HC Deb 10 April 1818 vol 37 cc1266-80
Lord Archibald Hamilton

rose, in pursuance of the notice he had given, to bring before the House his complaint of a breach of its privileges, by a member of the other House of Parliament He regretted extremely, being obliged to discharge so painful a task as that, which his duty imposed upon him on the present occasion, but he had in this business guarded himself from listening to anything, but that which could be sufficiently proved to make out a case to the House, founded on authority which could not be questioned. Such a case he would now submit to them, as must shield him from the slightest imputation of being excited by personal feelings alone. It would not be denied by any hon. gentleman who heard him, that the privileges and the independence of that House, were the sources of all the national power and prosperity. It was to secure those privileges and to support that independence, that he came forward on the present occasion; and therefore, whatever might be the result of his motion, he hoped he should appear to the House to have only discharged his duty in bringing the subject under their consideration. Frequently had the House of Commons been reproached for the manner in which it was constituted; and the best answer that could be made to the charges advanced against the purity of the House in many of the petitions that had been pre- sented for parliamentary reform, would be to evince a disposition to investigate cases of the nature of that to which he was about to call their attention. The country with which he was more particularly connected—Scotland, had been more peculiarly the object of such charges; (arising probably from the mode of election in that country, rather than from any thing in the character of the people); and it was, therefore peculiarly desirable, that any specific imputation on that country should be strictly inquired into. The case which he was about to detail to the House, regarded the county which he had the honour to represent.

In order that the House might fully understand the transaction, it was necessary for him to state, that, about a year and a half ago, sir Alexander Cochrane announced his intention of becoming a candidate at the next election for the representation of the county of Lanark; since which time, a most active canvas had been carried on; the whole influence of every partizan and dependent of government having been exerted against him (lord A. Hamilton), in a way which, without intending to reflect on the character of his opponent, he could not avoid calling unfair and improper, and which had necessarily been productive of great irritation in the county. It was not, however, this treatment which for a moment induced him to make his present complaint. He felt it to be his public duty to do so, and he hoped he should have discharged that duty under any circumstances. It was necessary for him to inform the House, that he had communicated his intention of bringing the matter before them to the noble lord, by whom sir Alexander Cochrane's cause had been the most warmly espoused. He did not mean to charge that noble lord directly with a breach of the privileges of that House, but such a breach had been committed in some quarter; he was persuaded, that he possessed evidence so circumstantial as to convince the House of that fact, and it would be for them to decide on that evidence to whom the breach was attributable. The case was simply this: he held in his hand a letter written by a person of the name of Thomas Ferguson, who was employed under the factor of the noble lord to whom he had alluded, and who must therefore naturally be supposed to write under his influence; especially as it was stated in the letter, in plain and distinct terms, that the writer had his lordship's authority. At the same time, he (lord A. Hamilton) was bound to state, that he had communicated with the noble lord on the subject (intimating his intention of bringing the subject under the consideration of parliament), and that the noble lord had given a general denial (to the nature of which he would presently advert), that the letter in question was written by his authority. After this denial on the part of the noble lord, it might perhaps seem that his (lord A. Hamilton's) farther proceeding in the matter was actuated by personal motives; but, he begged leave again to disclaim any such ground of action. The circumstances of the affair, not only gave him a right to bring the subject in its present shape before the House, but made it his duty as a member of the House to do so. He stood in his place in the House of Commons to complain of a breach of privilege, which breach of privilege had most certainly been committed. If unfortunately the noble lord should appear to be more involved in the affair than any other person, it was the noble lord's fault, and not his. He wished it to be distinctly understood, that when a noble lord asserted the very reverse of that which had been asserted by another person, he by no means meant to say, that the noble lord's assertion was untrue; but this he should maintain, that when two individuals told any circumstance so differently, that it was impossible to believe them both, it was indispensable to weigh the evidence on each side, and to give credit to that party for which it preponderated. And besides, the answer which he had received from the noble lord to the communication which he had made to him, was, as he had before observed, couched in terms so general, as not to be altogether incompatible with the inference that Ferguson's letter had been written with the noble lord's authority.

