§ The messenger was ordered to withdraw.
§ The Speaker.
—I have now to inform the House, that I have received another Letter from Mr. Walsh, stating, "his physical inability to appear to-day, or to face the House on this occasion; his hope that his former letters may be read, in which he does not mean to justify but only to palliate his offence; and his desire that the House will now proceed to decide on his case."
then rose and observed, that in bringing forward, which he should do, a charge of a most serious nature against a member of that House, followed up as it would be by the severest punishment which the House could inflict, he should think himself highly blameable if he proceeded in such a manner as to set a precedent, which in future times might place an innocent man in trouble, and open the door to ground enquiries into individual transactions between man and man, by creating inquisitorial powers in that House to examine into their private concerns; but such was not his intention, for the Letter from Mr. Walsh, which he had moved for, and which had been printed, (see p. 940), was not of the nature of a private document, it had been publicly read in court, and therefore he might be fairly justified in assuming that he did not intrench upon any private rights. He agreed with those who thought that judicial power should be assumed by the House of Commons as seldom as possible, nor was the present the first opportunity that had been afforded him of expressing the opinion, how little suited were its functions for such a purpose. Much less would he wish that questions of individual property, or of general character should be there discussed, since it ill suited the dignity of the House, that through it, means should be afforded to private ma- 1176 levolence to scrutinize every deviation from the strictest rules of moral rectitude; but it was inherent in the House of Commons, and was a part of the constitution of every aggregate body, to preserve its character and reputation. If the House was proud of the splendid talents of some of its members,—if it felt gratified by the exertions of military prowess by others—or if it owned with satisfaction the dignity it derived from the not less important, though less glaring virtues of integrity and rectitude in others, it was impossible for it not to suffer in an equal proportion, if men whose characters were stained by vice and corruption were still permitted to retain seats in a body, where their peculiar deformity was rendered the more conspicuous by the general excellence of the whole. Unless from time to time wholesome remedies were applied to purify it, it was impossible that this main limb of the constitution could continue healthy and vigorous. It was scarcely necessary for him to deduce instances from ancient history, where this power had been exercised: the extensive and uncontrouled authority exercised by the censors over the Roman senate was well known, not only on important occasions, but sometimes with capricious indiscretion. They long endeavoured to check the progress of the swelling tide of luxury and corruption, and long succeeded; at length they were overpowered by the weight of the torrent; the censorian power was overwhelmed, and when again it rose and endeavoured to re-establish its footing, the efforts were feeble, and the attempt was vain; the flood of luxury and vice expanded itself over the whole empire, and at last extinguished the few remaining sparks of virtue and patriotism which had once blazed forth so conspicuously a glorious example to surrounding nations; The British House of Commons, however, had prudently never permitted this censorian power to be exercised by any other hands than its own, and many examples of its exercise must be present to the minds of those acquainted with its history, which had been re-printed together in the year 1807. Cases of all kinds might here be discovered, but no general, positive, or precise rules appear to have been laid down; but the House exercised its discretion according to the facts of the particular case presented to its consideration. There were, expulsions for libels on persons in and out of the House, where the 1177 legal acceptation of the word had never been contemplated, and for gross immorality and impiety in denying the principles of the Christian religion, had been deemed, in the beginning of the last century, a sufficient reason for thus severely expressing the indignation of the House. He did not mean to enter into the merits of these cases; he only cited them to shew that the Commons had always considered themselves masters of their own proceedings regarding their own members. The expulsion of colonel Caw-thorn, in 1796, was entirely a new case, and much doubt was entertained of the wisdom and prudence of the proceeding; but among all the precedents there were none of more frequent occurrence, or which had been visited more uniformly by the just punishment of the House, than cases of fraud, and notorious breach of trust in pecuniary transactions for private and undue emolument. The cases of public were undoubtedly more frequent than those of private fraud, and it was extremely natural that it should be so, since transactions between man and man were seldom brought to light, and until within the last thirty years members of parliament were concerned in the collection of the revenues, in the public expenditure, in the lotteries, and contracts of government. The principle, however, applied equally to all cases of fraud and breach of trust, when coupled with a most material circumstance, the notoriety and publicity of the fact. Could it, in the present case, be made more notorious, than by a trial at the Old Bailey? It was impossible for the House to profess ignorance of what was known to the whole country. It might be, perhaps, urged, that the free pardon granted to Mr. Walsh had altered the case.—In passing, the hon. gentleman said he wished here to notice somewhat of an inconsistency in the administration of justice, namely, that the conviction of the offender on a public trial should be made public to all the world, and that perhaps the next time the subject was heard of, it should be to announce that a free pardon had been granted. In the present instance, indeed, this lenity was not to be deemed an act of grace or favour, but of strict justice, since, under the circumstances, it was impossible that it should be refused. This circumstance, however, in general cases, might be subject to misconstruction, and perhaps ought to be excepted from the praise which so truly be- 1178 longed to the administration of justice It appeared to him that it was equally important for the public to know the reason for the pardon, as the grounds of the conviction. In the instance before the House, the pardon, however, did not take the fact out of the cognizance of the House, or make it less necessary that the expulsion should be resorted to. The pardon had been granted, as usual, on the letter of the judge, but it had not deprived Mr. Walsh of one jot of the delinquency, or diminished the notoriety of the fact. The hon. gentleman said, he had been asked on a former night by an hon. member whether he produced the letter of Mr. Walsh, to his brother, as proof of what appeared on record? To this he should answer, that he had deemed the free confession of guilt from the delinquent himself ad important document for the House to receive; not, indeed, that it would be strict legal evidence in a court of justice, but the House, it should be remembered, was not bound to the technical forms of law, and it would be injurious to the constitution to permit them to controul its proceedings. If, however, strict legal proof were required, it was before the House; besides which, it had the best evidence of the deliberate turpitude of the culprit. He was not even bound to shew that this case came within any of the precedents in the Journals; for if it were, as he believed, of sufficient magnitude for the cognizance of the House, it had not only a right, but was bound to proceed to expulsion. In the year 1732, however, would be found an example, if it were required, fully authorizing this step. It was a case where three members of the House had been driven from their seats for embezzling monies belonging to a public subscription, called "The Charitable Corporation," of which they were directors and managers, which could by no construction be termed public money. A precedent