Sitting of 10 March 1807

MINUTES.
—The following are the names of the members remaining on the reduced list of the members chosen by ballot to try and determine the merits of the Petition complaining of an undue election for Taunton; T. S. Gooch, esq. sir John Aubrey, G. Baillie, esq. John Pattison, esq. sir T. Mostyn, R. Morris, esq. W H. Fellowes, esq. Cecil Forrester, esq. R. Manners, esq. E. M. Mundy, esq. hon. J. W. Grimston, John T. P. B. Trevanion, esq. R. Holt Leigh, esq. Nominees; sir J. Dashwood King, bt. right hon. N. Bond.

PETITION OF MR. COCHRANE JOHN-STONE.
Mr. Whitbreadstated, that he held in his hand a Petition from the hon, Andrew Cochrane Johnston, late colonel of the 8th West India Regiment, and governor of the Island of Dominica. Before he opened the subject of it, he thought it proper to explain to the house, that he had not the honour of the petitioner's acquaintance. He never saw him until yesterday, when he had a few minutes conversation with him. The petition, he understood, had been offered to several members who had declined presenting it. In conformity with a principle which he had laid down for himself, he thought it his duty to present it, at the same time he begged to be understood as not being in the smallest degree pledged to the truth of the allegations contained in it.
The Petition was then presented and read. It stated, "That the petitioner, previous to the month of October, 1803, had served as an officer in the army, upwards of twenty years; that-he had risen in regular gradation, from the rank of ensign to that of colonel; that of his time of service, thirteen years had been spent upon foreign stations, frequently under circumstances of great fatigue and danger; and, that, during the whole of the said service, he had never, upon any occasion, incurred the censure or displeasure of any one of his superiors, but had generally the satisfaction to meet with

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their marked approbation. That brevet promotions in the army are made according to seniority of rank, and that for an officer to be passed over in such promotion is a deep disgrace to him. That, in the afore said month of October, 1803, a brevet promotion of major-generals took place, in which promotion the name of your petitioner was purposely omitted. That, sensible of the disgrace thus inflicted on him, and conscious that the infliction was unjust, he immediately applied to His Royal Highness the Duke of York, then and now commander-in-chief of his Majesty's forces, to know the cause of punishment so severe and unexpected. That it was upwards of two months before he received any answer that all to this application, and that he Was then informed of the cause of his punishment, by a letter from the Duke of York, dated on the 10th of December, 1803, containing the following words:— "It is an invariable rule of the service, not to include in any general brevet promotion, an officer (whatever may be his rank) against whom their exist charges, the merit of which has not been decided; but, whenever an investigation shall have taken place, and, should the result prove favourable to you, there will not be any difficulty in your recovering the rank, to which your seniority, as colonel, entitles you." That it was with great surprise, that your petitioner thus, for the first time, learnt, that there were charges existing against him; and, it was not without some degree of indignation, that he perceived, that he had been punished upon the ground of mere charges preferred in the dark; that these charges had never been communicated to him, and, moreover, that, even of the existence of which charges he was not informed, until upwards of two months after he had been punished, and had complained of his punishment. That your petitioner, upon receiving the letter aforesaid from the Duke of York, lost no time in most earnestly soliciting his Royal Highness to afford him information as to the nature and purport of the charges existing against him; but, that, unto his repeated entreaties for this purpose, no answer whatever was he able to obtain, until the 28th day of the ensuing month of May, when, after having been thus kept in a state of suspense and disgrace for six months, he was informed, by order of the Duke of York, that he, the Duke of York, had now called upon Major Gordon (the accuser) to state whether he meant to bring forward any charges at all
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against your petitioner; so that, as your honourable house will perceive, your petitioner was now, informed, not of the nature of the charges against him, but that the Duke of York had not yet ascertained whether there were in existence the grounds whereon to form any such charges, though, as it will be perceived by your honourable house, your petitioner had actually been punished, upon the ground, as stated by the Duke of York himself, that charges existed against your petitioner in the preceding month of October. That your petitioner, conscious, that no criminal charge could, with truth, be preferred against him, impatiently waited for the day of trial, which, however, to the great vexation and injury of your petitioner, was delayed until the month of March, 1805, though, according to the Duke of York's letter of the 10th of December, 1803, the charges actually existed against your petitioner in the month of October preceding,—a year and a half before it was thought proper to proceed upon them. That previous, however, to the assembling of the court martial, before whom your petitioner was sent, stigmatized with having now been passed over in two general brevet promotions, some circumstances occurred, to which your petitioner humbly presumes to solicit the particular attention of your honourable house. That your petitioner having stated to Sir Charles Morgan, the then judge advocate general, his objection to Mr. Oldham as a person to officiate as judge advocate at the approaching trial, and which objection was founded upon the partial conduct of Mr. Oldham upon a recent occasion, Sir Charles Morgan informed your petitioner, that, in consequence of such objection, he had had an intention of appointing some other person to officiate at the court martial: but that he had recently received an application from His Royal Highness the Duke of York, specially requesting, that Mr. Oldham might officiate; and that this had determined him (Sir Charles Morgan) to employ Mr. Oldham upon the occasion. That your petitioner, at no loss as to the motive of this interference, adhered the more resolutely to his aforesaid objection; but that, though he, finally, and with much difficulty, succeeded in this point, he, to his great mortification, found, that, immediately afterwards, the seat of the court martial, which was, by the order of the Duke of York, actually assembling at Canterbury, whither, towards the end of February, your petitioner and several of his witnesses had repaired, was, all of a sudden,

