HC Deb 26 April 1842 vol 62 cc1118-27
Mr. Redington

appeared at the bar, and reported from the select committee appointed to try and determine the merits of the petitions, complaining of an undue election and return for the borough of Southampton, That John Fleming, Esq., a Member of this House, in the course of examination before the committee, had refused to answer a question put to him by counsel, on the ground that "it would be a betrayal of confidence, which would be improper and dishonourable on his part, and degrading to him as a gentleman, and that he could not conceive how his answer to the question could, in any way, affect this investigation;" and that the committee having decided, that the witness could not refuse to answer the question on the grounds which he had thus assigned, that the witness still persisted in his refusal.

Mr. Redington,

as Chairman of the committee said, he had no doubt that the House would feel that, under the circumstances, the committee had done what the act required. With respect to the witness, to whose conduct they had thought it necessary to call the attention of the House, they could not deal with him as they had done with the witnesses to whose cases attention had yesterday been directed—they could not commit the hon. Member, whose name had been mentioned in the report which he had just presented; but it now became his duty to ask the House to interfere in the same manner that they had done with respect to other witnesses who were not Members of that House. He should move, that the hon. Member be required by the House to appear before the committee, and give the evidence required; previously, however, he should move, that Mr. Speaker do inquire of the hon. Member, whether he persisted in refusing to answer the questions which had been put to him by the committee. If the hon. Member should so persist in his refusal, then he intended to move that the same course be adopted respecting him that had been taken with regard to the witnesses yesterday.

Ordered—

That John Fleming, Esq., a Member of this House, be asked by Mr. Speaker, whether he persists in refusing to give evidence.

Mr. Fleming,

in his place, stated, that as a man of honour and a gentleman, he continued to object to answer the question which had been put to him in the committee, and that the facts of the case were these:—Upon his return from Ireland, six weeks after the election, he was informed, that a considerable sum was due to the agent for legal expenses at the last Southampton election; that he thereupon stated the case to his friends, and collected a sum of money for what he considered the legal expenses of the election;—that he considers that the answer to the question cannot have any bearing upon the trial of the election petition; and that the question was only asked for the purpose of introducing honourable names before the public to peck at and comment upon.

The Speaker

then suggested, that the hon. Member ought to withdraw.

Mr. Fleming

begged to inquire if he might be allowed to offer any explanation of the course which, after the best consideration he could give the subject, he had resolved to pursue?

The Speaker

said, that doubtless the House would be ready to hear any explanation which the hon. Member might desire to give.

Mr. Fleming

begged to assure the House how very painful it was to his feelings that any action of his should be reported to them with a view to its being censured, but he wished in the first place to say, that in refusing to answer the questions put to him, he had not intended the slightest dis- respect to the hon. Chairman, or to any Member of the committee. If he were guilty of the conduct imputed to him by the petitioners, he should be utterly unworthy of holding a seat in that House, and he must say, that he did not think his answering those questions would in the least degree, assist the committee in coming to a right conclusion, touching the matter on which they had to decide. He should now trouble the House with only a very few words. Immediately after the termination of the election for Southampton, he went with his family to Ireland, and there he remained till the assembling of Parliament. When he returned, he was told by several persons at Southampton, that a considerable portion of the expenses of the election yet remained unpaid, that they consisted merely of the legal expenses, the money due to agents, strictly legal expenses. He then wrote to some of his friends, and subscriptions were forwarded to him, which he paid in at the Bank to the account of the parties by whom the election was conducted. This occurred not before, but six weeks after the election—it could therefore serve no purpose of corruption, and he conceived that in the course he had taken, he had done nothing wrong. The communications which he received in reply to his letters were of a confidential nature—he could not with honour disclose them, and he confessed he did not see the use of disclosing them. It would almost seem, that the object was to gratify an impertinent curiosity, or perhaps to lay hold of some honourable names to peck at. Could he as a gentleman betray the confidence that had been reposed in him by private friends for no public object? As a man of honour and a gentleman, he should be unworthy to retain his seat in that House if he did so.

The hon. Member left the House.

Mr. Redington

trusted that, as Chairman of the Southampton Election Committee, every hon. Member would do him the justice to believe that he acted upon this occasion only in discharge of his duty. The committee were perfectly willing to respect those feelings which every gentleman must have with regard to confidential communications made to him; but still when called upon to do their duty as judges, and to decide as to the legality or illegality of the course pursued by a witness, they must not let personal feelings interfere with the proper execu- tion of their public duty. He could not, of course, go into the matter which arose before that committee, but he might state that a question was put by counsel to the hon. Member. The hon. Member refused to answer that question. That was in the report before the House. The usual course was for the committee to deliberate amongst themselves as to whether the witness had a right to refuse to answer the question; and after deliberation the committee decided unanimously that the hon. Member ought to answer the question. On the part of the committee, then, he would now only turn to the House and ask them, since they had said on the previous evening that select committees appointed to try election petitions were the sole judges as to whether or not parties under examination should answer the questions put to them, to say the same now. But as the individual who appeared at the Bar of the House on Monday evening was not a Member of the House, as in the present case, it would be necessary to make one alteration; he could not move that the hon. Member for Southampton be called to the bar of the House, but that he remain in his place, And be informed that the legal tribunal to decide upon his obligation to answer questions is the select committee appointed under an act of Parliament to try the matter of the petition; and that Mr. Speaker do also inform him, that any objection he has to urge must be submitted to the committee, and determined by them.