of an earlier date, in 1607, went still further, which he stated merely to shew the extent to which the House had gone. Sir Edward Thomas, in a petition, charged his son, a member of that House, of being guilty of divers frauds, injuries, and abuses, and therefore prayed that inquiry might be instituted. A committee was appointed—the House did not send the father to seek his remedy in the courts of law, but conceiving that the honour and dignity of their body was implicated, directed an inquiry into the merits of the case. The report of 1179 the committee was favourable to the son, and consequently there were no farther proceedings had upon the petition. The complaint was not clearly stated on the Journals, but from the nature and connection of the complainant, he rather supposed it must be one of flagrant immorality. He stated the case to shew, in the first instance, that the House possessed large discretionary powers; and in the second instance, that he was not actuated in bringing forward the present charge from any malignant motives. In other cases, the House had expelled members, and directed them to be proceeded against afterwards in the courts below. The hon. gentleman maintained, therefore, that the governing principle upon which the House was called to act, was the notoriety of the fact, demonstrable from papers on the table, which shewed that it was a gross breach of trust, beyond the power of cavil to dispute, and as such entitled to the severest punishment in the breast of the House to inflict. With respect to the attendance of Mr. Walsh, he did not mean to press his absence against him as an aggravation of his offence: had he attended, he should have thought it indicative of a hardened mind after the production of the documents alluded to. He trusted and hoped his subsequent conduct would free him from that suspicion. He then adverted generally to the cases on the Journals, which he considered as bearing on the present, but should the House not so consider them, and be of opinion the present was a new case, then he must contend that the House was bound to establish a new precedent. If the House did not punish, they would become partakers in the disgrace. He concluded with moving, "That Benjamin Walsh, esq. a member of this House, having been tried at the Old Bailey, in January last, for Felony, and convicted thereof, and having received a free pardon by reason of his offence not amounting to Felony in the opinion of the Judges; but gross fraud and notorious breach of trust having been proved against him on the said trial, is unworthy and unfit to continue a member of this House."
§ The Speaker
, previous to putting the question, suggested to the hon. member that the documents to which he had referred, should be entered as read on this day. Which was accordingly done. The question was then put.
§ Sir Arthur Piggott
stated, that he had so much respect for the hon. gentleman who 1180 had just taken his seat, and so much confidence in the rectitude of his intentions, and the integrity and independence of his conduct, that in all matters of indifference, where no important question was involved, he should be inclined, almost without inquiry, to adopt his opinions. In neither of these two distinctions, however, could he place the present case, and he trusted he should be excused if he stated his reasons for thinking it his indispensible duty to oppose the motion. He did so from a deep conviction of its constitutional impropriety, notwithstanding all the odium and reproach with which Mr. Walsh had been loaded; he was satisfied that a concurrence in the vote proposed would be establishing a precedent, the consequences of which, though seen only in distant prospect, appeared most dangerous and alarming. He was little disposed to enter into a discussion of the nature of the jurisdiction that House exercised over its members, but hitherto, in his view, nothing had been adduced which could, in the slightest degree justify so severe and hasty a decision. The cases of libel must certainly be put out of sight, because it was a public crime acknowledged and punished by the law. As little was he disposed to question the propriety of the expulsion of members for breaches of public trust, because no one would deny that the House, which professed to be the guardian of the public purse, had a jurisdiction over such of its members as, forgetting their duty, unlawfully thrust their hands into it; but he could never be brought to agree, that the mere breach of a private trust was any sufficient ground for the vindictive proceeding suggested by the motion just read from the chair. The only precedent of an enquiry of a private nature was taken from times when the usages of parliament were vague and unsettled—the year 1607, the beginning of the reign of James I. It did not exactly appear what steps were taken on that occasion, and what was the exact nature of the transaction: yet this was the only instance which could be produced, after a most laborious search into the Journals. The case of the Charitable Corporation he would presently prove to be of a very different description. But for the present, setting aside these considerations, he wished to be informed what the House knew, parliamentarily, of the charges and complaints against Mr. Walsh? The record certainly stated, that he was indicted for certain felonies con- 1181 tained in seven counts, followed by a general verdict of guilty. The record then (and he wished the attention of the members of the legal profession to what he was about to say) did not contain the judgment of the court upon the conviction, that judgment being postponed to another day. So that there was a verdict without judgment: and yet the hon. mover made use of this record as evidence. He was astonished the hon. mover had so done. What was to be collected from this record? No court could use it for any purpose or act upon it; non constat, what the judgment might have been; a verdict of acquittal might have been the result. Supposing the jury had found him guilty, would a forfeiture of goods and chattels as in cases of felony have taken place upon the record, no judgment being on the face of it? the case was reserved for more mature deliberation. All the judges were of opinion that the facts did not amount to felony; there was in truth no ground for parliamentary proceeding against Mr. Walsh, nor had he (sir Arthur) any distinct notice of what the charge was. What the facts were he knew not, and no member, he believed, actually did, except from the Letter of the Chief Baron, which stated that the charge, in the estimation of the Judges, did not amount to felony. If the charges could have been argued before the three judges at the Old Bailey, they must have acquitted him; therefore in point of fact, the case in substance, in reason, and in common sense, stood in these materials, as if he had been acquitted. The hon. and learned gentleman declared that he did not know Mr. Walsh; had never seen him, nor had the slightest intercourse with him; he viewed him in the light of one of the King's subjects, entitled to the benefit of the law, of which, in his opinion, Mr. Walsh was now substantially in possession, for he could not consider the result as any thing less than an acquittal. All the time, therefore, he had been detained as a convicted felon, he had been unjustly detained. The letter of the Chief Baron, to be sure, said that the facts in the charge were proved, but that it did not amount to felony. The pardon consequent upon that letter might be considered as a free pardon, for it authorised the sheriff to discharge him out of prison. Independent of that consideration, there was no ground for any parliamentary proceedings. Supposing the facts were as stated, he could 1182 not be prosecuted further in any of the courts below; nor could any criminal punishment be inflicted upon him. Supposing the crime to be a breach of trust, how did the record connect itself with the crime charged, and what had the House, under those circumstances, to do? It was not because the facts were notorious in a newspaper, that therefore the House must proceed. All that Mr. Walsh had suffered had been wrongfully endured: he did not impute blame to the prosecutors, but they had mistaken the nature of the charge. It behoved the House, therefore, to consider the principle they were called upon to recognise and support, and not make a precedent, which, thirty years hence, when