HC Deb 29 April 1842 vol 62 cc1323-31
Sir R. Peel

moved that the House at its rising do adjourn to Monday.

Mr. Thesiger

said, he must move as an amendment the House do adjourn till twelve o'clock the next day. On the discussion of the resolution committing one of the witnesses before the Southampton Committee (Mr. Mabson) to custody, he had ventured to express a very strong opinion of the illegality of the warrant of committal for the alleged contempt. Certainly at that time he did not maturely consider that warrant, so as to render the opinion he expressed of very great weight. He was reproved by the hon. Member for Sheffield, whom he did not now see in his place, for having converted a doubt expressed by his hon. and learned Friend (the Solicitor—general) into an assertion. But he had since carefully considered the subject of the warrant, and he had been more confirmed in the strong opinion he expressed last night. The forms of the House did not permit him to move the immediate discharge of that individual from custody, but if the House consented to the adjournment, this person, whom he believed to be illegally and unjustly confined, must remain in custody the whole of to-morrow, the whole of Sunday, and the greater part of Monday. He was quite sure it was not the desire of the House to permit so gross an injustice. If he could satisfy them that the warrant was bad, and no contempt committed, they would feel the most earnest wish to repair the injustice committed. He hoped, under these circumstances, that the House at its rising would adjourn to twelve o'clock the next day, in order that they might have an opportunity of considering this most important question—a question in which the liberty of the subject was involved.

Mr. Mackenzie

seconded the motion. He had been informed by high authority that the warrant was invalid, and was sure the House would be anxious to repair the injustice that had been done.

The Speaker

said, that it was unnecessary for the hon. Member for Woodstock to move an amendment. It would be quite sufficient to meet with a negative the motion that the House adjourn to Monday next.

Mr. Darby

supported the motion that the House should meet to-morrow. If the House was of opinion that the warrant was not legal, and that this individual was unjustly committed, they ought to take the earliest opportunity to release him.

The Attarney-General

said, that he quite concurred that the House ought to exercise extreme caution in committing a man, and that they ought to be ready to release him as soon as they had satisfactory reasons for doing so. With respect to the validity of the warrant, he had devoted considerable time to the consideration of the subject, and it certainly was his opinion that the warrant was exhausted at the end of the last Session. At the same time he trusted his hon. Friend would not persevere in this motion. If the House was called on to meet to-morrow many hon. Members would be taken by surprise; and as it was a subject of much importance, and one on which there might be some difference of opinion, it was desirable that the House should have the fullest opportunity to consider it. He therefore hoped that no further opposition would be offered to the adjournment of the House to Monday.

Mr. Thesiger

deeply regretted to hear his hon. and learned Friend. He was only anxious to state his reasons for not acceding to the request of his hon. and learned Friend the Attorney-general, who asked for delay and deliberation; he would only say, that there was neither delay nor deliberation in imprisoning the man. He could not accede to the request.

Mr. G. Bankes

was very happy to hear that intimation. The case was one which required the most deliberate consideration; but, as the man was restrained of his liberty, that consideration, ought to be given to it at the earliest possible moment. If the forms of the House allowed it, they ought not to separate without coming to a decision.

Mr. Ferrand

would ask, could there be a particle of justice in continuing the imprisonment of a man who was pronounced guilty of no offence by the first law officer of the Crown one moment longer than could be helped? Were they to keep him in confinement merely to gratify the offended dignity, or, if he might be allowed to say it, the vindictive feelings of a majority of the committee?

Dr. Bowring

appealed to the Speaker whether the hon. Member was using proper language.

Mr. Ferrand

would at once withdraw the expression, if he was out of order in using it; but should the man be kept in custody upon no legal warrant? He appealed to hon. Members to attend in their places to-morrow, in order to remove the stigma which attached to them for committing a man for nothing.

Mr. Jervis

said, the hon. Member had travelled far out of the question before the House, which was whether there was any just ground for negativing the motion for adjourning till Monday. He thought not. There were many lawyers who were of opinion that the warrant was perfectly legal, but it was a matter that required more consideration than they could give to it by to-morrow. He would support the original motion.

Sir R. Peel

said, if the consideration of this subject was postponed till Monday, it would probably occupy a great portion of that time which might otherwise be appropriated to the consideration of the Income-tax Bill; but he wished he could foresee any satisfactory result from the House meeting to-morrow. He thought they ought to put out of consideration altogether the conduct of the witness. He would not impute to the witness wilful misconduct; there certainly was ground for doubts as to his proceedings, but his conduct might be satisfactorily explained hereafter. The warrant of Mr. Speaker might be illegal, but the consequences which might arise from declaring its illegality would be most important. It was now past one o'clock; if the House adjourned till to-morrow, the meeting would take place at twelve, and he thought there was no probability that the House would arrive at a decision on this question to- morrow. As far as his interests were concerned, it would be decidedly advantageous to him that the House should determine this question to-morrow; but he begged to suggest to his hon. and learned Friend, that the preferable course would be, to give notice of his intention to move on Monday for the discharge of the witness, on the ground of the illegality of the warrant. The meeting of the House to-morrow would interfere with the sitting of election committees, and would subject the parties concerned to considerable inconvenience and expense. He considered it was most desirable to postpone the further consideration of the question till Monday.

