HC Deb 20 August 1835 vol 30 cc776-83
Mr. Hume

appeared at the Bar, and stated that he was directed to report to the House from the Select Committee appointed to inquire into the nature and constitution of Orange Lodges in Great Britain, that Lieutenant-Colonel Fairman, Deputy Grand Treasurer and Deputy Grand Secretary of the Orange Institution of Great Britain, had that morning appeared before the Committee, and had been informed of the Resolution of the House, that he was bound to produce the book alluded to in his evidence; and he was asked whether he had brought the book with him; he said that he had not, and persisted in refusing to produce it.

The Report was laid on the Table.

Mr. Hume

observed, that there was but one course to pursue, after the course so pertinaciouly persisted in by Lieutenant-Colonel Fairman—namely, that he should he committed to Newgate for a breach of privilege of the House. He concluded with moving "That Lieutenant-Colonel Fairman had been guilty of a breach of the privileges of the House."

Mr. Henry Maxwell

wished to observe, that two or three friends, with himself, as a deputation from an Orange Institution, had that morning waited upon Lieutenant-Colonel Fairman, to request him to comply with the wish of the House. That gentleman, however, said that he could not conscientiously comply with the desire of the House. He (Mr. Maxwell) regretted the determination that Colonel Fairman had come to, but felt bound to state what he had, in justice to the Gentlemen who were in the habit of acting with Colonel Fairman in common with the Orange institution.

Mr. Jackson

expressed a similar opinion; and added that the Deputy Grand Secretary of the Orange Institutions in Ireland had produced a book before the Committee up stairs, in which there were some entries respecting that institution, although it was a private document. He was sorry that Colonel Fairman did not follow this example.

Mr. Hume

remarked that every indulgence had been shown to the witness by the Committee, and he had repeatedly been urged to produce the book.

The Motion was agreed to.

The hon. Member then stated that it was with deep regret he made the next Motion, but as Colonel Fairman had chosen to adopt such a course as greatly to impede, if not to stop, the inquiry of the Committee up stairs, it became his duty as chairman of the Committee to do so. He then moved that Lieutenant-Colonel Fairman be committed to his Majesty's gaol of Newgate; and that the Speaker do issue his warrant accordingly.

Agreed to.

Mr. Hume

submitted to the House whether the Committee were to be stopped short in their inquiry in consequence of the witness having withheld the book in question. He had no hesitation in saying that the inquiry before the Committee would be greatly impeded if the book were not produced. He was of opinion that the Sergeant-at-Arms should be sent to Colonel Fairman's house to search for the book.

Mr. Warburton

said there could be no doubt as to the power of the House in cases of this kind. They had precedents that would fully justify them in adopting the course suggested by his hon. Friend, namely, causing a search for the book. This point was decided last night by the ease referred to by his hon. Friend the Member for Greenock, namely, when the Sergeant-at-Arms accompanied Captain Sandon to his lodgings to search there for papers having reference to the inquiry respecting the Duke of York. That case, however, differed in some respects from the present, for the person offered to go and fetch papers, and it was thought not right to let him go except in the custody of the Sergeant. This precedent was not so strong as one he had found in the Journals. He alluded to the proceedings adopted with regard to the Directors of the South-Sea Company in 1720. On the 23rd of January, 1720, the House ordered that all the papers of Mr. Robert Knight, the cashier of the Company, should be seized, and a deputation of Members was directed to proceed to his house and search. At the same time four Directors of the Company were expelled the House, and two Members were ordered to proceed and search their houses for papers, &c, connected with the South-Sea Company. These papers were then referred to the Committee of Secresy appointed to investigate the affairs of the Company. According to this principle there could be no doubt as to the power of the House or its right to send for persons, papers, and records. Again, when the debate took place as to what was to be done with respect to Captain Sandon, there appeared to be no manner of doubt as to the power of the House in this respect. He should propose that the House should adopt similar proceedings to those pursued in the cases he had mentioned, namely, that the Sergeant-at-Arms should accompany Colonel Fairman to his house, and search for the book. In order that there might be some Motion which would enable the House to discuss the subject, he would propose that the Sergeant-at-Arms go immediately and search the house of Colonel Fairman for this book.

