profess I cannot discern. If the recruit even did not understand specifically the meaning of the word marching guinea, as described by the act, yet if he generally understood (and indeed the receipt expresses it), that it was something besides, and in addition to, his bounty, and that that sum was all he was to have for coming into the regiment, it was his own act; and is it not with the utmost caution that men ought to be allowed to come into courts of justice to rescind their own agreements, and that by criminating those with whom they were made, when they offer no other proof of imposition than their own testimony, itself inconsistent, and contradicted both by written and verbal testimony also? But I submit to the House, that no receipts or agreements have been fraudulently obtained from any man; and even if they had been, it was neither with my privity or consent.-Six men only, out of the many recruits enlisted at the board of lieutenancy, were called to prove that the agreements for their bounty, including their marching guineas, had been fraudulently obtained from them. Four of these say, they either agreed with me or my serjeant; and two say they agreed with certain men called militia insurers, or their principals. The first four affirm, that they never agreed for their marching guinea, and that the paper expressing that circumstance, was never either read to them or by them, though this paper is a plain printed slip of paper (except in one instance, and then it was not produced), containing five lines in large letters, the words "marching guineas," distinguished by large roman capitals. In their examination in chief, they offered to give a clear and distinct relation of all that passed at the board when enlisted they at first positively denied any explanation or reading of the agreement; but one, when pressed, admitted the serjeant did read the agreement, but he paid little attention to it; and the three others, when offering to the Court a supposed correct account of many facts that happened at the same time, then nearly two years before, and assuming correctly to remember every word and fact which could have a tendency to criminate me, but choosing to forget every thing which passed that would have refuted the charge of imposition, when unable to reconcile part of this testimony, said they were drunk, intoxicated, or in some manner besotted. If sober when they signed this : agreement, how could they be ignorant of the contents of five lines of a plain, uninterpolated slip of paper, and which they set their names, not their marks, to? Could they write without their eyes being fixed upon the paper? and if drunk, ought they to have been admitted to come forward in a court of justice, to affirm or deny any part of a conversation which passed during their intoxication two years before? Whose honour or life is safe, if a fraud or felony can be established by men, who, relating long conversations, say they were drunk at the time they heard them? Had these men pro fessed, in the out-set of their evidence, that they were deceived by having been made drunk, such a fact, had I countenanced it, would have been worthy of the most serious discussion; but in their examination in chief, they do not pretend to have been drunk at all; it is in their cross-examination that they first introduce the circumstance of drunkenness, and that, not as an imputation on me, but as an exculpation of the gross inconsis tency of their evidence. And here I submit, that though various objections were made by me to different questions and evidence, they do not appear in the printed report of the trial. It might have been justly expected by me, that the whole evidence of men, who on cross-examination had confessed themselves intoxicated, ought to have been struck out of the minutes of the proceedings. As to the two other men, they were two substitutes, not engaged by me at all, but by men called militia insurers, who paid them their bounty; receipts for their marching guinea were also taken from them. But the evidence proves this circumstance to have originated in hurry and mistake, and through the inadvertence of the recruiting serjeants. Rut supposing these agreements had not been read, my orders, as proved by one of the prosecutor's witnesses, as well as by captain Mason, were always to read and explain those agreements to the substitutes, and which both he and captain Mason swear were duly observed. If the serjeant did not do so, was he so far my agent for the purpose of defrauding another without my concurrence? and by what law could I be responsible for his not doing that which I positively ordered him to do? If the complexion of the case, subsequent to my causing these receipts to be taken, is to bear on this question, I intreat the a guinea to their bounty. Four out of the six witnesses on this charge, and those adduced by the prosecutor himself, are men engaged by this militia insurer. But that I converted the guinea to my own use, I solemnly deny; and it is as solemnly proved on the trial, that I never touched it, but that the regimental taylor had it, and gave value for it: each man had for his guinea, a coat, waistcoat, and hat, and ultimately a pair of breeches also. They all had their regimental clothing in addition, and in the same year also. This plan of clothing was to benefit the service, and not for my own emolument; and although some men might have worn their slop-clothing a few months extraordinary, yet, upon the whole, the regiment was benefited, and no man was deprived of one single article of clothing which government allows. House to look to the evidence of the duke of Richmond: it will there be found, that I communicated the circumstance of the men having signed these receipts to his grace, to whom the men had complained, informing him, that when I enlisted the men, I had agreed to give a certain sum of money, including their marching