Mr. Walsh and his history were forgotten, might be complained of. The case of notoriety had nothing to do with the question. It had no resemblance to the Charitable Corporation case—that was a fund established in the reign of queen Anne, amounting to 30,000l. The directors of it afterwards repeatedly applied to the crown, with false allegations, for the Queen's licence to extend the funds of the charity, and the consequence was, they obtained, by these undue means, leave to extend the subscriptions to 600,000l. At last, in the year 1732, when immense debts were due from the corporation, a Petition was presented from the proprietors to this House, stating gross abuses practised by three members of that House, directors of the fund, to buy stock when low, and sell when high; the whole amount of their pledges for 400,000l. (the debts of the corporation) were about 30,000l. The House, upon the representation and complaint, took the matter up as a case of high state delinquency, and appointed a committee, who, after two sessions of minute and laborious enquiry, found sir Robert Sutton, bart. sir Archibald Grant, and George Robinson, esq. the three members, guilty of the charges, and they were afterwards expelled the House. That case, so far from originating in a private matter, was notoriously a public one, for after their expulsion, the House came to a Resolution, in 1733, to address the King, to direct his Majesty's law officers (sir Philip Yorke and Mr. Talbot, the Attorney and Solicitor General), to prosecute them. There were no less than seven acts of parliament passed in that reign upon the subject of this enquiry. The House would consider this question without making any reference 1183 to the present state of parliament, and they should endeavour to remove nothing further from them than party feelings on such a subject. Though he believed no person now in existence, who was in that House, was any more capable of making an improper use of the precedent that would be established, if Mr. Walsh were expelled, than himself, yet when they were all no more, posterity would have a right to ask of the House on what principle the precedent was established (if it were established), which was thus made in 1812, a precedent which might afterwards in the hands of bad men be productive of the most mischievous consequences. The case of Mr. Walsh was a case between individuals. Many breaches of trust equally gross had come before the courts of equity, without its ever being thought of to follow them up in the manner now proposed. The notoriety of the offence had been insisted on, as a ground why they should come to the vote proposed, but that sort of notoriety which had been described was not what parliament could proceed upon. No divorce bills could ever pass without the fact of adultery being proved at their bar, and yet the offence on which the application to parliament in such a case was grounded was as notorious as the transaction in which Mr. Walsh was concerned. If a breach of trust were confessed in the court of Chancery by a member, though there the questions put, and the answers given, could be brought much more distinctly before parliament, still no man could tell what the facts of the case were; at least no man could, in a parliamentary sense, be said to know what they were. Would the House enter into an enquiry into such a subject, or would they bring forward the incomplete record of a conviction at the Old Bailey, which could not stand, and proceed upon that? Was the House to be made subservient to such transactions? He apprehended not. It had never been so used before. However Mr. Walsh had, in the present instance, disgraced himself in the eyes of society, he thought the House could not take cognizance of the action. The hon. and learned gentleman said, his opinions were of so little weight that he was aware they would influence nobody else; but he wished to guard against establishing so dangerous a precedent as that which the motion went to establish; and, acting up to what be conceived to be his duty, he certainly should 1184 not concur with the proposition before the House.
§ Mr. Bathurst
acknowledged the great legal abilities and qualifications of the last speaker, yet thought that it was impossible they could be more misplaced or misapplied than on the present occasion. The hon. and learned gentleman had stated, that an arbitrary discretion should not be allowed to the House. If the hon. and learned gentleman meant that the proceedings of the House should not be suffered to be capricious and vindictive, he fully agreed with him; but if he meant that the House should be bound by strict technical rules, he entirely dissented from that opinion, and had a very different idea of the constitution of parliament. As to immoralities committed by members of parliament, he did not see how they affected the present case. Such immoralities might exist without injury to the public official character of a man, but the conduct of Mr. Walsh was marked with peculiar turpitude; and breaches of trust were precisely of a nature to affect the characters of members of parliament, as members. He felt no desire of purifying the House; and had he conceived that the present motion was the result of ministerial influence, or party feeling, or private spleen, he would not have given it his support: but it stood on different grounds,—on transactions which had passed in a public court of justice. The hon. and learned gentleman had, indeed, worked himself up to say, that because this was not a felony, it was no crime. He had stated, that there were no facts on the record, yet that record contained an indictment which in seven different counts alleged express charges of stealing and converting bills, notes, &c.: and the jury had found the prisoner guilty on such charges. Surely, here were facts; nor did he see how a special verdict could furnish more. The Chief Baron, too, had stated that the facts were proved, though on a question put, the judges had agreed that it was no larceny, and a pardon had consequently been granted,—The hon. and learned gentleman had said, that the offence of Mr. Walsh would not work a forfeiture of his goods and chattels: but what sort of argument was that? Was not his character forfeited, and was not that completely proved? The argument went to this length;—a man was charged with a felony: he was not guilty of that, and, therefore, he was entirely innocent. But 1185 was there no moral turpitude on which the present motion might be supported? An instance, which had been quoted by his hon. friend the mover, clearly proved that the House had acted on such principles. It was the instance where they had first expelled a man, and afterwards ordered him to be tried; so that he was proceeded against, not on the ground of a legal conviction, but of a moral turpitude; an instance which shewed that the House would not suffer a member so contaminated to retain his seat. In the present case the moral guilt had been proved—no circumstances of mitigation were suggested, and, besides, they had confitentem reum. There were, perhaps, no precedents of an exactly similar nature. The case of the Charitable Corporation was not precisely in point; but could it be urged, that because members acting in a corporate capacity had committed frauds, and been punished, they would not have met with the same punishment if they had individually robbed and cheated the subjects of the realm?—The right hon. gentleman then proceeded to review the various cases of former expulsions, as far as they bore on the present subject; and observed, that if the House had not authority to expel Mr. Walsh, there was no other authority that could do it: there was, in fact, no mode, but by the House conferring upon him a nominal office. His constituents, indeed, might afterwards return him, if they chose to adhere to a person so contaminated. The disgraceful offence of the individual was notorious; and nothing was advanced against the motion, except by technical objections. When the hon. and learned gentleman wished the House not to let their feelings run away with them, he must, himself, at the same time, have felt the great indecorum, the gross indecency of such a person sitting in that place. Under all these circumstances, seeing no probable danger from the adoption of the motion, but seeing great danger from the rejection of it, he felt it impossible for him not to give his sincere and ardent support to the motion.
