did not include in his reference to the com- had adduced precedents which might have mittee, the Criminal and Pauper Lunatics induced the house to go immediately and of Scotland and Ireland? without delay into the proceeding. There

Mr. W. Wynne replied, that in those were certainly many precedents for excountries there were provisions which ren-pulsion, but not one of them rested on dered the necessity of any interposition of the grounds on which the present case the legislature less pressing than in England stood. In the whole code of British juris and Wales. A committee was theu appointed.

prudence there was no rule more strong than that any man who had been acquitted [CHARGES AGAINST MR. CAWTHORNE.] or condemned could not again be tried for General Porter said, he rose in pursuance the saine offence. This was a principle of of the notice he had given with reference our established law, rooted as he hoped to one of the members of that house. He in every man's breast, and against which felt himself unfortunate in his inability to he trusted that no one would dare to set perform the task he had undertaken, in his face. There was another circumstance the manner its importance demanded. which ought to weigh heavily in the conHe assured the house, that he had not the sideration of the house. He stood there slightest enmity or rancour towards the legally qualified; he had been returned, person who was the object of his motion, and returned without opposition, by a very and he had therefore neither claimed nor large body of electors. If he had been solicited the support of any individual. thought ineligible, the moment of election He had felt himself called upon by an im- had been the time for stating that ineligi perious sense of his duty as a member of bility; but no such attempt had been the house, but above all, by his sincere made, and he had been unanimously rewish to maintain the honour and character turned for one of the largest county towns of the profession to which he had been at- in the kingdom. He would not enter into tached for upwards of 30 years. Actuated any discussion of the merits of the sentence as he was by these sentiments, it could not by the court martial, although that was a be surprising that he should look up with subject from which he would never shrink respect to the decisions of those courts when it came regularly before the house. martial whose proceedings he was persuaded With regard to precedents of expulsion, were uniformly dictated by justice and im- there were several in the cases of Mr. partiality. Thinking as he did, he felt Wilkes, Mr. Walpole, and others; but he that a person who had been tried by 16 of contended, that none of these cases was the most respectable characters among the applicable to his own. The hon. general officers of the army, and found guilty of 11 had disclaimed any feeling of personal hos. charges out of 14, and who had been con- tility towards him. It was certainly very victed of a crime only short of felony, was kind of him to bring the subject forward. not a fit person to sit among the represen- This he would declare, that when he stood tatives of the country. He wished the in a similar situation before, he felt much house to be in full possession of the case, more depressed, and much more oppressed and then to put it to the dignity and ho- than he then did. But had he at the nour of the house, whether a person who time to which he alluded known what he had been so stigmatized was worthy of a seat then knew, he would not have troubled in parliament? He should conclude with that house for a moment on the subject. his motion; at the same time he trusted, He meant, had he known that the first that if a debate arose, he might have the law officer in the house, the Attorney Ge privilege of expressing himself more at neral of that day, had declared that the large. He moved, "That the Charges sentence of a court martial was too flimsy made against John Fenton Cawthorne, esq.a ground on which to found the proceeda member of this house, and the sentence ings which had terminated in his expulsion pronounced against him in consequence from the house. 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.

Mr. Cawthorne wished the hon. general had stated more fully his sentiments, and

Lord Howick would not have said any thing upon this motion, had it not been for some expressions which fell from the hon. member who had spoken last. He apprehended that that hon, member had mistaken the nature of the case entirely, when he talked about another trial for the same offence,

about his election and his qualification. I was so clear, that he believed he need say This was not a question of election or qua- nothing further in support of it. He was lification. The objection did not stand on not aware that any objection whatever these grounds. The view which his hon. could be urged to this method. The in. friend had taken of the case was this: terest of all parties concerned would be whether it was consistent with the dignity, best consulted by proceeding upon sound the purity, and the honour of that house, and constitutional principles, by adhering that a person labouring under the stigma to the general rules of justice, and keepattached to his character, by the sentence ing the individual case as much as pos of a court martial, and the proceedings on sible out of view, except in so far as it de which it was founded, should be consider-pended on these rules and principles. The ed as a fit member to sit among them? only objection to this which he could pos The question was, whether the house possibly anticipate was the delay which it sessed the power of re-expulsion, and if would occasion, and the consequent painit did, whether it was fit and proper to ex-ful suspense in which the individual might ercise it in this particular instance? It was thus be involved. But the delay would a proceeding undoubtedly of the utmost not be very long, and the individual ought importance; for whether it was considered to recollect that he now stood in a situ as affecting the character of the individual, ation in which he was sorry that, after and the character and purity of that house, what had passed, he had placed himself. or as involving those great constitutional After this motion had passed, he would principles that ought to govern the right move for a committee to search into the of election, there was no question more precedents, and, after the report of that deserving of the serious attention and care-committee should be on the table, then ful examination of every person who had his hon. friend would have an opportunity to decide upon its merits. It had afforded to propose whatever he thought best ber him, and must have afforded to others, coming the dignity of the house, the ho❤ great satisfaction to observe, that in bring-nour of the profession, and the interests of ing forward this business no mixture of the public.