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removed to Chelsea, notwithstanding the remonstrance of your petitioner, who, in letter to the judge advocate general, dated on the 21st of February, 1805, stated, that "great inconvenience and expence would be occasioned by this change, as well as the impossibility of transmitting timely notice of it to the witnesses, particularly those resident in distant parts of the kingdom." That, in spite of all the disadvantages, by these and other means created, your petitioner was honourably acquitted upon all the charges preferred against him, notwithstanding so much study and preparation had been used in the producing of those charges; that, not only was he so acquitted, but there was not brought out in evidence, one single fact tending in the slightest degree to shew, that the accuser himself could possibly ever have believed any one of the charges to be true; and that it was glaringly evident, that the whole of the accusation consisted of falsehoods invented for the sole purpose of injuring the fame and the fortune of your petitioner, and of giving the colour of justice to the punishment which had already been inflicted upon him. That your petitioner, upon the result of the trial being made known unto him, did, on the 18th of April, 1805, endeavour to obtain an audience of his royal highness the duke of York, in order to obtain, in the list of major-generals, that place to which his seniority entitled him, and in the obtaining of which he had, by his royal highness, been informed, there would be "no difficulty, provided the result of the court martial was favourable to him." That your petitioner, having been refused access to the duke of York in the first instance, having been unable by other means to obtain any satisfactory answer to his repeated applications, tendered the resignation of his commission as colonel, resolved no longer to remain in a service, in which he was so unjustly held in a state of degradation. That, as to the grounds, upon which the application of your petitioner was rejected, your honourable house will have observed, that the decisions of all general courts martial are communicated to the king by the judge advocate general, who, when he has thereupon received the commands of the king, communicates them to the commander-in-chief, together with the king's remarks thereon. That, in pursuance of this practice, Sir Charles Morgan, having first laid the decision of the court martial aforesaid before the king, next communicated it to the duke of York, subjoining there
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unto, as coming from the king himself, a remark, that, as to the principal charge, the court had been inhibited by Jaw from proceeding upon it, owing to the crime alledged having taken place more than three years previous to the date of the warrant for the trial, and that "his Majesty considered this lapse of time to have been owing to an improper conduct of the prosecutor." That as your honourable house will not fail to perceive, this remark was calculated to cause it to be believed, that, if no lapse of time had so taken place, and if the court martial had not thereby been inhibited from proceeding on the said charge, the said charge might have been established against your petitioner: whereas, the facts were; 1st, That the act charged, was alledged to have taken place previous to September 1801; 2d, That an investigation into the conduct of your petitioner was contemplated by the duke of York in October 1803, and upon that contemplation he withheld the name of your petitioner from the brevet promotion; 3d, That, between September 1801 and October 1803, only two years and one month had elapsed; 4th, That beween October 1803 and August 1804, when the warrant for the trial was, at last, issued, your petitioner did make urgent and repeated requests to the duke of York, that the trial might take place without delay; and 5th. That your petitioner, apprehensive that a plea of lapse of time might be made use of, for the purpose of leaving a blemish upon his reputation, expressly requested, in a letter to the adjutant general, dated on the 22d of June 1804, that "no part of the grounds, on which major Gordon had proposed to found, his charges, should be kept back from examination;" from which facts your petitioner is satisfied, that it will clearly appear to your honourable house, that if the court martial was inhibited from taking cognizance of the charge aforesaid, the inhibition was to be ascribed solely to those concerned in framing and bringing forward the prosecution. That, however, to the most important fact, connected with the aforesaid remark of the king, it remains for your petitioner to pray the attention of your honourable house; namely, that notwithstanding the lapse of time, the court martial actually did, before they perceived such lapse, fully investigate the merits of the said charge; that the charge was, by evidence the most complete, clearly proved to be utterly false, and destitute of the