Sir C. Napier

said, as Mr. Attorney-General had given his opinion that the warrant of Mr. Speaker was illegal, he thought the witness should have the benefit of that opinion. He thought the witness ought to be discharged from the custody of the Serjeant-at-Arms; and he, therefore, moved that William Rouse Mabson be called to the Bar, and discharged forthwith.

The Speaker

then put the question, when

Mr. Brotherton

thought the presumption of the House ought to be in favour of the validity of the warrant. He would support the motion for an adjournment till Monday.

Mr. T. Buncombe

said, this was a most extraordinary case. An individual had been detained in custody for three days, and the House was yet uncertain whether his imprisonment was legal or illegal. The hon. Member for Woodstock (Mr. Thesiger), and the Attorney—general had expressed their opinions as to the illegality of the warrant, and he asked on what principle the House could, after these opinions, detain the witness in custody? The question was, whether or not the House was exceeding its power in detaining this individual. In his opinion the witness was unjustly detained, and if the motion of his hon. and gallant Friend were brought to a division, he should certainly vote for it. He saw no end to the inconvenience which must ensue from these proceedings if these warrants all turned out to be illegal. It was not the fault of that House, but of the legal Gentlemen who had drawn out these warrants: but, wherever the fault was, it ought not to fall on the witness who was in custody.

Mr. Thesiger

felt obliged to the hon. and gallant Member for having brought this question before the House so distinctly, and, as he felt the strongest conviction that this warrant was utterly invalid, for bringing this question before the House, in order that the prisoner might be discharged. Of course, therefore, he should not for a moment hesitate to vote for the motion of the hon. and gallant Member. It had been suggested, that the consequence of this decision would be to affect every other warrant, and every other proceeding similarly circumstanced. He apprehended, that that could be no ground whatever for their refusing to decide on the invalidity of a warrant brought distinctly before their notice, and he thought the sooner the attention of the House was called to the invalidity of these proceedings the more advantageous it would be for regulating the future proceedings of the House. He wished the House to understand the position in which it was placed by these discussions, forced on it by the decisions of the Southampton committee. He apprehended, that under the 74th section of the act of Parliament, they were imperatively called on to investigate all matters brought before them by a committee for their investigation. That section required that a committee should report to that House where any witness had misbehaved himself by refusing to give evidence, and ask for its interposition and sanction. It appeared to him that the Southampton committee had not pursued the regular course. A great deal had been said about their submitting their judgments entirely to the resolution of the committee; that all they had to do when a report was made to them by a committee of the misbehaviour of a witness was merely to carry out its views with their authority without further inquiry. He confessed that he was not disposed for one to accede to that course. When he was called on to exercise a judicial duty, he should like first of all to investigate, and to ascertain the grounds on which they were to interpose their authority, which meant imprisonment. He apprehended that it was incumbent on the committee to report to the House the evidence on which it had been called upon to decide, in order that the House might be able to decide in forming its own judgment. He confessed, that it did astonish him that they should so frequently have been called upon by the Southampton committee to interpose their authority. In the whole of the courts of law sitting throughout the day throughout the length and breadth of the land, where witnesses were examined hour after hour, it was the most rare thing in the world to hear of any witness being committed for any contempt or prevarication. What was the reason of this marked and striking difference? How was it that the Southampton committee should only have been sitting six days, and that the House should have been called upon to interfere its authority no less than three times upon the subject of the conduct of witnesses? Surely there must be some inherent defect to give rise to so striking a difference between the proceedings of this committee and the courts of law, although he was perfectly aware that there might be a distinction, arising from the peculiar character of their proceedings, as contradistinguished from the courts of law. He submitted, that no contempt whatever had been committed by the witness. It was laid down by the highest authorities, and it would be found in Hatsell's and the journals of that House, that a prorogation put an end to every proceeding in the House of Commons and in the House of Lords, except writs of error and impeachments; that the Parliamentary power of the Session had exhausted itself and was spent; and that the warrants of that Session had no more force or validity. A point had been made that having appeared in answer to the warrant the witness had waived its invalidity, and that he was therefore guilty of contempt in not producing the papers required. But he had been served with notice on being found accidentally in town, and all that could be expected of him was to answer the questions put to him, and not to produce the documents. It had been held, that if a party were from home, and received such a notice, he was not held liable to produce documents without notice of them. He had come to the strongest conclusion that the warrant was utterly invalid—that the witness was not bound to obey it, and therefore was not guilty of contempt for not producing the documents specified in the warrant; feeling this, he could not but think the House would be guilty of the grossest injustice and the greatest illegality—would destroy its credit with the country, if it were to refuse for one moment to discharge this man from a custody which ought never to have been imposed, and to repair that injustice which had been unwittingly committed, but, being committed, had fallen so heavily upon this man.