§ Sir A. Piggott
hoped no one who heard him could so far have misunderstood him, as to suppose that he meant to say there was nothing criminal in the conduct of Mr. Walsh. What he had said was, that the crime did not come within his jurisdiction; that it was not the crime it had been said to be in a legal point of view.
conceived it to be the prac- 1186 tice of the House, to take notice invariably of facts relative to the misapplication of public funds by those who were members of it; but he could learn of no precedents applicable to the present case. Mr. Walsh's crime consisted in the appropriation to his own use of a sum of money belonging to another. If that fact alone were to be considered sufficient for the proceedings of the House, let them look at the trials in the courts that were constantly occurring, and they would see how the principle might affect three fourths of the country. The House would have enough to do, if they were to give their attention to that subject. He wished to look at the question as it actually stood. Mr. Walsh had been acquitted by law; and he ought to have been acquitted on his trial, if the judge had done his duty, and knew what the law was. Let the House look at the case of captain Tomlinson, who actually received a remuneration of 800l. to cover the expences incurred by the proceedings against him. It was certainly not a sufficient reason to censure Mr. Walsh, because he had been tried at the Old Bailey, a circumstance on which some stress had been laid. Any man, however innocent, morally or legally, might be so circumstanced as to be brought there for trial. If the offence of Mr. Walsh was to be proceeded against by the House, under all its circumstances, he thought that the House was bound to go farther; and then, how far were they prepared to act? It was a greater fraud than Mr. Walsh's, and a more frequent one, to send to tradesmen, to buy goods to four times the amount of Mr. Walsh's transaction, deliberately, and with a perfect knowledge of the want of either capability or will ever to pay for them. The evil in the latter case was very extensive and very serious. He must therefore dissent from the principle of the motion, because it would, if followed up, be productive of incalculable difficulty and mischief. With respect to the moral turpitude of the offence, on which it was asked how they could allow Mr. Walsh to sit in that House, it appeared to him, that the very letter so much relied upon tended to shew, that the offence was not one proceeding from confirmed depravity, from a bad heart; but that, on the contrary, it shewed the writer to have been conscious of his error, and speedily to have repented of it. If any thing could extenuate his fault, it was to be found in that letter. But allowing the moral tu- 1187 rpitude to be a cause of expulsion, he thought the House bound to begin such expulsions with acts of a more flagrant nature: such, for instance, as disturbed and destroyed the peace of families, and in so doing, inflicted the severest injuries on the community. Persons committed acts of this sort with perfect notoriety, and were even convicted of them, without any notice of this kind: they were known by positive evidence of tea-fold more strength than what was now adduced against Mr. Walsh, in a mere pecuniary transaction. The House should take these things into their view, if they attempted to set up moral turpitude as the ground of expulsion, and not begin with a comparatively paltry consideration. He hoped, therefore, that the motion would not be pressed upon the House.