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semblance of foundation; and that it was not until after such proof had been given, I that the court martial discovered that they were, by law, inhibited from taking cognizance of it. That it was nevertheless, upon the ground of the remark made by the judge advocate general, in the king's name, that the duke of York, in a letter to your petitioner, dated on the 16th of May, 1805, refused to place your petitioner in that situation, as to rank, to which he was, by his seniority, entitled. That your petitioner, full of indignation at the injustice with which he had been treated, addressed a remonstrance to the judge advocate general, complaining of the aspersion cast upon his character by the putting of the remark aforesaid upon the records of the army, while, at the same time, the facts above stated by your petitioner were carefully concealed. That in answer to this remonstrance, the judge advocate general informed your petitioner, in a letter dated on the 26th April, 1805, that "since he had communicated to the duke of York the letter in which the aforesaid remark was contained, he had seen occasion to recall that letter, and to substitute another in lieu thereof leaving out the said remark, and that he had taken upon, himself to explain to the king, the reason why this remark" (made, as your honourable house will perceive, in the king's name, and as coming from the king himself) "was now omitted." That, thus, as it must be manifest to your honourable house, the judge advocate general has the power to communicate to the commander-in-chief remarks, in the king's name, upon the decision of every general court martial, from which remarks alone the commander-in-chief must according to his letter above mentioned addressed to your petitioner, "form his opinion upon the whole matter of each case;" that the judge advocate general has the further power of altering such remarks at his pleausure, not only without the orders, but even without the knowledge of the king, in whose name they are made; that this judge advocate general not only holds his office during pleasure, but is at the same time so much under the influence of the commander in chief, as to be induced, at his bare suggestion, to change his intention as to the person whom he shall employ to officiate in his stead at a court martial; and that, thus, the fame and fortune of all the officers of the army, (an establishment, the annual expence of which is now more than eighteen millions sterling)
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amounting, in number, to several thousands of gentlemen, connected by ties of blood, or otherwise, with no small portion of the rank and consequence and influence, in the whole of the community, are subject to the absolute will of one irresponsible individual. That, from this cause, your petitioner has suffered most grievous injustice, indignity, and injury; that, after a life of faithful, zealous, and arduous services, be has been driven, as above shown, to the alternative of abandoning his profession and his means of subsistence, or of retaining them accompanied with unmerited disgrace; and, that he, therefore, prays your honourable house, the constitutional protectors of the people's liberties arid properties against arbitrary power and oppression, to afford him redress, and to prevent, by such means as the wisdom of your honourable house it shall seem meet, the future recurrence of similar grievances. And your petitioner shall ever pray. ANDREW COCHRANE JOHNSTONE. London, March 2d, 1807."—The petition having been read, Mr. Whitbread moved, that it do lie on the table.
The Secretary at Warobserved, that as there was no pledge to bring forward any motion on this petition, he would now take the opportunity of saying a few words, because it had been spread abroad that he had pledged himself to bring this matter before the house. He was glad of this opportunity of giving a public contradiction to that charge. Some gentlemen who had been in the late parliament, might recollect the notice which he had given: but, as many of the present parliament might not be acquainted with the proceeding, he would state the case exactly as it stood. He had observed, in the case of Mr. Johnstone, and in many others, what appeared to him to be an abusive practice in military justice. This arose from the nature of the powers of the judge advocate. It seemed to him a strange impropriety that the judge advocate, in these cases, should be the only person consulted when a decision was given by the king, and that there should be no consultation the commander in chief, the person intrusted by his Majesty with the management of the forces, and who ought properly to be responsible. He therefore gave notice of a proposition to put an end to that practice. Subsequent to that notice, a change took place in his Majesty's councils, and this afforded him the means of applying the remedy without having recourse to parliament; and he was happy to state, that having