In what he had said, he had endeavoured to soften the feelings which had been excited in him by the noble lord's answer to his communication. If the charge conveyed in Ferguson's letter should turn out not to be well-founded, it would be a matter of regret to him, that in the prosecution of his duty, he should have been obliged to use the name of the noble lord in the way he was now under the necessity of mentioning it; but, on the other hand, if, after the proper inquiry, it should be manifest to the House, that * Ferguson's letter was actually authorized by the noble lord, he should then feel it his duty to resort to stronger measures. The letter was addressed to William Dykes, esq., a freeholder of the county of Lanark, and as the House seemed desirous of hearing it, he would read it to them: "Glasgow, May 24, 1817, No. 50, Miller-street. Dear Sir;—According to your desire, I communicated to lord Douglas your wish to have a situation under government for your young friend Mr. Dykes; and I am authorized to state, that if you support his lordship's views in politics, at the first election, his lordship will secure an eligible situation for your friend, which will be of great advantage to him; and as you are independent of the Hamilton family, I think you should accept of lord Douglas's offer. If you have not made a promise to lord Archibald Hamilton, I think you have good grounds to get clear off from what you mentioned regarding your vote, for you certainly have not been well used. If an application is made to you from the Hamilton family to promise your vote, I think you should not grant it, until I see you in Glasgow, when I will tell you all about the matter. Sir Alexander Cochrane is not at home just now, otherwise I would have written you more particularly: have the goodness not to mention this matter until the whole is arranged. I will write you when the noddy is painted, and I hope to have the pleasure of seeing you and Mrs. Dykes at Glasgow.—I am, dear Sir, your most obedient servant, THOMAS FERGUSON. (Addressed) William Dykes, esq., of Lambhill, by Strathaven. On the face of this letter there was certainly the appearance of lord Douglas's sanction and authority. The writer said, "I am authorized to state to you;" and these words immediately followed the expression, "I communicated to lord Douglas your wish." And if the person by whom the letter was written had acted from his own impulse, and by no authority from lord Douglas, how did it happen that he should say, "I think you should accept of lord Douglas's offer?" Ferguson did not mention the offer as his own, but one from lord Douglas, which he had authority to make. He also mentioned at full length the names of the candidates; of himself (lord A. Hamilton), as the person whom the individual to whom the letter was addressed was to oppose, of sir Alexander Cochrane as the person whom he was to support. The admonition also "not to mention the letter until the whole affair was arranged," deserved peculiar notice. Some authority must have been given, or must have been understood to have been given to this man by lord Douglas, or by some other person in his name. The nature of the answer by lord Douglas to his (lord Archibald Hamilton's) communication was so general, that it was perfectly possible some authority might have been given by some person acting under lord Douglas for the offer in Ferguson's letter, and yet lord Douglas might not himself have authorized the writer.—Mr. Dykes had been subsequently waited upon by Mr. Ferguson; and, in consequence of that visit had written to him (lord Archibald Hamilton) stating, that Ferguson had no authority whatever from lord Douglas for the letter he had written. Authority, however, in some way or other, he must have had for writing such a letter. One of two things must have taken place—either lord Douglas himself must in some circuitous manner have given authority for the writing of the letter, or else some person connected with his lordship must have given the authority; for that the writer himself should have ventured to take such a step without having been authorized to do so, was a circumstance of a most improbable nature. The right hon. gentleman opposite seemed to startle at this. He (lord A. Hamilton) might be under some misapprehension; and he did not wish to cast any blot on the noble lord's name. Mr. Ferguson was employed as a clerk under the noble lord's factor; but it was perfectly immaterial to him whether Ferguson was connected in any manner with lord Douglas, or whether he received any authority from lord Douglas to write the letter. The point at issue was, whether any authority had been given to write the letter; for it was impossible to suppose that any person situated as Mr. Ferguson was, should without any authority use the name of lord Douglas, state the names of the two parties, request support for one of them, and at last beg secrecy until the whole affair should be arranged. No person could possibly think that Ferguson had not authority from some one to do what he did. To suppose that he had not, Was to suppose him guilty of an absurdity of which DO person in his senses could be capable.