guineas, and that that circumstance was expressed in the receipt for the bounty. His grace, in several conversations, gave it me as his opinion, that the men who had given receipts could not make any farther claim on that account, always supposing such receipts to have been bond fide given. This matter was peculiarly referred to his grace, and, according to the prosecutor's letter, dated March, 1794, the matter there rested as a disputable question with him. I beg farther to refer to the production and full discussion of these receipts, among my officers at Shoreham; and however irregular some may have deemed these receipts, yet there and in all our meetings, neither the prosecutor, nor any other man, ever suggested the idea of a fraud; and he has ever represented me so pertinacious in my opinion of my receipts, as constantly, and in all companies, to assert their validity, to commit them into all hands, to declare my readiness to try the question, and to leave these to the captains to do any thing that might draw an inquiry on them. Are these the acts of a man who has committed, or authorized a fraud? The 3rd, 4th, 5th, 6th, and 7th charges are dividable into two heads: the first, a corrupt receipt of monies for a corrupt purpose, and the converting to my own use that money: the second, an embezzlement of monies taken for an innocent or an indifferent purpose. This first point comprehends the discharge of deserters and other men, giving money to provide a substitute; the second, the non-immediate application of monies destined to provide the regiment with recruits. To the first, I entreat the House to observe, that having undertaken the recruital of the regiment in part, as other As to the eighth article, which accuses colonels of a regiment might have done, me of deducting a guinea from the boun-I did conceive myself at liberty to permit, ties of the soldier, alleging it to be so under some circumstances, men to quit done for clothing, and converting it to the regiment on their putting into my my own use, I answer, whether the guinea hands a sum to procure a man in their was deducted from the bounties, or whe- place; and I did conceive that if I contither it was agreed that it should be ex-nued without intermission that recruital, pended in slop-clothing for the recruit before he ever enlisted, is a matter of fact which the House will judge of on due reference to the evidence before them. But the proof that the men did contract for slop-clothing is, that they complained that the contract had not been fully performed on the part of the regimental taylor, and that this also was the system at the board; a system adopted on the suggestion of the prosecutor himself, to prevent desertion. One witness has sworn, that he informed all his men, before they engaged with him, that the deposit and payment of the guinea at the board, would be required of them when sworn in, for which reason he added I fully, and not corruptly, discharged the engagement which I so contracted. On this principle I did discharge some of the men who were deserters, but no more than three in the course of three years. For I solemnly deny, that I knew of the discharge of two men, mentioned in the charge: one or two men, not being deserters, I also discharged, whose particular situation rendered them anxious to quit, and who were considered by me not fit for the service. These sums were openly proposed, and openly received, for the purpose of finding other men; but I in no case took such sums of money as a bribe. The House cannot draw an inference from hence that the money paid very suspension found me in the summer of 1795, in the act of expending it. was a bribe to me to pardon and discharge the men; for the evidence proves that the money was expressly taken by me, in order with it to find another man; that I received it as such, and on written documents that I acknowledged it for that purpose received. I have expressly charged myself with that money for that purpose. Can the House, then, conclude it was originally given for any other purpose, than the evidence proves it was given for; or infer an intention contrary to the fact? Sir, I beg leave to ask, what constitutes the prominent features of the conduct of a man, corruptly receiving money for a corrupt purpose? what, but extortion, rapacity, and secresy. I have not taken advantage of the situation of any man having deserted, nor proportioned my demand to his expectation of punishment, nor requested my name not to be mentioned, nor burned, nor obliterated the proving documents; but, on the contrary, have ever given them away against myself. It is true that deserters have, in some instances been posted to persons from whom I had received money to provide a man for; but this was a practice which I found when I came to the board, and which not thinking either criminal or er-yet, when I first took the command of it, roneous, I never contradicted. The monies arising from all these circumstances, constituted publicly a fund in my hands to be applied in finding men for the regiment. That fund I so employed, and it was every day diminishing; it was every day applied towards the purpose for which it was received. If I originally received that fund for the purpose of getting substitutes, and was daily so applying it, I ask the House when the embezzlement began, and by what it is proved? I entered into a competition with the recruiting for the city of London; I gave two guineas more than they allowed. I held additional boards, and got many of the best men, who otherwise would have enlisted with them. I paid all the expenses of enlisting myself. I paid all the bounties myself. I applied the fund I had received for the purpose for which it was received. Neglect and delay (if even they had existed) in applying this fund, might call down upon me a military censure; but my moral character, my character as a gentleman, will not, I trust, under