Commons Sitting of 6 August 1835

MINUTES.
Petitions presented. By Lord CLEMENTS, from the Grand Jury of Leitrim, for rendering the Shannon navigable.—By Mr. WILLIAMS, from Abergavenny, for the Repeal of the Duty on Newspaper Stamps.—By Sir ROBERT PEEL, from several Colleges at Aberdeen, against the Aberdeen University Bill; from the Grand Jury of Limerick, against the Church of Ireland Bill; from three Places for Protection to the Protestant ant Church of Ireland; from Paisley and other Places for Protection to the Church of Scotland; from Dundee and Anstruther Wester, against the Royal Burghs' Consention Bill.—By Mr. LECHMERE CHARLTON, from West Scull, for the Better Observance of the Sabbath.

ORANGE LODGES.
Mr. Wilson Pattenbrought up the third Report of the Select Committee on Orange Lodges, and in moving that it be printed said, that the Committee had, in obedience to the wish expressed by the House, when the Motion of the hon. Member for Middlesex was adjourned to enable the Committee to receive further evidence upon particular facts, called two or three witnesses before them, amongst whom was the Adjutant-General of the Forces, who had been examined that day. He (Mr. Patten) had also to state, that he had received a letter on the subject from his Royal Highness the Duke of Cumberland. That letter the Committee had added to their Report, in order that it might be printed and in the hands of hon. Members, as early as Monday morning, which would be much sooner than the whole of the evidence could be printed.
Mr. Humeinquired whether it was the intention of the Committee to continue their inquiries, or whether this was a final Report.
Mr. Wilson Pattensaid, that the case on both sides was now considered to be closed, and that the Committee did not

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contemplate making any Report, but intended to content themselves with laying the whole of the evidence on the Table, and thus leave the matter in the hands of the House.
Mr. Hume: Perhaps the hon. Member can inform me whether the inquiry has been limited to Ireland, or whether it has included the Orange Lodges in England?
Mr. Wilson Patten: They were thought to be distinct subjects. The existence of Orange Lodges in Ireland was the subject referred to the Committee.
Mr. Wallace: I have two questions to put to the hon. Member—first, whether any questions were asked as to the Orange Lodges in Scotland, and who was their Grand Master?—and, second, whether it is true that there are officers in the army who are members of Orange Lodges?
Mr. Wilson Patten: I do not know whether the Duke of Cumberland, under the words Imperial Grand Master, is to be considered Grand Master of the Orange Lodges of the empire; but I cannot call to mind that any particular evidence was taken regarding Orange Lodges in Scotland. As to the question whether any officers are members, I think there appear among the officers of the institution gentlemen who are in the army. The Grand Treasurer is, I believe, an officer in the army. I do not know whether he holds a commission now, but he was in the army.
Mr. Wallace: I beg to know if there is any objection to publishing the names of the officers, that we may have them before Monday? Officers, non-commissioned officers, and privates will then be on the same footing.
Mr. Finch: I rise to correct a mistake; there is no proof of officers being in connexion with Lodges, whether on half or on full pay.
Mr. Wallacewas about to speak again, when he was informed by the Speaker that there was no Question before the House.
The subject was dropped.

GREAT YARMOUTH.
Lord Francis Egertonreported from the Great Yarmouth Committee, that three witnesses summoned, viz., William Green, Edward Latham, and E. H. L. Preston, had refused to appear, on the ground that, having received a certain notice, they considered themselves defendants in the case.
The Report having been brought up,
Lord Francis Egertonremarked that,
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on former occasions, the parties had been ordered to attend next day, but, as they were ready to appear he should move that they be brought to the Bar forthwith.
Mr. E. Harbord Lushington Prestonwas called to the Bar, and interrogated by the Speaker:—He said that he had been summoned before the Committee on Great Yarmouth, but that he had refused to answer any questions put to him, on the grounds that he had received a notice signed by the agents for the petitioners, stating that the examination into the case of Great Yarmouth "might affect him with imputations of bribery, or with aiding and assisting in the commission of bribery or treating, or with somewhat of the offences mentioned in the petition." Accusations had also been made against him (the witness) before the Committee, and he, therefore, humbly contended that, according to the laws of the land, with which he was somewhat acquainted, he could not be called upon to give evidence against himself.
Are these the only reasons why you refuse?—They are the only reasons.
Mr. Hume: Have you any objection to answer questions as to matters in which you are not personally interested?—I contend that I cannot be called upon to answer any questions, inasmuch as I am not a witness, but a defendant.
Mr. O'Connell: Then whether the question affects you or not, you refuse to answer?—I do.
Mr. Praed: You conceive that every question must affect you. Do you conceive, as a defendant, that the whole case affects you?—Most decidedly.
Mr. O'Connell: Do you mean to say that the case affects nobody else?—I mean to say that I refuse to answer, because the case affects myself. But if the question does not in any way affect yourself, do you refuse to answer?—Am I to be the judge whether it affects me or not? Nobody else can judge.—I should be sorry to impugn the authority of the House, but I think I cannot be called upon as a witness in a case where I am de facto a defendant. Has any action been brought against you?—No; but accusations have been made. Suppose the question not to relate to those accusations, but to be wholly disconnected, do you still refuse to answer?—It is impossible that they can be disconnected. Suppose that they should be so, do you still refuse?—I humbly submit that I stand here as a defendant.