Sir Francis Burdett
said, that he was very far from being a stickler for what were called the privileges of parliament, but certainly if there was a privilege or a power in any body or assembly, less disputable than another, he conceived it to be that of declaring any one of the individuals of which they were composed unfit and unworthy of associating amongst them: it was at all events a power, which, when compared with the other extraordinary privileges assumed by parliament, appeared to him to be, of all others, the least liable to abuse; because if any member was expelled from any motives of party zeal, or personal persecution, a remedy would be open to him in an appeal to his constituents, who, if they thought differently of his conduct, could unquestionably restore him to his seat. This must be the case if elections were what the constitution meant they should be—fair and open, and general throughout the country: if the people who paid the taxes really sent to that House the persons whom the constitution entrusted with the province of levying them, why then there could be no difficulty, because there could be little fear of the people not confirming the sentence of expulsion passed on any gross defaulter, by refusing to re-elect so unworthy a representative. But since the anomaly of private boroughs, since the introduction of persons into that House, who came in professedly to vote at the beck of the borough proprietor, a great difficulty arose—if one of those persons was expelled, might he not be sent back to the House upon the same, or some other borough interest; or if he had purchased a seat in 1188 that House and was expelled, could he not, if he had the money, purchase another? The truth was, that if a person so circumstanced thought proper to maintain his footing in that House, there would be no remedy. The hon. gentleman with whom the present question had originated, bad talked of that House as a high court, and yet he gave rather a singular description of this court, which had no rules, no regulations of its own, no principles, nothing but the then will and pleasure of the fluctuating body, of which that House might be at any time composed. Such was, in his mind, a most extraordinary court of justice! But as to the right of that assembly to expel one of its own members, he thought there could be little doubt of the right of every body to try to purify itself. He understood, that, in 1809, the members of the Stock Exchange had expelled Mr. Walsh for what they termed to be gross and nefarious conduct; now, certainly, if the feelings of the gentlemen upon Change were so sore at the idea of associating with Mr. Walsh, he did not see why that House, even constituted as it-then was, should not be allowed the privilege of removing from themselves, in a similar way, an annoyance of the same kind. There was no doubt, he believed, that Mr. Walsh had purchased the seat he then held in that House. It appeared, in the investigation of his books and accounts before the commissioners of bankruptcy, that there was an item of 5,000l. charged on the assets of Mr. Walsh, on account of his seat in that House, and such odd and whimsical confusion did it produce amongst the commissioners, that after ineffectual efforts to meet the difficulty, they were obliged to resort to delay to evade it, and soon after Mr. Walsh's debts were paid, the bankruptcy-superseded, and the matter heard no more of. With respect to the proceedings recently had against Mr. Walsh, they appeared to him to be of a nature the most inconsistent, incongruous, and absurd. There had been a trial and no trial, an offence and no offence, a pardon and no pardon. Mr. Walsh had been indicted for felony, tried and convicted, but the verdict was a false one. How came this? It was found subject to the opinion of the judges hereafter—a mode of finding, of which, by the bye, the fewer instances that occurred, the better. But what sort of law must that be? In what state must those laws be, of which the great law expounders themselves were ignorant? If 1189 the judges themselves did not know the law, was not that law a mere snare for men, instead of being what it ought to be, a safe-guard? This was a topic, which, in his mind, called for the most serious consideration. With respect to the pardon—he doubted if it could be properly so called—he had understood that a free par don must pass under the great seal—he was sure that at least, in the present in stance, there should have been more publicity. Mr. Walsh should have pleaded his pardon in open Court; the reasons for granting the pardon should have been stated at large, and the judges would be then bound by their oaths to say, whether the reasons were, according to law, fit, just, and adequate. As to the intention of Mr. Walsh, his letter left no room for doubt, though he knew not how that letter got into public circulation, or by what management at the Post-Office it was, in the first instance, secured. However, he thought there had been full enough made out to convict Mr. Walsh of an abominable fraud; and as being guilty of such fraud, he should certainly vote for his ex pulsion from that House.—Before he sat down, he wished to mention one or two cases, which, in his mind, the House ought to have prosecuted with as much, if not with more rigour, than the present. These cases were not drawn from remote, but recent times; for, as for precedents of the proceedings of that House, there Was scarcely any thing for which there might not be found a precedent in the heated and violent times that had passed at different intervals. The first instance be should mention was that of Mr. Steele. His fraud, in a public point of view, was of infinitely greater moment than the private transaction in the present instance; and yet there had been no notice taken of it. It appeared upon the report of the Finance Committee, that, during the administration of Mr. Steele, the then Treasurer of the Navy, he was in debt to the public to the amount of 19,000l. It might be said that he had paid this money back: this was no alleviation whatever, and the interest was at all events lost to the publics.—The next case he mentioned was that of Mr. Hunt. This person had been let go to Portugal, where he could have been easily apprehended, if the government had thought proper. He was now in the Brazils, where they could as easily apprehend him; and yet this defaulter, he understood, was at that moment in the actual 1190 receipt of two pensions from this country, to the amount of 1,000l. a year—one of them granted him in the year 1802, the other in the year 1894. Another instance was that of Mr. Mills, who, for the purpose of cheating his creditors, bought a seat in that House. He was at the time a prisoner for debt to an immense amount in the King's Bench; his creditors petitioned the House* and besought them not to interpose their privilege in behalf of a swindling trick to defraud them. The petition was, however, of no avail. Mills was enlarged, and took the opportunity his privilege of parliament afforded him, of escaping to America. There was another case of greater public enormity than either, because much more pregnant with mischievous consequences, and that was the case of Mr. Pitt advancing 40,000l. of the public money to Messrs. Boyd and Benfield, two of the host of voters at hi* beck—the greatness of the individual in that House might have then protected him—he might have been saved, perhaps, by a majority of such votes as he influenced in this way: they had heard of late enough to shew that such influence did exist; for what else could be meant by drawing the distinction between what ought, and what was not to be considered as a cabinet measure: but of this transaction of Mr. Pitt, he had always entertained the same opinion, and thought it a gross abuse of his public duty under the shameless pretence of supporting the public credit—(Hear, hear, from the ministerial benches!) If it was for the support of public credit, he could only say that it did not tend to support the credit of that House with the public. (Hear, hear!) If the hon. gentleman who had preceded him in the debate, thought that House to be made of a collection of—he knew not how to name them—if there were any or many such: persons in that House, or in the country, that would be with him a tenfold reason why the evil should be stopped before it proceeded to such excess, unless they should go on the principle, that where roguery was so general, it was more prudent to pass it over. And this reminded him of that part of the dialogue between lady Macduff and the child—her son asks, "and must they ail be hanged that swear and lie?" Lady Macduff replies in the affirmative. "Who must hang them," demands the child. "Why, the* See Vol. 9, pp. 733, 734.*1191 honest men." Upon which the child observes," then the liars and swearers are fools, for there are liars and swearers enough to beat the honest, and hang up them."—The hon. baronet concluded, by observing, that he had endeavoured, then, to explain his opinions, and the reasons of the vote he should give, which was on no other ground than his abhorrence of the conduct of Mr. Walsh. If the House had any power of expulsion, they had a right to exercise it in getting rid of one, who, in public esteem, was evidently and totally unworthy to remain in their society. This was his opinion, who could not be supposed to entertain any very high notions on the subject of the power and privileges of that assembly.