these circumstances, stand impeached, when nothing but the suspension of my command, prevented me from expending every shilling I had received, and when that As to the charge of rejecting fit men, and engaging unfit men, on account of the difference of bounties, I must refer the House to the evidence, to learn, whether I, in any instance, so did; or whether my agents did so by my orders; for the reason alleged in the charge, I do not fear that the House will find that fact wilfully done by me or any of those whom I employed; and although it may be true that the bounty given for men was not always coextensive with the sum received for the purpose, yet the saving resulting from thence it was never my intention to convert to my use; but, on the contrary, I have proved my having expended on the regiment a sum of above 4,000, which far exceeds any savings I could have in hand from any surplus of bounty, and no part of which is allowed by government. To the charge of wilfully keeping the regi ment incomplete, though it be true, the severe epithets of the article of war are not introduced, as in the other charges, yet I cannot refrain from observing, that though this regiment, at the time of my suspension was deficient in numbers 88, it was 164 deficient. As to the charge of making a false entry in my orderly book, relative to a decision of a regimental court-martial, I solemnly deny the wording of that entry; and it does not appear on the evidence, that I ever gave any order on the subject, except by telling the serjeant himself, whom I restored to his rank, to go to my serjeant major and to tell him to put him in orders again as serjeant, without in any manner alluding to a court-martial at all. The man did so; he communicated my general order himself to the serjeant major, from whose misconception of the man's situation the wording of the order must have become erroneous. To the fact of the erroneous return, my answer is, that it was entirely unknown to me, and occasioned by the circumstance of the regimental clerk being ignorant of the discharge of some men whose names were improperly by him inserted in the roll; but this seems to me so solely a military offence, that I shall be silent upon it. Sir, to compress the substance of my defence into such a compass as could retain the attention of the House, I do not conceive possible, considering the voluminous size of my trial; but what I have not been able to do, that I trust the House will, on examining into my fuller and printed defence, see whether it accords with the evidence produced before the court, and whence I trust, that though my conduct, in point of military regularity, may not be found wholly unblamable, yet my moral character, in my civil capacity, will not necessarily be found to deserve that, after the punishment I have already submitted to, the effect of those epithets should remain attached to it. I farther must beg leave to intimate to the House, that it may possibly appear to them, that the court-martial did exceed their jurisdiction, in putting me on my trial on several articles of accusation, for which I conceive I was responsible solely in my civil capacity; and that as I protested against that excess of jurisdiction, and I called on the court or judge advocate, to take the opinion of his majesty's law officers, on those points, and which I do not learn was done-I say it may possibly be the opinion of the House, that should they even be disposed to carry my punishment still farther, in so doing, they must necessarily give their sanction to that which I humbly conceive was an unconstitutional act. Sir, I have not yet learned that there does exist any precedent of a proceeding in this House, against any of its members, grounded on any military sentence or proceeding. Dear to me as the rights and privileges of this House are, it is not for me, in my situation, to stand as it were in their defence, but to leave to the House in its wisdom to decide and discuss, how far a precedent established in my person may affect the relative situation of the House and the army, and what effect or possible control on the House such a precedent may produce, by seeming to authorize, in times less constitutional, and under a less firm government than that under which we live, a virtual influence of the military over the members of this House. Perfectly resigned to the determination of the House, I here close my defence. Mr. Cawthorne then withdrew. General Smith said, that the task which had fallen to his lot, of instituting an investigation into the personal misconduct of a member of that House, was a most painful one; but the performance of his duty was with him paramount to all other considerations. He had read the proceedings of the court-martial with great attention and the more he examined them, the more he was convinced of the justice of the sentence. It was with regret he perceived that the crimes imputed to the unfortunate member were not, as he had attempted to show, an error in judgment, or the casual conduct of a day; but that he had persevered in them for a considerable time. There were two or three points to which he would call the attention of the House; and first, as to a conversation said to have been held by this unfortunate member with another colonel. It appeared from the evidence, that the defence he had set up, on the score of inadvertency, was not founded in fact. When it was observed to him, that his conduct was disapproved of by his general, what was his reply? "I dont care a damn for my general; my brother officers agree with me that I should not, and I will not." What terms were strong enough to reprobate such a speech? His brother officers, so far from countenancing his conduct, frequently expressed their surprise at his having so long withheld from his men what was granted to them by parliament, and could scarcely be induced to believe he could be guilty of such