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You stand there to answer the questions put to you. You are not, nor is any man entitled to contemn the authority of the House; therefore, as a Member of the House, I ask the question?—I stand oh the ground I before stated. As I said before, I should be extremely sorry to impugn the authority of this House; at the same time I must contend that I stand here as defendant in a case in which accusations have been brought against me, and that no question on the subject of those accusations can be put to me without implicating me in them. I hardly understand what your answer means: tell me, does it mean that, though the question should not affect yourself, and should not operate as an accusation against yourself, you still refuse to answer it? Now, answer that question, yes or no. Do you understand my question?—All I can say is, that I decline to answer any question put to me by the Election Committee for the borough of Great Yarmouth.
Mr. Cutlar Fergusson: Was any question at all put to you by that Committee?—Yes, there was. What was it?
Mr. Tancred: Was the question put to you this—"Are you a voter for the borough of Great Yarmouth?"—It was.
Mr. Cutlar Fergusson: Did you refuse to answer that question?—I did not refuse to answer it on the ground of crimination, but on the ground that I could not be called as a witness in a case where I had been accused. On these grounds I beg to state to the Committee that I considered myself justified in refusing to answer the question.
The witness having been directed to withdraw,
Mr. O'Connellsaid, I think I am bound to move now, Sir, that this witness be committed, in custody, to Newgate.
The Solicitor-Generalvery much regretted that they had not, on that occasion, the advantage of the presence of his hon. and learned Friend the Attorney-General, because the question before the House was one which involved a very important principle, and one, considering the degree of party excitement which necessarily existed under such circumstances, on which it was extremely important they should come to a final determination with perfect calmness and impartiality. Having said thus much, he must beg to state, candidly and fairly, that in his opinion, and according to his view of the law, the witness was
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justified in refusing to answer the questions of the Committee. He would state why he thought the witness was justified. He did not think the present case at all similar to the case of the witness Prentice. Prentice was called before the Committee, and answered a great number of questions, with reference to his liability to answer which he (the Solicitor-General) would express no opinion whatever. Having answered a variety of questions, one question was put to Prentice, which, in his opinion, neither directly nor indirectly, did tend or could tend, to connect him with any guilt whatever; and it certainly did not appear to him that a witness, having answered other questions (his liability to answer which, he again said, formed no point of consideration at present), could protect himself, or claim protection from answering a particular kind of question, merely because it might be followed by another, his replying to which would involve his own inculpation. On that ground he had voted, and voted with a perfect conviction of the propriety of the proceeding, for the committal of Prentice to Newgate. What, however, were the circumstances of the present case? Here was a witness called before a Committee, the very object of which was to inquire, among other things, into the propriety of prosecuting that very individual. Well, it might not be in view to prosecute him, but it was impossible not to feel that that might be the result; and as the result of the inquiry might be the commencement of a prosecution against any of the parties implicated in the supposed bribery, he did think it was the hardest proceeding he had ever heard suggested, to call a person there to say to him, "Now we are going to examine you. Take notice, that evidence may be adduced which will render you liable to a prosecution for bribery, and that you may be implicated by the very evidence we seek to obtain;" and then to punish him for refusing to give evidence on that ground. He would say, on every principle of law, that as a party was not bound to answer any questions tending to criminate himself, so neither was he called upon to answer any questions whatever, put by a tribunal, the very object of which was to prove his own guilt. It appeared to him to be an argument a fortiori, that if a witness were privileged against answering a question which might criminate

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himself, he was not bound to answer other questions, the very object of the inquiry by the tribunal from which they emanated, being to involve him in guilt. Suppose the case of ft bill of indictment for misdemeanour before a Grand Jury. Suppose one of the parties implicated by the indictment were brought up, and addressed thus:—"So far as these questions criminate you do not answer them—they criminate other inviduals; do you object to answer as far as they are concerned?" If he were placed in such a situation, he should certainly decline to answer a single word. He would say, that he sincerely regretted that on a point of law, with which his hon. and learned Friend, the Attorney-General, was more familiar than himself, he had not the advantage of his assistance; he believed, nevertheless, from conversations he had had with him on the subject of the witness Prentice, that had his hon. and learned Friend been present this would have been his opinion. Not thinking that Gentleman how at the Bar could with justice be called upon to answer the questions of the Committee, he should decidedly vote against his being committed to Newgate.
Mr. Hume: There might be, in Courts of Law, technicalities with which he was unacquainted; but the rule laid down by the hon. and learned Gentleman seemed to him calculated to produce but one result—namely, to render all inquiries by that House utterly fruitless. It would only be necessary for an agent to give notice to every person who might be examined as a witness in a bribery-case that his reply might criminate himself, to render the inquiry wholly useless, and to set the power of the House at defiance.
Mr. O'Connellhad never heard anything in that House with half the astonishment with which he had listened to what had just fallen from the hon. and learned Gentleman. He could not express the surprise with which he saw the hon. and learned Gentleman, a law-officer of the Crown, coming forward to state, as he had done, that a witness might be protected from giving evidence, without stating any one ground or principle of law for that protection. They all understood the ground—the legal ground—that a man was not bound to convict himself. That was law—perhaps, it was not common sense. It relaxed the administration of justice exceedingly. Why should not a
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man criminate himself? Whom did he protect? Was it the innocent? No; he could not protect the innocent, but he could protect the guilty. Did the witness come within that rule of law? He did not; he took no such ground at all. He did not; he took this ground; that a certain notice had been served upon him. He supposed the agents would not be criminal enough to draw up such a notice on their own motion. He believed it originated with the Committee, as many strange things sometimes did. Now, after all, what was the effect of this notice? A caution to the witness not to criminate himself; and the moment any question was put to him which had the least tendency to criminate himself, he might take that ground, and refuse to answer it. This was the broad ground for the witness to take, and the notice did nothing but call upon him to take this broad ground. But the witness did not take it; he was not protecting himself; he was not avoiding criminating himself, but was avoiding criminating others. He had lately spoken of the feeling they ought all to entertain against bribery, and he had been taunted as if he had imputed it to that (the Opposition) side of the House. He had done no such thing; nor should he impute the wish to protect witnesses from disclosing bribery to that side of the House, after what he had just heard. As a representative of the people, he had heard with the utmost astonishment—he would say with horror—the opinions given by the hon. and learned Solicitor-General.
Mr. Tancredhoped that as a member of the Committee, the House would allow him to state as correctly as he could, the circumstances under which the notice in question originated. On the first day the Committee met, the hon. and learned Member for Cardiff moved a string of resolutions in compliance with one of which a degree of superabundant caution was observed, and a notice was ordered to be drawn up, and served upon every person who, in the widest possible range, the agent for the petitioners thought might be in any way whatever criminated. He believed the agent was required by the strict terms of the Resolution, to give notice to no fewer than three hundred persons. The object of the Committee was, that those individuals might attend in person (as the gentleman who had just left the Bar had done), or by their agents, to watch