Having stated the case, he wished merely to suggest to the House, the different ways in which they might notice the transaction. They might either order Mr. Ferguson to the bar of the House to give an account of the authority under which he acted, or they might refer the whole to a committee of privileges. It was quite indifferent to him which course was adopted; but it was his intention that Mr. Ferguson should be ordered to attend at their bar; because, in his opinion, that would be the best way for coming at the facts. There was still another course which the House might pursue,— they might give directions to the Lord Advocate, to commence a prosecution against Ferguson. But he thought that this was by no means advisable.— A single topic remained to which he wished to advert. He was not aware of the existence Of any precedent immediately in point. He had, however, looked at some of the cases of breach of privilege which had occurred, and he thought that by every analogy the course which he recommended ought to be adopted by the House. There was, however, one act Of parliament which he acknowledged, threw him into some degree of embarrassment — he meant the act of 1809, Commonly called Mr. Curwen's act. The only difficulty was, that on Mr. Ferguson's being ordered to attend at the bar, the first question to be put to him would be, on what authority he wrote the letter. From the answer which he would return to that question it might become doubtful how far, under the act to which he had alluded, he might become chargeable with what he had done; and it might be considered unfair to call on him to acknowledge that which might eventually subject him to prosecution. But, on the whole, he did not think that the act in question would bear that construction. It applied only to cases of treating, and not to a case like the present. He should propose, therefore, that Ferguson should be called to the bar, and the House might subsequently proceed to other resolutions on the subject.

He repeated, that he viewed the part that he was now taking in no other light than in that of a public duty. He thought he owed it to the independent, unbought, and unbiassed freeholders of the county which he had the honour to represent, and who had heretofore returned him freely without fee or reward, to submit the case to the consideration of parliament; and in doing so, he felt that he did no more than sustain their rights, the privileges of that House, and the liberties of the country. He would therefore move, "That Mr. Thomas Ferguson do attend this House on Tuesday the 21st of April." In naming this day, however, he begged not to be understood as wishing to fix an inconvenient day; he would readily acquiesce in the nomination of one more distant if it should be calculated to afford any convenience to the individual in question.

Mr. Wynn

suggested that the regular course was to deliver in the letter of which the noble lord complained.' Lord A. Hamilton said he had no sort of objection to do so. The letter was accordingly delivered by him to the clerk, and read.

Mr. W. Dundas

said, he thought that after the correspondence which had taken place between the noble lord opposite and lord Douglas, the noble lord might have spared his motion.—If he could not satisfy the noble lord on the subject, he was sure he should be able to satisfy the House; for he was desired by lord Douglas to declare to the House, upon his honour, that he never did give any order to any person to make any such promise as was mentioned in the letter which had been read to the House. He was desired, too, by that noble lord to state, that he was sure the House was too generous to doubt this unqualified and express denial, and too just to entertain any hasty and un founded suspicion.—He therefore conceived that after having made this statement by the desire of lord Douglas, the House could not agree to the motion now before it, without implying a distrust in the word of honour of that nobleman. Having done with the conduct of lord Douglas, he wished to say a word or two respecting the conduct of the noble mover himself. There was an old saying, of which every day's experience proved the truth—that a man who lived in a glass house should beware of throwing stones. What had the noble lord's own conduct been? Had the privileges of the House never been violated in his own case? When the noble lord first came forward as a candidate for the county of Lanark, he was backed by no mean interest, by no common individual. To further his election, letters were written by a person of the first rank in the nobility of Scotland, by the duke of Hamilton, the father of the noble lord. A complaint of this kind did not, therefore, come with the best grace from such a quarter. He should certainly oppose the present motion.