Dr. Bowring

seconded the motion.

The Speaker

having put the question,

The Attorney General

rose and said, there could be no doubt that whatever might be the private feelings of any Gentleman with regard to the obligations of honour and confidence upon his conduct in private life, all those considerations must vanish before the demands of justice, for the support of which, his evidence might be called. That had been so abundantly set forth in a variety of cases that it was hardly necessary for him to cite any case in particular; but he might be excused for mentioning a single one amongst the most remarkable— one indeed which was rather an historical than a legal case—that of Lord Barrington, who being called upon during the proceedings before the House of Lords against the Duchess of Kingston, to state whether he had not heard from her in the course of conversa- tion that she had been married to Captain Harvey, refused to make any answer, upon the ground that by so doing he should violate that honourable confidence which was held sacred in the intercourse of private society. The House of Lords adjourned, the judges were consulted, and the decision was, that the witness must answer the question; and Lord Barrington then gave the best answer he could in relation to a conversation which had taken twenty years before. There could be no doubt that the committee had the right to put the question to the hon. Member if they thought it material, and in that case the hon. Member was bound to answer it. The hon. Member having objected to give an answer, he thought the committee was quite right in referring the matter to the House, instead of in the first instance exercising any other power which might be vested in them as a judicial tribunal. If, however, he were asked the question, he must say, that any hon. Member attending as a witness before an election committee was in the same position as a witness in a court of justice, and was liable to like penalties for refusing to give evidence. But while it was the province of the committee to commit a witness refusing to answer a question into the custody of the Sergeant-at-Arms, it was also their province, if they pleased, to remit that, and instead of taking that course, to make a report to the House, through their Chairman, of any person who should refuse to give evidence, and to leave the case for the interposition of the House. He was disposed to think, therefore, that the committee had exercised a discretion in the case consistent with the respect which was due to the House by abstaining in the first instance from committing the hon. Member for Hants into the custody of the Sergeant-at-Arms, and when the hon. Member perceived what was the opinion of the House, and what he (the Attorney-general) was certain must be the opinion of every hon. and learned Gentleman connected with the legal profession, that he was under a legal obligation to answer the question which had been put to him, and that no sentiment of honour such as that upon which he relied was sufficient to exonerate him from the social duty which he owed to the community—he trusted that the hon. Gentleman would take a different view of the position in which he stood, and that he would conform himself to the decision of the committee: for after all, it would be for the committee to decide what course the hon. Gentleman should take in respect to the question which had been put to him by the counsel. Where a witness was under examination in a court of justice, and a question was put to him which he declined to answer, he had repeatedly known an inquiry take place as to whether that particular question was pertinent to the subject matter of the inquiry or not, and the court, having decided that point, would direct the witness accordingly. And in the present case it was not because a particular question was asked by the counsel that the committee were bound to enforce it. It was for the committee to say, whether the question was relevant or not, and he would recommend the hon. Gentleman and the House to place implicit confidence in their decision. If the committee had not vested in them that power which the law gave them, he was quite sure that the House would repose full confidence in their discretion. He was sure the committee would do their duty; but he thought it was quite right to intimate to them that it by no means followed that because any particular question was put to a witness by the counsel in the case, and was pressed by him, that therefore an answer ought to be enforced. If the committee felt that the object of the question was not the furtherance of justice, but to obtain some disclosure that might be painful to the party under examination, they would not call upon the hon. Gentleman to answer. He, however, had a perfect reliance that they would exercise their discretion properly, and with a due regard to the justice of the case and the feelings of the party.

Mr. Roebuck

said, that humble as he was, he supposed he might say that he agreed with the law laid down by the hon. and learned Gentleman. But he wanted to know—because he recollected the position in which they were—why they were made a court of appeal. Was it not so? Why, then, were they appealed to? He would not be asked to act as a judge as a matter of courtesy. Before he acted as a judge he must have evidence; and he wished to know whether a witness before a committee of the House of Commons was to be placed in a situation in which he could not be placed before any other tribunal? If he were before the Court of Queen's Bench, and a man were to ask him if he had committed a murder, and if he were guilty, he should say, that he did not intend to criminate himself, and therefore he would not answer the question, the Court would say that it was an improper question to put, because it tended to criminate the witness, and therefore it must not be put. Now, he did not know that in the present case there was a danger of crimination, nor did he put the question in an invidious form as touching the hon. Member, for he was rather with him than against him; but he put it in this extraordinary way to carry out the principle he wished to enforce on the attention of the House. Was a witness to be asked a question, and forced to answer it upon pain of imprisonment, which would tend to criminate himself? He knew that a bill had been brought into Parliament to meet this difficulty, but it was thrown out by the House of Lords. He did not want to mix up this question with party politics. He cared not about what party was concerned in this case, though he was glad that it was an hon. Member on the other side. ["Hear" from Mr. Leader.] He wished the hon. Member would not interrupt him. He wished to discuss the question upon purely legal grounds. He wished to know from the law officers of the Crown, and those Gentlemen who were connected with that honourable profession on both sides of the House, whether any one of them, would be bold enough to say that it was the law of England, acknowledged by the judges, and expounded by them, who had hitherto been above all imputation—that a man coming before any tribunal in this kingdom was bound to answer any question which might tend to criminate himself? [" No, no. "J The learned Attorney-General said "no." Now then came the question,—how was that House to determine that any hon. Gentleman, or any private citizen, must be compelled to answer a question unless they knew whether it would criminate himself? They could not know it until they knew what the question was. Therefore he, for one, would protest against being called upon to decide upon any matter of which he knew nothing. He would not vote blindly upon any question whatever. He therefore wanted to know what the question was.