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 formá, it would be the duty of the house, on such a solemn occasion, to appoint a committee to search the Journals for precedents.

passion or personal rancour had appeared. Mr. Spencer Stanhope, having seconded His hon. friend, from the manner and the motion, would say merely that he had temper with which he proposed his motion, had evinced, what indeed he was well aware of before, that he acted from principle and not from passion-that he had truly stated that he was not an oppressor, but that he was actuated only by a conscientious regard to the best interests of his profession, of the house, and of the public. In this temper he hoped the investigation would be pursued, and therefore he 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 analogous 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 examination of the journals of the house. This

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 ques tion was, whether the house had a primary right of expulsion, and whether it had a right of re-expulsion? Then the only remaining question would be with regard 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 precedent. No person could deny the exis. tence of the primary right of expulsion. If that was allowed, the other right of reexpulsion must follow as of course.

It

nishment of a sinner, and not to conceal his iniquity. What the house should decide, 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.

was a question, consequently, not of pre- was to be made, let it be one for the pu 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 possession of every possible information, and should therefore not resist the motion.

Lord Folkestone 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, General Gascoyne asked, why the house because they had not been answered. The was to be kept in suspence upon such a hon. gent. seemed averse to going into a question? It appeared to him that the pro- committee, and had stated that there was no position of the noble lord was the sugges- precedent that applied to the present case. tion of the member against whom the mo- He could assure him that he was so contion was directed; and yet the noble lord vinced there was not a precedent, that he had said, that he should not have risen had intended to have made a similar motion to it not been for what had fallen from that that which the noble lord had suggested; member. What were the precedents to and the noble lord would allow him to which the noble lord thought fit to refer state, that there being no precedent was a the house? If he was inclined to trespass strong argument to bring forward in anupon the time of the house, he would take swer to a proposition for expelling a memevery one of the precedents, and wouldber, and therefore he should support the noshew that they had no more to do with this ble lord's proposition. There was an exquestion than they had to do with a ques-pression used by the same hon. gent., and tion of bankruptcy. If the house an- also by the noble lord, with reference to the xiously wished to see precedents, he had no disagreeable feelings the discussion might objection; but upon the principle of their excite. They had observed, that if such conveying any information to the house, disagreeable feelings were experienced, the he was against the motion. There was person must thank himself. He admitted, one precedent before the house upon which that upon a question of this kind, personal the house could not be mistaken. There feelings must be left entirely out of the was the precedent, that John Fenton Caw-case; but he thought it extremely unfair thorne was, for infamous and ungentle-to prejudice the house, by stating that a manlike conduct in the year 1796, expelled member had put himself in a situation in the house. Till that could be erased from which disagreeable feelings were likely to the Journals of the house, there could not be excited, Perhaps, it might turn out be a precedent more decisive. He was that the person alluded to had as much right sorry that the decision might hurt the feel- to sit in this house as any other member. ings of the member to whom it was refer- In such case, it would be peculiarly unjust red, but he had himself rendered the dis- to reproach him with having placed him cussion necessary. Supposing there was self in a situation in which he was liable to not to be found any procedent which ap-have his feelings wounded. It was his lied to the present case, was the house to wish, and he hoped it was the wish of every make one merely to cover that which was one, to have this question decided as spee disgraceful and infamous? If a precedent dily as possible.

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.