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made representations to his Majesty upon this Point, his Majesty had been graciously pleased to direct, that the proceedings should be conducted in future so as to answer the object Which he had in view from the beginning. The present practice, therefore, was, that the judge advocate did not receive his final decision on giving in his report, but that his Majesty afterwards signified his decision to the commander in chief, who was therefore responsible for the advice given to his Majesty on these occasions. Thus the injustice which was supposed to arise from the interference of the judge advocate was prevented. He would not object to receiving the petition, though he saw no advantage which could result to the petitioner from it. One of the objects of the petition was to obtain the restoration of his rank. This was a case in which the house could not in the least degree interfere. It was one on which it was impossible to frame any question which could procure the petitioner success. It would be an interference with the prerogative, which the house could not possibly sanction without extreme danger and inconvenience. Another object of the petition was, that the house should take such measures as might prevent the recurrence of such proceedings in future. It was unnecessary to petition the house on that particular point, as it had been already done. The judge advocate general was deprived of that power of which he had complained, and which he certainly would have made the subject of a motion, had not the Situation to which he was appointed afforded him an opportunity of putting an end to the practice. He begged pardon for trespassing on the house, but he thought it necessary to refute the idle and mischievous reports, the calumnies, he might say, which had been circulated respecting his conduct in this business.
Mr. William Dundasdeclared, that he did not constitute himself judge to determine what petitions ought to be presented and what not. All that he had to do was to take care that they Were couched in proper and respectful terms. Whether they were to be received
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or not was matter for the consideration of the house.
Mr. Plumer Mr. Plumer stated, that he had also had the petition offered to him, but had declined presenting it for the same reason that had been stated by the right hon gent. (Mr. Dundas), as he united with him in thinking that it was the duty of every member to exercise his own judgment as to whether a petition ought to be presented or not?
Sir E. Knatckbullstated, that he was in the same predicament with the hon. members who had spoken; but he united in the opinion of the hon. gent. who had presented the petition, as to its being the duty of every member to present any petition to the house, when couched in proper terms. He therefore rose merely for the purpose of seconding the motion which had been made.—The motion was then put and carried.

SCOTCH JUDICATURE BILL.
Lord Grenville roseto move for certain accounts, previous to the introduction of the subject, for the consideration of which their lordships were then particularly summoned. He had, on a former occasion, when he proposed to the house his intention of bringing in a bill for the regulation of the Courts of Justice in Scotland, adverted to the great inconvenience which the house had already suffered, and which it was likely yet to suffer, in consequence of the great number of appeal causes submitted to its judicial consideration. He should therefore at present trouble their lordships with two motions; first, that an account be presented to the house of the number of Scotch Appeals, from the year 1794 to 1801; and next; an Account of the number of Scotch and Irish Appeals, from 1801 to the present year 1807.—Ordered accordingly.
The Lord Chancellorhaving quitted the woolsack, observed, that he was induced to call the attention of their lordships to a communication made to him from the president and senators of the College of Justice in Scotland, for the purpose of being guided by the wisdom and decision of the house, on a subject in which he was unwilling to trust to his own private judgment and opinion. He had received from that body a memorial, adverting to the bill at present before the house, for the better regulation of the Courts of Justice in Scotland; but, as it contained no distinct prayer, nor complained of any specific grievance, he did not feel himself justified by any precedent in the Parliamentary History of the country, to present it to their lordships. He found, from a reference to a marginal note in the