Mr. Wynn

said, that this was a case of direct bribery—a most serious invasion on the privileges of the House. After the letter which had been read it was impossible to deny that the offence had been committed by some one. That it was by lord Douglas no man could for a moment suppose, after the positive denial which that nobleman had directed to be given on his part to the charge. But that the offence had been committed by Ferguson, the letter indisputably proved; and yet the right hon. gentleman sat down, saying, that he would oppose the motion, and that it was impossible, but that every gentleman must be satisfied—and why?—Because lord Douglas denied that he had given Ferguson any authority. After all, this was no more than the denial of the person accused; and, because the person accused denied the charge, therefore the Commons of England were to rest satisfied, though in possession of an indisputable proof that their privileges had been infringed [Hear, hear!]. He would not detain the House by quoting precedents. In 1779, when a complaint of this kind was made against the duke of Chan-dos, the question was referred to a committee of privileges. The same thing was done in the case of the mayor and corporation of Oxford. If the present case was passed over, it would be the first instance of such a neglect of what was due to the honour of the House. The course for the House to adopt was, either to refer the case to a committee of privileges to take evidence, or if it should be thought more convenient, to order the party at once to the bar of the House. But the House would be totally forgetful of their own dignity, if they did not inquire who the guilty persons were, and if, after discovering the offenders, they did not prosecute them with the greatest severity [Hear, hear!].

The Lord Advocate

of Scotland observed, that according to the notice of the noble lord, the subject of his motion was, the interference of a peer with the election of a member of that House. Now, he would put it to the House, whether the noble lord in his statement, had brought any proof of the interference of a peer of the realm with the election of a member of parliament. The evidence referred to in his statement, was a letter from a person who was not a factor or servant employed by lord Douglas, or even employed on any estate of his lordship, in Lanarkshire. Whether he was employed on any other estate of the noble lord, he had no means of ascertaining. But this assertion rested simply on the declaration of Ferguson, that authority was given to him by the noble lord. Now, in opposition to this, they had the positive averment of lord Douglas, that this assertion was unfounded—and not only had they the statement of the noble lord, but they had the statement of that very individual himself, that he believed the assertion contained in his letter was utterly false. Now the question as proposed was, the interference of a peer of the realm with the election of a member of parliament; and he submitted whether there was any ground for believing that an)' such interference had taken place on the part of lord Douglas. The conduct of Ferguson was another matter. If he was the person charged with the offence, that was another question altogether. The motion before them was, that Mr. Ferguson should be ordered to attend at the bar. Now, he presumed the noble lord had in contemplation what questions he would put to Ferguson when he was there. It was a question of very grave consideration, whether he should be forced to answer queries by which he might criminate himself. The noble lord had alluded to another mode of proceeding—he mentioned that he had had it once in contemplation, that his majesty's advocate should be directed to prosecute that individual. Whether the noble lord relied on the individual who now filled that office or not, he did not know; but this he would say, whatever orders might he given by the House on this subject to him, to the best of his poor abilities he would endeavour to execute. He thought it was more consonant to justice and to law that the person alluded to should be put on his trial, than that he should be brought to the bar of the House. By bringing him there they were endeavouring to lay the foundation of a prosecution against him; and his own statement would be made a ground of crimination against him. The noble mover had said a great deal about the attempts of the servants and agents of government to remove him from the representation of the county of Lanark. He, for one, would state, that his own conduct had been the direct contrary of this from beginning to end, for he had not the means of influencing any person in the county — he had neither directly nor indirectly interfered in the election. If he had had the means of so doing, it might be another question; and for this reason—that having a most cordial personal attachment to the noble lord's opponent, the gallant admiral, he should be proud of having it in his power to serve him. Was there any disgrace in opposing the noble lord? If that was a disgrace, it was a satisfaction to him that he would share it with a majority of the freeholders of Lanarkshire. The noble lord had talked of the interference of the peerage. Did the noble lord dispute, that the noble duke, his father, finding that the contest was likely to turn out not very successful for the party whom he supports, had not rested satisfied with the fair votes of the freeholders, but had been obliged to make out of his great estate in the county of Lanark 30 votes, called parchment votes, to secure the election of the noble lord? Was not this an interference of a peer of the realm in the election for a county? Had the noble lord rested on the free and independent interest, he would not have referred to such matters. There was not only a disavowal of lord Douglas, but a statement of the party who wrote the letter, that his interference was not authorized by the noble lord; and, therefore, in justice to the noble person against whom there was no evidence whatever to implicate him in the conduct of Ferguson, he thought they ought not to agree to the motion. Of the name of Ferguson he had never heard till that day. He would admit that they were bound to proceed against that individual in some way or other, if guilty. But he thought that it was not desirable that that individual should be brought to the bar of this House, that he might afterwards be prosecuted on his own statements.