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this progress of the evidence, and see whether any part of it in the slightest degree implicated them, and rendered it necessary for them to refuse answering the questions put to them. He had no hesitation in now stating confidently, in the presence of the members of that Committee, that two or three gentlemen thought fit to interpret it as constituting them defendants. The noble Chairman of the Committee had repeatedly said to every witness produced—"Witness, you are not bound in any way whatever to criminate yourself; and in any question that occurs having that tendency, you have Only to throw yourself upon the Committee for protection, and they will judge of it, and tell you whether it shall be put or not" A person of the name of Green, he believed, had declined to answer on the ground that the notice constituted him a defendant, and his example had been followed by the gentleman who had just left the Bar. For his own part, he confessed he was disposed to consider the notice an injudicious one, as he had formed the same opinion of the resolutions on which it was founded. He hoped, however, as the Committee had simply intended to act with the greatest possible caution and leniency to all those whom they had called before it, the result would not be to afford any improper or unnecessary protection.
Mr. Charles Barclaythought that the parties very naturally declined to answer the questions of the Committee, because they did not know whether their evidence, combined with that of others, might not lead to their being convicted for bribery. He should certainly vote against the Motion for the committal of this gentleman to Newgate.
Dr. Nicholsaid, that he had copied the Resolutions which had been referred to by the hon. Member opposite (Mr. Tancred) verbatim et literatim from the Bill introduced by the noble Lord the Member for Stroud (Lord John Russell) in 1833, but they had been rendered rather more extensive by a Motion of the hon. Member for Durham (Mr. Pease); if the agents had limited the service merely to those persons against whom they knew they had evidence, however, there would have been no difficulty in the case. He had merely risen to state this fact, and not to express any opinion on the propriety of the witness answering or refusing to answer the questions of the Committee.
Mr. Pease, in extending the Resolutions to which the hon. and learned Gentleman had referred, had no intention of placing any party in the situation of defendant, but as the question at issue was one which peculiarly affected the liberty of the country and privileges of the House, he was peculiarly anxious that the Report of the Committee should be founded upon evidence taken with the utmost vigilance and caution.
Mr. Cutlar Fergussonwas compelled to dissent, though with the utmost diffidence, from the opinion which had been given by his hon. and learned Friend, the Solicitor-General. For that opinion he accounted by the circumstance that the hon. and learned Gentleman was more accustomed to Courts of Equity than Courts of Law. No witness in a court of law was ever protected from being examined at all. The witness did not object to a particular question, but refused to be examined at all, on the ground that he might criminate himself. But it was said that this witness stood in the position of a defendant. If so, if persons could be made defendants by the notice which had been given, the Committee of that House would be unable to go on with their proceedings, and their doors might as well be closed at once. This was the notice:—"Take notice, that the evidence which you intend to give before the Select Committee to whom the petition from Great Yarmouth is referred, may affect you with the imputation of bribery, or of being a party aiding and a sisting in the commission of bribery, or of one of the offences mentioned in the Act of Parliament relating to elections." This notice was, he contended, to be considered as a Proclamation and certainly not as an indictment. The question, "Are you a voter?" could not possibly subject the witness to any imputation of bribery; but the witness objected to it on the general principle that he had no right to answer at all. This principle could not, however, be maintained. Many questions which would not subject the witness to any charge, might be put to him. Whether the witness was bound to answer those questions, supposing the witness objected to them on the ground of tending to criminate himself, was for the House and not for the witness to decide.
Mr. Hardywould ask whether the House was prepared to differ from those

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leading rules by which the proceedings in Courts of Law were agitated? If not, Jet them inquire what were those leading principles—what they were, as applicable to the case before them? Now, he had been so fortunate as to meet with a case directly in point. On the trial of a gentleman, who had shot his antagonist in a duel, for murder, Captain Denifort was called on the part of the prosecution, but he refused to be examined, on the ground that a report had gone forth to the effect that he had been second to one of the parties in the duel. Sergeant Adair said, he might give his evidence with perfect security, for if any proceedings were instituted the Attorney-General would most assuredly be directed to enter a writ staying them. Mr. Justice Lawrence and Mr. Justice Rooke took time to consider the point, and then gave their deliberate judgment, that Captain Denifort might if he chose state the whole truth, but if he did they could not protect him from subsequent proceedings, and it was, therefore, for him to decide whether he would give his evidence, as most undoubtedly he could not be compelled to give it. The Captain did not give his evidence, and the prisoner was acquitted. There could not, he thought, be a case more applicable to the matter under consideration.
The Chancellor of the Exchequeragreed with his hon. and learned Friend, the Member for Kirkcudbright (Mr. C. Fergusson). The discovery of truth was the great principle of these proceedings, but if they admitted the argument of the hon. number who had just sat down, there would be an end to that principle. The vague apprehensions of the witness were not to be a bar to all inquiry. When the witness was really placed in a situation in which he might criminate himself, it was then for the House to interfere, and extend to him their protection. The preliminary objection which had been taken by the witness was quite unheard of. In Courts of Law no witness was allowed to refuse the answering of questions before he had been examined at all, or before it had been considered whether the questions put were such as were likely to criminate himself. When such important inquiries were instituted it was proper that they should be conducted with strict impartiality and efficiency, but that could not be the case if these objections were sustained. If a witness were allowed the
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privilege which this witness claimed, the House would virtually transfer to the witness the office of Judge. It was not for the witness, but for the Judge, to decide what questions were, and what were not, requisite to be answered. The hon. Member for Bradford had drawn an analogy between the rules of a Court of Law and of that House. He had, however, lost sight of an important distinction. Whatever might be done with the note of a witness's evidence in a Court of Law it was clear that the shorthand writer's notes of the witness's evidence in that House could not be made the basis of a prosecution without the sanction of that House.
Mr. Shawbegged to ask what was the position in which the witness placed himself? If there was any allegation that this notice had been served upon the witness by a favourable party, in order that the witness might object to giving evidence, his position would be very different. The fact, however, was, that this notice was served upon him by agents of the opposite party. He, therefore, stood in the condition of an accused person, and, standing in that condition, his objection was in accordance with the principles of British law and British justice. He had no doubt upon the matter, and he could not but express his admiration of the fair and candid manner in which the Solicitor-General had given his opinion.
Sir Robert Inglisentirely concurred in the opinion expressed by the hon. and learned Solicitor-General. He begged to ask his Majesty's Ministers whether they were or were not prepared, to take the opinion of their legal advisers in preference to any other legal authority in that House. He would ask his noble Friend whether he placed his confidence in the legal advisers of the Crown or in the opinions of any other individuals.
Mr. Sergeant Wildesaid, his opinion was that the witness had been premature in his objection. The Committee were engaged not in considering an individual case, but several, and therefore the witness might give, respecting other parties, much important evidence, which would not criminate himself. As to the case mentioned by the hon. Member for Bradford (Mr. Hardy), it should be recollected that in Courts of Law it was generally well known to the Counsel whether the witness would be asked questions tending to criminate himself, and the objection by the

