CANTERBURY ELECTION. (Hansard, 15 August 1853)

§ MR. CRAUFURD
said, he rose to move, according to notice, an Address to Her Majesty for the production of the papers 1727 referred to in the Minutes of Evidence taken by the Commissioners appointed to inquire into the existence of corrupt practices in the City of Canterbury. He must entirely disclaim being actuated by any party motive, or any desire to throw an imputation on the Commissioners, in moving for these papers. He would assume that the Commissioners were correct in their decision that it would be exceeding their powers to lay them before the House; but, whether that were so or not, he thought he could make out a strong primâ facie case to show that the House ought to interfere to procure their production. [The hon. Member then read several extracts from the evidence taken by the Commissioners bearing on this subject.] He contended that the papers for which he moved would show that there had been attempts at the subornation of witnesses. He was well aware that the Act of Parliament would protect Mr. Kingsford against any penal consequences for the disclosures he had made; but as they could not punish him legally, he thought if hon. Gentlemen were honestly desirous to purify the constituencies, it was their duty to hold up such an offender to condign moral punishment.

§ MR. W. WILLIAMS
seconded the Motion.

§ MR. LOWE
said, that until the hon. and learned Gentleman (Mr. Craufurd) had uttered his last sentence he was at a loss to understand the object of his Motion. He (Mr. Lowe) understood the case of the hon. and learned Gentleman to be, that a portion of the papers given in evidence before the Canterbury Election Commissioners had not been produced by them; that some attorney in the city of Canterbury was alleged to have been guilty of 1728 subornation of perjury; and the hon. and learned Member asked the House to require that the papers which the Commissioners, in the exercise of their discretion, had not thought it right to publish, should be produced. Now, the Act of Parliament under which these Commissioners sat, armed them with very high and searching jurisdiction—with a power of inquisition, indeed, which was entirely unknown to any other court of justice in this kingdom. In its zeal to put down bribery and corruption, Parliament had thought fit to give these Commissioners most paramount and transcendent authority with regard to their inquiries; but the exercise of that authority had been left to the discretion of the Commissioners. The Commissioners, in the exercise of their authority, had thought fit, in the course of the Canterbury inquiry, to require that certain papers should be produced to them for the information of their own minds, and for their guidance in the investigation; but they did not think it right, in the exercise of their discretion, to print these papers, or to submit them to the public eye. Now, he (Mr. Lowe) would ask the House whether, under such circumstances, they thought it would be wise to interfere with this exercise of discretion on the part of the Commissioners? Was it wise or right, in a case where a power had been exercised which he believed was possessed by no other court of justice in this country, with regard to the production of documents, and when the production of papers had been compelled, that the House should take from the Commissioners the discretion which had been allowed them, and drag before the eye of the public papers which the Commissioners had thought it fitting to withhold? No one could deny that the investigation in the case of Canterbury had been very full and complete, and had led to very decisive results. He (Mr. Lowe) apprehended that, so far as the results of that inquiry were concerned, the production of these documents could be of no public service. The hon. and learned Gentleman who had brought forward the Motion had admitted that any person producing documents before a Commission possessing the extraordinary powers confided to these Election Commissions, was protected from any penal consequences. The production of these documents could not, therefore, be necessary for the purpose of bringing an offender to justice; but the only object for which they were required must be to expose the practices and 1729 vilify the character of a country attorney. Now, was this a contest in which that House would think it fitting to engage? Parliament would never have been acquainted with many of the offences which were alleged to have been committed in Canterbury had it not been for the powers possessed by the Commissioners. The law sheltered offenders who were required to give information to the Commissioners from any penal consequences; and he thought it would ill become the House of Commons to say that they would drag into the light of day information which the Commissioners did not think it right to publish. In this view of the case, he (Mr. Lowe) had the honour of expressing the decided opinions of the Attorney General and the Solicitor General, both of whom were unavoidably absent, but who had desired him to tender their advice to the House, that it would not act prudently in consenting to this Motion.

§ MR. W. WILLIAMS
said, he must express his regret that the hon. Member for Kidderminster had, on the part of the Government, objected to the production of these papers. If the doctrine of that hon. Gentlemen was correct, it appeared that Election Commissioners had the power of suppressing or withholding any portion of the evidence given before them. His own opinion was that the House ought to be put in possession of the fullest information that was obtained with reference to corrupt practices at elections; but if they allowed the Commissioners to exercise their discretion as to the publication of evidence, they might as well at once put an end to the large expenditure which was incurred for these inquiries.