Lord John Russell

suggested to his hon. Friend, that unless it was intended to act on this Motion, it would be inconvenient to propose it. The House should take care to act with due caution in a case of this kind, and he felt that it would be very inconvenient if this motion was made and discussed, and not agreed to. He agreed with his hon. Friend, that there was no doubt as to the power of the House in cases of this kind. If his hon. Friend did not press the House to a Vote on his motion, and it was withdrawn, it might lead to inconvenience.

Mr. Warburton

was only anxious to raise a question on which the debate might turn, and to preserve the order of the proceedings of the House.

The Speaker

said that he considered, in the view of the case expressed by the noble Lord, unless there was some urgent cause for the adoption of this mode of proceeding, it might be found to be attended with considerable inconvenience. There could be no doubt that when the House was engaged in an important investigation, and when impediments were thrown in the way of inquiry, that its powers were very great, and ought not to be curtailed. Unless, however, in cases of necessity, this power ought not to be exercised. He would submit to the hon. Member whether this would not be the best course to pursue in the present case.

Mr. Warburton

, to give hon. Members an opportunity of delivering their opinions, would move that the House do now adjourn.

Mr. Wallace

thought this person should be compelled to give up the book. The Committee had learnt from the Assistant-Secretary, that all the letters connected with Orange affairs began in a particular way. There could be no difficulty, therefore, in selecting them. This individual had also in his possession a large portion of the recent correspondence of the Orange Institution. He was sorry to vote for depriving Colonel Fairman of his liberty, but it was impossible to refrain from doing so under the circumstances of the case. He would move, if no other Member of greater experience did so, that the Sergeant-at-Arms proceed to Col. Fairman's residence and search for this book.

Mr. Hardy

said, that the precedent adverted to by the hon. Member for Bridport, namely, the case of the individuals who were implicated in the South Sea transactions, in 1720, did not apply to the present occasion. The individuals concerned in the former case were implicated in a charge of fraud, and in such a case the House might very properly be called upon to exercise its powers, for the purpose of producing the evidence of that fraud. But in the present case no such charge, no pretence of such a charge, existed. On the contrary, it was contended that the book demanded of the witness by the was proved not to be the property of, or devoted to the business of, the Orange Associations, but to contain in great part matters connected with the private affairs of the witness. Now, under such circumstances, he believed a Court of law would never oblige a witness to produce any book or document of the kind, though he believed that it would sanction the witness's having the book before him, in order to refresh his memory.

Mr. Hume

observed, that it was quite clear that the hon. Member for Bradford had not listened to the previous discussion on this subject. If the hon. Member had done so, he would have been aware that the House had yesterday come to the resolution that the book should be produced. It was not a private book, because it was well known to contain matters relating to the Orange Society. The witness was asked twenty times to produce the book, and read those parts from it which related to the Orange Institution, and he pertinaciously refused to do so. The witness also admitted that this book was the only record of the transactions of the Society for a certain period. If the House thought fit that the inquiry should stop, of course it could make a virtual order to that effect, by allowing this book to be withheld.

Sir Robert Inglis

regretted that the advice of the Speaker had not been followed, and a stop put to the present discussion. He was anxious to protest against hastily adopting any proceedings in this matter, and thought that it would be better to postpone the subject, or adopt the suggestion of the hon. Member for Bradford.

Mr. Pryme

was surprised at the doctrine laid down by the hon. and learned Member for Bradford. It was a thing of every-day notoriety, that witnesses in Courts of justice were called upon to produce letters and books under the writ subpœna duce tecum.

Mr. Aglionby

hoped that his hon. Friend, the Member for Bridport, would persist in moving that the book be sent for. After so many precedents, he thought that the House ought not to hesitate as to the course to be pursued.

Mr. Shaw

said, it having been decided that the book should be given up, Colonel Fairman was, in his opinion, bound to obey the order of the House, but he hoped the House would not attempt to exercise such a power as to send to the witness's private residence to seize the book. The better course would be for them to proceed against him for his refusal to obey the order of the House.