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witness was, to save time, usually taken before sworn, it being conceded, and so understood by the Judge, that the questions which required answering might tend to criminate the proposed witness. But he had frequently heard Lord Tenterden say, when witnesses unexpectedly made the objection before being sworn, "Sir, you must be sworn, and on being asked any question which you apprehend will implicate you, you then can appeal to me." With regard to Captain Denifort, in the case mentioned, it had been previously proved that Captain Denifort was on the ground at the duel, and that there was every reason to believe he was the second. If such had not been the case it would follow that by the same rule every witness on being called upon to give evidence might say "My Lord, I have heard of a report being circulated that I was the second," and, therefore, every witness might be excused giving evidence. The impression that a witness who might be asked questions tending to criminate himself had a right to object to being examined at all was very common, and therefore he should recommend, not that the witness be harshly dealt with, and be committed to Newgate, but that he be called in and informed that he was mistaken, and that he must answer all questions which did not directly tend to criminate himself.
Mr. Freshfieldsaid, that the doctrine laid down by the Solicitor-General had been always held to be law, and read from "Starkie on Evidence" the following extract:—"The witness might refuse to answer at all, on the ground that his answers might subject him to an indictment; but if he answered any questions then he was bound to disclose the whole truth.
Sir Robert Peelconsidered the question to be of such importance that he hoped the House would not come to a precipitate decision. It would be better that hon. Members and particularly hon. and learned Gentlemen should have an opportunity of considering the point, and referring to authorities. He himself wished for such an opportunity. As to the question whether, on the technical principles of the law, the witness could be justified in refusing to answer, the hon. and learned Solicitor-General had given his opinion that the objection of the witness was valid. Now, taking the personal opinions of the hon. and learned Gentleman apart from party,
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there was no man on whose judgment he would rely with greater confidence. But the hon. and learned Gentleman had further stated that he believed the Attorney-General's opinion was the same as his own. He entertained great respect for the opinion of both those hon. and learned Gentlemen, and having their authority in the present case he was unwilling to depart from it without due consideration. He did not, however, mean to assert that that House was to be bound by the technical rules of the Courts of law; all that he asked was, that they should not be called upon to give a positive opinion without having had sufficient time for deliberation. Of course, a discretionary power must be allowed to witnesses, when their answers to questions were likely to expose them to criminal proceedings. After the high legal author ties they had heard on the subject, he did not see how the House could agree to the motion to send the witness at once to Newgate. He for one, could not bring himself to consent to such a motion. He had no hesitation in saying, that after the notice the witness had served on him the House would commit an act of tyranny, if they sent him to Newgate. He suggested that the debate should be adjourned; and, in the mean time, all the documents on the subject could be placed in the hands of Members, and duly considered.
Lord John Russelladmitted that it would be a great hardship, not to say injustice, to send this witness to Newgate, if they entertained any doubt as to the propriety of the course they were called upon to pursue. He had at first, taken the same view of the question as the Solicitor-General, that the notice that had been served on the witness was a notice to prepare for trial; but, it appeared to him on reflection that this was not the case. The House, certainly, was not strictly bound to follow the technical rules of the Courts of Law; but still they should hesitate before they committed this person to Newgate. He agreed in the suggestion of the hon. and learned Member for Newark, that the witness who objected to be examined should be told that he would be protected in his answer to any question which was likely to be injurious to him; but until such question were asked he was not protected. After the long discussion that had taken place, he thought this was the best course to adopt. He did not see

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any necessity to adjourn the question; but if that was the feeling of the House, he bad no objection.
Lord Francis Egertonwas of opinion that they should have before them the notice that had been served on the witness before they proceeded further. He could not give a decided opinion on the subject until then. He did not think, if they adopted the course recommended by the noble Lord, that it would be sufficient to tell the witness that they would protect him against the serious charges which might be brought against him.
Mr. Wasonobserved, that if a witness was to be allowed to refuse to answer a question because he supposed that it would be detrimental to him, a stop was put to all inquiry before Committees of this House. In his opinion the House was bound, in vindication of its own dignity, either to compel an answer or commit the witness.
Mr. O'Connellsaid, that he would withdraw his Motion; and propose instead of it, "That the witness should be called to the Bar, and informed by the Speaker that he was bound to answer all questions put to him by the Committee, not tending to criminate himself.
The original Motion withdrawn, and the amended Motion put.
The House divided.
Ayes 113; Noes 65; Majority 48.
The witness was ordered to attend at the Bar, when
The Speakeraddressing him said: "Edward Lushington Preston, I am commanded by this House to admonish you that you are bound to submit to be examined by the Committee without prejudice to your right to object to any question the answer to which may tend to criminate yourself.
The witness withdrew.

List of the AYES.

Aglionby, H. A.

Burton, H.

Astley, Sir J.

Buxton, T. F.

Attwood, T.

Callaghan, D.

Baines, E.

Cooper, E.

Barnard, E. G.

Cowper, Hon. W. F.

Beauclerk Major

Crawford, W.

Benett, J.

Dillwyn, L. W.

Berkeley, Captain

Divett, E.

Biddulph, Robert

Dunlop, J.

Bish, T.

Dykes, F.

Blamire, W.

Elphinstone, E.

Bowring, Dr.

Etwall, R.

Brady, D. C.

Fellowes, Hon. N.

Bridgman, H.

Fergusson, R. C.

Brotherton, J.

Fielden, John

Finn, W. F.