offences. This was done at a time when there was considerable apprehension of tumult and discontent in the regiments. This consideration was no small aggravation of his guilt. He had heard much of precedents, but he should quote none of them, because he thought it unnecessary. Indeed in what he was doing he was following the impulse of his own mind merely; he did not know there was one man in the House who would second his motion. The great object he had in view was that of keeping up the respectability of the militia, which was so essential to the safety of the country. If once the character of that body, for honour, integrity, and independence should be gone, farewell to the internal security of Great Britain. The House should not suffer a man to continue a member, who had done that of which the unfortunate gentleman had been proved to be guilty. He should therefore move, "That the said John Fenton Cawthorne, esq., having been found guilty of the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 11th, and 13th, articles of charge, mentioned in the said proceedings, in the terms expressed in the sentences given thereon by the said courtmartial, be expelled this House." Mr. Wigley conceived that the House should pause before it came to a decision, and did not think any gentleman competent to form a judgment who had not read the minutes of the trial. He had perused them with infinite care and attention, and he was firmly persuaded that the unfortunate member did not act so much from corrupt motives as from an error in judgment. The charge with respect to the marching guineas, he considered not to have been made out on the trial; for the men, when the troops marched to Hounslow, were paid. Of 533 guineas, he had paid all away at Hounslow, except 101; if peculation was his object, he would certainly have kept the whole. In November 1794, the officers had a meeting; they did not then attribute fraud to the unfortunate member; they only came to a resolution, that the men were entitled to their marching guineas, and ought to be paid. With respect to the charge of taking money for substitutes, it would be found that he did not act through a corrupt intention, but through motives of humanity; for in three years not more than three men were discharged, and two of the three were unfit for service. The unfortunate member expended out of his own property, 400 guineas, for the benefit of the regiment; and it was not likely that a man, who was liberal in such large sums, should be guilty of a fraud to obtain small ones. It might be said, that the sentence of the court-martial precluded farther inquiry; but he, for one, could not be satisfied, except from an examination of the proceedings, and he hoped the House would not be convinced with less. The hon. general had talked about precedents; but he was sure he could produce no precedent in which the sentence of a court-martial had been made the foundation of an expulsion. It had been said, that if full effect was not given to the sentence of a court-martial, it might be productive of bad consequences to the discipline of the army; but if these sentences were carried to the extent now proposed, they might be productive of consequences much more serious; for courts-martial, in the hands of a despotic monarch, would then become a very serious engine of oppression. With these impressions, he would move, "That the debate be adjourned till this day three months." General Macleod said, he agreed that the sentence of the court-martial, in this case, was perfectly just, and that that court had done honour to themselves, and justice to their country, by their conduct; but he took this matter up on a footing very different from any consideration which these topics involved. He did not think that the House of Commons was bound by the proceedings of a courtmartial: he did not think that they were bound to enter into an examination of the voluminous book then upon their table. The object he had in view, was to prevent any member of that House from being subjected to expulsion merely on the authority of a court-martial. If this was to be a reason for his expulsion, then there would be an extraordinary increase to the influence of the crown? Any mem ber might be tried and broke by a courtmartial appointed by the crown, and then some person in that House attached to a corrupt minister, might move for the expulsion of such a member, and upon the authority of this case, he must be expelled. This case, therefore, might form a very dangerous precedent. The hon. general had quoted no precedent where a member of that House had been expelled, because he had been broke by a court-martial. He believed there was not such an instance. He remembered, on the contrary, the case of a noble lord who had been cen. sured by a court-martial, and who afterwards, so far from being expelled, was a member of administration. This occurred during the American war. The sentence was ordered to be read to the army, as this was to the militia. But was that sentence followed up by a vote of expulsion? Certainly not. And yet that was a charge of a much higher nature than the charge now brought against the unfortu nate member. Viewing the subject in this light, he must vote for the amendment. Mr. Pitt said, that the proceedings of the court-martial afforded prima facie evidence, which rendered the unfortunate person, who was the object of them, an unfit member of that Housc. Two questions naturally offered themselves to his consideration. First, whether the charges proved by the decision of the court-martial were such, as to make the unfortunate object of them unworthy of a seat in parliament? Second, Whether any plea had been urged, to afford a presumption, that the decision was such as the House was not bound to regard? He would not say, that the decision of a court of law was such as to exact, in all cases, without previous examination, an implicit |