§ MR. I. BUTT
said, as he understood the facts of the case, they were these:—The solicitor of Mr. Butler Johnstone, when preparing to defend that Gentleman's seat for Canterbury, took down the evidence of witnesses and made marginal notes for his own private use and for the information of Mr. Butler Johnstone's counsel. The Commissioners exercising their jurisdiction, required that these papers should be produced before them. The solicitor refused compliance with their request, on the ground that it would involve a violation of professional confidence, and the Commissioners gave him two days to consider the matter and to obtain counsel's advice. After obtaining such advice, the solicitor produced the papers in question before the Commissioners, who used them 1730 for their guidance in the examination and cross-examination of every witness produced. The Commissioners, however, determined that they would not make these confidential notes of the solicitor evidence to be submitted to that House; and he (Mr. Butt) must deny the right of the House to interfere with or control in the slightest degree this exercise of discretion on the part of the Commissioners. He did not even believe that the Crown had any power to call for these documents. Even, however, if the House could compel their production, they would be exceeding their proper functions, he thought, if they insisted upon it. The Commissioners had gone quite far enough in extracting private memoranda; and if the hon. Gentleman persisted in his Motion for making those public to all the world, he certainly would be going much further than any private Member had a right to do without abusing his position, especially when his sole purpose—as he himself had stated—was to hold up to public obloquy a solicitor who went the same circuit with the hon. and learned Member himself, and who was in every respect—as the hon. and learned Member allowed—a highly respectable person. He had been in communication with Mr. Butler Johnstone, and that Gentleman felt that a very serious injustice would be done to him by compelling the production of private documents which had been used for the preparation of his case.

§ LORD JOHN RUSSELL
said, there was no doubt that the House, in inquiring into the existence of corrupt practices at any particular place, had a perfect right to examine an attorney as to any communications which had taken place between himself and his client, for he himself had asked such questions of an attorney under examination at the bar, and the House had decided that he was perfectly competent to do so. In this case, however, they had not exercised the jurisdiction themselves, but under an Act of Parliament they had delegated their power for inquiry into the existence of corrupt practices in the borough of Canterbury to Commissioners appointed under that Act. Having, therefore, transferred their powers, the thought they were primâ facie bound to suppose that the Commissioners had rightly exercised their jurisdiction; and it would not be justifiable in the House to suppose that the Commissioners had withheld from it any information which was necessary to enable it to come to a decision as to whe- 1731 ther or not corrupt practices had prevailed in the borough of Canterbury. That, it must be remembered, was the point to which the inquiries of the Commission were directed; and if the information which the hon. and learned Gentleman (Mr. Craufurd) wished to be produced referred to other subjects, he did not think that they would be justified in calling for it on such grounds as he had stated, however important in itself it might be. He should say, therefore, that the House would not do wisely in asking for the production of these papers. If, however, the House should think it advisable to call for them, the proper course would not be to address the Crown, because he did not think the Crown could properly exercise the power of calling on the Commissioners to do that which it had not required them to do when they were constituted. The proper course could be to send for these persons, and either to examine them before a Select Committee, or to compel them by the inherent authority of the House to produce the papers. He said this with reference to the general authority which they gave to Commissioners of this kind; but be could not say, with regard to these Commissioners, that he was much impressed with the discretion which they had shown in the exercise of their functions. Their great departure from the general rules of evidence which usually governed our English Courts of Law, and the great quantity of hearsay evidence which they had taken, did not strengthen the proofs so much as if they had adhered to the rules which usually obtained. There was no doubt that they were right in using the very great powers entrusted to them for the extraction of information; but he believed, if they had kept more closely to the general rules of evidence, the value and efficacy of that information would have been much stronger.

§ MR. FITZ-STEPHEN FRENCH
said, he should support the Motion. It would be a dangerous president to allow the Commissioners to suppress documents. The House would afterwards have to act on this Report, and they ought to have the whole of the evidence before them.

§ MR. CRAUFURD
, in reply, said, the noble Lord (Lord John Russell) was in error in stating that the papers were still in possession of the parties; they were in point of fact in the custody of Her Majesty, having been impounded by the Commissioners.

MR. HUME
said, he would appeal to his hon. and learned Friend, not to press the Motion to a division, as there appeared to be great doubt as to the right to order the production of these papers.