Poulter, J.S.

Fitzsimon, N

Phillipps, C. M.

Gaskell, D.

Power, J.

Gordon, R.

Power, P.

Grattan, H.

Raphael, A.

Grattan, J.

Rice, Right Hon. S.

Grosvenor, Lord R.

Roebuck, J. A.

Hall, B.

Ronayne, D.

Hawkins, J. H.

Russell, Lord J.

Hawes, B.

Ruthven, E. S.

Harvey, D. W.

Scholefield, J.

Heathcote, R. B.

Seymour, Lord

Hindley, C.

Smith, B.

Hoskins, K.

Smith, R. V.

Howard, P.

Spiers, A. G.

Hume, J.

Strutt, Ed.

Leader, J. P.

Talbot, J. H.

Lennox, Lord J. G.

Tancred, H. W.

Lennox, Lord A.

Thompson, Colonel

Lushington, C.

Thomson, Rt. Hon. C.

Lynch, A. H.

Thornely, T.

Martin, T.

Tooke, W.

M'Taggart, J,

Townly, R. G.

Macleod, R.

Troubridge, Sir T.

Maule, Hon. Fox

Tulke, C. A.

Mangles, J.

Villiers, C. P.

Morpeth, Lord

Wallace, R.

Murray, J. A.

Wakley, T.

Musgrave, Sir R.

Walker, C. A.

Nagle, Sir R.

Ward, H. G.

O'Connell, D.

Wason, R.

O'Connell, M.

Whalley, Sir S.

O'Connell, M. J.

White, S.

O'Connell, J.

Wilde, Sergeant

O'Ferrall, R.

Williams, W. A.

O'Loghlen, M.

Wilbraham, R. B.

Perrin, L.

Williams, Sir J.

Pechell, Capt.

Williams, W.

Pease, J.

Wilks, J.

Philips, M.

Wood, C.

Price, Sir Robert

TELLERS.

Pryse, P.

Stanley, E. G.

Potter, R.

Ord, W. H.

List of the NOES.

Alsager, R.

Fancourt, Major

Arbuthnot, Hn. H.

Finch, G.

Baring, H.

Forrester, Hn.G.C.W.

Baring, T.

Forster, C. S.

Baring, Hon. W.

Gaskell, J. Milnes

Beckett, Sir J.

Gordon, W.

Bentinck, Lord G.

Hamilton, Lord C.

Bramston, T. W.

Hardy, J.

Buller, Sir J. Y.

Houldsworth, T.

Campbell, Sir H.

Inglis, Sir R. H. Bt.

Canning, Rt. Hon. S.

Jones, W.

Clerk, Sir G.

Kirk, P.

Codrington, Sir E.

Lees, J. F.

Coote, Sir C.

Lefroy, Rt. Hon. T.

Corry, Hon. H.

Lowther, Hon. H.

Dalbiac, Sir C.

Maclean, D.

Damer, Hon. G. D.

Miles, W. H.

Darlington, Earl of

Nicholl, J.

Dick, Quintin

Peel, Rt. Hon. Sir R.

Duffield, T.

Pemberton, T.

Egerton, Lord F.

Perceval, Colonel

Entwistle, T.

Plumptre, J. P.

Estcourt, T. G. B.

Praed, W. M.

Price, K.

Twiss, H.

Pringle, A.

Vere, Sir C.

Reid, Sir J. R.

Vesey, T.

Rolfe, Sir R. M.

Walker, R.

Ross, C.

Wall, C. B.

Sandon, Viscount

Walter, J.

Shaw, Rt. Hon. F.

Wilbraham, H. B.

Somerset, Lord E.

Young, J.

Somerset, Lord G.

TELLERS.

Stormont, Viscount

Freemantle, Sir T.

Thomas, Colonel

Freshfield, J. W.

Lord John Russellsaid, there were two other witnesses whose cases were similar, and he did not see any objection to the House taking the same course with respect to them.
The Motion that J. E. Lathom and William Green be put to the Bar was agreed to, and they were called in accordingly, and after a brief examination were admonished like Mr. Preston to answer the questions of the Committee, and ordered to withdraw.
Lord Francis Egertonsaid, it was now his duty to move that William Prentice be committed to his Majesty's gaol of Newgate.
Mr. Hardysaid, he should move, as an Amendment, that William Prentice be brought to the Bar, with a view to his being admonished and discharged.
The Solicitor-Generalsaid, that the question now lay within a very narrow compass. It would be recollected that a full House had decided, by a majority of three to one, that the question which Mr. Prentice objected to he was bound to answer. The House came to a resolution to that effect, and dealt comparatively leniently with him by directing that he should be committed to the custody of the Sergeant-at-Arms, instead of sending him to Newgate. The House took this course non constat, that he would not be prepared to answer when next called up. But now, however, he positively refused to give an answer, and therefore the House would be only stultifying their own proceedings if it consented to his discharge. If it were necessary, he was quite prepared to show that the sum of 100 l. or 200 l., which he acknowledged to have received, was considered by him not so much as a bribe to himself, as the means by which he would be enabled to bribe others. Indeed his own evidence favoured this view, for he had given some account of the way in which this money was disbursed.
Mr. Humedid not know what the hon. and learned Gentleman opposite meant by
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proposing the Amendment to this Motion. What end would be answered by these repeated admonitions, when the approaching termination of the Session held out to this individual the hope of successfully evading inquiry into the proceedings, in which, it appeared, he had taken some part. He hoped the House would take some steps for punishing this individual. He had known an instance in which an individual was confined by the Court of Chancery for thirty-two years, for refusing to answer a question. Every court of law in the kingdom had a similar power of enforcing obedience to its directions. Was Parliament alone to be stripped of this power? and was a refusal to answer in a case of bribery and corruption the only one which was to go unnoticed?
Mr. Sergeant Wildedid not think that this individual could be fairly committed to Newgate. His alleged offence was, that he had refused to answer the questions which did not so much criminate himself as others. But he contended that if the question put to him had even a tendency (and he must himself be the best judge of that) to inculpate himself, he was not bound to answer it. It was not necessary that the question should directly criminate him; it was sufficient to constitute a ground of refusal if he considered that it afforded facilities for discovering his offence. His refusing under such circumstances to answer could not be considered a contempt of the House, for he had a legal excuse for the act.
House divided,
On the original Motion; Ayes 81; Noes 14: Majority 67.