Mr. Hume

said, he had been waiting to see whether the House would have courage enough to support its Committee. If his hon. Friend would withdraw his motion for an adjournment, he would now give notice that he would make a motion tomorrow, the object of which would be to obtain possession of the book.

Lord John Russell

had no hesitation in saying, that he thought the House had the power to seize the papers of individuals; but it was only on great and extraordinary occasions that it ought to use that power. And he would add, he believed it was a power which would never be lost to the House except by the misuse of it. No doubt that in the South-Sea case the House properly exercised the power when it gave an order for the papers of several individuals to be seized; on that occasion the House disposed of estates by an Act of Parliament, which was considered a penal act. That was a great occasion calling for an extraordinary remedy. With respect to the other case, his hon. Friend the Member for Bridport, in bringing it forward, admitted, with his usual candour, that in one particular it did not apply to the case now before them. The individual there stated his readiness to produce the paper before the Committee. Having been found guilty, however, of prevarication, the House did not choose to trust him on his simple promise to go to his home to fetch the note, but ordered him into custody, and sent the Sergeant-at-Arms with him to his lodgings in order that he might give it to the Sergeant-at-Arms, who was to produce it to the House. If they exercised the power in this case, they might come to a very different issue. In the former case the witness having said that he was willing to produce the note, no doubt, took his keys with him, and gave up the possession of it; but Colonel Fairman had refused to produce the book, and it was most probable that he would continue to refuse. If, then, they sent the Sergeant-at-Arms to his house, with an order to seize the book, he would probably have to break open the desk, or other place in which it might be deposited. He did not deny the power of the House to do this, but it would be carrying the exercise of the power further than was done in the case of Captain Sandon. He approved of the House voting in this instance, that the refusal of Colonel Fairman to produce the book was a breach of privilege, and that for such an offence he should be committed to Newgate; but he must say, he should be sorry if the Motion to which the hon. Member for Middlesex had adverted were made, and still more sorry if it were carried. His vote would be given decidedly against any such motion.

Mr. Hawes

thought the course recommended by the hon. Member for Middlesex justifiable under the circumstances.

Mr. Charles Buller

said, begging the noble Lord's pardon, he would declare that the present Question, respecting Orange Lodges, was of much greater importance than any question relating to a set of miserable speculators. The evidence showed that a regular conspiracy had been organized in the civil and military institutions of the empire—an execrable conspiracy. He admitted he had used too strong a term, and apologized for it; but he would say that a most dangerous conspiracy existed, which gave rise to the most abominable party and religious feelings. Captain Sandon, it was true, consented to give up the note, but he did so in a fright, and the order the House made was not conditional; it was a simple order that the Sergeant-at-Arms should go and seize the papers.

The Solicitor-General

said, that he thought the House would do well as far as possible to keep within the ordinary course of tribunals with respect to witnesses, and the production of evidence; and he believed that it was the general practice not to enforce the production of books or documents against the inclination of the parties. At the same time, he would admit that there certainly might, and sometimes did, exist cases in which the salus populi suprema lex might render it necessary to pursue a different and more compulsory course. But, he would ask, was this such a case? Would the inquiry before the Committee become a nullity for want of the book which the witness declined to give up? An hon. Member behind him said, that the book was not essentially necessary, but that it was only on account of the contempt of the witness that the House should be called upon to act, and vindicate its dignity. And how was it proposed to punish the offender for this contempt? Why, by compelling him to bring forward a book which he did not care a single farthing about. His conviction, therefore, was, that no case had been made out for the interference of the powers of the House in the present instance. He could not coincide with what had fallen from the hon. and learned Member for Liskeard, namely, that it would be construed that the House, if it dissented from the Motion of the hon. Member for Bridport, did so because it was afraid of doing its duty, and vindicating its privileges. The House was, very properly, jealous of its rights and powers; but yet it was tender of using those powers, so irresponsible in their nature, except in a case of commensurate importance.

Mr. Hawes

explained, that he had not said, that the production of the book in question was of no importance to the inquiry before the Committee. On the contrary, he had stated, that he believed the contents of the book to be highly important.

The Motion for the adjournment, was withdrawn, and

Mr. Hume gave notice, that he would on the following day, bring forward a Motion for the purpose of compelling the production of the book.