Mr. Brougham

said, that among the old sayings, for which a right hon. gentleman who spoke early in the debate seemed to have a strong predilection, there was one, that there was nothing new under the sun. But, notwithstanding such high authority, he would venture to say, that he had heard that night such a code of the privileges of the House, from the learned lord advocate, as, he believed, was quite new to every member, for every chapter of that code contained nothing which any one had ever heard any thing of before. He had been told by the learned lord, that they ought not to call Ferguson to the bar of the House, because the motion referred to the conduct of lord Douglas, and this motion was in disconformity to the notice, and that the noble lord was therefore precluded from taking up a question of privilege, which could not be taken up without notice. Now, he thought, it had been known to the whole House, that, in a question of privilege, all notice was superfluous; he should have thought it was known to the learned lord himself, that every member had a right to bring in a matter of privilege without notice; and that, on going up to the table of the House, and producing the letter, or other voucher, by which it was evident that a breach of privilege had been committed, the House were bound to entertain the motion. Had his noble friend, therefore, gone up to the table without notice, and produced the letter, the House were bound to entertain the motion, and to give it precedency over all other orders or notices. But the novelty did not stop here. Ferguson, it seemed, ought not to be called to the bar of the House, because his noble friend having probably turned over in his own mind the questions which he should put to him, the answers of Ferguson might criminate himself. He supposed that his noble friend knew the questions which He should put—at least he knew that he would put one question to him; —"Are you the author of that letter?" And if he did not answer that question, he would be committed to the custody of the serjeant at arms. And if his right hon. and learned friend asked any of the gentlemen beside him—for it seemed he knew nothing of the matter himself—he would find that what he had said was the greatest injustice was not only not a new proceeding, but was, in fact the only way they had of asserting their privileges. No man could refuse to answer the questions of the House of Commons, or if he did, he would he committed for contempt: and he had no right to say he would not answer, because he would not criminate himself. He would be told, "whatever you confess here you do in perfect safety, except in so far as respects the offence against this House." How did it happen, when poor printers who had no peers to back them—who did not act under the authority of peers—(if they had they would probably not be called for; for this House was often a little select in this respect; and when printers, in their attacks, were so fortunate as to be backed by noble lords, they were never brought here; but if without this backing they ventured to attack members, then these poor printers were sure to be before them)—how did it happen, that no one ever returned to object to their being called to the bar of the House, and that no one ever attempted to say they ought not to answer, because they might criminate themselves? He had not been long in parliament, but he had already seen several instances where a member only produced a letter or paper, and the printer or writer was immediately ordered to appear at the bar. He believed the House were a little select with respect to their persons but such an inequality as that which was now proposed, was not only not known in practice, but had never even been contemplated by any man; for, on the part of the House, it would be openly disgracing and vilifying itself in the eyes of the whole country. For what would it be saying? It would be saying that persons had only to attack those who were opposed to his majesty's ministers, and they would receive the support of the agents of government, and that there was nothing so atrocious which they might not do in such a case, not only with impunity, but even without inquiry or investigation. Never till the present case had a motion of this nature been resisted on such grounds. This was what the House would bring on itself, in the minds of all reasonable men, if they resisted the motion; but he, for one, could not bring himself to think they would. It was unnecessary to detain the House one moment longer. The motion was confined to Ferguson—it said nothing at all respecting lord Douglas; but even if the motion had had relation to lord Douglas, that did not preclude them from inquiry. For how stood the case as to the charge against lord Douglas? Here they had evidence primâa facie against him. And what had they against that evidence? The simple denial of lord Douglas. This was not only no ground of defence for lord Douglas, but every friend of lord Douglas ought to defy Ferguson to come forward, that he might be subjected to all the inquisitorial powers of the House for the sake of the vindication of that noble lord. If he were the friend of lord Douglas for his sake alone, he would support the motion; for they might rest assured, that to lord Douglas a very great suspicion would attach, if no farther explanation was afforded with respect to his conduct.