List of the AYES.

Aglionby, H. A.

Crawford, S.

Attwood, T.

Dillwyn, L. W.

Baldwin, Dr.

Divett, E.

Baines, E.

Dykes, F. L. B.

Barry, S.

Dundas, J.

Bowring, Dr.

Egerton, Lord F.

Bowes, J.

Elphinstone, Howard

Benett, J.

Etwall, R.

Bish, T.

Ewart, W.

Blamire, W.

Evans, G.

Barnard, E. G.

Fergusson, C.

Brocklehurst, J.

Gaskell, D.

Buller, C.

Grattan H.

Butler, Colonel

Grattan, I.

Brady, D. C.

Grote, G.

Buckingham, J. S

Gordon, R.

Brotherton, J.

Halse, J.

Carter, J. B.

Hall, B.

Collier, J.

Hawkins, H.

Colborn, R. N.

Heathcote, R

Hoskins, K.

Ronayne, D.

Howick, Lord

Russell, Lord J.

Howard, P. H.

Schofield, J.

Hume, J.

Sheil, R. L.

Lynch, A. H.

Strutt, E.

Lushington, H.

Smith, B.

Martin, T.

Stuart, Lord D. C.

Musgrave, Sir R.

Tancred, H. W.

Nicholl, Dr.

Thornely, T.

O'Ferrall, M.

Tooke, W.

Ord, W.

Thompson, Colonel

Palmerston, Lord

Troubridge, Sir T.

Parker, J.

Warburton, H.

Pease, J.

Wakley, T.

Pechell Captain

Williams, W.

Philips, M.

Wilson, H.

Plumptre, J.

Wilks, J.

Potter, R.

Wood, M.

Roebuck, J. A.

Vigors, N.

Raphael, A.

TELLERS.

Rice, Right Hon.

Hawes, B.

Rolfe, Sir R. M.

Steuart, R.

List of the NOES.

Tellers included, who voted against the committal of William Prentice to Newgate.

Baring, T.

Pemberton, T.

Beckett, Sir J.

Praed, W.

Borthwick, P.

Twiss, H.

Dalbiac, Sir C.

Wall, C. B.

Elley, Sir J.

Young, J.

Freshfield, J. W.

Gaskell, J. Milnes.

TELLERS.

Macklean, D.

J. Hardy,

Mackinnon, W. A.

Sergt. Wilde.

CASE OF CAPTAIN ATCHESON.
Mr. Plumptrerose to bring forward a case of what he deemed great individual hardship—a case of somewhat similar hardship from military laws he was aware had lately been before the House; but, in the present instance, there was one distinguishing feature;—it involved considerations of one of the nearest and dearest personal rights a man possessed, viz:—the right of conscience. It might be objected, that a very considerable lapse of time had taken place since the event had occurred; but although it occurred eleven years ago, it had never yet slept, and never would be suffered to fall asleep. Steps had been taken in different ways for obtaining that settlement to which it was entitled. He himself had brought the case before the House on the presentation of a petition, but the House would remember that it had never yet been brought to a vote; and he trusted that would be considered as a sufficient apology for bringing it forward again. He was also aware, it was objected that it was improper to bring cases
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of this sort before Parliament, and thus question the decisions of other legal courts of justice. But let the House consider, that he did not intend to refer the papers for which he moved to a select Committee, but merely to take the usual course on such occasions, viz.:—to move for the Minutes of the Court Martial as a ground-work for an address to the Throne—the last resort in this realm for justice or for mercy:—to appeal to his Majesty, whose prerogative it was, to remit punishment and reverse sentence as circumstances might require. He would briefly state to the House the circumstances of the case to which he referred. Captain Atcheson, in 1822, was stationed at Malta; and, after a stay of five months, was called on to take a part in some ceremonies connected with the religious worship of the Roman Catholic population of the island. On the first occasion he did not refuse compliance with the orders given him; but some five months afterwards he was again called on to take part in a similar service, the scruples which he felt before he felt much more strongly then, and he resolved to take the course which appeared to him proper, viz:—to request that he might be excused from the performance of the ceremony he was called on to assist in. Now, he believed that in the course which Captain Atcheson took he was perfectly justified by one of the articles of war, which he would beg leave to read to the House—it was to the following effect. "If any officer shall think himself wronged by any colonel or commanding officer of the regiment, and shall, upon application to him, be refused redress, he may complain to the general commander-in-chief of the forces, in order to obtain justice, who is hereby required to examine into such complaint, either by himself or the secretaries, and to make his report to us in order to receive our further directions." Under this article, Captain Atcheson feeling himself aggrieved in being called on to take part in the religious ceremonies of a class of persons from whose religion he differed, he made a request to his commanding officer that he might be excused (from taking part in the service required. The hon. Member here read the letter of Captain Atcheson on that occasion, which ran to the following effect:—
"Malta, August 9,1822.
"Sir; I have to acknowledge the receipt of