Sir W. Somerville

thought, the hon. and learned Member for Woodstock had taken an advantage of the House by bringing forward a motion of so alarming a nature in the absence of the many legal Gentlemen who usually sat on his side of the House, and whose opinions were of some authority. He regretted, too, that the hon. and learned Gentleman should have thought it right to cast reflections upon the Southampton committee, to the Chairman of which body he ought, at least, to have the courtesy of giving notice of his intention to bring this motion forward. He had heard also, with deep regret, the remarks of the hon. Member for Knares-borough, in which he designated the conduct of the committee as having been vindictive. Such remarks, especially in the absence of all the Gentlemen upon whom the House had imposed a most painful duty, were highly unbecoming. He should vote against the motion of the hon. and gallant Commodore for the release of this individual at once, without hearing both sides. Such a course would lead to confusion, and of the result no one could see the termination. But so highly did he value the liberty of the subject, that he confessed, if it should be proposed to adjourn to twelve o'clock this day, he should, under the special circumstances of the case, be bound to vote for it.

Mr. R. C. Scarlett

was convinced that no danger would arise from voting in favour of the motion of the hon. and gallant Member for Marylebone, as a mere discharge of the prisoner would not involve the question of the legality or otherwise of the warrant.

Lord Worsley

hoped the House would neither agree to the motion of the hon. and gallant Commodore nor to the proposition to sit again this day. So unusual was the circumstance of the House sitting on Saturdays that he did not doubt many hon. Members had made arrangements to leave town: a thin House would be the consequence, and under such circumstances no satisfactory conclusion could be come to. He fully concurred in all that had been said on the subject by the right hon. Baronet the Member for Tamworth.

Sir R. Peel

said, the present question was new and entirely different from that which had just now been discussed. He should give his decided opposition to the proposition of the hon. and gallant Member for Marylebone, which was quite without a parallel. The motion was to discharge him on account of the doubt as to the legality of the warrant, and yet this was to be done without giving an opportunity to those hon. Members who usually took part in great constitutional questions to express their opinion upon it, and the House was now called upon without further notice, to reverse the decision to which it had come to last night. In his experience in Parliament he had never known anything like such a proposition. To reverse without notice a decision carried by a majority of four or five to one last night, would be to establish a most dangerous precedent, by which all parties would be sufferers. The House was full at an early period of the evening, and at 5 o'clock it ought to have been notified that a motion for the discharge of the party now in confinement would be brought forward; but on the contrary, another notice was given, that it would be moved that the House should adjourn to 12 o'clock to-day, and yet the hon. and gallant Member without any notice at all, moved, at 1 o'clock at night, that the party be discharged. Nothing could be more irregular.

Sir T. Acland

expressed his entire concurrence in the observations of the right hon. Baronet at the head of the Government.

Mr. Jervis

would not debate the legality of the warrant, because they had not the warrant before them, but would appeal to the hon. and learned Member for Woodstock and ask if he thought it fair that this motion should be brought forward as an amendment to the ordinary motion for adjourning the House? If hon. Members, knowing that the motion was to come on had come down to carry it, he would say that such conduct could not command respect out of doors.

Sir J. Tyrell

said, that all penal statutes were to be construed literally, and there being a doubt of the legality of the warrant the prisoner ought to have the benefit of it, and therefore he should vote with the hon. and gallant Commodore.

Captain Bernal

hoped the gallant Member would press his motion, because after the opinions which the highest legal authorities in the House had expressed, every moment they retained him in custody they were doing injustice.

Mr. Borthwick

would vote for the earliest possible meeting of the House for the purpose of settling the question, and against the motion of the hon. and gallant Commodore.

Mr. M. Attwood

said, he should vote with the hon. and gallant Commodore.

Mr. Godson

as a member of the committee, declared his opinion that the witness ought never to have been committed.

Sir C. Napier

said, if the right hon. Baronet would agree to sit to-morrow be would withdraw his motion.

Mr. Blewitt

merely wished to say that he thought it was the duty and business of every Member of this House to form an opinion—to form an opinion for himself on every subject, without reference to the opinion of any other person. He did not see why he should be bound by the opinion of the Attorney and Solicitor—General; and they ought to have the warrant printed according to the usual practice.