The Lord Advocate

of Scotland, in explanation, said, he had been totally misrepresented by his hon. and learned friend. He had never meant to quarrel with the present motion, because it was different from the notice, but because it fell short of it.

Mr. Brougham

would appeal to those who heard what had originally fallen from his right hon. and learned friend, to say whether he had not stated it correctly.

Mr. Bathurst

said, that the question before the House at that moment was, the conduct of a private individual, who did appear to have committed a very high breach of privilege. The question for the consideration of the House was, not whether it ought to be passed over without any notice, but in what way it ought to be noticed. With respect to the mode in which this individual ought to be punished, the noble lord said that he had not made up his mind. The general mode of proceeding in case of a breach of privilege was, to refer it to a committee of privileges. Another course was, that which had been adopted in the case of the bishop of Worcester, in the reign of queen Anne, in 1702. In that case Mr. Lloyd, the son of the bishop was also complained of, and the House, after hearing the charges against them, ordered that the son should be prosecuted by the attorney-general.* The general course however was, to refer the matter to the consideration of a committee of privileges. The noble lord had very candidly admitted that an act of parliament affected this question. Amitting then, that the offence against this House was also an offence against the statute law of the realm, he submitted, whether it would not be better to proceed under the statute law, he suggested, whether it would not be more adviseable to refer it to a committee of privileges. This he conceived, would answer all the purposes of the motion; and if the noble lord did not think proper to adopt this course, he himself would take the liberty of moving as an amendment, that the matter in question be referred to the consideration of the committee of privileges. * See Parl. Hist., Vol.6, p. 50. Lord A. Hamilton said he had no objection to the amendment proposed by the right hon. gentleman, Mr. Bathurst suggested the propriety of withdrawing the motion, and substituting a motion to the effect of the amendment he had proposed. Lord A. Hamilton wished rather that the right hon. gentleman should propose his own amendment. Mr. Bathurst then moved as an amendment that the complaint be referred to a committee of privileges, to examine into the matter thereof, and to report their opinion to the House thereupon.

Lord A. Hamilton

begged to offer a few words in reply. He said he was not aware of having stated this as a party question, nor of having stated it unfairly. He had brought it forward on general grounds, as a high breach of the privileges of that House; and the right hon. gentleman opposite must feel some disappointment that the House had not got rid of the question on the simple denial of the noble lord. He was not aware of having departed from the notice he had originally given, in the motion he had this evening proposed for the adoption of the House. He had stated on the former night, that the matter of charge regarded the interference of a noble peer with the privileges of that House, but he had never said, that the matter rested exclusively with that noble peer. This charge had been attempted to be rebutted by an assertion, that at a former period of his (lord A. Hamilton's) life, he had had no objection to aristocratical influence, and that in fact it had been exercised for him. To this he would reply, that he was not answerable for the conduct of others, and that whatever occurred so far back as fifteen or sixteen years ago, should have been made matter of complaint at the time, instead of being now raked up to defend other acts of impropriety. There was, however, a great difference between the character of the two acts alluded to. The mere personal request or solicitation of an individual, bore no resemblance to such an influence as that of which he now complained, which was palpably corrupt, and went to destroy the best rights of the electors. The lord advocate had said, that he had exercised no influence, because he had none to tender —this was certainly a very sufficient reason. He had also alluded to the manner in which electors were made in Scotland, but he at the same time well knew that there was no other mode of contesting a county election in Scotland but by creat- ing these paper or parchment votes. He had often informed the House of the grievous state of representation in that part of the empire; for it was a fact that a man might have 20,000l. in land, and yet be not entitled to a vote. The noble lord concluded by acceding to the amendment, which was accordingly put and carried: and the name of lord A. Hamilton was added to the committee.