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the letter from Lieutenant Somerville, desiring me to proceed to Fort Angelo and apply to Lieutenant—for a letter addressed to me, requiring salutes to be fired on that day, and directing me to give orders that the firing should take place agreeably to those instructions; pursuant to those instructions, I found that salutes were to be fired, and that the castle bell was to be tolled, upon the anniversary of Saint Lorenzo, the tutelar saint of the island, at the periods therein stated. It is with the greatest concern I state, that I have found myself required to take a part in the ceremonies of an idolatrous act of worship, which I conceive to be improper. I feel that if I were to take any part in those ceremonies I should be violating my most conscientious principles as a Christian and a Protestant, and I most earnestly beg you will endeavour to have me exonerated from the execution of these orders."
"I have the honour to be, &c." Addressed to Major Adams.
Now, this letter of Captain Atcheson was placed in the hands of Major Adams by the Captain himself: his request was received—no remark of displeasure at the refusal was uttered—the orders were not enforced—the duty was put on another—and Captain Atcheson felt himself justly entitled to believe he was released from the obnoxious service, and that no ill impression was created by his remonstrance. This seemed to him the worst part of the case: Captain Atcheson was charged with "disobedience to orders." He (Mr. Plumptre) denied he was guilty of any such disobedience, for he was warranted by the articles of war to remonstrate against the orders; he wrote the letter which he had just read, and which he must characterize as most respectfully and most properly worded, requesting that he might be excused from taking part in the execution of those orders, on the ground of religious principles. His request was acceded to, and he considered himself as in the same situation in which he would have been if the orders had not been issued. Under such circumstances, that an officer after having been left, as in the case of Captain Atcheson, for three months after the transaction, in the regular discharge of his duties, that he should then be arrested for disobedience to orders, and deprived of his command was, he must say, opening a door for tyranny in the army of the most oppressive nature. He did hope, too, that hon. Members would bear in mind what formed the disobedience to orders of which Captain Atcheson was accused, and for
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which he was dismissed the service, viz:—the requesting to be excused from the performance of a religious ceremony of the Romish Church—the request being acceded to without any displeasure being manifested at the supposed disobedience on the part of his commanding officer. But he would go further, and say that the remonstrance of Captain Atcheson was not only justified by the articles of war, but by the fact that the ceremony required of him was not at all military, but purely of a religious nature. It was not contained in any general garrison order, the requisition for its performance came from the priests; it was to be performed during a high religious festival of the Church of Rome, and under those circumstances, was it not natural that Captain Atcheson should remonstrate at being called on to take a share in the religious services of a church from which he conscientiously dissented? He hoped the opinion of the hon. and learned, the Member for Dublin, would have weight with the House on this subject, which he had stated on a former occasion in these words:—"What! Sir; are these to be called military duties, when I, as a Roman Catholic, know well that they are part of a religious ceremony commanded by my church!" Let the House mark that expression on the part of the hon. and learned Gentleman, and also-remember, that the hon. and learned Member added, "If he had been in Captain Atcheson's place he would have suffered himself to be torn in pieces before he performed the ceremony." Another point to which he (Mr. Plumptre) wished to call the attention of the House was this: he did not consider that Captain. Atcheson had the advantage of a fair trial. The president of the court-martial was a Roman Catholic; and though he was certain that gentlemen of that persuasion were not less honourable than those of the Protestant faith, yet, considering all the peculiar circumstances of the case, and the nature of the charge, it might be fairly questioned whether they would form the best tribunal on that occasion. Let the House further consider, that the real facts of the case were suppressed on the trial, which would not have been the case had the accusers been so confident of the justice of their charge as they ought to have been. The charge was, "disobedience to orders in not carrying into effect the order for firing salutes." Now,

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such order appeared, on a prima facie view of this charge, to have been a merely military matter—"firing salutes;" and it did appear to him, (Mr. P.) that there was in that a suppression of facts and circumstances not creditable to the framers of the charge. It was under this improper charge, thus partially framed, of "disobedience to orders," in "not firing salutes," that Captain Atcheson was held up most unjustly to the disgrace and ignominy of having been guilty of disobedience to military orders. He was aware it might be urged, that his Royal Highness the Duke of York felt very strongly upon this case, yet it appeared that the plain facts which he had mentioned, could not be gainsayed by any opinion merely, however high the authority from which it might be derived, prejudices had got into the minds of men on the subject, and it was at least as likely that they would reach to the Duke of York as to all others. He (Mr. P.) could only bring against an opinion, by none respected more than himself, in military matters, the simple case of uncontroverted, uncontradicted facts to which he had adverted. He anticipated an objection, that the bringing these cases forward would be setting dangerous precedents, and be likely to shake the grounds of military discipline. He (Mr. P.) was as anxious to keep lip military discipline as any man, though he could not agree with some, that a soldier had nothing to do but to obey. He, for one, hoped they were yet far from the day on which soldiers of this country should rely on nothing but the bare command of their officers. He was, indeed, willing to allow, that when a thing was plain matter of military duty, nothing was more clear, than that obedience was the duty of the soldier: such, for instance, as fighting on a Sunday, and scruples of that nature. But, in matters not plainly military, certainly soldiers were as much bound to exercise their conscience as any other men; and to think that they were to be restrained in that exercise by the dread of losing their commissions, was a monstrous assertion of power. It was to be recollected, that Captain Atcheson was a member of the Church of England, the second article of which strictly forbade the participation in any of the ceremonies of the Church of Rome: it was also to be considered, that by a special provision in the articles of war, Roman Catholic
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soldiers were clearly exempted from taking share in the religious ceremonies of other denominations—that regulation, dated "Horse-guards, August, 1811," expressly provided for that, and added the important provision that, "nothing contrary to the spirit of these resolutions should be enforced in the army." Was it to be supposed, that it was not the intention of the framers of the regulation referred to, to afford the same relief to Protestant as to Catholic soldiers? Certainly, it appeared to him that such intention must be implied in the words, "contrary to the spirit" of these resolutions. But, supposing after all that, Captain Atcheson might have been guilty of an error in judgment, though he did not admit that, yet still, was it right that for such an error he should be degraded, dismissed from the army, and from the service of his country by a Court Martial, when so many officers far more imprudent or even criminal were allowed to escape? He found, upon reference to a return which he had procured, that the result of many Courts-Martial was thus entered:—"tried; broken; reinstated." He had known many cases in which officers, after being found guilty of grave offences, had been reinstated; indeed, he had a list of many such cases, to which any hon. Member might have access. Amongst those would be found some, in every respect, parallel to the present case. And, upon a consideration of these circumstances he asked, was this officer, after twenty years' meritorious service, to be punished for not discharging a duty from which soldiers of another religious persuasion were exempted? He hoped his Majesty's Government would not sanction a doctrine of that kind, and that hon. Members of a different religious persuasion in the House, would have some consideration for a highly honourable man. The hon. Member concluded by moving—"That the Minutes of the Court-Martial, in the trial of Captain Atcheson, be laid upon the Table of the House."
Sir John Beckett said, that the question involved the consideration of the point whether a subordinate officer should or should not obey the orders of his commanding officer. The question was, whether the refusal of Captain Atcheson to obey the orders which he had received, was defensible on (he grounds stated by himself, or whether that which was requir-

