he was against the motion. There was one precedent before the house upon which the house could not be mistaken. There was the precedent, that John Fenton Cawthorne was, for infamous and ungentleman like conduct in the year 1796, expelled the house. Till that could be erased from the Journals of the house, there could not be a precedent more decisive. He was sorry that the decision might hurt the feel–ings of the member to whom it was refer–red, but he had himself rendered the dis–cussion necessary. Supposing there was not to be found any precedent which ap–lied to the present case, was the house to make one merely to cover that which was disgraceful and infamous? If a precedent 520 was to be made, let it be one for the pu–nishment of a sinner, and not to conceal his iniquity. What the house should de–cide, would become a precedent, for it was to the glory of the nation, and the honour of the military character, that there was no case directly in point. If the object of the noble lord was delay, he could assure him it would answer no purpose, for the ques–tion should certainly be decided. He trusted it was not to be supposed that the noble lord meant to throw the broad shield of power over the member who had so conducted himself. If such a construction could be put upon the motion, he hoped the noble lord would withdraw it.
thought that the two last gentlemen who had addressed the house had mistaken the question, which was merely, whether the proceedings of 1796 should be read. He hoped it would not be assumed by the hon. gent. opposite, that his arguments had been assented to, because they had not been answered. The hon. gent. seemed averse to going into a committee, and had stated that there was no precedent that applied to the present case. He could assure him that he was so con–vinced there was not a precedent, that he intended to have made a similar motion to that which the noble lord had suggested; and the noble lord would allow him to state, that there being no precedent was a strong argument to bring forward in an–swer to a proposition for expelling a member, and therefore he should support the no–ble lord's proposition. There was an ex–pression used by the same hon. gent., and also by the noble lord, with reference to the disagreeable feelings the discussion might excite. They had observed, that if such disagreeable feelings were experienced, the person must thank himself. He admitted, that upon a question of this kind, personal feelings must be left entirely out of the case; but he thought it extremely unfair to prejudice the house, by stating that a member had put himself in a situation in which disagreeable feelings were likely to be excited. Perhaps, it might turn out that the person alluded to had as much right to sit in this house as any other member. In such case, it would be peculiarly unjust to reproach him with having placed him–self in a situation in which he was liable to have his feelings wounded. It was his wish, and he hoped it was the wish of every one, to have this question decided as spee–dily as possible. 521 The Attorney-General said, that his only motive for assenting to the motion which the hon. general had made, was that of which notice had been given by the noble lord. If the noble lord had not announced his intention of moving the house that search should be made in the Journals for that information which the Journals affor–ded, he was quite free to declare that he should have given the motion of the hon. general his immediate negative, undismay–ed by any of those menaces he had often heard uttered in that house. He should have thought it his duty to the public, his duty to the law of the land, his duty to the constitution of the country, his duty to the rights of electors of the country, who formed the constituting body of the house of commons, to have given his immediate and decided negative to the mo–tion. He should have done so, because he was at a loss to conceive that the minutes proposed to be read before the house, could be made the ground of any proceed–ings by a parliament recently elected, and because he thought that the house would have been justified in putting a negative on a proposition for the adoption of any proceedings upon such a ground. He should have done so, because he should have thought it his duty to have guarded against trusting himself with any power that was not subject to law, and to those rules, in the exercise of which he had some system to act upon. He should have rejected those rules of proceeding, by which he was called upon to consult the feelings he might more or less kindly en–tertain towards a particular individual. He should not have been less disposed to have done so when it was proposed that he was to act upon the sentence of such a court as had been described; not that he had any thing to say to the prejudice of such a court, or its utility for the purposes for which it was instituted for military of–fences;—for offences truly military, he be–lieved a Court Martial was the most pro–per tribunal. But to ask him at once, with–out his knowing whether there were any pre–cedents to make the sentence of a court martial, in which there was no trial by jury, no challenge of jurors, in fact, none of the privileges that constituted the trial by jury—to ask him to inflict a penalty that never attached to any sentence of a court of common law, was to ask him to do that to which it was impossible he could assent; and particularly when, at the same 522 time, he was required to adopt such a principle, he was to be denied the means of informing himself, and no precedent what–ever was offered. He trusted such a pro–position would be discountenanced. He had thought it necessary to trouble the house with his opinion thus early, on ac–count of the manner in which the question had been treated. The noble lord had been cautioned not to throw the shield of power over the member to whom the discussion referred. The noble lord had not thrown the shield of power over the member. He had thrown the shield of the constitution over the member, as he hoped he would over every member, if he should stand in need of it. There had been allusions made to certain fanciful notions of honour and dishonour, which could never be made the ground of any rational proceedings in any court of justice. It was impossible that the house could found proceedings on any maxims or principles of such a nature. He believed that the electors of this country, as long as they possessed those feelings which an attachment to their own rights and the constitution of the country was calculated excite, would be convinced, that those who opposed the motion of the hon. ge–neral were the true friends of their rights, and of the constitution.