The House divided on the question that the words proposed to be left out stand part of the question—Ayes 67; Noes 14; Majority 53.

List of theAYES.
Acland, Sir T. D. Ferguson, Sir R. A.
Acland, T. D. Forester, hn. G.C. W.
Acton, Col. Fuller, A. E.
Allix, J. P. Gaskell, J. Milnes
Antrobus, E. Graham, rt. hn. Sir J.
Bankes, G. Greene, T.
Baring, hon. W. B. Hamilton, W. J.
Beckett, W. Hardinge, right hon.
Berkeley, hon. H. F. Sir H.
Blake, M. J. Henley, J. W.
Blewitt, R. J. Jervis, J.
Boldero, H. G. Leicester, Earl of
Borthwick, P. Lindsay, H. H.
Bowring, Dr. Lowther, J. H.
Broadley, H. Mackenzie, W. F.
Broadwood, H. M'Geachy, F. A.
Brotherton, J. Manners, Lord J.
Buller, Sir J. Y. March, Earl of
Cavendish, hon. C. C. Masterman, J.
Collett, W. R. Mitcalfe, H.
Colvile, C, R. Morgan, O.
Cowper, hon. W. F. Morris, D.
Cripps, W. Mundy, E. M.
Darby, G. Murray, C. R. S.
Denison, E. B. Norreys, Sir D. J.
Dickinson, F. H. O'Brien, A. S.
Duncombe, hon. A. Peel, right hon. Sir R.
Ebrington, Visct. Pollock, Sir F.
Egerton, Sir P. Power, J.
Eliot, Lord Rushbrooke, Col.
Escott, B. Somerville, Sir W. M.
Stanley, Lord Worsley, Lord
Trotter, J.
Wawn, J. T. TELLERS.
Wood, B. Fremantle, Sir T.
Wood, G. W. Sutton, hon. J.
List of the NOES.
Attwood, M. Hodgson, R.
Bailey, J. jun. Plumridge, Capt.
Baskerville, T. B. M. Scarlett, hon. R. C.
Bernal, Capt. Scott, hon. F.
Duncombe, T. Tyrell, Sir J. T.
Ferrand, W. B.
Fleming, J. W. TELLERS.
Forbes, W. Napier, Sir C.
Godson, R. Thesiger, F.

The House again divided on the question that the House will at its rising adjourn till Monday—Ayes 39: Noes 42; Majority 3.

List of theAYES.
Acland, Sir T. D. Hodgson, R.
Acland, T. D. Jervis, J.
Acton, Col. Lindsay, H. H,
Baring, hon. W. B. March, Earl of
Berkeley, hon. H. F. Mitcalfe, H.
Blewitt, R. J. Morris, D.
Boldero, H. G. Murray, C. R. S.
Bowring, Dr. Norreys, Sir D. J.
Brotherton, J. Peel, rt. hon. Sir R.
Buller, Sir J. Y. Pollock, Sir F.
Cavendish, hon. C. C. Power, J.
Colvile, C. R. Scarlett, hon. R.C.
Cowper, hon. W. F. Stanley, Lord
Denison, B. Wawn, J. T.
Ebrington, Visct. Wood, B.
Egerton, Sir P. Wood, G. W.
Eliot, Lord Worsley, Lord
Ferguson, Sir R. A.
Gaskell, J. Milnes TELLERS.
Greene, T. Fremantle, Sir T.
Hardinge, right hon. Sutton, hon. J.
Sir H.
List of theAYES.
Allix, J. P. Fleming, J. W.
Antrobus, E: Forbes, W.
Attwood, M. Forester, hn. G. C. W.
Bailey, J. jun. Fuller, A. E.
Bankes, G. Godson, R.
Baskerville, T. B. M. Hamilton, W. J.
Beckett, W. Henley, J. W.
Bernal, Capt. Leicester, Earl of
Blake, M. J. Lowther, J. H.
Borthwick, P. MGeachy, F. A.
Broadley, H. Manners, Lord J.
Broadwood, H. Masterman, J.
Collett, W. R. Morgan, O.
Cripps, W. Mundy, E. M.
Darby, G. Napier, Sir C.
Dickinson, F. H. O'Brien, A. S.
Duncombe, T. Plumridge, Capt.
Duncombe, hon. A. Rushbrooke, Col.
Escott, B. Scott, hon. F.
Ferrand, W. B. Somerville, Sir W. M.
TELLERS.
Trotter, J. Mackenzie, W.
Tyrell, Sir J, T. Thesiger, F.
The Speaker

wished the House to decide at what time he should take the Chair?

Mr. Borthwick

moved that the Chair be taken at 2 o'clock.

Agreed to.

The House adjourned.