133
ed of him did not completely fall within his military duties. He was decidedly of opinion that it did; and he must say, that if the House consented to the production of the minutes of the Court-Martial, they would inflict a fatal blow on military discipline.
Mr. Hardydefended the conduct of Captain Atcheson, and contended that he had been guilty of no disobedience of orders, but had merely remonstrated in the most respectful manner against being compelled to do an act which violated his religious and conscientious feelings.
Mr. Cutlar Fergussonsaid, he would oppose the motion. It was impossible the House could accede without opening the way to numerous evils, which it would find difficult to resist. Once admit this complaint, and every officer and soldier would constitute himself the judge of the propriety of obeying or disobeying orders; and then military discipline was gone, to the ruin of the service, and to the injury of the national interests. The charge was disobedience of orders. It was alleged on the other side, that Captain Atcheson did not disobey orders; but surely the non-execution of orders given him by the Governor himself could not but be looked on as disobedience; and, of course, punishable so long as military discipline was to be maintained in the British army. Malta was delivered up to England on the express condition that the religion and religious rites of the population should be respected and upheld. These conditions were scrupulously observed before Captain Atcheson's time, every respect was paid to the religious ceremonies of the people. Captain Atcheson had directions to respect these ceremonies, and he did not. If he (Mr. C. Fergusson) were in command, he would enforce obedience to the orders. The Court-Martial which sat on Captain Atcheson, and was the best judge of what constituted disobedience of orders, pronounced him guilty. If every one was thus allowed to make himself the judge of the propriety of military orders, the service could not stand. One man would have a scruple of conscience about firing a shot, another would have a scruple about marching on Sunday. It would be impossible, in his opinion, to allow the minutes of evidence (which, however, were so short that every one might put himself in possession of them in a quarter of an hour) to be laid on the Table of that House,
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without incurring all the evils to which his hon. Friend had adverted.
Sir John Elley, as a military man, felt serious apprehension that the present attempt to set aside the solemn decision of a Court-Martial was likely, if successful, to sap the foundation of all discipline in the British army. He conceived it to be the duty of every British officer and soldier, when stationed in a foreign country, to respect the religious ceremonies of the country in which he might happen to be; whatever might be his own private religious opinions. Did the House wish the army to become a deliberative body? If they did, where was their boasted discipline? The duty of the British soldier was to obey the order of his commanding officer, and not to argue the propriety of his commands.
Mr. O'Connellmost strongly protested against the slavish doctrine which the hon. and gallant Member had ventured to advance before a deliberative assembly of freemen. He had told a British House of Commons that the soldier had nothing to do with the orders of his commanding officer but to obey them. The soldier was bound to obey every order that was legal, but if the order were illegal, he obeyed it at his peril. Thank God, the command of a military officer was no justification of an illegal act. Let that be well understood. The contrary doctrine was fit for the despotic regions of St. Petersburgh, but it was utterly unfit for the meridian of London. The soldier and the officer were alike amenable to the law. The law was the master of both soldier and officer, and not their servant. Nobody respected the hon. and gallant officer (Sir J. Elley) more than he did for his gallant conduct, and for the rank he had attained by his merits; but nobody repudiated more strongly than he, the slavish doctrine which that gallant Officer had promulged. In the whole course of the debate, nothing had been said against the character of Captain Atcheson; but if he had had the honour of being consulted upon the subject, he certainly should have advised an inquiry into the legality of the order which was issued by the commanding officer, instead of a motion for the minutes of the evidence before the Court-Martial. He did not deny that Captain Atcheson had been guilty of disobedience; but he did most strenuously deny the legality of the order so disobeyed.
The Earl of Darlingtonopposed the

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motion. He was willing to allow that there were circumstances in extenuation of Captain Atcheson's conduct, but he was bound to say that that Officer had been guilty of a military offence.
Mr. Philip Howardwas anxious to vindicate himself from any charge of intolerance which might seem to attach itself to the vote he was about to give. He thought that Captain Atcheson ought to have obeyed orders and tired the salute; in so doing he could not have been chargeable with an act of religious conformity any more than a Catholic High Sheriff who, in the discharge of an official duty, attends the Judge (for whose personal safety he is liable) to a Protestant place of worship. He would, however, adduce a case from a source from which the hon. Gentleman who introduced the motion could not appeal—from Holy Writ—from the 5th chapter of the 2nd Book of Kings. Naaman, the Captain of the Syrian hosts, and a convert to the faith of the Hebrews, propounds the following question to the prophet Elisha. He (Mr. Howard) cited the passage from the version of the Church of England. "In this thing the Lord pardon thy servant, that when my master goeth into the house of Rimmon to worship there, and he leaneth on my hand, I bow myself in the house of Rimmon: when I how down myself in the house of Rimmon, the Lord pardon thy servant in this thing. And he (the prophet) said unto him. Go in peace." No case could more clearly show that the performance of a civil duty could not be construed to involve an art of religious conformity. At the same time, however, that he expressed his conviction that Captain Atcheson had been as faulty in his conduct as he was mistaken in his views, no one would more rejoice to hear that the Royal clemency had been extended to an otherwise deserving Officer. No one would learn with feelings of greater satisfaction that, like Sir Thomas Wilson and Lord Cochrane, he had by a gracious Sovereign been restored to his rank in the British army. The authority of the law had been already sufficiently vindicated. Military discipline having been asserted, the clemency of the Crown might, without danger to the service, be extended to this Officer who had gallantly served his king and country.
The House divided on the Motion: Ayes 27; Noes 54: Majority 27.

List of the AYES.

Baines, E.

Perceval, Colonel

Bish, T.

Plumptre, John P.

Brotherton, J.

Raphael, Mr. Sheriff

Buxton, J. F.

Scholefield, J.

Collier, J.

Sheil, R. L.

Crawford, Sharman

Thompson, Colonel

Finch, George

Tooke, W.

Gaskell, D

Wakley, Thomas

Hardy, J.

Wallace, R.

Hindley, C.

Wilks, J.

Hughes, Hughes

Williams, W.

O'Brien, C.

Wilson, Henry

O'Connell, D.

Young, G. F.

O'Connell, Maurice