Mr. Bragge Bathurst
said, that it was necessary for him, who had been a mem–ber of the parliament in which the member referred to had been expelled, to vindi–cate it from something that had fallen from a learned gent. (the attorney-general) who was not a member of that parliament. He begged to be understood as not wishing to enter into the question, either of the pro–priety of searching for precedents, or of reading the proceedings of the house. As to the question of searching for precedents, no material objection had been made. He could have wished that in this early stage of the discussion, the consideration of personal feelings had not been introduced. It could have no other effect than that of preventing the cool and dispassionate de–cision of the question. However, it was only his intention to notice what had fallen from the learned gent. Did he mean to say that the proceedings of the court martial were not now, or were not then, a proper ground for the house to exercise a privilege not disputed, of expelling one of its members? No such opinion, he was persuaded, had been maintained in the house when the question was determined 523 by the last parliament. It appeared to him that the question ought to he disentangled of all legal niceties. It was monstrous to say, that if the house was satisfied there was such a body of crime proved to have existed, whether the crime was of a military nature or in a moral view, that it had not power to act. But the learned gent. should have stated what he meant by a crime purely military; a crime might be military, and yet, in the course of the enquiry before a court martial, there might arise, as in this instance, a case of moral turpitude. The ground on which he apprehended parliament de–cided was, that there was such a corpus delicti, as fully justified them in the exer–cise of their power. It was impossible to carry the question before a court where it could have been better decided. When it came on again before the present parliament, he trusted that no objection would be made on the ground of the defect of evidence, or any statute of limitation which seemed to be hinted at, as if this par–liament could not look at the same evidence that had been given during a previous par–liament. If it was fit to re-exercise a right now, which had been exercised before, there could be no difficulty. If the exer–cise of the right was not bad then, it could not be bad now. The only question was, whe–ther the house could re-expel a member who had been expelled by a former parliament?
, The Attorney-General
in explanation, declared that he never meant to question the grounds of the proceeding in the last parliament; a subject on which he was not sufficiently informed. If the house thought that the evidence (independent of the sen–tence) was conclusive, they had been right in doing as they had done. All that he had said was, that any sentence, and more especially any military sentence, must be an insufficient ground for such a proceeding.
§ Captain Herbert
asked, if the learned gent. thought the sentence of a court mar–tial too f[...]msy a ground of proceeding, what ground would he expect? The learn–ed gent. was in error when he said that no right existed in the person tried by a court martial to challenge his judges. It was both the right and the practice. He was surprised how the learned gent. could think as he had expressed himself, without deem–ing the act of the last parliament a flagrant injustice.
denied having 524 used the ward flimsy, as applied to the sentence of a court martial.
§ General Gascoyne
stated, in explanation, that he did not say the broad shield of government had been thrown over the delin–quent. He only cautioned the noble lord to avoid doing any thing which might be so misconstrued; nor did he say that the house should take the proceedings of a court martial for their guide; although he differed from the learned gent. on his notions of honour, he was as willing to abide by the honour of a court martial, as the decision of a court of justice.