The Attorney-General said, that his only | time, he was required to adopt such a prinmotive for assenting to the motion which ciple, he was to be denied the means of the hon. general had made, was that of informing himself, and no precedent whatwhich notice had been given by the noble ever was offered. He trusted such a prolord. It the noble lord had not announced position would be discountenanced. He his intention of moving the house that had thought it necessary to trouble the search should be made in the Journals for house with his opinion thus early, on ac-, that information which the Journals affor-count of the manner in which the question ded, he was quite free to declare that he had been treated. The noble lord had should have given the motion of the hon. been cautioned not to throw the shield of general his immediate negative, undismay-power over the member to whom the dised by any of those menaces he had often cussion referred. The noble lord had not heard uttered in that house. He should thrown the shield of power over the member. have thought it his duty to the public, his He bad thrown the shield of the constitution duty to the law of the land, his duty to over the member, as he hoped he would over the constitution of the country, his duty every member, if he should stand in need of to the rights of the electors of the coun- it. There had been allusions made to certain try, who formed the constituting body of fanciful notions of honour and dishonour, the house of commons, to have given his which could never be made the ground of immediate and decided negative to the mo- any rational proceedings in any court of tion. He should have done so, because he justice. It was impossible that the house was at a loss to conceive that the minutes could found proceedings on any maxims proposed to be read before the house, or principles of such a nature. He becould be made the ground of any proceed-lieved that the electors of this country, as ings by a parliament recently elected, and long as they possessed those feelings which because he thought that the house would an attachment to their own rights and the have been justitied in putting a negative constitution of the country was calculated 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 Mr. Bragge Bathurst said, that it was that was not subject to law, and to those necessary for him, who had been a mem rules, in the exercise of which he had ber of the parliament in which the member some system to act upon. He should have referred to had been expelled, to vindi rejected those rules of proceeding, by cate it from something that had fallen from which he was called upon to consult the a learned gent. (the attorney-general) who feelings he might more or less kindly en- was not a member of that parliament. He tertain towards a particular individual. begged to be understood as not wishing to He should not have been less disposed to enter into the question, either of the prohave done so when it was proposed that he priety of searching for precedents, or of was to act upon the sentence of such a reading the proceedings of the house. As court as had been described; not that he to the question of searching for precedents, had any thing to say to the prejudice of no material objection had been made. such a court, or its utility for the purposes He could have wished that in this early for which it was instituted for military of stage of the discussion, the consideration of fences;-for offences truly military, he be-personal feelings had not been introduced. lieved a Court Martial was the most pro- It could have no other effect than that of per tribunal. But to ask him at once, with- preventing the cool and dispassionate deout his knowing whether there were any pre- cision of the question. However, it was cedents to make the sentence of a court only his intention to notice what had falmartial, in which there was no trial by len from the learned gent. Did he mean jury, no challenge of jurors, in fact, none to say that the proceedings of the court of the privileges that constituted the trial martial were not now, or were not then, a 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

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

General Gascoyne stated, in explanation, that he did not say the broad shield of government had been thrown over the delinquent. 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

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 discussed and decided, still there was no reason why the house should not, under the present circumstances, exercise its discretion, and come to an opinion.

by the last parliament. It appeared to used the word flimsy, as applied to the him that the question ought to be disen- sentence of a court martial. tangled of all legal niceties. It was nonstrous 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, notions of honour, he was as willing to there might arise, as in this instance, a case of moral turpitude. The ground on which he apprehended parliament decided was, that there was such a corpus delicti, as fully justified them in the exercise 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 parliament could not look at the same evidence that had been given during a previous parliament. If it was fit to re-exercise a right now, which had been exercised before, there could be no difficulty, If the exercise of the right was not bad then, it could not be bad now. The only question was, whe-received in a court of justice. ther the house could re-expel a member Mr. Adam was exceedingly sorry to feel who had been expelled by a former parlia- himself obliged to trouble the house on

ment

Mr. R. Ward did not rise to detain the house by entering into the merits of this question, 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.

The Attorney-General declared, that he did not apply the words honour or dishonour to a court martial; he had already stated, that the acceptation of proceeding on any such fanciful phrase would not be

this subject, after the ample discussion it The Attorney-General, in explanation, had undergone in this preliminary stage; declared that he never meant to question but the warmth of some members having the grounds of the proceeding in the last superseded the perfect good humour with parliament; a subject on which he was not which the noble lord had introduced his Bufficiently informed. If the house thought motion, made him rise, in the hope of esthat the evidence (independent of the sen-tablishing the question on its original tence) was conclusive, they had been right ground; and certainly he must confess, in doing as they had done. All that he that the mode proposed by the noble lord had said was, that any sentence, and more appeared to him the best which the nature especially any military sentence, must be and importance of the case demanded. It an insufficient ground for such a proceeding. was a proceeding founded on the princiCaptain Herbert asked, if the learned ples of the constitution, to which every gent. thought the sentence of a court mar-member was willing to submit, at the same tial too flimsy a ground of proceeding, time that it maintained the dignity of the what ground would he expect? The learn-house, and the regularity of its proceeded gent. was in error when he said that no ings. He was a little surprised to hear a right existed in the person tried by a court distinction taken between principle and martial to challenge his judges. It was precedent; for his part, he did not think both the right and the practice. He was there was any, as applied to this case, for the surprised how the learned gent. could think one would be found to contain the other; as he had expressed himself, without deem- or, to be more explicit, he thought that ing the act of the last parliament a flagrant precedent contained principle. He was injustice. old enough to remember the proceedings The Attorney-General denied having in 1764, on the expulsion of Wilkes for