Mr. O'Connell

said the hon. and learned Gentleman had argued the question very emphatically, but without the least appli- cation to the facts of the case. The hon. Member for South Hampshire bad not said that he entertained any apprehension that his answer to the question would criminate him; on the contrary, he said directly the reverse, and he made a merit of it, instead of considering it an error. Therefore the House must not be led away by the supposition that the object of the committee was to compel a man to answer a question which would tend to criminate him. The person who should judge in such a case was the witness himself; he alone must know whether his conduct was bonâ fide or not. Suppose that this were an action in the Court of Queen's Bench, and that the hon. Gentleman were produced as a witness and said, not that he would criminate himself by answering the question put to him, but that from motives of Gentlemanly honour, and of the purest and most delicate nature, he declined, being unwilling to violate private confidence—would the Court of Queen's Bench hesitate one moment? Would any lawyer say, that the Court of Queen's Bench would not at once reply, "We are very sorry to trespass upon your feelings, but the reason is insufficient for not giving the answer?" As to the case of Lord Barrington, that was one of a private conversation with a lady. It was, therefore, one of extreme delicacy. But even the objection of Lord Barrington was overruled. And did not the House know that medical gentlemen, the first in their profession, whom no bribe of property, however large, or personal advantages, however tempting, could compel to disclose facts confided to them, had been forced, notwithstanding their honourable reluctance, to reveal all they knew, and to violate the confidence reposed in them in the course of their professional engagements? When a man was sworn to give evidence, he was sworn to speak the whole truth respecting every thing concerning which the law inquired of him, as far as he possessed any knowledge of the facts. With great respect, therefore, for the hon. Member for South Hampshire, he must tell him that he was really violating his oath in refusing to give an answer to the question. He had not the honour of being acquainted with the hon. Member, but he believed him to be, it was manifest from his manner, as incapable as any other human being of wilfully violating his oath; but still he was doing it in the face of the tribunal which had decided that the question ought to be put. Of course the committee would reconsider the question, and not enforce an answer if they felt that any gentlemanly confidence would be violated, unless the answer was necessary to deal with the merits of the case. He respectfully submitted to the hon. and learned Member for Bath that he had raised a question which was not then in discussion; indeed, there was no question at all to discuss, but whether or not the motion of the hon. Chairman of the committee should be agreed to.

Sir R. Inglis

said, he had risen at the same time with the hon. and learned Member for Bath to object to the sweeping position laid down by the learned Attorney-general that a witness was bound to answer every question put to him. Every question should be qualified, certainly, by the relevancy of the question, by the consideration of its affecting the individual witness himself, by that which every student at law must know—the confidence that must be maintained between a professional agent and his client, and lastly, by the relation of the question to the matter in issue. He, for one, greatly regretted the introduction of such questions as this into the House; but now they were called upon to consider, not whether the question was pertinent or not, but whether the witness did or did not refuse to answer the question. What they decided on the previous day, and what they must decide on that day, was not as to the relevancy of the question, nor whether the question should be put or not, but whether or not the committee was the only tribunal which should decide both those points. He objected to that House making decisions upon questions before the appointed election tribunals; and he much regretted that appeals were made from election committees to that House. All that he understood to have been done on Monday was, that the witness was not directed to answer any particular question, but to go back and submit himself to the authority of the committee; and he thought that all that would be now required of the hon. Member for South Hampshire was, that when he returned to the committee, whether the question were relevant or not, he would urge his objection to it, and by the decision of that committee the hon. Gentleman and that House must be bound.

Mr. Forbes

wished to know what the committee would enforce in case the hon. Member persisted in his refusal to answer the question.

Question agreed to and an order made in the words of Mr. Redington's motion.

Mr. Fleming

immediately attended, and stood up in his place.

The Speaker

addressing him said, I feel that I shall best discharge my duty on this occasion by reading to you the resolution which the House has just agreed to— That John Fleming, Esq., be desired to attend in his place forthwith, and informed that the legal tribunal to decide upon his obligation to answer questions is the select committee appointed under an act of Parliament to try the matter of the petition; and that Mr. Speaker do also inform him that any objection he has to urge must be submitted to the committee, and determined by them. The hon. Member bowed and resumed his seat.