§ Lord William Russell
observed, that although this question had been already dis–cussed and decided, still there was no reason why the house should not, under the present circumstances, exercise its discretion, and come to an opinion.
§ Mr. R. Ward
did not rise to detain the house by entering into the merits of this ques–tion, his object merely was, to receive further explanations from the learned gent. (the attorney-general) as to his application of fanci–ful notions of honour, &c. to courts martial.
declared, that he did not apply the words honour or disho–nour to a court martial; he had already stated, that the acceptation of proceeding on any such fanciful phrase would not be received in a court of justice.
§ Mr. Adam
was exceedingly sorry to feel himself obliged to trouble the house on this subject, after the ample discussion it had undergone in this preliminary stage; but the warmth of some members having superseded the perfect good humour with which the noble lord had introduced his motion, made him rise, in the hope of es–tablishing the question on its original ground; and certainly he must confess, that the mode proposed by the noble lord appeared to him the best which the nature and importance of the case demanded. It was a proceeding founded on the princi–ples of the constitution, to which every member was willing to submit, at the same time that it maintained the dignity of the house, and the regularity of its proceed–ings. He was a little surprised to hear a distinction taken between principle and precedent; for his part, he did not think there was any, as applied to this case, for the one would be found to contain the other; or, to be more explicit, he thought that precedent contained principle. He was old enough to remember the proceedings in 1764, on the expulsion of Wilkes for 525 his publication of the North Briton; he also well remembered the question agitated res–pecting the same individual in 1769, on which occasion he was in the minority. It must be in the recollection of many members of the house, that in 1782 the expulsion pre–viously voted had been reversed, and all the resolutions respecting it expunged from the journals by a majority, of which he was one. Though this was not a case in point, yet he apprehended that it settled the law of parliament on the subject of expulsion. Having made these loose ob–servations with a view of bringing the question only before the house, he should conclude therefore with trusting that the motion of the noble lord would be adop–ted, being the best in any point of view which could, in his opinion, be suggested.
§ Mr. Hurst
was astonished that a person of the ability of the learned gent. who spoke last, should say that there was no distinction between principle and precedent. They were far as the poles asunder. Pre–cedent might illustrate, but did not con–stitute a principle. He would support the motion for searching precedents, however, as they would shew what had been done in similar cases, if there were any. It there were no precedents, then we must resort to the principle, and make a precedent for the future.—The motion was then agreed to, and the sentence of the court martial,and the proceedings of parliament thereon in the session of 1795–6 read in brief; after which it was moved by
Lord Howick ,
that a committee be ap–pointed to examine into the journals of that house, and the records of parliament, for precedents of cases, in which members had been expelled by that house, who had been returned to it, and to report thereon to the house.
Mr. Spencer Stanhope ,
in seconding the motion, thought it his duty to abstain from giving any opinion upon the case by antici–pation, one way or the other.
§ Mr. Bankes
perfectly agreed with the noble lord as to the course of proceeding which he recommended, but thought, that as the motion was worded, it would nar–row the view of the case. Gentlemen conversant with the records of that house, would be aware, that of cases similar to the present there were none, and of analo–gous cases extremely few. There were many cases to he found, which, as the motion was worded, the committee would think themselves bound to report. He 526 thought, therefore, that it would be desire-able to make the words of the motion larger, in order to come at the main spring upon which the house acted in such cases, which would enable them to discharge their painful duty in this instance. The hon. gent. suggested to enlarge the words of the motion to all cases of expulsion, distinguishing those in which the expelled members had been again returned.
adopted the suggestion of the hon. gent., and moved, "that, a com–mittee be appointed to examine the jour–nals of this house, and records of parlia–ment for precedents of cases of members who have been expelled by this house, and for what causes they have been so expel–led, and also of cases in which members, having been expelled by this house, have been again returned; and to report the same to the house, together with the pro–ceedings thereon:" which was agreed to.