said, he could not see how the House could punish a man merely for moral guilt, unless they went on a broader scale, and visited the higher crimes: otherwise they might act severely to the poor, and mildly towards the rich. He did not dispute that Mr. Walsh's act might be highly criminal; but it was not so in the eye of the law. The indefinite epithet "disgraceful" was emphatically attached to it: he did not deny its propriety; but how many different opinions might there not exist as to the applications of that term, according to the different feelings of different people? He recollected in Mrs. Macauley's History, an anecdote of Henry Martin, one of the regicides, who was caned in the lobby of the House of Commons by the earl of Northumberland, for opening a letter of his lordship's at the post office*; and the historian expressed her wonder that the House of Commons did not expel him for submitting to it. She thought it disgraceful. Some persons might think it disgraceful not to go to church; and others might think the same of illicit intercourse with the sex. He saw no end to proceedings founded on conduct considered as "disgraceful." He knew nothing of Mr. Walsh, but he thought the grounds of the motion insufficient. Crimes of much greater moral turpitude and injury to society were passed by, and it would be too much to begin the moral ground of expulsion on an offence of this description. The measure seemed calculated to involve the House in difficulties.
rose for the purpose of* See Parliamentary History of England, Vol. 3, p. 109.1192 opposing the motion. He thought that the House should attend as much to the danger of setting a bad precedent, as to their feelings of indignation at the immorality of the action of which Mr. Walsh was guilty. As to the right that the House had to expel its members, that had been settled by long usage. There were three great classes of cases upon which they had frequently been called upon to exercise that right. The first was, the case of contempt of the House itself. Without the right of expelling in such cases, the House would not be safe, as they had no other tribunal to which they could look for protection. The second class was, breaches of public trust. In these cases the House exercised its jurisdiction on sound and solid principles: for as it was one of the primary objects of that House to take care of the public purse, if it appeared, that any member had appropriated to his private purposes any public money intended for the public good, the House was certainly called upon to inflict its severest punishment on the offence. There was another class of cases, namely, when persons had been found guilty, and punished for gross offences. In these cases the House paid that respect to the sentence of the laws, and to the laws themselves, as to deem a person so convicted and punished, to be an unfit person to sit in that House. The present case, however, was widely different: there was a record of conviction it was true, but then that record was incomplete, as there was no judgment upon it. The counsel for the prisoner preferred the reserving a point, to taking a special verdict, as that might have been brought before the House of Lords, and occasioned a great delay, during which time Mr. Walsh must have remained in imprisonment. If it had been a special verdict, there would not have been a conviction. As to the mere immorality of the act, he thought that principle might be carried to a most dangerous extent. If they were to go to the courts of equity, they would find innumerable instances of persons confessing themselves to have been guilty of breaches of trust; and it would be very hard to draw the line, and say what sort of a breach of trust should make a member liable to expulsion, when another sort did, not. It was said, however, that the notoriety of the offence should determine the punishment. But it appeared to him, that it should rather be 1193 determined by the nature of the offence than the notoriety. He thought that it was a dangerous principle to leave the House to determine on every separate case by the feelings of the moment, as that course might often lead them to determine in a manner which it would be very dangerous to lay down as a precedent.
Mr. C. W. Wynn
thought, that the subject was surrounded with difficulties of a perplexing nature: on the one side, there was a natural wish that the House of Commons should not suffer in character from one of its members; and on the other side, there was a difficulty in making a new precedent. In the case of the Charitable Corporation which had been cited, the money was not considered as public money, but as the money of individuals. In all the records we had of the proceedings upon that subject, we should find on reading the debates, that it was never stated as an embezzlement of public money, but merely as a breach of trust. It would be hard to call the money that the South Sea Company got hold of, public money; it was private money the property of individuals. The hon. and learned gentleman who spoke last, had laid some stress on the cases of persons convicted and punished for offences contrary to law. He would, however, state on the other hand, that in the case of Mr. Wall, who had been expelled for perjury, there had been no punishment: and in the more recent case of Mr. Atkinson, no judgment had been given. In those cases, therefore, there had been no legal disabilities created: and yet the House expelled the member on the ground that it was the infamy of the offence, and not the punishment, which made the person unworthy of being a member. As to the practice of saving a point of law for the decision of the judges, although it was a common practice in civil cases, yet it was not common in criminal cases; and he believed that it was done in this case at the particular request of Mr. Walsh's counsel. If there had been a special verdict, and it had come before the House of Lords, (but it was not likely that the prosecutor would have brought it there), he did not think a serious delay was to be apprehended. He believed that criminal appeals took the precedence of civil appeals; and in the case of Hart and White, there did not appear to be any great delay. An hon. gentleman seemed to consider Mr. Walsh's letter as an extenuation of his offence. Now, it appeared to him 1194 that it was quite the contrary. It appeared by that letter, that Mr. Walsh conceived that there would be no offence in the eyes of God or man in cheating Mr. Oldham for the benefit of his own family; but he allowed that the seizing the money of his friend sir Thomas Plumer was not quite so proper. In this letter he saw nothing but the common cant of sentiment and morality, opposed to the plain dictates of reason and common honesty. An hon. baronet had compared the case of Mr. Mills with the present case; but it appeared to him that there was a very great difference. Mr. Mills was imprisoned for debt, not upon execution, but upon mesne process. Any man in the kingdom who was not a member of parliament, might be in the same state, if any other individual chose to swear a larger debt than he could procure bail for. If this was allowed as a sufficient cause for expelling a member, any person might be so prevented from taking his seat in that House by any other person in the nation swearing, even the day before the election, that such person owed him such a sum of money. If it would be absurd to allow the unsupported, affidavit of a single individual to prevent a man from being elected a member of that House, it was evident that when once elected he ought not to be prevented from attending his parliamentary duty. In the case of colonel Cawthorne, that member was expelled, although he had been tried before a court martial appointed at the pleasure of the King. The object of the present motion was not to punish Mr. Walsh, but to take a very important trust out of the hands of a person entirely unworthy to hold it.