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memorial, that the Court of Session grounded the present communication on two precedents; the first, when, in the year 1659, the Court of Session made an application in a similar manner to the parliament of Scotland.; and the other, that, in the year 1717, by the Act of Sederunt, the Court of Session did apply to certain lords, part of their own body, but who were also lords of parliament, communicating to them their opinion on certain legislative measures then in the consideration of the house. It was for the house to determine whether such precedent had any reference to the present case. Anxious as he was to obtain the instructions and opinion of so learned and venerable a body as the Court of Session, and naturally alive to the feelings and wishes of his native country, he still could not forget that he had to preserve the rights and privileges, the dignity and character, of the house. With such an impression, and in so delicate and important a matter, he felt it the most advisable method to govern himself by the wisdom and judgment of their lordships.
Lord Grenvilledeclared himself particularly satisfied with the motives and reasons which had induced his noble and learned friend to apply to their lordships for advice and instruction in the present case. But, though willing to give every credit for the caution which was observe, he still must assert, that the usages and forms of parliament, the practice and precedents of the house, were conclusive against the receiving of this memorial from the Court of Session. Parliament had uniformly, for the best and most salutary reasons, denied to any person or body, the right or opportunity of giving advice upon subjects submitted to its legislative consideration. This was of itself mandatory on their lordships, not to receive the communication alluded to by his noble and learned friend. But there was a further objection, arising from the uniform custom of the house, not to allow even petitions to be laid upon its table, coming from any alleged body, unless that body were legally and justifiably entitled to approach the legislature in a corporate capacity. He was convinced his noble and learned friend felt upon this subject, as he did; although he was conscious of the strong and powerful inducements which urged him to apply to their lordships. There was considerable attention to be paid to the venerable and learned body from whom this communication was received. This his noble and learned friend
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felt, together with an unwillingness to decide a question of such weighty importance on his own private opinion and conviction. With respect to the precedents referred to in the memorial, they would be found, on examination, by no means to apply to the present case. Whatever might be the nature of the connexion of the Court of Session, with the parliament of Scotland, one fact was clear, that no inference could be drawn from that circumstance, in any manner affecting the practice or decision of the house. It was unnecessary to enter into the minute differences: he should satisfy himself by saying, that the parliament of this country was so essentially different in its construction from the parliament of Scotland, that no act of the latter could be supposed as a justified precedent, by which the house should regulate itself. But the reference to the act of Sederunt, in the year 1717, when an application was made by the Court of Session, to lords of parliament, was, in his opinion, equally inapplicable to the present case; because it appeared, from an examination of that precedent, that the lords of the Court of Session applied only in the manner of remonstrance, to some lords who constituted a part of their court, and also fulfilled the duties of lords of parliament. He felt it impossible for the house to receive the memorial; at the same time that he was free to admit, that the house might receive much desirable information from having the opinion of that learned body laid before it. It was in their power to avail themselves of the right of petitioning according to the sanctioned and acknowledged principles of parliament. For his own part, he was extremely anxious to have the house put in possession of the opinion of that venerable court. From some of the suggestions of the memorial (for he had also been honoured with a copy of it from the lord president) he had received important information; on other points, he was still obliged to dissent. As far, therefore, as he was personally concerned, he wished their lordships to be enabled, from learning the objections of the Court of Session, to appreciate the value of those arguments, which he should think it his duty to state, in answer to such objections. He recommended his noble and learned friend to state, in his wonted respectful manner, to the learned person from whom he received the memorial, the insuperable objections which prevented him from presenting it to the house.
Lord Eldonwas of opinion, that although

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the house could not receive a communication from the Court of Session, in the manner in which the present memorial was made, yet it was of the highest importance, that the opinion and advice of so learned and venerable a body, on a subject which so peculiarly involved their interests and duties, should be fully in possession of their lordships, before they were called upon to decide on perhaps one of the greatest changes which ever took place in the administration of justice in any country. There were other modes, whereby that instruction and information could be obtained. For instance, it was in the power of the house to resolve, that the measure should be submitted to the opinion of the Court of Session, for the purpose of enabling it to gain beneficial information from the report which should be made. There were precedents for such a line of procedure, and it was for their lordships to adopt that which tended to promote the means of acquiring the most correct knowledge of the merits of the measure.
The Earl of Lauderdaleexpressed himself as anxious as any other noble lord, to have the opinion of the Court of Session laid before the house: but, at the same time, he wished to be fully understood, that in order to prevent any Farther delay in receiving such opinion, the lords of the Court of Session should petition the house in their individual capacity, for only in that capacity could their petition be received, With respect to one of the precedents referred to, it would be found by the preamble of the Bill on the Forfeited Estates, that the lords of the Court of Session were only heard as petitioners, or, as the bill more appropriately recited, as supplicants. He deprecated the proposal of consulting the lords of Session on the enactment of a legislative measure; such conduct would be inconsistent with the character and forms of parliament; it was a principle which the house never did nor could recognise. By the 10th of George I. parliament deprived the Court of Session of the right of interfering in the appointment of the judges, yet the house did not conceive it necessary to apply for information to the lords of the Court of Session, Indeed, in all cases where the history of parliament afforded an opportunity of inquiry, whether applicable to England or Scotland, he contended, that, however parliament might have deemed it necessary to apply to the judges for their opinions on points of law, it never did commit to their investigation a legislative mea-
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sure, in the agitation of which it then happened to be engaged.—After some further observations,
The Lord Chancellorsaid, that he would take upon himself to make the necessary communication to the learned lord from whom he received the memorial, without in any manner committing the house, or compromising its privileges or character.The Lord Chancellor said, that he would take upon himself to make the necessary communication to the learned lord from whom he received the memorial, without in any manner committing the house, or compromising its privileges or character.