§ Mr. C. Adams
supported the motion, upon the ground that it was a case of great atrocity, the person against whom the fraud was committed being the friend and patron of the person who committed it. He hoped the House would not disgrace themselves by having amongst them so degraded a delinquent. There was no society, however insignificant, who did not exercise the power of expulsion in atrocious cases, and though he did not pretend to nicer feelings than others, he should feel most awkward on coming in contact with such a person.
§ Mr. Lamb
thought the subject of most grave and serious importance; but the argument being already exhausted, he could not hope to add to the information of the House. He was surprized to hear 1195 the notoriety and publicity of the act brought forward as an argument for expulsion; for, certainly, unless the circumstances themselves justified the House in going that length, the notoriety should have no effect. Another argument to which he objected, was that which was urged by the hon. gentleman who spoke last but one; an argument which would induce the House to expel their member, lest a handle might be given for public charges against their proceedings. He hoped they would not be influenced by any such consideration. He hoped they were there to declare the law of parliament. By doing which they would have no reasonable ground for charging that honourable House with corrupt motives. It had been said, that in the case of Mr. Wall, the House was satisfied with a record of conviction without judgment; but here we had not only a record without judgment, hut with a reason why there was no judgment. He disapproved generally of the practice of reserving points for the judges, instead of taking special verdicts, and supposed the reason why the prisoner's counsel had consented and thought proper to reserve a point in the present case was their confidence that the law was in his favour. It had been said, that this was a case of pecuniary trust, and therefore peculiarly unfitted the person for holding a seat in that House; but he did not conceive that the functions of that House were so exclusively of a pecuniary nature as to render offences of that class the only consideration. The hon. gentleman who spoke last but one, had stated many circumstances which aggravated the moral guilt, but that very fact of the aggravation of the moral guilt was a reason for the exercise of greater caution, as it was in the heat and indignation produced by such transactions, that dangerous precedents were most likely to be established.
§ Mr. Whitbread
begged leave to offer a few words before the question passed to a vote. This was one of the instances which proved how necessary it was for men to guard against first impressions; for there was no man who in the first instance did not think that Mr. Walsh's conduct to sir T. Plomer ought to be visited with expulsion. But the more he thought on the subject, the more he was inclined to conclude that it ought not. In his opinion, be ought not to be expelled as a punishment, but kept in his place, and obliged to attend every day. The hap- 1196 piest thing for him, under the circumstances, was to be expelled. Gentlemen had cautioned the House against giving a handle to those who were inclined to vilify it, by permitting him to retain his seat; but the very ground upon which those persons vilified the House, as it was called, was on the existence of such means as those by which Mr. Walsh obtained his seat. He would allow that if there were grounds to justify his expulsion, the want of precedent should not prevent it; but there were no grounds. Was Mr. Walsh, in the eye of the law, guilty or innocent? If he was innocent of the felonious offence, was he guilty of any other legal one? They would find, on appealing to the Judge's letter, that though the fact of his having formed a design to convert the money to his own use was proved, the fact did not amount to legal guilt; so that not only was he not guilty of what was charged against him, but what was proved against him was no legal crime. Supposing that sir T. Plomer had not prosecuted, but that this letter had come into the possession of the House, was there a man in it who would have ventured to make the motion now before them? He thought not; and if he was right in thinking so, it was wrong to call upon them to act in the present proceeding. As to the fact of every society-having a power to expel its members, he knew of nothing that could be less applicable to the House in which they sat; for those societies being self-elected, acting mostly from caprice, and having no other laws than those which they made for themselves, bore no analogy to the principles which ought to govern them. Was it because the Stock Exchange had expelled Mr. Walsh that they should proceed to do so? Were that the case, they should have done so long before. If the King in council had thought proper to erase the name of a privy counsellor, would that be any ground for the House to proceed upon? It certainly would not; and yet if the act of any body could be supposed to bind them, that would be the act. As to the case of the Charitable Corporation, it did not apply. The Commons always proceeded by an enquiry of their own, to ascertain the guilt of their members, and he begged gentlemen to re-collect what had been said on a former occasion, that the honour of the House was as much concerned in its proceeding against a rogue, as in not sitting with a rogue.
The Attorney General
wished to reply to some observations that had been made, and to state the grounds on which his opinion was formed. It had been said, that the guilt was not proved, as it was not followed up by legal judgment. He would agree, that conviction having been taken subject to the opinion of the judges, and that opinion having been against the felony, Mr. Walsh should be considered as having been acquitted. He agreed also, that the notoriety of the transaction should make no impression, the question being not whether the transaction was notorious, but whether it constituted that kind of offence for which the individual ought to be removed from that House. As to the manner in which the question had been brought before the judge, it was strictly according to the practice of the last sixty years, and was preferable to the course of special verdict, as being less expensive and more expeditious: it was also in the present case the wish of the prisoner. He was sure the learned persons engaged in such investigations, would deprecate any interpretation of their opinions as given on the case, in any other light than that of an acquittal. So far he had no difficulty, but upon what remained he felt considerable difficulty indeed. There was no course of proceeding to which he could compare it but that of Corporations. It was well known that no person was permitted to remain in those bodies, who was guilty of any flagrant offences; there were different offences for which corporators were liable to be disfranchised, and here he should just observe in passing, that Mr. Walsh's crime did not amount to a misdemeanour, as he was not brought in guilty of a felony. If a corporator was guilty of any offence which might be tried in the courts, they did not proceed to act until he was legally convicted; but if he was guilty of any offence for which no legal trial could be instituted, such as offences against the body itself, they might still expel him. He did not find that the same course was pursued in that House. There were instances in which the House first expelled, and then directed prosecutions against its members, which was surely enough to shew that they did not proceed in the same manner as corporations. He could not conceive that the ground upon which they proceeded to expulsion was that of the offence being triable, for if that was the case, they would order the trial first. What, then, was the nature of the offences for which 1198 the House expelled? Several cases had been quoted by his hon. friend, and principally that of the money for charitable purposes. It was not precisely in point with the present case, nor did it come up to a misapplication of the public money. It was no more a misapplication of the public money than this. What, then, was the ground upon which the House would proceed to expulsion in a case of that description? The only case that bore any resemblance to it, was that which he had already mentioned: and if the House had proceeded on it, not as a misapplication of public money, but as an act of gross dishonesty, it was at least equalled by the act that had been committed by Mr. Walsh. Indeed he could not conceive any case more repugnant to all moral rules than Mr. Walsh's. The former resembled the dishonesty of a trustee, but the latter was not merely a misapplication of money which had come into his hands, but a deliberate act of fraud; a cold looking round to see whom he could plunder; fixing first upon one, from whom he withdrew, only because he found it impossible to accomplish his purpose, and then turning to his benefactor for no other reason than because he wanted money himself, and thought sir Thomas Plomer could do very well without it: a ease of cooler and more deliberate villainy had never come under his inspection. If they were to act from any paltry fear of public clamour, instead of proceeding with confidence to do their duty, they would act in a manner unbecoming their situation; and, basely as be thought of Mr. Walsh, he would not vote against him if he entertained any doubt of the justice of the precedent which that vote would establish. He respected the opinions and doubts entertained by gentlemen on this motion, and bad stated the manner in which it had struck him, without confidence. He was not able to distinguish at present between it and the case of the Charitable Fund, and thought that if the House was justified in proceeding to expulsion in that instance, it would be justified in the present. It was with great difficulty he came to this conclusion, and he was very ready to hear any arguments that might be urged against it, and to adopt them if they were just.
§ Mr. Elliot
expressed his fear that the House might be too anxious to relieve themselves from the embarrassment of an association with such an individual. There was no function in the exercise of which 1199 they ought to be more careful than that of expulsion, as it might be abused by the minister of the day, or by the excesses of popular fury. With these sentiments he was not prepared to launch into an ocean of which he did not see the limits, and therefore he should vote against the motion.
Mr. Hawkins Browne
declared himself in favour of the motion, and said that he should certainly vote for the expulsion of the unworthy member.
The Chancellor of the Exchequer
said, he should not feel himself justified in giving a silent vote, though he had little expectation of throwing a new light on the subject. The temperate manner in which it had been discussed, and the total exclusion of all party-feeling, left no doubt that whatever determination the House might come to, it would reflect no discredit on them. The public would not ascribe the rejection of the motion upon such principles as had been stated, to any corrupt motives; nor would they deem his expulsion, if that was resolved on, to party violence and injustice. As to the case of the Charitable Corporation, there was no legal conviction. Yet the House did not rest with expulsion, but directed legal prosecution. He very much doubted whether in that case a legal conviction followed: but whether or not, the House did not wait for it They had expelled in that case, which was not a case of public money. He agreed that they must take the opinion of the Judges, with respect to Mr. Walsh, as a record of acquittal, but as an acquittal on a special verdict, and incorporated with the letter of the Judge, and the letter of Mr. Walsh himself. They had then a special verdict of the facts, by which it appeared, on the authority of a jury, that he had premeditatedly obtained money into his hands, in a case of trust, for the purpose of abusing it. The House would therefore have to decide, whether that was such a case as ought to disqualify him from sitting in that House. It was a verdict of acquittal, but it was not a verdict which left things in the dark. He agreed with his right hon. friend in doubting whether, if it was not a case of felony, it would amount to a misdemeanour. He rather thought it would not; but he could not think, that because an act of parlialiament did not make a moral crime a legal one, the House of Commons should be prevented from taking cognizance of it. There were many cases of breach of trust, 1200 as stated by his hon. and learned friend, (sir A. Pigott) but if there was a plain one brought forward, upon the mere statement of which no two men could differ in opinion, though it was no legal crime, he saw no danger from the precedent of expulsion. It had been said that it might be abused by the minister or by popular feeling, but they would not be more exposed to such abuse with the precedent than without it, for if the precedent was followed, it must be as a case of great moral guilt, and if they did not follow the precedent, the precedent could not have produced mischief. Could any one doubt, that if in the times when the other cases were adjudged, this had been brought before parliament, parliament would not have proceeded upon it? He believed there was no case of expulsion for larceny. Yet could any one advance that as a reason for not expelling, if a case of larceny should occur? He knew there was great delicacy in exercising this function, but he thought it might adopted with as much safety in this case, as in cases of perjury and forgery. If they were not obliged to wait for conviction, he saw no reason why they should not proceed in the instance under consideration. With respect to the case of Hunt, though a pension appeared in the public estimates last year, it was applied to public purposes. For those reasons he should vote for the motion.
replied. He contended that the principle upon which the House had proceeded on all their precedents, was the guilt of the individual, and not the legal establishment of a crime. He then took a review of several cases. With respect to Boyd and Benfield, he was astonished how any person could conceive their case bore any analogy to the present He really could not see the danger of laying down a precedent from the possibility of future abuse; because, before proceeding to expulsion, it was necessary to have a fraudulent subject to work upon; and he could hardly conceive that any member would become guilty of moral guilt to please any man.
§ The House then divided, when the numbers were.
|For the Expulsion of Mr. Walsh||101|
|List of the Minority.|
|Abercromby, hon. J.||Brougham, H.|
|Bennet, hon. H.||Folkestone, lord|
|Greenhill, Robt.||Piggott, sir A.|
|Hume, (member for Weymouth)||Romilly, sir S.|
|Herbert, H. A.||Whitbread, S.|
|Lefebvre, Shaw||Vernon, G. G. V.|
|O'Hara, C.||Elliot, rt. hon. W.|
|Parnell, Henry||Lamb, hon. W.|